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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 82920-3-I v. PUBLISHED OPINION CORNELIUS RED RITCHIE,
Appellant.
DWYER, J. — Cornelius Ritchie appeals from the judgment entered on a
jury’s verdict finding him guilty of three counts of assault in the second degree,
one count of felony harassment, and one count of assault in the fourth degree.
Ritchie contends that the trial court committed an error of constitutional
magnitude by excluding evidence that two testifying witnesses had been illegally
occupying property when encountered by law enforcement four months after the
incident leading to Ritchie’s arrest. Ritchie further contends that the prosecutor
committed misconduct during closing argument, that his persistent offender
sentence is cruel and unusual, and that the trial court violated his right to a jury
determination of his prior convictions. Finding no error, we affirm.
I
Ritchie resided in a trailer in the parking lot behind the Lochsloy store,
located on Highway 92 between Lake Stevens and Granite Falls in Snohomish
County. In the afternoon of December 18, 2019, Ritchie was involved in an For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/2
altercation with Deborah Garibay, the owner of the trailer in which he resided.
According to Garibay, while outside of the trailer, Ritchie hit her in the head once
with a baseball bat, knocking her to the ground. Ritchie then tossed the baseball
bat and struck Garibay several more times with his fists. Garibay attempted to
run, but Ritchie pursued her, still attempting to hit her.
Amanda Duran and Cody Chapin were sitting in their car in the Lochsloy
store parking lot. Duran and Chapin saw Ritchie pursuing Garibay and decided
to intervene. Chapin got out of the car and confronted Ritchie. In response,
Ritchie threatened to kill both Chapin and Duran. Duran remained in the car but
shouted at Ritchie that she had mace that she would use if Ritchie did not stop
his pursuit of Garibay. Ritchie responded that he did not care and would “eat”
the mace. Duran then told Ritchie that if he was a man, he would walk away.
Ritchie stopped at that point and walked back to the trailer.
Garibay got into the back seat of Chapin’s vehicle. According to Duran
and Chapin, Garibay asked Chapin to drive her to her truck, which was parked in
another part of the lot. Chapin attempted to oblige. However, Ritchie reached
the truck first, took the keys that Garibay had left inside the vehicle, and started
the vehicle.
Chapin drove out of the parking lot and onto Highway 92, heading toward
Granite Falls. Ritchie followed in Garibay’s truck. According to Chapin, Duran,
and Garibay, the vehicles were traveling well in excess of the 55 miles-per-hour
speed limit. Ritchie used the truck to ram the back of Chapin’s vehicle. Chapin
asserted that this caused him to cross the center line and force a semi-truck off
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/3
the road. However, Chapin claimed that his car was not seriously damaged
during this chase. Law enforcement could neither confirm nor rule out that the
vehicles had contacted one another because they were never able to inspect
Chapin’s vehicle.
Ritchie stopped following Chapin’s vehicle after Chapin turned onto
Crooked Mile Road. Once on Crooked Mile Road, Chapin pulled into the
driveway of a friend’s house. Chapin, Duran, and Garibay then got out of the
vehicle and entered the house. Soon thereafter, Chapin’s friend escorted
Garibay to the nearby Granite Falls Fire Department in order to seek medical
attention. Duran and Chapin later followed on foot.
Garibay arrived at the fire station at approximately 5:00 p.m. Fire
department personnel contacted the Snohomish County Sheriff’s Office;
Deputies William Kleckley and Joseph Dunn responded. Upon arrival, Deputy
Kleckley observed Garibay secured in an ambulance cot and appearing “very
distraught.” Deputy Kleckley spoke with Garibay briefly, before he and Deputy
Dunn obtained a joint statement from Chapin and Duran. Garibay was taken to
the hospital via ambulance; Deputy Kleckley followed in order to further speak
with her. Deputy Dunn remained at the fire station while waiting for Duran and
Chapin to complete their written statement.
Garibay was seen at the emergency room by forensic nurse examiner
Sherri Weyker. Initially, Weyker asked Garibay to provide her with a narrative of
the events that led to her hospital visit. Weyker recorded this information in her
report before conducting a medical examination. Garibay reported that she felt
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/4
some tenderness on her head and some pain on her left flank. Weyker observed
some slight bumps on Garibay’s head, but did not make note of or photograph
them as they were not visibly a sign of injury. Weyker did not observe any
bruises aside from a small unrelated bruise on Garibay’s right breast. Deputy
Kleckley obtained a written statement from Garibay at the hospital.
The State charged Ritchie with three counts of assault in the second
degree based on the use of a deadly weapon for ramming Chapin’s vehicle, one
count of felony harassment for threatening to kill Chapin, and one count of
assault in the fourth degree for his altercation with Garibay. 1 Ritchie was
originally tried in March 2021. The jury in that trial could not reach a verdict, and
the trial court declared a deadlock and discharged them. Ritchie was tried a
second time in May 2021.
At trial, defense counsel’s theory of the case was that the events
described by Garibay, Duran, and Chapin had never occurred. To support his
theory, defense counsel sought to introduce testimony from Deputy Kleckley
about an occasion in April 2020, four months after the events for which Ritchie
was charged, when he witnessed Chapin, Duran, and Garibay together. On that
occasion, Deputy Kleckley was dispatched to a property in Granite Falls to serve
a trespass notice on two individuals – Chapin and Duran. When he arrived,
Deputy Kleckley encountered Garibay, who told him that she was there to relay
information from the prosecutor about upcoming court dates.
