State v. Feely, 72450–9–I.

• Citation: 192 Wash.App. 751,368 P.3d 514
• Decision Date: 22 February 2016
• Docket Number: No. 72450–9–I.,72450–9–I.
• Parties: STATE of Washington, Respondent, v. Thomas Joseph FEELY, Appellant.
• Court: Court of Appeals of Washington

192 Wash.App. 751

368 P.3d 514

STATE of Washington, Respondent,

v.Thomas Joseph FEELY, Appellant.

No. 72450–9–I.

Court of Appeals of Washington, Division 1.

Feb. 22, 2016.

Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Jeffrey D. Sawyer, Hilary A. Thomas, Whatcom County Prosecutors Office, Philip James Buri, Buri Funston Mumford PLLC, Bellingham, WA, for Respondent.

VERELLEN

, J.

¶ 1 Under RCW 9.94A.834

, a trial court may impose an endangerment enhancement for the crime of attempting to elude a pursuing police vehicle when "one or more persons other than the defendant or the pursuing law enforcement officer" were endangered by the actions of the defendant during the commission of the crime. We conclude the plain meaning of the enhancement extends to endangering officers who were not following the defendant. Therefore, we reject Feely's claim of prosecutorial misconduct for arguing to the jury that officers who deployed spike strips were endangered by his driving.

¶ 2 Feely's other claims of prosecutorial misconduct also fail because he does not show the challenged statements, when viewed in context, resulted in prejudice. And because he does not show prejudice from these statements, his attorney's failure to object does not support a claim for ineffective assistance of counsel. We affirm.

FACTS

¶ 3 Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle on the shoulder of the northbound on ramp to Interstate 5. A pickup truck driven by Thomas Feely passed very close to Trooper Lipton's car while merging onto the freeway. Trooper Lipton observed the truck drift into the left lane before returning to the right lane. He followed Feely.

¶ 4 Once Trooper Lipton caught up to Feely, he started his car's audio and video recording system. He observed Feely drift "back and forth within the right lane continuously," and cross the fog line and the "center skip line" dividing the two lanes.¹ After Feely failed to signal a lane change, Trooper Lipton activated his siren and emergency lights.

¶ 5 Feely continued northbound. Trooper Lipton advised dispatch of Feely's failure to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely continued on the two-lane road, greatly exceeding the speed limit and drifting "over onto the oncoming lane frequently."² He bypassed two cars that slowed or stopped as a result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

¶ 6 Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up another spike strip. Feely attempted to drive around it but "immediately locked up" his brakes.³ He "slid almost the whole way" towards Sergeant Flynn and stopped just short of where Sergeant Flynn was standing.⁴ Feely then "started to jerk forward" towards Sergeant Flynn by the side of the road.⁵ Sergeant Flynn released some slack on the spike strips so he could get farther off the road. Feely ran over one of the spike strips with his front left tire and sped away. Trooper Lipton maintained his pursuit.

¶ 7 After turning down a private driveway, Feely drove his truck into a swamp. He ran into the woods, leaving one shoe behind in the mud. More police officers shortly arrived, and after searching with two police dogs, they found Feely hiding in a tree. He had no shoes on and his clothes were wet. The officers took Feely into custody and smelled alcohol on his breath.

¶ 8 Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton collected Feely's blood, which registered a blood alcohol level of 0.13.

¶ 9 The State initially charged Feely with one count of felony driving under the influence (DUI) and one count of attempting to elude a pursuing police vehicle with an endangerment sentencing enhancement. The State later amended the information to allege an aggravating circumstance under RCW 9.94A.535(2)(c)

: "[Feely] has committed multiple current offenses and [his] high offender score results in some of the current offenses going unpunished."⁶

¶ 10 At trial, Feely stipulated that he had four prior qualifying convictions, elevating the DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury also found that a "person, other than [Feely] or a pursuing law enforcement officer, [was] endangered ... by the actions of [Feely] during his commission of the crime of Attempting to Elude a Police Vehicle."⁷

¶ 11 The trial court sentenced Feely to 60 months for the felony DUI. The court sentenced him to 29 months for attempting to elude, plus 12 months and one day for the endangerment enhancement. The court ordered "[a]ll counts shall be served consecutively, including the portion of those counts for which there is an enhancement."⁸ The court imposed this exceptional sentence after expressly finding that "the defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished."⁹

¶ 12 Feely appeals.

