State v. Grier

• Decision Date: 07 June 2012
• Docket Number: No. 36350–0–II.,36350–0–II.
• Citation: 168 Wash.App. 635,278 P.3d 225
• Parties: STATE of Washington, Respondent, v. Kristina Ranae GRIER, Appellant.
• Court: Washington Court of Appeals

168 Wash.App. 635

278 P.3d 225

STATE of Washington, Respondent,

v.Kristina Ranae GRIER, Appellant.

No. 36350–0–II.

Court of Appeals of Washington, Division 2.

June 7, 2012.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Thomas Charles Roberts, Attorney at Law, Tacoma, WA, for Respondent.

PUBLISHED IN PART OPINION

HUNT, P.J.

[168 Wash.App. 636]¶ 1 On remand from our Supreme Court, Kristina Ranae Grier appeals her second-degree murder conviction and her community custody sentencing conditions requiring her to undergo mental health and drug abuse treatments. She argues that we should reverse her conviction because (1) the trial court failed to conduct a competency hearing despite having reason to doubt her competency; (2) the State committed prosecutorial misconduct by eliciting testimony that violated a pretrial order to exclude evidence of Grier's drug use and drug paraphernalia found her in house; (3) the trial court erred by admitting irrelevant, prejudicial, or inadmissible ER 404(b) evidence; (4) Grier's trial counsel was ineffective for failing to object to this inadmissible evidence and, in the alternative, for failing to request limiting instructions related to this evidence; and (5) cumulative error warrants the reversal of her conviction. In her Statement of Additional Grounds (SAG),¹ Grier asserts that the State clandestinely prohibited her son Nathan from testifying about the victim's drug use and drug dealing. She also argues that we should strike the mental health and substance abuse treatment conditions of her sentence because the trial court failed to make statutorily required findings supporting these conditions.

¶ 2 We affirm Grier's conviction, vacate the mental health and substance abuse treatment conditions of her community custody, and remand to the trial court to strike these two conditions from her sentence or to conduct appropriate hearings and then to enter the relevant statutorily required findings to support such treatment conditions.

FACTS

¶ 3 We incorporate here the facts in our 2009 opinion, in which we held that defense counsel's withdrawing his request for lesser-included-offense instructions constituted ineffective assistance and reversed Grier's conviction for murdering Gregory Owen during an evening confrontation; accordingly, we did not address Grier's remaining claims. State v. Grier, 150 Wash.App. 619, 632–33, 208 P.3d 1221 (2009). The Washington Supreme Court reversed our decision and remanded to us for “adjudication of Grier's remaining claims.” State v. Grier, 171 Wash.2d 17, 45, 246 P.3d 1260 (2011). We now address those claims and supplement our 2009 opinion's facts with the following facts:

I. Pretrial Proceedings

A. Competency Evaluation

¶ 4 At a June 26, 2006 pretrial hearing, the State asked the superior court ² to continue the trial and to “send [Grier] out to Western State [Hospital] for a ... 15–day evaluation.” Verbatim Report of Proceeding (VRP) (June 26, 2006) at 3. The State explained:

The State has reason to believe there's possible insanity.³ [Grier] wrote a couple of letters to the court right after she was incarcerated. Those are in the court file. The primary thrust of those letters was that she [Grier] wanted her guns returned.VRP (June 26, 2006) at 3. Grier's counsel agreed:

[The State] informed me and discussed with me this possibility. And I have had discussions with [Grier] in trying to prepare for her defense and must admit that those discussions ... don't usually ... lead to a conclusion where I'm satisfied that she is assisting me in the preparation of her defense.

[The State] is requesting that [Grier] be evaluated at Western State Hospital. That seems to be a prudent idea, because whether she [Grier] comes back as having a mental deficiency or coming back completely competent, both of those would be beneficial as far as I'm concerned in my representation of her to know whether what we're doing is appropriate or not.

VRP (June 26, 2006) at 4 (emphasis added).

¶ 5 The superior court responded, “What I'm hearing is both sides agree that a competency evaluation is prudent. Is that correct?” VRP (June 26, 2006) at 5. The State answered,“The State believes it's prudent at this point, your Honor. I see a built-in appeal issue if we don't do it.” VRP (June 26, 2006) at 5. Defense counsel did not respond. Granting the State's request, on June 26, 2006, the superior court issued an “Order for Examination by Western State Hospital” contained preprinted language that stated, “[T]here may be reason to doubt the defendant's [Grier's] fitness to proceed,” and ordered the examination report to include “opinion[s]” about Grier's “competency,” “sanity,” and “mental state.” ⁴ Clerk's Papers (CP) at 188, 190. The superior court and the State both signed the order; defense counsel and Grier signed the order, under the heading “Approved as to Form.” CP at 191. The superior court scheduled the next hearing for July 13, 2006.

