State v. Barton, No. 23036-8-III (WA 2/28/2006), 23036-8-III
| Decision Date | 28 February 2006 |
| Docket Number | No. 23036-8-III,23036-8-III |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent and Cross Appellant, v. KENNETH BRIAN BARTON, Appellant. |
Appeal from Superior Court of Spokane County. Docket No: 02-1-03433-1. Judgment or order under review. Date filed: 05/21/2004. Judge signing: Hon. Maryann C Moreno.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Kenneth B. Barton appeals his convictions for the crimes of taking a motor vehicle without permission and first degree burglary. He contends (1) the State unconstitutionally commented on his choice to remain silent, (2) the trial court exceeded its statutory sentencing authority by entering no contact orders against him for a longer time than the term of his community placement, and (3) his offender score was miscalculated under Apprendi1 and Blakely2 by using his juvenile offenses.
The State's cross-appeal alleges the trial court erred in calculating Mr. Barton's offender score in washing out certain juvenile class C felony offenses by failing to consider an intervening misdemeanor conviction. We affirm.
On December 7, 2002, Kenneth Barton was drinking with his girl friend, Tricia Anyan, and her best friend, Stacy Floyd. Over several hours, Mr. Barton and Ms. Floyd each consumed about six beers and a half pint of vodka. Mr. Barton and Ms. Anyan began arguing. Ms. Anyan, who was driving Ms. Floyd's car, pulled the car over and got out of the vehicle with Ms. Floyd. Mr. Barton then pushed Ms. Anyan aside and drove away in Ms. Floyd's car. Soon, Mr. Barton crashed into a parked street grader and he left the scene. Officer Dan Lesser investigated. Officer Lesser testified blood was all over the steering wheel, suggesting to him that the driver had hit his or her head.
Soon after the crash, someone broke into Virginia Stephan's home and began turning on lights and making loud pounding noises. The lights and noises woke Ms. Stephan. She encountered a white male, who was covered in blood, opening a dresser drawer in one of her bedrooms. Ms. Stephan confronted the man who then pushed her out of the way and into a wall as he fled. Ms. Stephan immediately called 911.
Officer Dean Draper responded to the 911 dispatch that described the suspect as a `white male covered in blood . . . bleeding profusely from the face,' and wearing blue clothing. Report of Proceedings (RP) at 37. While responding, Officer Draper saw someone who fit the dispatch description, later identified as Mr. Barton, apparently trying to hide behind some bushes near Ms. Stephan's home. Officer Draper approached and questioned Mr. Barton about his bloody appearance.
Mr. Barton initially claimed to have been `jumped' and requested medical attention. Id. at 40. Officer Draper testified Mr. Barton appeared intoxicated. Officer Draper asked Mr. Barton why he `went into the lady's home.' Id. Mr. Barton sarcastically responded, `what home?' Id. Officer Draper then asked Mr. Barton how he got into `her home.' Id. at 41. Mr. Barton responded, `The door.' Id. When asked why, Mr. Barton replied, `To use the phone.' Id.
Meanwhile, Officer Lesser heard about Officer Draper's activities by radio and connected Mr. Barton to the accident he was investigating. He then drove to the location where Officer Draper was questioning Mr. Barton. When Officer Lesser asked Mr. Barton whether he drove the vehicle in the crash, Mr. Barton responded with the same sarcastic tone he had been using with Officer Draper. Mr. Barton eventually indicated he was the driver. Officer Lesser characterized Mr. Barton's attitude during the exchange as `smart-ass' and `flippant.' RP at 78-79.
Mr. Barton was charged with taking a motor vehicle without permission, attempted burglary,3 and first degree burglary.
At trial, the State elicited testimony from Officer Lesser regarding Mr. Barton's evasive responses to questions about whether he had been driving Ms. Floyd's car when it crashed. Significantly, Mr. Barton had already been talking with Officer Draper about the Stephan burglary. Officer Lesser testified without defense objection:
Q. . . . {D}id he immediately say `yes' when you asked the question?
A. Not at first, no.
Q. Okay. Why don't you describe how that occurred then?
A. You could tell he was intoxicated, he was kind of — he was — wasn't uncooperative, but he wasn't cooperative. He was kind of being a smart-ass with the other officers.
