State v. Pry
| Decision Date | 13 November 2018 |
| Docket Number | No. 77930-3-I,77930-3-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON Respondent, v. ROBERT LEE PRY, ROBERT LAVALLE DAVIS, and ARNOLD MAFNAS CRUZ, Appellants. |
UNPUBLISHED OPINION
DWYER, J. —This opinion resolves the consolidated appeals of Robert Lee Pry, Robert Lavalte Davis, and Arnold Mafnas Cruz, arising out of their joint trial in connection with the 2015 home invasion robbery and murder of Robert Archie Hood and resultant attempts to dispose of Hood's body.
Pry was charged with robbery, murder, and kidnapping, all in the first degree, with all crimes aggravated by the victim's particular vulnerability, the deliberate cruelty inflicted on the victim, and Pry's egregious lack of remorse. Pry was also charged with identity theft and possession of stolen property, both in the second degree, and witness tampering. All of these charges, save the witness tampering charge, were based on his central role in the commission of the home invasion and murder; the witness tampering charge was based on his conduct while in custody. Pry was found guilty as charged.
On appeal, through counsel, Pry assigns error to the trial court's denial of his motion for substitution of counsel, to the trial court's handling of an allegation of juror misconduct, to the prosecutor's statements in closing argument that, Pry claims, implied that he had tailored his testimony, and to that which Pry asserts were improper appeals to the jury's passion in the State's opening statement and closing argument. Pro se, Pry sets forth additional assignments of error in a statement of additional grounds for review. None of these claims of error warrant appellate relief.
Davis was charged with murder and robbery, both in the first degree, and both aggravated by the victim's particular vulnerability and Davis's multiple current offenses. Davis was acquitted on these charges. He was also charged with identity theft in the second degree, aggravated by his multiple current offenses, based on his asserted role in facilitating the home invasion and in later efforts to access Hood's bank accounts. He was found guilty on this charge. On appeal, through counsel, Davis claims that he was denied a fair trial due to: (1) prosecutorial misconduct, (2) ineffective assistance of his counsel in addressing this claimed misconduct; and (3) ineffective assistance of counsel in cross-examining a witness. Moreover, Davis avers, if none of these claims of error alone warrants reversal, their cumulative effect must. Pro se, Davis sets forth several assignments of error in a statement of additional grounds for review. None of the claims of error made on Davis's behalf entitle him to appellate relief.
Cruz was charged with rendering criminal assistance in the first degree, a class B felony, aggravated by his egregious lack of remorse and by the crime'simpact on others. He was also charged with concealment of a deceased body, a gross misdemeanor. Cruz was found guilty as charged, although the jury declined to find egregious lack of remorse as an aggravating factor. On appeal, Cruz avers that the information charging him with the felony was constitutionally deficient and that the exceptional sentence imposed on him was not authorized by statute. Pro se, Cruz submits a statement of additional grounds for review. We hold that the information charging Cruz with rendering criminal assistance in the first degree was constitutionally deficient. Consequently, we reverse this conviction with direction that the charge be dismissed by the trial court without prejudice. His misdemeanor conviction is undisturbed by this resolution. We remand Cruz's case to the trial court for resentencing.
For clarity, we will separately address each defendant's assignments of error and the facts pertinent thereto.
I
Pry Appeal
On December 17, 2015, Robert Archie Hood was robbed, severely beaten, and killed in his home near Bremerton. Pry's girlfriend, Ocean Wilson, and Pry's sister, Shawna Dudley-Pry, were riding in the car transporting Pry and another man, Joshua Rodgers-Jones, to rob Hood's house.
Wilson testified that, later, Pry told her:
[T]hat . . . they went up to the man's house, that he knocked on the door and told the man that he was God. And that they had tied the old man up and hit him and asked him if he had raped kids in the past. And I guess the old man, Mr. Hood, had confirmed that thatwas a long time ago. [Pry] told me that they left the man in the house tied up, and he was snoring on the floor.