1 Ritchie was also charged with a second count of harassment, six counts of violation of a
court order, and taking a motor vehicle without permission. The State voluntarily dismissed all of these counts.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/5
In ruling on the admissibility of defense counsel’s proffered evidence, the
trial court found that the encounter itself was relevant to the credibility of Garibay,
Chapin, and Duran, who had previously reported that they were not acquainted
before the events in December 2019. However, the trial court questioned the
relevance of the reason for Deputy Kleckley’s presence, i.e., that Deputy
Kleckley was there to conduct an eviction of trespassers. Defense counsel
asserted that the evidence was relevant, but admitted that he thought “the value
[of the evidence] is marginal” and was “not crucial to the defense case.” The trial
court ruled that “any probative value” regarding Chapin’s and Duran’s unlawful
occupation of the property was “grossly outweighed by the danger of unfair
prejudice.” The trial court did, however, permit defense counsel “to go into the
fact that Ms. Garibay was contacted in the presence of these individuals.”
During the second trial, Deputy Kleckley, Duran, Chapin, and Garibay all
testified about the April 2020 encounter. Deputy Kleckley testified that when he
encountered Garibay in April 2020, Garibay reported that she was there to tell
Chapin and Duran to contact the prosecutor regarding upcoming court dates. In
her own testimony, Garibay insisted that she did not say this and, to the contrary,
had informed Deputy Kleckley that she was there to help Chapin and Duran
move. Chapin and Duran similarly testified that Garibay was there to help them
move and that they had asked for Garibay’s help that morning.
The jury convicted Ritchie on all counts. Because he had previously been
convicted of at least two most serious offenses, Ritchie was sentenced under the
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/6
Persistent Offender Accountability Act of the Sentencing Reform Act of 19812
(POAA). Ritchie was sentenced to life in prison without the possibility of parole
on the three counts of assault in the second degree, 60 months imprisonment on
the count of harassment, and 364 days imprisonment on the count of assault in
the fourth degree, to be served concurrently.
II
Ritchie asserts that the trial court erred by excluding evidence that Duran
and Chapin were trespassing on the day that Deputy Kleckley saw them with
Garibay. He contends that this purported error violated his right to confront the
witnesses against him (phrased as the right to present a defense) and, thus,
reversal is required. Because the fact that Duran and Chapin were trespassing
in April 2020 had only the most minimal, tangential relevance to the charges
against Ritchie, we disagree.
When a criminal defendant asserts that an evidentiary ruling has violated
his constitutional right “to present a defense,” we engage in a two-part analysis.
First, we review the trial court’s ruling for an abuse of discretion, applying the
evidentiary rule or evidentiary statute at issue. State v. Arndt, 194 Wn.2d 784,
797, 453 P.3d 696 (2019). Second, we consider de novo whether there has
been a violation of the defendant’s Sixth Amendment rights. Arndt, 194 Wn.2d at
797.
A
For evidence to be admitted at trial, it must be relevant. ER 402.
2 Ch. 9.94A RCW.
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Evidence is relevant if it tends to prove or disprove the existence of a fact of
consequence to the outcome of the case. State v. Weaville, 162 Wn. App. 801,
818, 256 P.3d 426 (2011). Relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” ER 403.
To be sure, the relationship between Duran, Chapin, and Garibay was
relevant to Ritchie’s defense. For this reason, the trial court properly permitted
defense counsel “to go into the fact that Ms. Garibay was contacted in the
presence of these individuals” in April 2020. And defense counsel did elicit
testimony from Duran, Chapin, Garibay, and Deputy Kleckley regarding the April
2020 encounter. Deputy Kleckley testified that he saw Duran, Chapin, and
Garibay together; Chapin and Duran testified that they had contacted Garibay
about needing her assistance that same day; and Deputy Kleckley and Garibay
gave conflicting testimony regarding Garibay’s statements to the deputy during
the encounter. The only evidence the trial court excluded was the evidence that
Chapin and Duran were trespassing on the day that Deputy Kleckley
encountered them.
The trial court correctly determined that the probative value of this
evidence was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. Trespassing is not probative of
dishonesty in and of itself. Defense counsel even admitted that the nature of the
encounter had very little relevance, stating that “the value is marginal” and the
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/8
evidence “is not crucial to the defense case.” This is especially so when defense
counsel was able to discredit the testimony of the witnesses in a multitude of
other ways.
That Chapin and Duran were trespassing in April 2020 had no bearing on
Ritchie’s guilt or innocence. Accordingly, the trial court did not abuse its
discretion by declining to admit this evidence pursuant to ER 403.
B
The second step in our analysis requires us to examine whether the trial
court’s ruling, despite being a proper application of the evidentiary rules,
nonetheless runs afoul of either the state or federal constitutions.3 There has
been some confusion as to what this second step entails. It is not the case, as
Ritchie would have us hold, that phrasing an evidentiary ruling as a constitutional
claim provides a means for an end run around the Rules of Evidence. See State
v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015). Nor is the second
step analysis merely a repetition of the analysis undertaken at step one. Rather,
we articulate what has remained the underlying concern of the courts in deciding
“right to a defense” cases: whether there is a unique or aberrant rule that results
in the defendant having a lesser Sixth Amendment right than that possessed by
citizens in other jurisdictions or persons charged with a different crime in the
3 Ritchie asserts that the trial court violated his right under the state and federal
constitutions to “present a defense.” Neither the state nor the federal constitutions mention any such right. Ritchie’s argument is more appropriately classified as a violation of the right to confront the witnesses against him, which is specifically enumerated in both the federal and state constitutions. U.S. CONST. amend. VI; CONST. art. I, § 22.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/9
same jurisdiction. Review of the relevant case law tells us that this is so.