Q. When you say that, why do you say that?
A. Just based upon his, just, again, his response and his answers, just how he was talking back to us.
Q. When you say based upon his response, what was it about his responses that gave you the impression that he was being — and I will just use a short version — smart with the officers?
A. Just based on how he responded to our questions. He would be flippant, you know, I don't know how to explain it. Just — just the way — how he answered our questions.
Q. Okay. Did he immediately answer your question when you asked him if he was driving?
A. No. I believe, if I remember right, it was like the third or fourth time when I asked him if he was driving that he actually said yes.
After a lunch recess, defense counsel asked for a mistrial, arguing this questioning violated Mr. Barton's right to remain silent. She stated she `didn't object at the time since I have a motion in limine.'4 RP at 96. In denying the mistrial motion, the trial court partly reasoned:
My recollection of the testimony was that Officer Lesser was, in the context of testifying with regard to his contact with the defendant at the scene, and he indicated that at first the defendant was acting smart with the officers in his responses. He was flippant and then he did remark at one point that the defendant did not immediately respond to questions. First of all, there was no objection made at the time, and there were several questions with regard to it and there was nothing raised in terms of an objection. If you want to reserve the matter, you have the right and duty to object at the time and allow the Court to make a ruling on that, and then if I was going to sustain the objection, I would then order the jury to disregard. So because of the failure to object, I don't know if that falls within the violated {sic} error of {sic} doctrine,5 it very well might. That's one prong of this analysis.
Secondly, if it was error, it would be error prejudice {sic},6 so that Mr. Barton could not have a fair trial. I don't think in the context in which it was made in terms of — I didn't interpret this as a specific comment that he was being uncooperative and not wanting to talk. It was more of an observation of the demeanor of the defendant at the time, and I don't think it rises to the level of proof required for a mistrial. So I will deny the request for a mistrial.
Mr. Barton called Dr. Clay Jorgensen to support his diminished capacity defense. Dr. Jorgensen testified Mr. Barton was competent to stand trial, but lacked the capacity to form the intent required to commit first degree burglary due to his head injury and state of intoxication.7 Dr. Jorgensen partly testified:
Q. . . . Now, the police, after they contacted Mr. Barton, said that he seemed to be behaving in a way that he could understand things?
A. Yes.
Q. How do you interpret that?
A. Well, it's really hard to know what is inside of somebody's head. You ask them questions and they answer, give you some kind of an answer. That doesn't mean that they are rational, it just means that they were able to respond in a social way.
Q. Okay. Would that sort of interaction, is it possible for that interaction to be strained even though someone may interpret it as being understanding, I mean, could it seem to be a little off?
A. Yeah, it could be. For example, they read him his rights and he said he understood them. He said he understood them. That doesn't mean he did, but he was able to say, Yeah, I understand.
Q. Yeah.
A. And then he declined to talk anymore, which could be, somebody could say, Well, that means he was showing good rational sense but it — it means that no more than if he had said, Yeah, I will talk, means he had good rational sense.
RP at 204-05 (emphasis added).
In response, the State elicited the testimony of Dr. Trevor Travers. Regarding how Mr. Barton's behavior would indicate the ability to form intent, Dr. Travers testified:
Q. You also have some reference in your report about the significance you have about the fact that, I guess, a dialog between Mr. Barton and the officer when the officer advised him of his constitutional rights; is that right?
A. That's correct. And I believe that came from the police report though not my interview with Officer Draper. But according to the police reports, Mr. Barton was read his constitutional rights and he indicated that he understood them and refused to waive them. . . . He acted on his rights to exercise his rights to refuse to talk and to refuse the blood draw.
Q. Well, Doctor, what is it about that kind of exchange that would indicate to you that he was able to form an intent on December 8th?
A. I believe that it indicates he was able to understand the information that was presented to him and to make a decision to act on that information to exercise his right.
RP at 249-50. This testimony came in without defense objection.
During closing, the State argued Mr. Barton's conduct showed he was capable of forming intent and knew what he was doing. The prosecutor reminded the jury that Mr. Barton was `evasive' when asked if he was the driver of Ms. Floyd's car when it crashed. RP at 307.
The jury found Mr. Barton guilty of the charges of taking a motor vehicle without permission...
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