State v. Winchester, 68906-1-I

• Decision Date: 15 September 2014
• Docket Number: No. 68906-1-I,68906-1-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JEREMIAH LANCE WINCHESTER, Appellant.

STATE OF WASHINGTON, Respondent, v. JEREMIAH LANCE WINCHESTER, Appellant.

No. 68906-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 15, 2014

UNPUBLISHED OPINION

APPELWICK, J. — Winchester appeals his judgment and sentence for attempted possession of heroin, attempted robbery in the first degree, and unlawful possession of a firearm. He argues that there were three significant defects at his trial. First, he alleges that the trial court failed to adequately inquire into his request for new counsel. Second, he contends that the court improperly admitted statements he involuntarily made to police while recovering from a major injury. Third, he asserts that the prosecutor committed misconduct by improperly shifting the burden of proof during closing argument.

Winchester challenges his sentence for attempted robbery, because the combined term of confinement and community custody exceeded the statutory maximum. He also asserts that his attempted possession conviction was unranked and thus not subject to a firearm enhancement. Winchester raises four issues in his statement of additional grounds. We affirm.

FACTS

On November 22, 2011, Jeremiah Winchester, his son, Jesse¹ Winchester, Gavin Glyzinski, and Johnny Arellano went to the home of Melinda Wilson and Rob Lara. Winchester asked Lara if he knew someone who could get Winchester $1,800 worth ofheroin. Lara knew someone called "Chuko," whose real name was Salvador Rodriguez. Winchester asked Lara to call Chuko. Lara did. Chuko said he could supply the heroin and would be there in about an hour. Winchester said that he planned to take Chuko's guns and money.

Chuko arrived with his brother, Oscar Rodriguez (nicknamed "Scrappy"), and a man named Andrew Medina. Chuko carried a black backpack. Lara led Chuko, Scrappy, and Medina upstairs, where the other men and Wilson were.

Things escalated quickly. One of the men in Chuko's group pulled out a gun. Winchester picked up a gun that lay at his feet. He grabbed one of the men by the shoulder and asked, '"Where are you going?'" The man turned around and shot Winchester in the face.

More shots were fired. Chuko, Scrappy, and Medina fled. Lara found Jesse at the bottom of the stairs, clutching his chest. Wilson called 911. Jesse ultimately died. Lara also found a bag on the stairs, which was not there before Chuko arrived. The bag contained heroin and methamphetamine.

Winchester was taken to the hospital. The bullet had entered his cheek and shattered everything back to his neck. It remained lodged near his spine. Detective Lee Beld visited Winchester in the hospital three times and spoke with him about the incident. The two latter interviews were tape recorded.

Winchester was charged with attempted possession of a controlled substance (heroin), count I; attempted possession of a controlled substance (methamphetamine), count II; attempted first degree robbery, count III; and second degree unlawful possessionof a firearm, count IV.² The jury found Winchester guilty of counts I, III, and IV, with a special firearm verdict on counts I and III.

He appeals his judgment and sentence.

DISCUSSION

Winchester alleges three trial errors: improper denial of his request for new counsel, improper admission of his statements to police, and prosecutorial misconduct. He also challenges his sentence for attempted robbery and the firearm enhancement on his sentence for attempted possession. In addition, he raises four issues in his statement of additional grounds.

I. Request for New Counsel

Winchester argues that the trial court abused its discretion in denying his request for new counsel, because it did not adequately inquire into his request. We review a trial court's refusal to appoint new counsel for abuse of discretion. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80 (2006). The factors to consider are (1) the extent of the conflict, (2) the adequacy of the trial court's inquiry, and (3) the timeliness of the motion. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001) (adopting the test set out in United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)). An adequate inquiry requires a full airing of the defendant's concerns and a meaningful inquiry by the court. Cross, 156 Wn.2d at 610. "Formal inquiry is not always essential where the defendant otherwise states his reasons for dissatisfaction on the record." State v. Schaller. 143 Wn. App. 258, 272, 177 P.3d 1139 (2007). A defendant must demonstrategood cause to warrant substitution of counsel, such as a conflict of interest or a complete breakdown in attorney-client communications. State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239(1997).

