State v. Lee

• Decision Date: 18 February 2020
• Docket Number: No. 79094-3-I,79094-3-I
• Citation: 12 Wash.App.2d 378,460 P.3d 701
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kevin Michael LEE, II, Appellant.

12 Wash.App.2d 378

460 P.3d 701

STATE of Washington, Respondent,

v.Kevin Michael LEE, II, Appellant.

No. 79094-3-I

Court of Appeals of Washington, Division 1.

February 18, 2020

Ordered Published Date March 17, 2020

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Dwyer, J. ¶1 Kevin Lee appeals from his convictions for rape in the second degree and assault in the second degree. He raises numerous claims of error, asserting (1) that the trial court improperly presumed Lee’s waiver of his right to testify from his conduct, (2) that the trial court failed to give a required unanimity instruction regarding both his rape and assault charges, (3) that his convictions violate the constitutional prohibition against double jeopardy, (4) that several of the conditions of community custody imposed on him at sentencing are insufficiently crime-related and are thus impermissibly overbroad, and (5) that the community custody condition requiring him to pay Department of Corrections (DOC) supervision fees should not have been imposed and should be stricken. We affirm Lee's convictions, but remand for the sentencing court to strike the community custody condition requiring Lee to pay DOC supervision fees.

I

¶2 In August 2016, Kevin Lee began an on-and-off dating relationship with K.H., a 24-year-old woman who lived in Seattle. At 10:30 p.m. on the night of April 2, 2017, K.H. was alone in her apartment when Lee called and asked if he could come over.¹ K.H. gave Lee permission to come over to her apartment, but informed him that she could not go out because she had to go to work the next morning.

¶3 Approximately 45 minutes later, Lee arrived at K.H.’s apartment. He appeared heavily intoxicated and began "ordering [K.H.] around," telling her to get ready to go out. K.H. told Lee that she had to go to work the next morning and did not want to go out. In response to her refusal, Lee pinned K.H. down on the living room couch and began strangling her. K.H. managed to get up and walk into her kitchen, but Lee followed her and continued to strangle her in the kitchen, threatening to "rip the airways out of [K.H.’s] throat." K.H. believed that Lee was about to murder her.

¶4 While strangling K.H. in the kitchen, Lee threw her back out of the kitchen onto the living room couch.² Lee continued to repeatedly put pressure on K.H.’s throat until she was having difficulty breathing, then would release the pressure without removing his hands from her throat. Throughout, Lee repeatedly told K.H. that she was "acting like a brat" for not wanting to go out. He also repeatedly pretended to punch K.H., stopping his fist just before making contact with her face.

¶5 Hoping that Lee might pass out from intoxication if given the opportunity, K.H. suggested that they go to bed and sleep. K.H. got up to move to the bedroom, but Lee chased after her, saying "[y]ou’re really gonna get it now." When they got into bed, Lee told K.H. that he wanted to have sex. K.H. told him that she did not want to have sex with him, but Lee refused to accept this answer and began touching her neck and pulling down on her pajama pants. K.H. continued to tell Lee that she did not want to have sex with him, but Lee ignored her.

¶6 Lee then proceeded to straddle K.H. and began strangling her. He moved one arm down across K.H.’s collarbone to pin her down and then used his other hand to remove her pajama pants. After removing her clothes, Lee began touching K.H.’s vagina and anus. He then removed his own pants and underwear, penetrated K.H. with his penis, and attempted to have sexual intercourse with her. However, he was not able to maintain an erection and after approximately five minutes he gave up and instead digitally penetrated K.H.’s vagina and anus.

¶7 K.H. physically resisted, but Lee only stopped after a couple of minutes. He then got off of K.H. and went to sleep. After K.H. felt sure that Lee was unconscious, she got out of bed, dressed, grabbed her car keys, and ran out of the apartment to her car. She called her roommate, met him at a local gas station, and he agreed to go tell Lee to leave the apartment. After Lee left, K.H.’s roommate escorted her back to her apartment. The next morning she reported the incident to local law enforcement.

¶8 The State subsequently charged Lee with one count of second degree rape (count 1), two counts of second degree assault (counts 2 and 3), and one count of felony harassment (count 4). Each count was also alleged to be a crime of domestic violence.