The notion of a “right to present a defense” has its origins in the United
States Supreme Court’s seminal decision in Chambers v. Mississippi, 410 U.S.
284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). In Chambers, Gable McDonald
confessed in a sworn writing to the murder of a police officer, a crime for which
Leon Chambers had been charged. McDonald also orally admitted to the crime
in the presence of at least three witnesses. But McDonald later repudiated his
confession. Chambers, 410 U.S. at 287-88. At trial, Chambers attempted to
elicit evidence of McDonald’s written confession and his three oral admissions.
Chambers, 410 U.S at 289. Initially, Chambers requested to be allowed to call
McDonald as an adverse witness. Chambers, 410 U.S at 291. The trial court
allowed Chambers to call McDonald; however, due to an antiquated Mississippi
common law rule requiring that the party calling a witness vouch for the veracity
of that witness’s testimony, the trial court denied Chambers the ability to treat
McDonald as a hostile witness in order to impeach his testimony should he
repeat his repudiation of the written confession. Chambers, 410 U.S at 291. As
a result, Chambers was unable to question McDonald concerning his written
confession and challenge his testimony should he reassert his repudiation.
Chambers then sought to introduce testimony from the lay witnesses
before whom Chambers uttered his admissions. Chambers, 410 U.S at 292.
The State objected to the proffered testimony as hearsay. The trial court
sustained this objection because Mississippi’s evidence rules did not at that time
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/10
recognize statements against penal interest as an exception to the prohibition
against hearsay. Chambers, 410 U.S at 292. Thus, Chambers was unable to
put McDonald’s confession in front of the jury, challenge McDonald’s repudiation
of the confession, or present witnesses to testify to his admissions and that the
repudiation was not credible. Chambers, 410 U.S at 294. In truth, the rulings
gutted Chambers’ defense.
As the Supreme Court noted,
In sum, then, this was Chambers’ predicament. As a consequence of the combination of Mississippi’s ‘party witness’ or ‘voucher’ rule and its hearsay rule, he was unable either to cross- examine McDonald or to present witnesses in his own behalf who would have discredited McDonald’s repudiation and demonstrated his complicity.
Chambers, 410 U.S. at 294.
In deciding the case, the Supreme Court first held that Mississippi’s
antiquated rule prohibiting Chambers from cross-examining a witness he called
to testify (McDonald) violated his right to confront the witnesses against him.
Chambers, 410 U.S at 295. The Court held that whether a witness was “against”
the defendant did not depend on the technicality of who called the witness to
testify but, rather, depended on whether the witness’s testimony inculpated the
defendant. Chambers, 410 U.S at 297. McDonald’s repudiation of his
confession so inculpated Chambers. Chambers, 410 U.S at 297.
The Court held that the trial court’s error in denying the opportunity to
confront McDonald was further compounded by its refusal to allow Chambers to
call the three lay witnesses to McDonald’s oral admissions as trial witnesses.
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Chambers, 410 U.S at 298. Although the Court did not strike down Mississippi’s
hearsay rule, it held that such rules may not be applied “mechanistically to defeat
the ends of justice” “where constitutional rights directly affecting the
ascertainment of guilt are implicated.” Chambers, 410 U.S at 302.
In sum, because Mississippi’s rules prohibited Chambers from calling
witnesses whose testimony was fundamental to the determination of guilt or
innocence, even proper application of those rules violated Chambers’ Sixth
Amendment rights, incorporated against the states through the Fourteenth
Amendment due process clause, to present witnesses in his favor and to
confront witnesses against him. Chambers, 410 U.S at 302.4
One year later, the Supreme Court revisited the right to confront
witnesses. See Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347
(1974). In that case, the defendant, charged with burglary, sought to cross-
examine the state’s primary witness about the fact that the witness was on
probation for a burglary conviction as a juvenile offender. By doing so, Davis
sought to demonstrate that the witness “acted out of fear or concern of possible
jeopardy to his probation.” Davis, 415 U.S. at 311. However, the trial court
excluded any mention of the witness’s probationary status, relying on a statute
and a juvenile procedural rule that barred the introduction of juvenile
adjudications as evidence in a court of general jurisdiction unless used for
sentencing purposes. Davis, 415 U.S. at 311. Thus, when the witness testified
4 See also U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy
the right . . . to have compulsory process for obtaining witnesses in his favor.”).
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that he had no reason to fear law enforcement and had never previously been
questioned by law enforcement, Davis was unable to confront the witness and
discredit that testimony. Davis, 415 U.S. at 313-14. Davis was subsequently
convicted of burglary and grand larceny. Davis, 415 U.S. at 314.
The Supreme Court reversed the conviction. Noting the importance of the
witness’s testimony in securing Davis’s conviction, the Court held that the
defendant’s right to confrontation was violated by the trial court’s application of
the statute and rule so as to exclude evidence of the witness’s probationary
status. Davis, 415 U.S. at 317-18. With all evidence of the witness’s juvenile
adjudication excluded, defense “counsel was unable to make a record from
which to argue why [the witness] might have been biased or otherwise lacked
that degree of impartiality expected of a witness at trial.” Davis, 415 U.S. at 318.
