State v. Smith, No. 34149-2-II (Wash. App. 3/20/2007)
| Decision Date | 20 March 2007 |
| Docket Number | No. 34149-2-II.,34149-2-II. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. RICHARD DONNELL SMITH, Appellant. |
Appeal from Kitsap Superior Court. Docket No. 05-1-00356-0. Judgment or order under review. Date filed: 12/02/2005. Judge signing: Honorable Leila Mills.
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, 623 Dwight St, Port Orchard, WA 98366-4619
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecutor's Office, 614 Division St, Port Orchard, WA 98366-4614.
Richard Donnell Smith appeals his convictions of first degree rape, two counts of second degree assault, unlawful imprisonment, first degree unlawful possession of a firearm, violation of a court order, and tampering with a witness. Smith argues that his rape and assault convictions violate double jeopardy and should merge or at least constitute the same criminal conduct for sentencing. He also contends that the trial court should have instructed the jury that it had to unanimously agree on what conduct formed the basis for the assault convictions. Finally, Smith faults his counsel for various aspects of his representation during trial. Finding no reversible error, we affirm.
Pamela Lagrua1 and her boyfriend encountered Richard Smith, Lagrua's former boyfriend,2 at a bar in Bremerton. After the bar closed, Lagrua got a ride to Smith's apartment because she thought her boyfriend and Smith were going there to fight. A number of people gathered at the apartment to drink and party, but Lagrua's boyfriend did not show up. Lagrua testified that although she drank a lot that night, she did not blackout and had no trouble recalling the night's events.
At some point during the party, Smith confronted Lagrua in the bathroom and put his hand around her neck and pushed her against the wall. Smith released Lagrua when she started crying.
Later, in front of the other party goers, Lagrua "got mouthy with [Smith]" and he "choked" her. Report of Proceedings (RP) at 186. She said that this time he put both hands around her neck and pushed her up against the wall, cutting off her breathing "[a] little bit." RP at 187.
After the other party goers left, Smith ordered Lagrua to go to his bedroom, which she understood to mean that he wanted to have sex with her. Lagrua refused and said that she did not want to have sex. Smith then dragged her into the bedroom where he hit her on the head with what Lagrua thought was a gun. Smith told her "to be quiet and just get this over with." RP at 190. He then sat on her and choked her with both hands, cutting off her breathing and causing a "[t]ingly" feeling in her face. RP at 190. Lagrua lost consciousness for a moment, reviving only after Smith punched her in the face. Smith then asked Lagrua, "You don't think I'll kill you?", to which she replied, "Go ahead and kill me." RP at 191. Smith then grabbed a glass beer bottle, broke it, and cut Lagrua's arm. Smith admitted at trial that he was angry and that he told Lagrua he would kill her; he explained that he was joking around and did not really mean it.
Smith wrapped a t-shirt around the cuts on Lagrua's arm and again said he wanted to have sex with her; she again refused. Smith then forced her to have sex with him. During intercourse, Smith held a razor blade and later a hammer near her face. Smith stopped when Lagrua started dry heaving.
Smith then offered to give Lagrua a ride home. On the way to Lagrua's mother's house, Smith stopped at an automated teller machine (ATM) and retrieved some money, which he tried to give Lagrua. Lagrua refused the money because she believed Smith was attempting to buy her silence. When Smith dropped Lagrua off at her mother's house, she was bleeding and crying. Lagrua's mother and sister asked her what had happened and Lagrua said, "[Smith] did this." RP at 201-02. Lagrua had bruises on her cheek, neck, arms, and legs, and now has a scar on her arm from the cuts she received.
Lagrua described the assaults and rape to Marquell Lewis, a sexual assault nurse examiner. Lewis found several lacerations, marks, and bruises during a vaginal examination. She also noticed bruising on Lagrua's cheeks and broken capillaries on her chin, consistent with strangulation. Jane Schupay, a nurse practitioner, testified that the broken capillaries on Lagrua's chin were consistent with strangulation. Lewis also found bruises on Lagrua's left breast, left arm, and thighs, and two lacerations on her left wrist.
