State v. Vestal, No. 32675-2-II (WA 4/25/2006)

Decision Date25 April 2006
Docket NumberNo. 32675-2-II,32675-2-II
CourtUnited States State Supreme Court of Washington
PartiesSTATE OF WASHINGTON, Respondent, v. ROBERT WILLIAM VESTAL, Appellant.

Appeal from Superior Court of Pierce County. Docket No: 03-1-05971-6. Judgment or order under review. Date filed: 12/17/2004. Judge signing: Hon. Thomas J Felnagle.

Counsel for Appellant(s), Kathryn A. Russell Selk, Russell Selk Law Office, 1037 NE 65th St Box 135, Seattle, WA 98115-6655.

Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

QUINN-BRINTNALL, C.J.

A jury convicted Robert Vestal of first degree robbery, residential burglary, and first degree kidnapping. On appeal, Vestal maintains that (1) the evidence was insufficient to support the residential burglary conviction; (2) the prosecutor committed misconduct; (3) he received ineffective assistance of counsel; (4) the State failed to submit sufficient evidence establishing his criminal history; and (5) his life sentences imposed pursuant to the Persistent Offender Accountability Act (POAA) constitute cruel punishment. We affirm.

FACTS

On December 20, 2003, Vestal robbed a gas station in the presence of several customers. He displayed what appeared to be a firearm and told the cashier, `{I}t's almost Christmastime, don't make me bust a cap in your ass.' 2 (Morning Session) Report of Proceedings (RP) at 32. Vestal appeared weary and his eyes were `red rimmed,' like he had been up all night. 2 (Morning Session) RP at 42.

Vestal drove away but was followed by two witnesses. At some point, he got out of the car, gestured at his pursuers, and ran into an apartment complex.

Vestal knocked on an apartment door and Douglas Bushaw answered. Vestal told Bushaw that he needed to use the phone because his wife was having a baby. When Bushaw went to retrieve the phone, Vestal came inside and shut the door behind him. He ordered Bushaw to sit on the floor. When Bushaw initially refused, Vestal stated, `{N}o, get on the floor; I just did a heist, and I have a gun, and I don't have anything to lose by shooting you; sit on the floor.' 2 (Morning Session) RP at 60-61. Bushaw sat on the floor.

The two talked for awhile. Vestal told Bushaw to whisper and to keep looking out the window to see if anyone was coming. Vestal asked for and drank a beer. Vestal indicated that Bushaw was a `con's friend' because he was so cooperative. 2 (Morning Session) RP at 65. He told Bushaw about his children and how he had previously been to jail. He took $400 from his waistband, put it in Bushaw's couch, and stated that the money was for his children's Christmas. He wrote a number on the wall and told Bushaw to call it so someone could retrieve the money.

At some point there was a knock at the door. Vestal directed Bushaw to answer the door but to be careful about what he said. Two men at the door asked Bushaw if he had seen anyone running in the complex. Bushaw said no and shut the door.

A second knock at the door came a few minutes later. Vestal told Bushaw not to answer it, but Bushaw convinced him that it would look suspicious not to respond this time. Bushaw opened the door to a patrol officer, pointed inside, and then ran out of the apartment. Police apprehended Vestal in the apartment.

The State charged Vestal with first degree robbery, residential burglary, and first degree kidnapping. At trial, Vestal presented a diminished capacity defense. He testified that his alcohol and cocaine consumption had caused him to black out during the crimes.

The jury found Vestal guilty as charged. At sentencing, Vestal stipulated to his criminal history, which included a 1988 second degree rape conviction and a 1993 attempted first degree robbery conviction. Each qualified as a strike under the POAA. Vestal's current robbery and kidnapping offenses each qualified as a third strike. Vestal was sentenced to life without the possibility of early release on each count. The court imposed a standard range sentence on the residential burglary conviction.

This appeal followed.

ANALYSIS
Sufficiency of the Evidence

A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle. RCW 9A.52.025(1). Here, Vestal argues, not that he lacked the capacity to form the required specific intent for residential burglary, but that the evidence was insufficient to find that he entered or remained unlawfully in Bushaw's apartment with intent to commit a crime against a person or property therein. We disagree.

A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn therefrom. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We will affirm a jury's guilty verdict if the evidence, when viewed in the light most favorable to the State, permits any rational trier of fact to find all the elements of the crime beyond a reasonable doubt. Goodman, 150 Wn.2d at 781.