Notably, the defendant would not have been so restricted in presenting his
defense had the witness’s conviction not been in juvenile court. Thus, Davis’s
Sixth Amendment right to confrontation was restricted in a way that did not
generally apply either to other Alaskan defendants or to defendants in other
states. The Court held that, on the facts presented, the defendant was
completely denied the “right of effective cross-examination” and, accordingly, his
right to confrontation was violated. Davis, 415 U.S. at 318.
Seminal Washington cases interpreting the Sixth Amendment rights to
cross-examination and compulsory process have been similarly concerned with
unique, aberrant, new, or not generally applicable rules of evidence or procedure.
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Indeed, the two-step analytical test outlined in Arndt and refined in State v.
Jennings, 199 Wn.2d 53, 502 P.3d 1255 (2022), has its origins in State v.
Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983). Hudlow concerned the implications
of Washington’s adoption of a rape shield statute, passed by the legislature in
1975. 99 Wn.2d at 6; LAWS OF 1975, 44th Leg.,1st Ex. Sess. ch. 14, § 1. Rape
shield statutes were an advent of the mid-1970s, and Washington was one of the
first states to enact one.5
In Hudlow, the court held that the exclusion of evidence sought to be
admitted by the defendant is justified when there is a compelling state interest for
the exclusion. 99 Wn.2d at 16. The court further noted that the rape shield
statute serves multiple compelling state interests, including achieving just trials
based on truth-finding rather than based on prejudice against rape victims
premised on their prior sexual activity, and encouraging rape victims to report the
crimes committed against them. Hudlow, 99 Wn.2d at 16. Accordingly, when
evidence of a victim’s sexual history is of little relevance, the state’s compelling
interests outweighed the need for the evidence’s introduction. Hudlow, 99 Wn.2d
at 16. On the other hand, when the proffered evidence is of high probative value,
“no state interest can be compelling enough to preclude its introduction
consistent with the Sixth Amendment and Const. art. 1, § 22.” Hudlow, 99 Wn.2d
at 16. While, 40 years later, Washington’s rape shield statute is accepted as a
well-established aspect of our existing evidentiary rules and its facial
5 Rape shield statutes, 1 Wharton's Criminal Evidence § 4:41 (15th ed.).
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constitutionality is beyond question, that was not yet evident at the time Hudlow
was decided.
Similar concerns were recently at play in State v. Chicas Carballo, 17 Wn.
App. 2d 337, 486 P.3d 142, review denied, 198 Wn.2d 1030 (2021). Therein, we
were concerned with evidence that had been excluded pursuant to ER 413.
Chicas Carballo, 17 Wn. App. 2d at 345. ER 413 was a newly promulgated
evidentiary rule, adopted by the Supreme Court in September 2017, 189 Wn.2d
1120, prohibiting the introduction of evidence concerning a person’s immigration
status unless certain procedural requirements are met. ER 413(a). This rule
was all but unique in the United States, as, at the time, only one other state had a
similar evidence rule. See CAL. EVID. § 351.3.6
In Chicas Carballo, the trial court prohibited the defendant from
questioning the codefendant’s girlfriend, the only live witness to the crime,
concerning her immigration status due to his failure to follow the procedures set
forth in ER 413, which had gone into effect a month before trial. 17 Wn. App. 2d
at 347. We reversed, holding that “rules that impose procedural requirements
cannot be wielded as a sword by the State to defeat the constitutional rights of an
accused in a criminal trial.” Chicas Carballo, 17 Wn. App. 2d at 349. The
evidence sought to be admitted was highly probative, given that the witness had
been threatened with deportation if she did not cooperate in the police
investigation. Thus, no state interest could have outweighed its value to the truth
6 California’s statute was repealed by its own terms as to criminal matters in 2022.
Currently the only other state with a rule similar to ER 413 is Pennsylvania. See PA. EVID. R. 413.
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seeking function.7 This was particularly so because the state had suffered no
prejudice whatsoever as a result of the defendant’s failure to follow the newly
minted rules of procedure. Chicas Carballo, 17 Wn. App. 2d at 350-51.
Ultimately, the pertinent concern is whether both parties receive a fair trial.
State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). As Chambers,
Davis, Hudlow, and Chicas Carballo all demonstrate, that concern is heightened
when a new or antiquated rule appears to threaten the defendant’s right to a fair
trial. The concern is not as paramount when the rule being applied is a well-
established, commonly utilized rule that has been applied time and again without
any demonstrated detriment to the fairness of proceedings. Such is the case
with rules such as ER 403, a version of which is accepted in every court in this
nation and which have been utilized in one form or another for many decades.
Recognizing that there is room for wide application of established rules of
evidence within the boundaries of the constitution, the United States Supreme
Court has noted that “trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, prejudice, confusion
of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 89 L. Ed. 2d 674 (1986). Our Supreme Court has recognized similar
7 Indeed, 48 other states had perceived no state interest compelling enough to have
adopted a similar rule.
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limitations to the same right. State v. Orn, 197 Wn.2d 343, 352, 482 P.3d 913
(2021) (ER 403 serves “a permissible purpose” under constitution); accord
Jennings, 199 Wn.2d at 63.
“At its core, the constitutional right to present a defense ensures the
defendant has an opportunity to defend against the State’s accusations.”
