State v. Humphries

• Decision Date: 24 September 2012
• Docket Number: No. 66556–1–I.,66556–1–I.
• Citation: 285 P.3d 917
• Parties: STATE of Washington, Respondent, v. Mario HUMPHRIES, Appellant.
• Court: Washington Court of Appeals

285 P.3d 917

STATE of Washington, Respondent,

v.Mario HUMPHRIES, Appellant.

No. 66556–1–I.

Court of Appeals of Washington, Division 1.

Sept. 24, 2012.

Lila Jane Silverstein, Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant.

Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.

LAU, J.

¶ 1 Mario Humphries fired a gun at a police officer. A jury convicted him of second degree assault with a deadly weapon—including a firearm enhancement finding, third degree assault, and first degree unlawful possession of a firearm. He appeals the unlawful firearm possession conviction, arguing that his counsel's tactical stipulation to the serious offense element over his objection violates his federal and state constitutional right to a jury trial and to due process. Because Humphries waived or abandoned his objection when he changed his mind and signed the stipulation after conferring with his counsel and any error is harmless, we affirm the judgment and sentence. ¹

FACTS

¶ 2 At trial, witnesses testified to the following: On February 7, 2010, at 1 a.m., Officer David Ellithorpe was driving a marked patrol vehicle at approximately 15 to 20 mph through the Rainier Valley neighborhood of Seattle. No nearby businesses were open, and Officer Ellithorpe had not seen a pedestrian for approximately 15 to 20 minutes. As he approached South Juneau Street on Rainier Avenue South, he noticed two males emerge from an alley approximately 40 to 50 yards away. He observed one of the men, later identified as Mario Humphries, raise his right arm to shoulder height and point it at him and his patrol vehicle. Officer Ellithorpe heard a gunshot and saw a muzzle flash from the object in the man's hand. Based on his law enforcement experience, he recognized the flash as a muzzle flash of a small caliber weapon.

¶ 3 Officer Ellithorpe quickly drove his vehicle away from the alley and broadcast over his radio that someone had shot at him. He reported that the shooter was wearing a gray hooded sweatshirt.² Officer Ellithorpe turned off his vehicle lights and drove back to the scene to apprehend the shooter.

¶ 4 Officer Daryl D'Ambrosia was nearby when he heard the radio dispatch indicating Officer Ellithorpe's request for help. He reached the scene of the shooting in less than one minute. When he arrived, he observed two men walking north on Rainier Avenue South between South Juneau Street and South Mead Street. Officer D'Ambrosia immediately contacted Officer Ellithorpe, who had by that time returned to the scene.

¶ 5 Officer Ellithorpe immediately recognized the two men as the individuals who had emerged from the alley. He identified Mario Humphries—who was wearing a blue and gray hooded jacket—as the person who shot at him. Police officers arrested Humphries.³

¶ 6 No weapons or ammunition were found on Humphries or his companion. Officers searched the area but found no weapon. The presence of thick undergrowth hampered the search. Based on the sound of the gunshot and the size of the muzzle flash, Officer Ellithorpe concluded the weapon used was a small caliber handgun.

¶ 7 The State charged Humphries by amended information with the crimes of assault in the second degree, assault in the third degree (in the alternative), and first degree unlawful possession of a firearm. Humphries' ineligibility to possess a firearm was based on his prior 2005 and 2006 King County juvenile court convictions of first degree robbery, second degree robbery, and attempted second degree robbery. The State further alleged that Humphries was armed with a firearm at the time he committed the assault.

¶ 8 On the first day of trial testimony, defense counsel told the trial court that the parties had agreed to stipulate to the fact that Humphries had previously been convicted of a “serious offense,” which is an element of the crime of first degree unlawful possession of a firearm. Defense counsel explained the tactical reasons for the stipulation to the trial court: “I do not want the jury to hear the fact that [Humphries had] been convicted of a rob in the first degree, a rob in the second degree and attempted robbery in the second degree.” Report of Proceedings (RP) (Oct. 12, 2010) at 5. He also explained that he and Humphries discussed the strategy at length, but Humphries disagreed with the strategy. Counsel also explained his belief that a tactical stipulation required no prior consent from Humphries; the court agreed. At the close of the State's case, the court read the stipulation to the jury, which had been signed by both counsel but not signed by Humphries. The stipulation stated:

The following statement is a stipulation by both parties. A stipulation means that the following facts are not in dispute and should be considered as fact for the purposes of trial.

