State v. Robinson
| Decision Date | 28 July 2009 |
| Docket Number | 36918-4-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. MICHAEL ROBINSON, Appellant. |
UNPUBLISHED OPINION
A jury convicted Michael Robinson of residential burglary, theft of a firearm, first degree unlawful possession of a firearm first degree theft, and unlawful possession of methamphetamine while armed with a firearm. Robinson now appeals, arguing that (1) the trial court erred by denying his motion for mistrial; (2) he was denied effective assistance of counsel; (3) sufficient evidence does not support his unlawful possession of methamphetamine while armed with a firearm conviction; (4) the trial court violated double jeopardy by entering judgments against him for theft of a firearm and first degree theft; and (5) the trial court erred by calculating his theft of a firearm and first degree theft convictions as separate offenses. In a statement of additional grounds (SAG),[1] Robinson raises nine additional claims which we discuss below. Because insufficient evidence supports Robinson's unlawful possession of methamphetamine while armed with a firearm conviction, we reverse that conviction and remand for resentencing. We affirm Robinson's remaining convictions.
On July 10, 2007, an unidentified person burglarized Chad Yantis's and Megan Moskwa's residence. Stolen property included a safe containing a firearm, magazines, and a gun cleaning kit, as well as an iPod, two digital cameras a radio, a cellular phone, a backpack, some keys, and several personal checkbooks. The following day, Washington State Patrol Trooper Tony Doughty arrested Daniel Smith after a high speed chase involving a vehicle in which Smith was the driver and Robinson was the sole passenger.
During a search incident to arrest, Doughty discovered a cell phone box directly behind the vehicle's passenger seat. In the box, Doughty found a fully loaded handgun wrapped in cloth some money, and a garage door opener. Behind the driver's seat, he found a backpack containing a gun cleaning kit, several different types of keys, and multiple checkbooks with different people's names on them. A subsequent check of the firearm revealed that its serial number matched that of the firearm stolen from Yantis's and Moskwa's home. Doughty advised Robinson that he was being placed in custody for possession of stolen property and read him his Miranda[2] warnings.
At trial, there was conflicting testimony as to the events that followed. Detective Doug Clevenger testified that, upon his arrival at the scene, he observed Robinson and believed that he might be under the influence of methamphetamine.[3] After Clevenger and Doughty searched the vehicle further, they discovered a pair of pants that contained a cellular phone, a glass smoking device "for methamphetamine," keys, and two checkbooks. Report of Proceedings (RP) (Oct. 15 & 16, 2007) at 128. The pants also contained currency that Clevenger believed to be counterfeit. They also found a hat, a baseball bat, and tools. Robinson claimed ownership of the hat, pants, and cellular phone, but he denied owning the other items.
Clevenger also testified that when he asked Robinson whether he was with Smith during the burglary, Robinson responded affirmatively and explained that the burglary occurred the day before. When Clevenger asked what he had taken from the home, Robinson listed a gun, an iPod, some checkbooks, a safe, and a radio. He then offered to help the detective get the safe back, as he "knew where [it] was." RP (Oct. 15 & 16, 2007) at 155. Additionally, Robinson admitted to having handled the gun at one point. When Clevenger informed Robinson that he was going to have a drug dog search the vehicle and asked whether he had knowledge of anything that might threaten the dog's safety, Robinson "got a little bit uncomfortable." RP (Oct. 15 & 16, 2007) at 157. He informed Clevenger that Smith was "a cook," and, when Clevenger requested clarification, he explained that Smith had expressed concern about a methamphetamine lab in the trunk when Doughty pulled them over. RP (Oct. 15 & 16, 2007) at 157.
Detective Brenda Anderson also testified that, at the patrol station, Robinson told her that he and Smith had broken into and taken property from a house "on the west side." RP (Oct. 15 & 16, 2007) at 225. He indicated to her that he had taken a small, portable safe that contained a gun and a backpack, and that authorities later found the gun during their search of the vehicle. He also indicated that the pants and cellular phone the officers obtained belonged to him. Robinson explained to Anderson that Smith had promised him $50 or $60 to assist him with the burglary, but he had not received the money.