Jennings, 199 Wn.2d at 66. But “the Confrontation Clause guarantees only
‘an opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.’”
Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)
(quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15
(1985)). Accordingly, when the defendant has an opportunity to present his
theory of the case, the exclusion of some aspects of the defendant’s proffered
evidence will not amount to a violation of the defendant’s constitutional rights.
Jennings, 199 Wn.2d at 66. To be sure, “[t]he ability of the defendant to achieve
through other means the effect that the excluded examination allegedly would
have produced is a factor indicating that his right to confrontation was not
violated.” United States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005).
Here, Ritchie’s theory of the case was that Duran, Chapin, and Garibay
were not credible witnesses and that Garibay was using her friends to fabricate a
story and frame Ritchie. Evidence that Duran, Chapin, and Garibay were seen
together—months after the events at issue—was properly deemed relevant to
that defense theory. Indeed, Ritchie was able to elicit testimony about the April
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/17
2020 encounter from multiple witnesses during trial. Furthermore, one of the
witnesses opined that Duran, Chapin, and Garibay were now “best friends” “for
the rest of our lives.” However, the fact that Duran and Chapin were trespassing
in April 2020 does not tend to prove that the three people were engaged in a
conspiracy to frame Ritchie.
Furthermore, evidence that Duran and Chapin were trespassing was not
essential to demonstrating a lack of credibility in the testimony of Duran, Chapin,
or Garibay. Defense counsel was able to attack the credibility of these witnesses
in a myriad of ways including the following:
• Introducing global positioning system (GPS) data8 showing Ritchie’s
whereabouts on the afternoon of December 18, 2019, demonstrating
that the events did not occur at the time(s) claimed by the witnesses;
• Introducing GPS data showing Ritchie’s speed of movement, which
tended to demonstrate that the vehicle in which he was traveling did
not exceed the speed limit, contrary to the witnesses’ testimony;
• Eliciting testimony from Chapin that his car sustained no damage, even
though he claimed to have been struck at over 60 miles per hour;
• Eliciting testimony from Duran and Chapin that the events testified to
by them could not have lasted more than half an hour, leaving
approximately two hours of the afternoon unaccounted for;
• Eliciting testimony from Garibay that Ritchie did not pull on her hair,
contrary to Duran and Chapin’s testimony;
8 Ritchie was wearing a GPS monitor as a condition of his probation for a prior conviction.
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• Eliciting testimony from Garibay that she did not ask Chapin to drive
her to her truck, contrary to Duran and Chapin’s testimony;
• Eliciting testimony from Weyker that all of Garibay’s teeth were intact,
contrary to Garibay’s testimony;
• Eliciting testimony from Weyker that Garibay had no visible bumps on
her head, despite Garibay’s claim that she had been hit with a baseball
bat;
• Eliciting testimony from Weyker that Garibay had no trouble walking to
and from the restroom, contrary to Garibay’s testimony at trial;
• Eliciting testimony from the responding deputies that they do not share
contact information among witnesses, contrary to Garibay’s claim that
she learned of Chapin’s and Duran’s names from law enforcement;
• Eliciting testimony from Garibay contrary to what she told Deputy
Kleckley concerning why she was with Chapin and Garibay in April
2020;
• Questioning Chapin about his refusal to identify the friend at whose
house he parked on the date of the incident;
• Questioning Duran and Chapin about prior inconsistent statements
related to the time of day the incident occurred;
• Questioning Duran, Chapin, and Garibay about the number of times
Ritchie struck the back of Chapin’s vehicle (and receiving a different
answer from each witness);
• Confronting Garibay with her prior inconsistent statements concerning
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the nature of her relationship with Ritchie.
Because Ritchie was able to attempt to discredit Garibay, Duran, and
Chapin in all of these ways, introducing evidence that Duran and Chapin were
illegally occupying property in April 2020 would have added nothing of value to
Ritchie’s defense. In other words, the evidence excluded was not highly
probative evidence, the exclusion of which could give rise to a constitutional
violation. Rather, the trial court’s ruling was nothing more than a standard
application of ER 403. The trial court’s evidentiary ruling did not violate Ritchie’s
rights under ER 403, the Sixth Amendment, or article I, section 22.
III
Ritchie next asserts that the prosecutor committed misconduct during
closing argument and that this misconduct deprived him of a fair trial. The State
counters that no misconduct occurred and, if it did, Ritchie has failed to
demonstrate any prejudice. We agree with the State.
A defendant claiming prosecutorial misconduct has the burden to prove
that the prosecutor’s conduct was both improper and prejudicial. State v. Fisher,
165 Wn.2d 727, 747, 202 P.3d 937 (2009). “Once proved, prosecutorial
misconduct is grounds for reversal where there is a substantial likelihood the
improper conduct affected the jury.” Fisher, 165 Wn.2d at 747.
When reviewing a prosecutor’s statements during closing argument, we
view the statements in the context of the entire argument. Fisher, 165 Wn.2d at
747. The prosecutor has “wide latitude in making arguments to the jury and
prosecutors are allowed to draw reasonable inferences from the evidence.”
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State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006) (citing State v.
Gentry, 125 Wn.2d 570, 641, 888 P.2d 1105 (1995)), overruled on other grounds
by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014). References to
evidence outside the record constitute misconduct. Fisher, 165 Wn.2d at 747
(citing State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988)).
Additionally, it is misconduct to denigrate the role of defense counsel. State v.
Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008). However, “[i]f defense
counsel failed to request a curative instruction, the court is not required to
reverse.” Fisher, 165 Wn.2d at 747 (citing State v. Russell, 125 Wn.2d 24, 85,
882 P.2d 747 (1994)).
Ritchie alleges that the prosecutor committed misconduct in two distinct
ways. First, Ritchie asserts that the prosecutor committed misconduct by
referencing excluded evidence. In her closing argument, the prosecutor argued:
So she goes to the hospital for medical treatment, and she is complaining of pain, she’s shaky, she’s crying, she’s got the headache, the whole bit, and her body hurts. And a person who has been beaten like that, of course your body is going to hurt, and you are going to know your body is going to hurt and are going to think that’s because you’re bruised. And later you see bruises. You’re like yeah, I had bruises.
Defense counsel objected to this argument. In response, the trial court
stated, “This is argument. The jury has been instructed time and time again that
this is argument. Proceed, please.” The prosecution concluded this line of
argument by stating, “But the fact is no one should be surprised Sherri Weyker
did not yet observe bruises on Deborah Garibay from these events.”
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Ritchie asserts that this argument was a reference to the testimony of
Deputy Edgar Smith concerning evidence of an incident on December 25, which
the trial court had stricken from the record. Had this been the only testimony
about bruising, Ritchie’s argument might have merit. But it was not. Early in the
trial, the prosecution asked forensic nurse Weyker whether she observed any
bruises on Garibay during her examination. Weyker indicated that she had not.
Later, the prosecution asked follow up questions about the lack of bruises:
Q Let’s talk a little bit about bruising. If somebody is -- well, I guess, how long would it take for a bruise to show up if somebody is struck? A That can vary on the individual. Q Is there any sort of, I guess, a set time frame that we could put on something like that? A No. .... Q Based on your medical experience, would you expect bruises to have shown up by the time that you are speaking with Ms. Garibay about these events? A I’ve done hundreds of cases. And there’s a lot of times where they’re reporting assault or injury where we do not see physical bruising, that it hasn’t shown up visibly by the time I see a patient.
Moreover, during her testimony, Garibay denied that she told Weyker that
she had no bruises:
Q And you had no bruises, correct? A Not true. Q Ma’am, you were specifically asked if you had any bruises, and you told Ms. Weyker no; isn’t that correct? A Not true. I don’t believe so.
When viewed in context of the entire trial, we cannot say that the
prosecutor committed misconduct by referencing bruises. Both before and after
the statement to which the defense objected, the prosecutor referenced Weyker’s
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testimony that bruises might not show up right away. The prosecutor made no
reference to Deputy Smith or anyone else viewing bruises on Garibay after the
date of the incident. Rather, the argument advanced was that Garibay may have
observed bruises on herself. Given Garibay’s testimony on cross-examination,
the prosecutor’s argument was in reference to evidence that had not been
excluded. It was thus not improper.
Similarly, the prosecutor’s argument that Ritchie and Garibay were in a
“toxic relationship” was not misconduct. First, unlike the other statements that
Ritchie alleges constitute misconduct, Ritchie did not object to this statement.
This argument is therefore considered waived unless the prosecutor engaged in
misconduct so flagrant and ill-intentioned that no instruction to the jury could
have cured the prejudice. State v. Padilla, 69 Wn. App. 295, 300, 846 P.2d 564
(1993).
In reviewing the record, there was evidence presented at trial concerning
an earlier incident in which Ritchie broke Garibay’s phone. There was evidence
that Garibay had assaulted Ritchie, causing him injuries. There was also
evidence that Garibay had reported to Nurse Weyker that Ritchie was her
boyfriend. The prosecutor’s description of the relationship between Ritchie and
Garibay as “toxic” was a reasonable inference from the evidence presented at
trial. Thus, contrary to Ritchie’s argument, the prosecutor describing Ritchie and
Garibay as being in a “toxic relationship” was not a flagrant and ill-intentioned
instance of misconduct. No entitlement to appellate relief is demonstrated.
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C
Ritchie next argues that the prosecutor committed misconduct by
impugning defense counsel. Ritchie points to several statements made by the
prosecutor during her rebuttal argument that seized on a misstatement by
defense counsel during his closing argument. Specifically, the prosecutor argued
during her closing argument:
And so, [the witnesses] do their best to recount what happened, but the emotions and the feelings of it all affect that ability to recount and how they recount what happened. And everybody can have a slip of the tongue, or make a mistake, or say the wrong thing at any time. You don’t have to be under the stress of giving testimony, you don’t have to be under the stress of immediately just having this event happen to you to screw up.
And I know that because the lawyers have done it in this trial. And we practice, and we prepare, and we have training, and we have experience, and we talk in front of people all the time. And, surely, we have our own thoughts and feelings about what ought to happen at the end of this trial.
Nonetheless, Mr. Wackerman said, “well, Mr. Turim talked about the cameras on the store.” That was the last witness, the defense investigator. He said absolutely nothing about video cameras at the store. Zero. There was nothing. And you were here and you observed it. And then you heard the argument, right? Anybody can mess anything up at any time. We don’t seize upon Mr. Wackerman’s mistake and say well, David Turim just must not have testified.
Defense counsel objected to this line of argument. In response, the trial
court once again admonished the jury that counsel’s arguments were not
evidence. The prosecutor continued:
In argument, Mr. Wackerman also said that Ms. Garibay had testified they turned onto Getchell Road. ....
