State v. Lewis, 66977-0-I

Decision Date28 January 2013
Docket Number66977-0-I
PartiesSTATE OF WASHINGTON, Respondent, v. PAUL RAYMOND LEWIS, Appellant.
CourtCourt of Appeals of Washington

STATE OF WASHINGTON, Respondent,
v.
PAUL RAYMOND LEWIS, Appellant.

No. 66977-0-I

Court of Appeals of Washington, Division 1

January 28, 2013


UNPUBLISHED OPINION

Spearman, A.C.J.

For his acts in attempting to take Paul Rodrick's wallet and stabbing Rodrick with a knife, Paul Lewis was convicted by a jury of attempted robbery in the first degree and assault in the second degree. The jury found that he committed each offense while armed with a deadly weapon. Because he was a persistent offender, Lewis received a mandatory life sentence under the Persistent Offender Accountability Act (POAA). On appeal he claims that: (1) the trial court abused its discretion in denying his "for cause" challenge to a juror; (2) defense counsel provided ineffective assistance by asserting a self-defense theory and presenting certain expert testimony; (3) the jury instructions denied him a right to a unanimous jury verdict on the deadly weapon enhancements; (4) the trial court violated art. I, sec. 7 of the Washington State Constitution by compelling him to provide fingerprints after he was convicted; (5) he was entitled to a jury finding beyond a reasonable doubt that he is a persistent offender; (6) the POAA violates equal protection because it allows the State to prove the existence of prior convictions to a judge rather than to a jury and under a lower standard of proof than in cases where prior convictions constitute an "element" of a crime; (7) his conviction for attempted robbery must be reversed because the jury was instructed on an uncharged alternative means; and (8) his convictions violate double jeopardy under the merger doctrine. We agree that Lewis's convictions merged, requiring reversal of the assault conviction. We reject his remaining claims, holding that Lewis's for-cause challenge is not properly raised; he does not show prejudice for his ineffective assistance claim; the jury instructions as a whole properly instructed the jury on unanimity; his claim regarding fingerprints is waived; his claims regarding persistent offender status and the POAA have already been addressed by this court; and that while the jury was improperly instructed on an uncharged alternative means, the error was harmless under the circumstances of this case. We affirm Lewis's conviction for attempted robbery in the first degree, and remand with instructions to vacate his conviction for assault in the second degree and to resentence him.

FACTS

Rodrick lives in the South Park neighborhood of Seattle. Around 1:30 a.m. on August 27, 2009, Rodrick went to a Shell station to buy cigarettes and beer. As he left the store, Rodrick put his wallet in his rear pocket. Lewis approached him and asked for a cigarette. Rodrick gave Lewis a cigarette and the two engaged in conversation. Rodrick offered to share his beer with Lewis. The two moved away from the store and sat down on a ledge. Lewis reached over to Rodrick, attempted to grab Rodrick's wallet from his pocket, then pulled out a utility knife[1] and said, "Give me your money." Verbatim Report of Proceedings (VRP) at 136-41.[2] Rodrick was shocked and did not comply immediately. Lewis began slashing at Rodrick with the knife and stabbed Rodrick's arm. Rodrick struggled with Lewis, tried to grab the knife, and ended up on the ground on his stomach, at which point Lewis stabbed him in the back.

Neighborhood resident Erin Carnahan heard noises and went to investigate. She saw Lewis overpower Rodrick and "lung[e] something into" Rodrick several times, though she did not see a weapon. Lewis got on top of Rodrick, who said "help me" and "I'm being stabbed." VRP at 70-71. Carnahan came within six or seven feet of the scene. When she asked what was going on, Lewis got off Rodrick and said, "He ripped me off, he ripped me off." Id. at 74.

By chance, an ambulance came across the scene. The driver of the ambulance, Rose Washington, observed that Lewis and Rodrick were both lying down. Soon Lewis got up, started dragging Rodrick onto the sidewalk, then held Rodrick down and hit him. Carnahan saw Lewis get off Rodrick and go to the bushes nearby. Lewis appeared to Carnahan to be looking for something. She then went to the ambulance to talk to Washington, who was on the phone with police. When Carnahan next looked in Lewis's direction she observed him go through her yard and disappear. Meanwhile, Washington also saw Lewis walk away from Rodrick, who was covered in blood and lying motionless on the ground. Washington observed Lewis return and strike Rodrick multiple times in the abdomen and side approximately 30 seconds later. She observed that Rodrick appeared to be trying to protect himself. Washington, like Carnahan, did not see a weapon in Lewis's hand. She saw Lewis take off his shirt and flee on foot.

When Washington reached Rodrick, his vital signs were "very poor, " and she believed there was a possibility he could die. Rodrick was transported to Harborview Medical Center, where he underwent emergency surgery. He sustained multiple stab wounds, including to his back, chest, abdomen, side, and both arms.

Lewis was apprehended a few blocks from the scene after a police dog track and foot pursuit. Although a large amount of blood was on Lewis, officers observed no injuries other than a few minor cuts to his hands. Deoxyribonucleic acid (DNA) testing confirmed the presence of Rodrick's blood on Lewis's cell phone and clothing. Police did not recover a knife.

The evidence at trial was unclear regarding what happened to Rodrick's wallet. While Rodrick testified that Lewis took the wallet because it did not accompany him to the hospital, Police officer Charles Stewart testified that he believed Rodrick had a wallet with him and that the wallet "was probably sent to [Rodrick] or stayed with him as he went to the hospital." 7VRP at 77, 81, 138. Rodrick could not say when Lewis got a hold of the wallet.[3]

The State charged Lewis by amended information with attempted robbery in the first degree and assault in the second degree, each with a deadly weapon enhancement. He was charged under the "bodily injury" alternative means for the attempted robbery charge.

During voir dire, Juror 31 stated, "I don't think that I really assume that anybody is innocent, that they must have done something. That's why they're here." 5VRP at 85. Lewis challenged the juror for cause. During the colloquy that followed, the juror expressed ambivalence about being able to apply the presumption of innocence. But ultimately, in response to the trial court's question whether the juror could follow the law and the jury instructions regardless of what the juror personally believed, the juror responded, "Yes." 5VRP at 89. The court then denied Lewis's challenge for cause. When the time came to exercise peremptory challenges, Lewis did not exercise such a challenge against Juror 31 even though he had peremptory challenges remaining.

At trial, Lewis testified in his own defense. He testified that, on the day of the incident, he went to see his counselor and was in an agitated mood. Afterward, he ran around town, returned home, drank a beer, and took his medication. He then went to the Shell station to hang out and buy beer. As Lewis drank his beer, he saw Rodrick arrive. Lewis asked Rodrick for a cigarette, was given one, and then Rodrick asked Lewis if he wanted to share a beer. Lewis testified that the two talked for about twenty minutes and that Rodrick became angry when Lewis refused to assist him in buying crack cocaine. As Lewis walked away, Rodrick attacked him from behind with a small knife. Lewis testified that he was able...

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