The following day, on July 12, Clevenger requested and obtained a warrant to search the vehicle's trunk. On July 13, officers conducted the search and found items consistent with the manufacture of methamphetamine. The items later tested positive for methamphetamine. They also found printer paper bearing counterfeit United States currency.
The State charged Robinson by second amended information with first degree burglary while armed with a firearm (count I), theft of a firearm (count II), first degree unlawful possession of a firearm (count III),[4] first degree theft (count IV), and unlawful manufacture of methamphetamine while armed with a firearm (count V). The State subsequently amended the unlawful manufacture of methamphetamine charge to unlawful possession of methamphetamine while armed with a firearm. Neither party requested, nor did the trial court hold, a CrR 3.5 or a CrR 3.6 hearing before trial. The day before trial, defense counsel moved to withdraw from representation, citing "a serious breakdown in the attorney/client relationship." RP (Oct. 12, 2007) at 4. The trial court denied his motion.
At trial, Robinson testified on his own behalf. He denied any involvement in the burglary, claiming that he had spent the day with his family. He denied admitting to Clevenger and Anderson that he had participated in the burglary or that he had handled the firearm. He also denied possessing the stolen items or owning items found in the vehicle. He claimed that his cellular phone, which the officers found in the vehicle, had been stolen.
During the State's closing argument, the prosecutor stated:
And then we get to the alibi. Well, I wasn't even around. I was with -- I wrote it down. I think he named five different people, including his mother, that he was with on July 10th. Now, the way you prove something in court is you get
someone to come in here, sit on that witness stand, swear to tell the truth, and -- RP (Oct. 17 & 18, 2007) at 334. Defense counsel objected, stating, "The defense has no burden to prove anything in this case." RP (Oct. 17 & 18, 2007) at 334. The trial court sustained his objection, reminding jurors, RP (Oct. 17 & 18, 2007) at 334. The prosecutor then continued:
There's an instruction you may consider the lack of evidence. Well, did anyone get up here and support what Mr. Robinson said, that story? Of all those people that he was allegedly with on July 10th, did you see anyone get up here and support that? You didn't, and that speaks volumes.
RP (Oct. 17 & 18, 2007) at 334-35.
After the State rested its case, defense counsel moved for a mistrial, arguing that the prosecutor's comments unconstitutionally shifted the burden of proof to the defendant. Alternatively, defense counsel requested a curative instruction to remind the jury that the defendant has no duty to prove anything beyond a reasonable doubt. The trial court denied the motion, but gave the following instruction:
Ladies and gentlemen, what counsel say in their closing argument is . . . not evidence. Please disregard any remark, statement, or argument which is not supported by the evidence or the law as given to you by me. The law requires the state to meet its burden beyond a reasonable doubt. The burden never shifts to the defense.
RP (Oct. 17 & 18, 2007) at 344.
The jury convicted Robinson on counts II through V. On count I, the jury found Robinson guilty of the lesser crime of residential burglary. The trial court calculated his offender score, in part, by treating his theft of a firearm and first degree theft convictions as separate offenses; it then sentenced Robinson within the standard range, upon the parties' agreement Robinson now appeals.
Robinson argues that the prosecutor's comments during closing argument implied that he had a duty to present exculpatory evidence. Furthermore, he contends, the trial court's limiting instruction did not strike the statements or direct the jury to disregard the statements. Therefore, he reasons, the trial court abused its discretion by denying his motion for mistrial. Citing State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991), the State responds that the prosecutor's comments did not impermissibly imply that Robinson had a duty to call witnesses. Furthermore, it argues, the trial court "more than adequately" instructed the jury regarding the State's burden of proof. Resp't's Br. at 7.
"The trial court is invested with broad discretion in granting motions for a new trial, and the trial court's determination will not be disturbed on appeal absent an abuse of discretion." State v. Marks, 71 Wn.2d 295 302, 427 P.2d 1008 (1967). A reviewing court will find abuse of discretion only when no reasonable court would have reached the same conclusion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A trial court's denial of a motion for mistrial will only be overturned only when there is a substantial...
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