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You’re aware that nobody testified they turned onto Getchell Road. They all testified it was Crooked Mile Road, right? You can make these types of mistakes, and witnesses do before and after they testify.
Had the prosecutor argued that defense counsel was deliberately
misstating the facts, that might have constituted misconduct. But the record does
not demonstrate this. Instead, the prosecutor noted that defense counsel had
made some inadvertent misstatements of fact in his closing argument, and that
this was consistent with the notion that anyone can make mistakes when
recounting events. This argument rested on the implication that defense counsel
was otherwise honest – the exact opposite of impugning him. It was not
misconduct for the prosecutor to make this argument.
D
Finally, the prosecutor’s argument that she expected “defense to come
up and lawyer all the language that was used by the victims variously to describe
the events” and that the witnesses’ testimony does not “have to be lawyered that
way” also did not constitute misconduct. This argument was in reference to
testimony by Duran and Chapin that they did not have a cell phone at the time of
the incident, although they did have a device that could be used to make calls
when connected to a wi-fi signal. When viewed in context, the prosecutor’s
statement about “lawyering” language was an argument that the witnesses did
not need to have used precise language in order to be credible. This is not akin
to arguments using words like “crock,” “bogus,” and “sleight of hand” that imply
that defense counsel is lying. See State v. Lindsay, 180 Wn.2d 423, 433-34, 326
P.3d 125 (2014); State v. Thorgerson, 172 Wn.2d 438, 451-52, 258 P.3d 43
24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/25
(2011). The prosecutor’s comments were a legitimate trial tactic and did not
constitute misconduct.
E
Even if the prosecutor had committed misconduct in her closing argument,
Ritchie would still not be entitled to the relief he seeks. To obtain reversal, the
defendant must demonstrate not only that the prosecutor committed misconduct,
but also that the misconduct was prejudicial. Fisher, 165 Wn.2d at 747. While
Ritchie objected to some of the statements that he alleges constitute misconduct,
he neither requested a curative instruction nor moved for a mistrial. “Defense
counsel’s failure to move for a curative instruction or a mistrial at the time
strongly suggests the argument did not appear [irreparably prejudicial] in the
context of the trial.” State v. Negrete, 72 Wn. App. 62, 67, 863 P.2d 137 (1993).
Furthermore, the trial court instructed the jury several times that counsels’
arguments were not evidence. The jury is presumed to have followed that
instruction. Warren, 165 Wn.2d at 29.9 In the absence of flagrant misconduct—
and there was none—no entitlement to appellate relief is demonstrated.
IV
Ritchie further asserts that the imposition of a mandatory life sentence
9 Ritchie also contends that his conviction should be reversed due to cumulative error.
The cumulative error doctrine applies where a trial is affected by several errors that standing alone may not be sufficient to justify reversal. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). The doctrine requires reversal where a combination of such errors denies the defendant a fair trial. Greiff, 141 Wn.2d at 929. However, where there are few or no errors, and the errors, if any, have little or no effect on the outcome of the trial, reversal is not required. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because there was no error at Ritchie’s trial, his convictions are not subject to reversal for cumulative error.
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without the possibility of parole under the POAA violated the state and federal
constitutional guarantee against cruel and unusual punishment, as the
punishment was grossly disproportionate to the offense of assault in the second
degree. We disagree.
The Eighth Amendment states that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
CONST. amend. VIII. Similarly, the Washington Constitution protects against
cruel punishment. CONST. art. I, § 14. Our Supreme Court has held that article I,
section 14 is more protective that the Eighth Amendment. State v. Witherspoon,
180 Wn.2d 875, 887, 329 P.3d 888 (2014). Accordingly, if a sentence does not
violate the Washington Constitution, we need not engage in an analysis under
the Eighth Amendment.
In determining whether a sentence is cruel under our state constitution, we
examine four factors: “(1) the nature of the offense, (2) the legislative purpose
behind the statute, (3) the punishment the defendant would have received in
other jurisdictions, and (4) the punishment meted out for other offenses in the
same jurisdiction.” State v. Rivers, 129 Wn.2d 697, 712-13, 921 P.2d 495 (1996)
(citing State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980)).10
10 The State contends that the Supreme Court analyzed these factors as they relate to
second degree assault in State v. Moretti, 193 Wn.2d 809, 446 P.3d 609 (2019). This is not accurate. Moretti involved a facial challenge to the POAA based on the age of the offender at the time of a first strike conviction. 193 Wn.2d at 814. Furthermore, although all three of the offenders were convicted of assault in the second degree, those convictions were secondary to class A felonies. Moretti, 193 Wn.2d at 831. Here, second degree assault was the offense with the highest seriousness level under the Sentencing Reform Act for which Ritchie was convicted.
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The first factor is the nature of the offense. Assault in the second degree
is designated as a “most serious offense.” RCW 9.94A.030(32)(b). It is also
designated as a “violent offense.” RCW 9.94A.030(58)(a)(viii). Additionally,
assault in the second degree is a crime against persons, not an “‘entirely
passive, harmless, and technical violation’” of a statute. Gonzalez v. Duncan,
551 F.3d 875, 886 (9th Cir. 2008) (28 years to life for failure to timely update sex
offender registration was cruel and unusual) (quoting People v. Carmony, 26
Cal.Rptr.3d 365, 372 (2005)). Courts have rarely, if ever, found a sentence of life
without parole for an adult offender to be grossly disproportionate to violent
offenses against persons. Norris v. Morgan, 622 F.3d 1276, 1293 (9th Cir. 2010)
(“[W]e are aware of no case in which a court has found a defendant’s term-of-
years sentence for a non-homicide crime against a person to be grossly
disproportionate to his or her crime.”).