That night, Wilson, Pry and Dudley-Pry stayed in a motel room where they attempted to access Hood's bank accounts via telephone calls and the Internet. Pry and the others left the motel and returned to Bremerton the next day.
On December 21, Hood's friend Candyce Gratton went to his house, noticed that he was gone and that the house was in disarray, and alerted the police. On December 22, Pry was taken into custody. A subsequent police search of the duplex in which Pry had been living revealed many of Hood's personal effects and various documents containing his financial information. Hood's body was recovered on December 30.
The State brought charges against Pry, Davis, Cruz, and Rodgers-Jones and joined their cases for trial. The trial court later severed Rodgers-Jones's case for trial. The consolidated trial consumed 44 days.
On the first day of jury selection, a day on which 200 jurors had been summoned to court, Pry requested a new appointed attorney. His stated basis was that he did not "feel . . . adequately represented" and that his attorney was trying to get him "to take a [plea] deal [rather] than preparing for my defense." Pry's attorney then stated that he had no issue with continuing to represent Pry. The trial court denied the request. Pry did not make any request of this nature at any other time during the trial.
In opening statement, the prosecutor opined that Hood "probably never envisioned" the events leading to his death, a remark to which no defense counsel objected.
Twice during trial, attorneys for Pry and for Davis brought to the court's attention a juror who appeared to them to have been asleep during trial. When Davis's attorney first called the judge's attention to the juror in question, the judge stated that the juror did not appear to him to have been asleep during the proceedings. Later, attorneys for both Pry and Davis again raised the issue. The trial court, after hearing observations and argument from counsel and reciting its own observations of the juror's behavior, made a factual finding that the juror had not been sleeping. Pry and Davis subsequently declined the judge's offer of further inquiry. Neither raised the issue again.
During the State's cross-examination of Pry, in response to a question about his memory of specific dates in December 2015, Pry stated, "[M]y life is on the line and I've had plenty of time to think about everything that's happened thoroughly." In closing argument, the prosecutor referenced this remark in order to cast doubt on Pry's credibility as a witness and to imply that Pry's having "had plenty of time to think about everything that's happened" meant that he had used that time to conform or tailor his testimony to the evidence produced at trial.
The prosecutor also noted, in closing argument, that the evidence did not show the exact course of events that took place when Pry and Rodgers-Jones were alone with Hood, but that the evidence established more than sufficient facts about Hood's death to prove the State's case. The prosecutor also noted that the day on which the closing argument was delivered would have been Hood's birthday, and asked the jury to "celebrate" Hood by carefully considering the evidence. An objection was interposed to the use of the word "celebrate."This objection was sustained and no defendant requested any further relief. No objections were interposed to the other remarks.
The jury found Pry guilty of murder, robbery, and kidnapping, all in the first degree. It further found that all of the offenses were aggravated by the victim's particular vulnerability, the deliberate cruelty inflicted on the victim, and Pry's lack of remorse. Pry's convictions for murder and robbery in the first degree were subsequently merged into a single felony murder conviction. The jury also found Pry guilty of identity theft in the second degree, possession of stolen property in the second degree, and witness tampering. The court imposed an exceptional sentence of 958 months of imprisonment.
Pry first contends that the trial court's denial of his request for substitution of appointed counsel, made on the first day of jury selection, constituted an abuse of its discretion. We disagree.
While the Sixth Amendment to the United States Constitution guarantees that, in "all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense," it does not give an indigent defendant an absolute right to choose any particular advocate. U.S. CONST. amend VI; State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997).1 Whether an indigent defendant's dissatisfaction with his court-appointed counsel justifies the appointment of newcounsel is a matter reserved to the trial court's discretion.2 Stenson, 132 Wn.2d at 733. The timeliness of a request for substitution of counsel affects the trial court's exercise of discretion to grant or deny that request. State v. Garcia, 92 Wn.2d 647, 655-56, 600 P.2d 1010 (1979).
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