The parties in the above-referenced case agree that on February 7, 2010, the defendant, Mario Humphries, had previously been convicted of a serious offense.

The parties further agree that on February 7, 2010, the defendant, Mario Humphries, had previously received written notice that he was ineligible to possess a firearm.

The parties further agree that on February 7, 2010, the defendant, Mario Humphries, knew that he could not possess a firearm.

¶ 9 After closing argument and before deliberations commenced, the court and counsel discussed exhibits to be considered by the jury during their deliberations. At this point, defense counsel told the court that he talked to Humphries and Humphries had changed his mind and agreed to sign the stipulation. Defense counsel requested, and the court agreed, that the stipulation should not be admitted as an exhibit for the jury's consideration during deliberations. Humphries signed the stipulation below his counsel's signature, and it was filed with the court.

¶ 10 The jury found Humphries guilty of all three counts and the firearm enhancement. The court imposed 106 months of total confinement and vacated the third degree assault conviction. Humphries moved unsuccessfully for a new trial based on juror misconduct ⁴ and ineffective assistance of counsel. Humphries appeals.

ANALYSIS

¶ 11 Humphries contends that his “right to a jury trial and to due process was violated where the court permitted a stipulation of guilt to several elements of the VUFA count to be read to the jury, knowing that it was affirmatively objected to by Mr. Humphries.” Appellant's Br. at 9 (boldface and capitalization omitted). But we decline to address these constitutional claims because the resolution of this case rests on the determination of nonconstitutional questions discussed below. State v. Speaks, 119 Wash.2d 204, 207, 829 P.2d 1096 (1992) (“If it is not necessary to reach a constitutional question, it is well established policy that we should decline to do so.”); State v. Hall, 95 Wash.2d 536, 539, 627 P.2d 101 (1981) (declining to reach alleged constitutional jury unanimity violation because the alleged instructional error was harmless beyond a reasonable doubt) (“A reviewing court should not pass on constitutional issues unless absolutely necessary to the determination of the case.”). That core question requires us to review whether the trial court commits reversible error when it accepts defense counsel's strategic decision to stipulate to elemental facts over his client's objection. The parties' briefs on this complex, novel question are also inadequate to bear up to such a significant decision.

Manifest Constitutional Error

¶ 12 The parties dispute whether RAP 2.5's manifest constitutional error rule applies to this case. Humphries contends in a footnote that his objection sufficiently preserved the constitutional claims and, thus, the rule does not apply. The State argues Humphries' failure to preserve the claims triggers the rule's application here.

¶ 13 Under RAP 2.5(a)(3), an issue first raised on appeal may be reviewed by an appellate court where it is a manifest error affecting a constitutional right. The burden is on the defendant to make the required showing. State v. McDonald, 138 Wash.2d 680, 691, 981 P.2d 443 (1999). In State v. Lynn, 67 Wash.App. 339, 835 P.2d 251 (1992), we concluded the proper approach in analyzing alleged constitutional error raised for the first time on appeal involves four steps:

First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.

....

.... However, it is not sufficient when raising a constitutional issue for the first time on appeal to merely identify a constitutional error and then require the State to prove it harmless beyond a reasonable doubt. The appellant must first make a showing how, in the context of the trial, the alleged error actually “affected” the defendant's rights. Some reasonable showing of a likelihood of actual prejudice is what makes a “manifest error affecting a constitutional right.”

Lynn, 67 Wash.App. at 345–46, 835 P.2d 251 (emphasis added) (quoting RAP 2.5(a)(3)).

¶ 14 We question whether Humphries establishes manifest constitutional error when he makes no showing that the claimed error actually prejudiced his rights in the context of the trial. The record here indicates that Humphries initially objected but later changed his mind with the benefit of all the evidence, closing remarks, and further consultation with counsel.

Waiver

¶ 15 Even if we assume manifest...