The evidence was sufficient to find that Vestal entered Bushaw's apartment intending to commit a crime against Bushaw. Fleeing from the robbery, Vestal entered Bushaw's apartment without permission after telling him that he needed to use a phone because his wife was in labor. Vestal then told Bushaw that he would shoot him if Bushaw did not do as he ordered. Vestal told Bushaw to be quiet, to keep a lookout, and to make sure no one knew he was inside when Bushaw answered the door. The jury could conclude from this evidence that Vestal entered the apartment to abduct Bushaw and use him as an aid in escaping capture for the robbery.1 See RCW 9A.40.010(1)-(2) (defining `abduction'), .020 (first degree kidnapping). Sufficient evidence supports the jury's verdict finding Vestal guilty of residential burglary.

Prosecutorial Misconduct

Vestal maintains that the prosecutor committed misconduct by commenting on his exercise of the marital privilege. Spousal communications are privileged during and after the marriage and may not be revealed by either spouse without the consent of the other. Former RCW 5.60.060(1) (2001). It is misconduct to draw an inference of guilt from the assertion of the marital privilege. State v. Smith, 82 Wn. App. 327, 336-37, 917 P.2d 1108 (1996), review denied, 130 Wn.2d 1023 (1997), overruled by State v. Miller, 110 Wn. App. 283, 284-85, 40 P.3d 692, review denied, 147 Wn.2d 1011 (2002). But Vestal's argument is not well taken.

Vestal testified that on the day of the robbery, he went to an employment agency to find work to pay for presents that he and his ex-wife put on layaway for their children. According to Vestal, he then went to a friend's home and smoked cocaine and drank alcohol. The prosecutor asked the following in cross-examination:

Q. And if it were true — or, in fact, if you went to put toys on layaway at some store — and I think your words were, we went and put toys on layaway — your wife would be able to corroborate that fact, correct?

A. Yes, sir.

Q. Don't have her here, do you?

{DEFENSE COUNSEL}: Objection, Your Honor; form of the question.

THE COURT: Sustained.

4 RP at 362. The prosecutor raised the issue of layaway presents in closing argument: `{T}here's no — his ex-wife is not here to testify and corroborate that that was going on.' 4 RP at 382.

Vestal's prosecutorial misconduct claim fails for three reasons. First, the fact that Vestal and his ex-wife had put presents on layaway was not a `communication' subject to privilege. State v. Hermes, 71 Wn.2d 56, 58-59, 426 P.2d 494 (1967); State v. Americk, 42 Wn.2d 504, 506-07, 256 P.2d 278 (1953). Second, Vestal and his ex-wife were divorced at the time of the allegedly privileged communication; the marital privilege does not apply to communications between ex-spouses. Third, Vestal's failure to make a marital privilege objection at trial waived this issue. See RAP 2.5(a) (nonconstitutional error waived if not raised at trial); State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (failure to object generally waives alleged prosecutorial misconduct); State v. Roberts, 73 Wn. App. 141, 145, 867 P.2d 697 (appellate court does not consider specific objections raised for the first time on appeal), review denied, 124 Wn.2d 1022 (1994).

Vestal also contends that the prosecutor's remarks improperly suggested that Vestal had a duty to present a case. But under the missing witness rule, `{t}he prosecutor may comment on the defendant's failure to call a witness so long as it is clear the defendant was able to produce the witness and the defendant's testimony unequivocally implies the uncalled witness's ability to corroborate his theory of the case.' State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, review denied, 115 Wn.2d 1014 (1990); see also Smith, 82 Wn. App. at 336 (missing witness rule does not apply if testimony is privileged). Here, Vestal offered testimony that he claimed could be corroborated by his ex-wife; the prosecutor did not commit misconduct by commenting on Vestal's failure to call his ex-wife to provide that corroboration.

Ineffective Assistance of Counsel

The State impeached Vestal's credibility with a prior conviction for attempted first degree robbery. Defense counsel stipulated that the conviction was admissible under ER 609(a)(2) as a crime of dishonesty. Vestal now maintains that defense counsel was constitutionally ineffective for not seeking to have the crime sanitized, i.e., admitted as an `unnamed crime of dishonesty.' We disagree.

An ineffective assistance of counsel claim requires the defendant to show that (1) counsel's performance was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) the deficient performance was...

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