ANALYSIS

I. PROSECUTORIAL MISCONDUCT

¶ 13 Feely asserts three instances of prosecutorial misconduct violated his due process right to a fair trial. To prevail on a claim of prosecutorial misconduct, he "bears the burden of proving, first, that the prosecutor's comments were improper and, second, that the comments were prejudicial."¹⁰

a. Argument about Endangerment of Spike Strip Officers

¶ 14 Feely claims the prosecutor misstated the law when he argued the jury "could find Feely endangered someone other than himself or a pursuing police officer if it found he endangered the officers who deployed the spike strips."¹¹ We disagree.

¶ 15 During closing, the prosecutor argued:

So the question becomes who is endangered? Well, certainly [Feely] was endangering himself. Certainly he was endangering Trooper Lipton, and perhaps during a part of that, he was endangering Officer Pike, because Officer Pike was behind Lipton and suddenly found a tire coming his way, but those would not qualify for you to answer yes, because it's a pursuing officer or a defendant. It has to be someone else that's in danger.

Of course, there were other people out on the road. You can count them. There's I think three or four vehicles. Some that pulled over. Some were driving by at various points, but certainly on Kickerville, ... he comes to a place where, unfortunately, two vehicles driving in opposite directions are in the same place.... Mr. Feely has to dart through, between the two of them. So those, those individuals are, certainly could, you could find that they're endangered by the driving of Mr. Feely on that night.

Other possibilities, you know, I don't know how many different vehicles are out there, the officers that are not pursuing, [who] did apply the stop sticks. They can be endangered by his driving, and I think at one point in the video, you can see the first officer.... [y]ou can see him com[e] out and try to deploy the sticks and run back, and you can find that he's endangered by the Defendant driving as he is.^[12]

Under RCW 9.94A.834

,

(1) The prosecuting attorney may file a special allegation of endangerment by eluding in every criminal case involving a charge of attempting to elude a police vehicle under RCW 46.61.024, when sufficient admissible evidence exists, to show that one or more persons other than the defendant or the pursuing law enforcement officer were threatened with physical injury or harm by the actions of the person committing the crime of attempting to elude a police vehicle.

(2) In a criminal case in which there has been a special allegation, the state shall prove beyond a reasonable doubt that the accused committed the crime while endangering one or more persons other than the defendant or the pursuing law enforcement officer. The court shall make a finding of fact of whether or not one or more persons other than the defendant or the pursuing law enforcement officer were endangered at the time of the commission of the crime, or if a jury trial is had, the

jury shall, if it finds the defendant guilty, also find a special verdict as to whether or not one or more persons other than the defendant or the pursuing law enforcement officer were endangered during the commission of the crime.^{[13 ]}

¶ 16 We review questions of statutory interpretation de novo.¹⁴ "The purpose of statutory interpretation is ‘to determine and give effect to the intent of the legislature.’ "¹⁵ "To determine legislative intent, we first look to the plain language of the statute considering the text of the provision in question, the context of the statute, and the statutory scheme as a whole."¹⁶ We give "undefined terms their plain and ordinary meaning unless a contrary legislative intent is indicated."¹⁷ "If the statute is unambiguous after a review of the plain meaning," our inquiry ends.¹⁸

¶ 17 The statute does not define "pursuing law enforcement officer." The dictionary defines "pursue" as "to follow [ ] determinedly in order to overtake, capture, kill, or defeat."¹⁹

¶ 18 We conclude the plain meaning of the exclusion of any endangerment to "the pursuing law enforcement officer" relates to the risk of harm to the "following" police officer. Under this plain meaning, the spike strip officers were not "pursuing police officers" because they were not following Feely. The legislature could have also excluded "apprehending officers" from the enhancement, but it did not. Applying the plain meaning, we conclude the statute is unambiguous.

¶ 19 Contrary to Feely's arguments, this construction of the statute is logical. The crime necessarily requires an officer in a police vehicle pursuing a defendant trying to elude that officer. The enhancement logically imposes a greater punishment if there is danger to others than the defendant and the pursuing officer. If officers who are not following are endangered, then the statute increases punishment based upon that risk that is not inherent in the mandatory elements of the crime.²⁰...