State Of Wash. v. Coleman

• Decision Date: 10 May 2010
• Docket Number: No. 64923-0-I.,64923-0-I.
• Citation: 155 Wash.App. 951,231 P.3d 212
• Parties: STATE of Washington, Respondent,v.Donshae Eugene COLEMAN, Appellant.
• Court: Washington Court of Appeals

155 Wash.App. 951

231 P.3d 212

STATE of Washington, Respondent,v.Donshae Eugene COLEMAN, Appellant.

No. 64923-0-I.

Court of Appeals of Washington,

Division 1.

May 10, 2010.

COPYRIGHT MATERIAL OMITTED

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

MEYER, J.P.T.^*

¶ 1 Donshae Coleman was convicted of first degree robbery as an accomplice, second degree assault, possession of a stolen motor vehicle, and bail jumping. He appeals, claiming prosecutorial misconduct and improper jury instructions. He also challenges the accomplice liability statute's constitutionality. We reject these arguments. Because the State failed to offer evidence that Coleman was absent at the time designated on his notice of hearing, we reverse his bail jumping conviction and remand for resentencing.

FACTS

¶ 2 Detective Matt Renschler testified that an informant, Sean McGrath, twice arranged to buy cocaine and ecstasy from Sean Phillips. Renschler and other officers set up undercover with a view of McGrath's vehicle. Detective Renschler monitored McGrath over a hidden wire. Renschler observed a black Dodge Magnum arrive, drop off Phillips, and drive away. Over the wire, Renschler heard Phillips enter McGrath's car and McGrath say, “It's yours, it's yours, just take it.” He saw Phillips run back toward where the Magnum had dropped him off. The officers followed but lost Phillips.

¶ 3 The officers drove a few blocks to where Phillips would likely emerge. Renschler saw the Magnum driving slowly down the street toward him. They stopped in the street, blocking most of it, and attempted to stop the Magnum. The Magnum charged Renschler's partner, swerved around their vehicle, and sped away. The officers chased the Magnum. They turned a corner and saw it parked. The driver's door was open, and Coleman was beginning to walk away. He was forcefully subdued and arrested. They determined the Magnum was stolen and contained a stolen shotgun. Phillips was also arrested.

¶ 4 Phillips testified that before trial he made a plea agreement to testify against Coleman and received a 45 month sentence for first degree robbery. He had known Coleman for several years. Over objection, he said they sometimes dealt drugs together and that Coleman had driven him to over 10 sales. He told Coleman his plan to rob McGrath a day before it occurred. Coleman said to call him in the morning and they would “meet up and figure it out.” Coleman procured a gun for him and drove him to the McGrath robbery. They planned for Coleman to pick him up after the robbery.

¶ 5 Coleman was sentenced to 111 months for the robbery; the other sentences run concurrently.

PROSECUTORIAL VOUCHING

¶ 6 The trial court admitted Phillips' plea agreement without objection. Phillips agreed to participate in any additional truthful, complete, and comprehensive interviews. The defendant's most important obligation pursuant to this agreement is to testify truthfully. In the event that the defendant is deceptive, untruthful, incomplete, the State could terminate the agreement.

¶ 7 At trial, the State offered the agreement on direct examination and elicited testimony from Phillips concerning it. In closing, the State did not mention the agreement's ‘testify truthfully’ provisions. The State told the jury to carefully examine Phillips' testimony as an accomplice. The defense offered no objections concerning the plea agreement throughout the trial. Instead, Coleman used the agreement to tactical advantage by emphasizing that Phillips had lied before and after signing it. Coleman now argues that it was prosecutorial misconduct to offer the plea agreement and to question Phillips about it. He argues that the prosecutor used the agreement to impermissibly vouch for Phillips' credibility.

¶ 8 To raise prosecutorial misconduct on appeal when no objection was made at trial, the defendant must show that the alleged misconduct was so flagrant and ill-intentioned that no curative instruction would have obviated the prejudice it engendered. State v. O'Donnell, 142 Wash.App. 314, 328, 174 P.3d 1205 (2007). It is improper for the prosecution to vouch for the credibility of a government witness. Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness's testimony. United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980). To the extent that the State examined Phillips about the agreement, there was no misconduct. State v. Green, 119 Wash.App. 15, 24, 79 P.3d 460 (2003) review denied, 151 Wash.2d 1035, 95 P.3d 758 cert. denied, 543 U.S. 1023, 125 S.Ct. 660, 160 L.Ed.2d 501 (2004).

¶ 9 The two leading cases in the State of Washington addressing the admissibility of truthfulness provisions in plea agreements are Green, and State v. Ish, 150 Wash.App. 775, 208 P.3d 1281 review granted in part by 167 Wash.2d 1005, 220 P.3d 783 (2009). While they purport to differ in their reasoning, we find that they differ more on the facts than in analysis.

¶ 10 In Ish, the trial court admitted the State's plea agreement with Ish's cellmate, David Otterson. The court redacted a provision requiring Otterson to take a polygraph at the State's request, ruling that the prosecutor's opinion of a witness's credibility was irrelevant and inadmissible. Ish, 150 Wash.App. at 781, 208 P.3d 1281. At trial, the court allowed the State to examine Otterson about his promise in the agreement to testify truthfully. On cross, Ish elicited testimony that Otterson had violated other provisions of the agreement.

¶ 11 On appeal, the court compared the plea agreement's testify truthfully language to testimony about a child's promise to tell the truth when interviewed by police. The court reasoned that just as the child's promise set the context for the child's statements in the interview, Otterson's agreement set the context of his testimony. Ish, 150 Wash.App. at 785-87, 208 P.3d 1281 (discussing State v. Kirkman, 159 Wash.2d 918, 925, 155 P.3d 125 (2007)). The court determined that admission of the agreement did not constitute improper vouching.

¶ 12 In reaching its conclusion, the court in Ish stated that it declined to follow Green. Ish, 150 Wash.App. at 786, 208 P.3d 1281. In Green, this court reviewed the admissibility during direct examination, over objection, of an immunity agreement. The court noted that Green particularly objected to the part of the agreement that stated: ‘The intent of this agreement is to secure the true and accurate testimony of your client concerning his knowledge of the events surrounding the shooting and robbery of Rio Cole.’ Green, 119 Wash.App. at 22, 79 P.3d 460. The agreement also required the witness to ‘testify truthfully’ and contained the substance of the testimony. Green, 119 Wash.App. at 24 & n. 18, 79 P.3d 460 (noting that below, Green had abandoned his initial objection to the portion containing the substance of the testimony).

¶ 13 The court analyzed admission of the agreement under State v. Jessup, 31 Wash.App. 304, 641 P.2d 1185 (1982). There, the court found statements in an immunity agreement that the witness was in protective custody irrelevant and prejudicial. Green, 119 Wash.App. at 23-24, 79 P.3d 460. Relying on Jessup, the court in Green found the statement of the prosecution's intent to secure the witness's testimony and the testify truthfully language prejudicial. Green, 119 Wash.App. at 24, 79 P.3d 460. The court stated that such provisions should be redacted upon request:

While the immunity agreement was admissible after Cole's credibility was attacked, we agree that the language that the intent of the agreement was to secure the true and accurate testimony and the provision that Cole testify truthfully should have been redacted if such a request had been made. These provisions were prejudicial and improperly vouched for Cole's veracity.

Green, 119 Wash.App. at 24, 79 P.3d 460.

¶ 14 We do not find Ish at odds with Green. While following Ish's reasoning, we agree with the Green court that irrelevant and prejudicial statements should be redacted from immunity or plea agreements upon request. We also acknowledge that under certain circumstances, such as those in Green, statements requiring the witness to testify truthfully might be construed as vouching. In Green, the requirement that the witness testify truthfully was admitted in the context that the State knew the witness's testimony and entered the agreement to secure it. But the circumstances regarding the agreement in Ish were different. There, the trial court redacted an irrelevant and prejudicial provision so that the witness's promise to testify truthfully stood alone, not in the context of the State's intent.

¶ 15 Similarly here, there was no declaration of the State's intent in entering the agreement. There were no aspects of the agreement that implicated Coleman's guilt. As in Ish, the only statements in contention were that Phillips testify truthfully at trial. We find that under the circumstances here, the agreement merely set the context for Coleman's testimony.

¶ 16 Further, as in Ish, Coleman did not object to admission of the plea agreement and did not request redaction. He had tactical reasons to do so. In light of Ish and consistent with Green, Coleman has not shown conduct so flagrant and ill-intentioned that a curative instruction could not have fixed any resulting prejudice. We, therefore, find no error in the admission of the agreement save for its admission before Phillips' credibility was attacked. The error was harmless, however, as the agreement was not prejudicial and was admissible for rehabilitation. Green, 119 Wash.App. at 24-25, 79 P.3d 460.

¶ 17 Coleman also claims ineffective assistance of counsel because his trial attorney confirmed during cross-examination that...