Smith admitted that he pushed Lagrua up against the wall in the bathroom and held her there, but he testified that he never choked her. He claimed that Lagrua cut her own arm with the broken beer bottle and that he wrapped her arm in a t-shirt and suggested they go to the hospital. He said that Lagrua refused because she was embarrassed about a hand imprint she still had on her face from his slap. Smith claimed that after the beer bottle incident, the two went into the bathroom and when they returned to the bedroom, Lagrua initiated the sex. Smith also admitted that he threatened Lagrua with a hammer, but he claimed it happened before they had intercourse.
The State charged Smith with (1) first degree rape with a domestic violence special allegation and two special allegations that Smith was armed with a deadly weapon, specifically a razor blade and a hammer (count I); (2) second degree assault, under the deadly weapon prong, with a domestic violence special allegation, a sexual motivation special allegation, and a special allegation that Smith was armed with a deadly weapon, specifically a beer bottle (count II); (3) second degree assault under the reckless infliction of substantial bodily harm prong with special allegations of domestic violence and sexual motivation (count III); (4) unlawful imprisonment, with special allegations of domestic violence and sexual motivation (count IV); (5) first degree unlawful possession of a firearm (count V); (6) violation of a court order, with special allegations of domestic violence and sexual motivation (count VI); and (7) tampering with a witness, with a domestic violence special allegation (count VII).
A jury convicted Smith as charged, but it found that the State did not prove the sexual motivation special allegations attached to count III and count IV.
The principal issues on appeal are whether (1) Smith is entitled to some relief from his multiple convictions because they violate double jeopardy, (2) the assaults merged with the rape or each other, or (3) the crimes were essentially the same criminal conduct for sentencing. In addition, Smith contends that the trial court should have instructed the jury on unanimity and that his counsel failed to effectively represent him.
Smith first claims that his convictions for first degree rape and second degree assault violated the double jeopardy provisions of the state and federal constitutions. Smith did not raise double jeopardy concerns below, but a party may raise a double jeopardy violation for the first time on appeal because it is a manifest error of constitutional magnitude. RAP 2.5(a); State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000) (citations omitted).
Article I, section 9 of the Washington State Constitution, and the Fifth Amendment to the federal constitution prohibit multiple prosecutions or punishments for the same offense. State v. Baldwin, 150 Wn.2d 448, 454, 78 P.3d 1005 (2003). Within this constraint, however, the legislature has the authority to define criminal conduct and specify its punishment. Baldwin, 150 Wn.2d at 454 (citing State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995)). And while the State may bring multiple charges arising from the same criminal conduct in a single proceeding, the court may not enter multiple convictions for the same offense without offending double jeopardy. State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005) ().
"`Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.'" Freeman, 153 Wn.2d at 771 (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). We look for legislative intent in the statutes' language and structure, the legislative history, by asking whether the two statutes are aimed at eliminating different evils, or through any other source of legislative intent. Freeman, 153 Wn.2d at 773 (citing Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)).
Where the statutory language does not shed light on legislative intent, we turn to Blockburger,3 or "same evidence" test — essentially another measure of legislative intent. See State v. Louis, 155 Wn.2d 563, 569-70, 120 P.3d 926 (2005). Under the "same evidence" test, a trial court violates defendant's double jeopardy rights if it convicts him of offenses that are identical in fact and law. Calle, 125 Wn.2d at 777 (citing State v. Johnson, 96 Wn.2d 926, 933, 639 P.2d 1332 (1982)). In considering whether the crimes' elements differ, we do not engage in an abstract analysis of their elements. Rather, we ask whether each crime requires proof of a fact that the other does not. Freeman, 153 Wn.2d at 772 (citing Orange, 152 Wn.2d at 817). If so, we presume that the crimes are not the same offense for double jeopardy purposes. Freeman, 153 Wn.2d at 772 (citing Calle, 125 Wn.2d at 777).
To prove first degree rape, the State presented evidence that Smith threatened Lagrua with a hammer and a razor blade while forcing her to have sexual intercourse with him.4 To prove count II, second degree assault with a deadly weapon, the State...
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