¶ 6 On July 18, a different superior court judge held a hearing, during which defense counsel advised that he “had requested to be taken off this case.” VRP (July 18, 2006) at 2. The State informed the superior court that Grier had not yet received an examination at Western State Hospital. One week later, on July 25, Grier's first counsel withdrew and Grier obtained different counsel.

¶ 7 That same day, July 25, Grier's new counsel presented to a third superior court judge an order vacating the first superior court judge's June 26, 2006 that Grier undergo an examination at Western State Hospital. Without written or oral explanation on the record before us, the third judge vacated the June 26, 2006 order. Grier's former counsel signed the order, and the State signed it, “[A]s To Form”; Grier's signature is not on it. The record before us contains no objection by Grier to the trial court's vacating the competency examination.

[168 Wash.App. 640]¶ 8 Neither before nor when trial began did Grier ask for a competency hearing, raise any issues concerning her fitness for trial, or object to the lack of a competency evaluation or other examination at Western State Hospital. The record before us includes no facts suggesting any need for a competency hearing at that time.

B. Pre-trial Evidentiary Rulings

¶ 9 During a pre-trial hearing, Grier informed the trial court that “there was mention made by [her son, Nathan Grier, and his girlfriend, Cynthia Michaels, in their statements] about ... some threats and/or waving around of a gun by Ms. Grier to Nathan.” 1 RP at 94. Grier argued that the trial court should exclude “any reference to any previous alleged threats ..., to include any waving around of any guns,” because such evidence was irrelevant and inadmissible “conformity” evidence under ER 404(b). 1 RP at 94. The State responded that Grier's waving the gun and threatening Nathan was “part of the chain of events that occurred that evening.” 1 RP at 96. The trial court orally denied Grier's motion to exclude, stating, “ [Y]ou [Grier] can raise an objection at the time if you don't have an exception such as res gestae or anything else as relates to that evening only.” 1 RP at 96 (emphasis added). The trial court then issued an order in limine denying Grier's request to “preclude mention of threats and/or threatening behavior such as waving of guns by [Grier] on the day in question.” CP at 29.

¶ 10 Grier also moved in limine to exclude statements about the derogatory names that she had called Nathan and Michaels the night of the murder. Grier's counsel told the trial court:

[T]he statements by Nathan and [Michaels] and perhaps [Michelle Starr, murder victim Gregory Owen's girlfriend], though I'm not sure about her [Starr], indicate that there was some name-calling going on there that evening. And specifically, I'm concerned about any allegations of Ms. Grier calling her son [Nathan] or anyone else any names. They were, to say the least, unflattering, offensive.

1 RP at 97. The State again argued that the trial court should admit Grier's name-calling because it was “part of the chain of events that occurred that evening.” 1 RP at 97.

¶ 11 The trial court orally denied Grier's motion, stating, “I will deny this motion with regard to any statements made by the witnesses with regard to name-calling as that would be a part of what happened that evening.” 1 RP at 98 (emphasis added). The trial court later entered a written order denying Grier's motion in limine “to preclude mention of name-calling by [Grier] to Nathan [ ] or Mich[a]els.” CP at 30. The trial court did, however, grant Grier's motions in limine to exclude mention of Grier's “past or present drug use” and “any drugs or drug paraphernalia found in [Grier's] house.” CP at 29.

II. Jury Trial

¶ 12 In addition to the testimony described in our 2009 opinion, gunshot trace analyst Patricia Eddings testified about finding (1) “quite a bit of plant material” ⁵ on a “red sweatshirt” ⁶ that police had taken from Grier's hospital room and (2) “large pieces of plant material” and “an additional amount of loose plant material which was burned” in a “debris packet” that the Washington State Patrol crime lab had collected. 6 RP at 766–67. Grier objected, requested a sidebar, and argued, “[I]t's obvious” that the “plant matter” to which Eddings referred in her testimony was “marijuana,” which an order in limine prevented the State from mentioning. 6 RP at 768. The trial court sustained Grier's objection. Grier did not request a curative instruction to disregard the plant material testimony; nor did she request a new trial.

[168 Wash.App. 642]¶ 13 Michaels testified that (1) at some point during the night Owen was shot,⁷ Nathan had initiated a conversation with Grier, telling her that she “couldn't kill somebody,” ⁸ to which Grier had responded, “[Y]es, she could,” and “that she could shoot [Nathan] if she wanted to” ⁹ ; (2) when Grier “wav[ed] [her guns] at Nathan in the...