In State v. Varga, 151 Wn.2d 179, 200-01, 86 P.3d 139 (2004), the court adequately considered the merits of James Foy's request. Foy expressed general dissatisfaction and distrust with his counsel's performance. Id. at 200. The court allowed him to explain the reasons for his dissatisfaction and questioned counsel about the merits of Foy's complaint. Id. at 200-01. Counsel responded that he had consulted Foy about trial tactics and advised him of his legal rights. Id. at 201. This was a sufficiently searching inquiry. Id.

Likewise, in Schaller, the court provided the defendant an adequate opportunity to voice his concerns. 143 Wn. App. at 271. Initially, Schaller told the court that he had no problems communicating with his attorneys, Id. at 262. However, he later made multiple requests to substitute counsel. See id. at 263-66. He complained that he was not provided certain discovery and accused his attorneys of lying to him. Id. at 263. Schaller then moved to fire his attorneys for disclosing case details to his ex-wife. Id. at 264. He also accused counsel of asking him to commit perjury, Id. at 265. The trial court denied his requests, Id. at 263-67. It concluded that, despite Schaller's animosity toward his attorneys, he was able to communicate with them. Id. at 267. We affirmed, Id. at 272. Schaller was able to address his concerns in front of multiple judges. Id. at 271. The judges questioned Schaller about whether his conflicts affected his case and also heard from his counsel. Id. at 265, 271. These inquiries did not reveal a completecommunication breakdown. Id. at 271. The trial court properly denied Schaller's requests. Id. at 272.

Here, Winchester expressed several concerns to the court during motions in limine the morning before jury selection:

MR. WINCHESTER: Your Honor, I just have a couple of questions. I don't know how this all works, but yeah, I haven't seen discovery. I was introduced to my lawyer once, and then I talked to him with the investigator once. They read me one page of discovery, but they both had to go.

I saw him again when he told me about a plea agreement with someone, and that's the only times that I talked to him. I haven't seen any of discovery. I haven't helped in my own defense at all.

I don't understand why I can't get a change of venue after what the paper has done, after some of the things that happened in this country, especially the sheriffs [sic] department surrounding my house SWAT [Special Weapons and Tactics]-team style and telling all my witnesses that I sent them there to get these statements. I mean, I didn't know that was the deal.

The sheriffs actually lied to my witnesses after I asked them in my house.

The court told Winchester that there had been no motion for change of venue, but the jurors would be questioned during voir dire about their knowledge of the case. It also noted that there were several days before trial during which Winchester could talk to defense counsel about his concerns and review discovery. Shortly before Winchester's request, counsel had asked that Winchester be able to review the discovery he sought. Counsel also commented that he and Winchester had numerous phone calls in addition to their meetings. The court concluded that Winchester and counsel could work out any issues and bring a motion if necessary.

The next day, Winchester again raised concerns:

MR. WINCHESTER: Your Honor, I would like to say something at this time . . . so far, my lawyer I've seen him three times, and before the jury selection happens, I don't feel confident I've had adequate counsel.

I waited this whole time. He told me the whole time it's going to come out, it's going to come out. I found out today some numerous things that have happened with the other witnesses and numerous things that happened to my witnesses, investigators came up one time to talk to my witnesses at my house.

At this point, I would like to ask for new counsel.

The court told Winchester that it was too late for new counsel, but that he still had time to work with his current counsel before trial.

Winchester then indicated displeasure that "over half of the witnesses that I wanted were not questioned, and the half that was [sic] questioned were told that we're not asking the questions that they needed to be asked, and were not even put on the witness list." The court replied that, without a list of the witnesses Winchester wanted to call, it could not address his complaint. Instead, the court said, Winchester could raise these concerns to his attorney.

Winchester replied, "I believe the Whatcom County court is doing this, there is [sic] numerous witnesses for the prosecution that are not being charged until they make a successful statement as to what they are likely to say on the stand." The court replied that only the prosecutor controls who is charged, but that Winchester could cross-examine the witnesses that troubled him.

The prosecutor noted that, in his experience, defense counsel had been diligent in interviewing major witnesses. The court responded:

THE COURT: I understand Mr. Winchester's claim not to be that. His claim is that there are people who he would have liked to have called as witnesses that haven't been investigated by Mr. Brodsky, and that's --

MR. WINCHESTER: I didn't --

THE...