¶9 At trial, after the State rested its case, the defense immediately rested. Lee did not testify, and the trial judge did not conduct any colloquy with Lee regarding his right to testify.

¶10 During closing arguments, when discussing the assault charges, the prosecutor explained to the jury where one assault ended and the next began:

Now, there are two counts of assault in the second degree that are charged. ... [T]hese are for separate and distinct acts, which is to say that one of the counts of assault in the second degree is for the strangulation events that occurred in the living area. And one of the strangulation counts is specifically for ... the strangulation that occurred in the bedroom ... that was the precursor to the rape.

¶11 During jury deliberations, the jury submitted multiple questions pertaining to the assault charges:

Two related questions:

a) How is "separate and distinct" defined in the law? b) Why are there two different counts of assault in the second degree?

....

To clarify, is count II the assault that allegedly occurred in the living room? And is count III the assault that allegedly occurred in the bedroom?

The court responded to each question by referring the jurors back to their instructions.

¶12 Following deliberations, the jury, unable to reach verdicts on counts 3 and 4, reached guilty verdicts on counts 1 and 2. Lee’s subsequent motion for a new trial was denied and the court imposed a sentence within the standard range. At sentencing, when the court asked if Lee had anything he wished to say to the court as it considered his sentence, Lee read a letter he had written out loud for the court, requesting a retrial and asserting that his counsel was ineffective. The court then sentenced Lee to a standard range sentence of 95 months for the rape conviction and 13 months for the assault conviction, to run concurrently.

¶13 The court also ordered lifetime community custody and imposed several conditions on Lee for after he is released from prison. Specifically, the court required Lee to "[i]nform the supervising [community corrections officer] and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such." The court also required Lee to enter and complete a MRT³ program, which it described as cognitive behavioral therapy treatment. The court also required Lee to pay supervision fees determined by DOC.

¶14 Lee appeals.

II

¶15 Lee first contends that his conviction must be reversed because, in violation of both the Washington and United States Constitutions, the trial court did not conduct a formal colloquy to determine whether he knowingly, intelligently, and voluntarily waived his right to testify. Lee does not contend that he was unaware of his right to testify, that he wanted to testify, or that he was prevented from testifying. Instead, he contends that the trial court’s failure to conduct a colloquy alone merits reversal. We disagree.

¶16 The United States Constitution guarantees criminal defendants the right to testify in their own defense. Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). The Rock Court recognized three different sources for this right: (1) the Fourteenth Amendment’s right to due process of law, which includes the right to testify, (2) the Compulsory Process Clause of the Sixth Amendment, which sets forth a defendant’s right to call relevant witnesses to testify, and (3) the corollary to the Fifth Amendment’s guarantee against compelled testimony. 483 U.S. at 51-52, 107 S.Ct. 2704.

¶17 Criminal defendants are also granted an explicit right to testify under Washington’s constitution. State v. Robinson, 138 Wash.2d 753, 758, 982 P.2d 590 (1999). Our constitution provides that "[i]n criminal prosecutions the accused shall have the right ... to testify in his own behalf." CONST. art. I, § 22.

¶18 "The right to testify in one’s own behalf has been characterized as a personal right of ‘fundamental’ dimensions." State v. Thomas, 128 Wash.2d 553, 558, 910 P.2d 475 (1996) (citing Rock, 483 U.S. at 52, 107 S.Ct. 2704 ). "In general, the waiver of a fundamental constitutional right must be made knowingly, voluntarily, and intelligently." Thomas, 128 Wash.2d at 558, 910 P.2d 475. Lee asserts that to meet this waiver standard, the trial court must engage in a formal colloquy to inform a defendant of the constitutional right to testify in one’s own behalf as set forth in both the United States and Washington Constitutions.

¶19 Extensive Federal Circuit Court precedent, however, has maintained that a trial judge need not conduct a formal colloquy to inquire whether a defendant understands the right to testify under the United States Constitution. See, e.g., Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) ; United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) ; United States v. Thompson, 944 F.2d 1331, 1345 (7th Cir. 1991) ; United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir. 1987) ; United States v. Wagner, 834 F.2d 1474, 1483 (9th Cir. 1987) ; United...