Ritchie seizes on this factor, pointing out that the legislature has amended
the definition of “most serious offense” to remove robbery in the second degree
from the list. LAWS OF 2019, ch. 187, § 1. Notably, however, this was the only
offense that the legislature removed from the list of “most serious offenses.”
LAWS OF 2019, ch. 187, § 1. The legislature has amended RCW 9.94A.030
several times since then and not once has it deigned to remove any other
offenses from the list. Although assault in the second degree is listed at the
same level of seriousness for sentencing purposes as robbery in the second
degree, so is vehicular assault, which also remains on the list of “most serious
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offenses.” RCW 9.94A.030(32)(p), .515. It is reasonable that the legislature
would be far more concerned with crimes against persons, than with crimes
primarily against property. Indeed, as the State points out, the original version of
Senate Bill 5288 amending RCW 9.94A.030 proposed removing assault in the
second degree from the list of “most serious offenses,” but the legislature
ultimately rejected this proposal. ENGROSSED SUBSTITUTE S.B. 5288, 66th Leg.,
Reg. Sess. (Wash. 2019). We will not second guess the legislature’s judgment.
Additionally, Ritchie’s claim that the State’s offer of a lower sentence
during the plea bargaining process indicated that the State considered second
degree assault to be a minor offense for which a life sentence was unwarranted
is unfounded. The State’s interest at the plea bargaining stage is not necessarily
to obtain a sentence that it believes to be the most just but, rather, to “persuade
the defendant to forgo his right to plead not guilty.” Bordenkircher v. Hayes, 434
U.S. 357, 364, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). It has long been
accepted that “a State may encourage a guilty plea by offering substantial
benefits” including a greatly reduced sentence, “in return for the plea.” Corbitt v.
New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978). To hold
that a sentence was cruel simply because the State had once offered a lower
sentence as part of a guilty plea offer “would contradict the very premises that
underlie the concept of plea bargaining itself.” Bordenkircher, 434 U.S. at 365.
Ritchie’s decision to decline the plea offer was his choice, and his decision does
not render his sentence unconstitutionally cruel.
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The second factor we consider when determining whether a sentence is
cruel under our state constitution is the legislative purpose of the POAA. The
Supreme Court has on multiple occasions recognized that “the purposes of the
persistent offender law include deterrence of criminals who commit three ‘most
serious offenses’ and the segregation of those criminals from the rest of society.”
Rivers, 129 Wn.2d at 713; accord Witherspoon, 180 Wn.2d at 888. These goals
are served by Ritchie’s sentence. This is especially so given that Ritchie has in
fact been convicted of not just three but nine most serious offenses.
Third, we consider the punishment the defendant would have received in
other jurisdictions. Under persistent offender statutes across the country,
mandatory life sentences are the exception rather than the rule.11 In this regard,
Washington is in the minority. “But even if they would have received shorter
sentences in some other jurisdictions, ‘this factor alone is not dispositive.’” State
v. Moretti, 193 Wn.2d 809, 833, 446 P.3d 609 (2019) (quoting Witherspoon, 193
Wn.2d at 888).
The fourth and final factor we consider is the punishment imposed for
similar offenses in the same jurisdiction. Following Washington’s abolition of the
death penalty, life without the possibility of parole is the harshest sentence that
11 States with persistent offender statutes that impose mandatory life without parole are
Georgia, Massachusetts, Mississippi, North Carolina, South Carolina, and Wyoming. GA. CODE ANN. § 17-10-7; MASS. GEN. LAWS CH. 279 § 25; MISS. CODE ANN. § 99-19-83; N.C. GEN. STAT. § 14-7.12; S.C. CODE ANN. § 17-25-45; W YO. STAT. ANN. § 6-10-201.
29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 82920-3-I/30
an offender may receive. Moretti, 193 Wn.2d at 833. But the POAA imposes a
mandatory life sentence without the possibility of parole on all persistent
offenders convicted of a “most serious offense.” RCW 9.94A.570.
Considering these factors as a whole, Ritchie’s sentence of life in prison
without the possibility of parole does not violate article I, section 14 of the
Washington Constitution, nor does it violate the Eighth Amendment. No
Washington court has held that a life sentence under the POAA for a violent
felony offense is unconstitutional, and we decline to do so today.
V
Ritchie lastly asserts that the trial court erred by imposing a sentence
under the POAA because the existence of his previous strike offenses was not
found by a jury. This argument is without merit.
In Apprendi v. New Jersey, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000) (emphasis added). The Washington Supreme Court has
clarified that when a prior conviction is an element of the offense, it too must be
found by a jury. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008).
But prior convictions that warrant a sentence under the POAA are not an element
of the offense. As the court held in Witherspoon, “under the POAA, the State
must prove previous convictions by a preponderance of the evidence and the
defendant is not entitled to a jury determination on this issue.” 180 Wn.2d at 894;
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accord State v. McKague, 159 Wn. App. 489, 517, 246 P.3d 558, aff’d, 172
Wn.2d 802, 262 P.3d 1225 (2011). Ritchie was not entitled to a jury
determination of the existence of his prior convictions.
Affirmed.
WE CONCUR: