FILED
OCTOBER 16, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DMSION THREE
STATE OF WASHINGTON, ) ) No. 31390-5-III Respondent, ) ) v. ) ) AHMIN R. SMITH, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. - New technology creates new ways to terrorize. Text messaging is
one such technology.
A jury convicted Ahmin Smith of four counts of felony harassment with domestic
violence enhancements for threatening to kill his wife, Crystal Miller-Smith, and the
wife's father, mother, and stepmother. Smith asks this court to reverse his convictions
and dismiss the charges, contending the evidence supporting his convictions is
insufficient. In the alternative, he asks for a new trial arguing that impermissible
testimony and inadmissible evidence improperly swayed the jury. Finally, Smith assigns
error to the trial court expressing concern for his competency but failing to hold a
competency hearing. We afftrm Ahmin Smith's convictions. No. 31390-5-III State v. Smith
FACTS
Ahmin Smith's convictions stem from a slew oftext messages he sent his
estranged wife, Crystal Miller-Smith, during the evening of August 12,2012.
In late July 2012, Crystal Miller-Smith moved out of the home she shared with her
husband, Ahmin Smith, because she feared for her and her child's safety. Over the next
weeks, Smith attempted to reconcile with Miller-Smith, vacillating between seeking
forgiveness and threatening to "beat her ass." Report of Proceedings (RP) at 381. As the
weeks passed, Smith increasingly sent text messages to Miller-Smith's iPhone, so
frequent that his messages filled her inbox. His textative behavior required her to delete
messages to free space for new ones and led her to mute her phone's ringer when she
retired to bed.
In the evening of August 12, Crystal Miller-Smith prepared, at her aunt's house,
for a Native American naming ceremony. She quieted the ringer to her phone. When she
checked her phone around 7:00 p.m., she discovered more than 20 new messages from
Ahmin Smith. The messages shocked and upset her. A sample of the unedited text
messages she received include:
• "If i dont cuI will kill your dad quick test it he dead fuck." Ex. 1. • "Ist it I am going 2 kill your dad & mom n one night probably kill your grandma 2 hlp her dont fuck with me" Ex. 3. • "U have 24hrs then bodies will drop dad first I will kill him tbn grandma well let deb live so she can tell." Ex. 7.
No. 31390-5-II1 State v. Smith
• "Fuck it on my way." Ex.8. • "Hours getting short aunty dwn street bout 2 murk your whole fam 4 one I will kill i need exaple I will." Ex. 10. • "I kill literally ." Ex. 17. • "Bout 2 murk hin & wife Im going 2 kill dog & spread entern" Ex. 19. • "Bye 10 am your whole family will b dead im leaving." Ex. 20. • "I promise leaving now will enjoy cutting throat." Ex. 21. • "Bout 2 hear momy & daddies last words they will suffer & beg me 2 end it 101." Ex. 22. • "I am? Litrally going 2 tie him down & peel his face back & make deb watch." Ex. 24. • "I will skin your mom n front ofu will eat that bitch 2." Ex. 35. • "lam going 2 kill your dad & mom your lkife's gone." Ex. 37. • "Im leaviing please stop your husnand bout 2 wreck evey thibg." Ex. 38. • "Going 2 'murk u for hurting me u brUoght.this" Ex. 44. • "I love u butt will kill 2 get 2 u literally." Ex. 50.
"Guaranteed =)" Ex. 53.
(Spelling and grammar errors in originaL) Ahmin Smith used the word "murk" three
times in his messages. According to the Urban Dictionary, "murk" means "to physically
beat someone so severely, they end up dying from their injuries. To beat the living shit
outta [sic] someone. To seriously whoop somebodys [sic] ass." Finesse, Murk, URBAN
DICTIONARY (May 6, 2004), http://www.urbandictionary.comldefine.php?term=murk.
Crystal Miller-Smith, being disturbed by the messages, called Ahmin Smith to
discern his mental state. During the call, he yelled and threatened to beat her. Although
No. 31390-5-III State v. Smith
Miller-Smith testified that she recognized his voice, Smith contends he did not speak to
her.
After the phone call, Crystal Miller-Smith showed the text messages to her father,
Mark Miller. The messages shocked her father and caused him to fear for his safety.
Crystal Miller-Smith also showed the messages to her mother, Deborah McDonald, and
stepmother, Deb Miller. Both mothers were shocked, scared, and upset by the threats
because they believed "it was very possible" Ahmin Smith could carry out the threats.
RP at 363. Out of fear for his family's safety, Mark Miller turned on the exterior lights to
his home and set out game cameras. Game cameras are remote cameras activated by heat
sensing motion detectors. Crystal Miller-Smith called law enforcement. Okanogan
County Sheriff Deputy Kevin Newport met Miller-Smith at her father's residence in
Pateros, where he viewed some ofthe text messages from Ahmin Smith. Deputy
Newport asked Miller-Smith to forward any additional messages she received. Miller-
Smith sent Newport a total of 92 messages.
Deputy Kevin Newport decided to arrest Ahmin Smith for felony harassment.
Deputy Newport drove to the Coulee Dam police station to retrieve an officer to assist
him. When the officers arrived at Smith's home around 1:30 a.m., they parked a few
houses down and walked to Smith's home. As they approached, Deputy Newport
observed Smith outside the home, texting on a phone. Newport quietly walked up the
driveway, when Smith stood. Newport yelled that he needed to speak to Smith. Smith
No. 31390-5-111 State v. Smith
turned and quickly moved toward the home's front door. Newport told him he was under
arrest for felony harassment. Smith said, "I don't want to talk to you," went inside his
residence, and closed the door. RP at 253. Deputy Newport opened the door, grabbed
Smith's wrist, pulled him outside, and handcuffed him. Newport again advised Smith he
was under arrest for felony harassment and uttered the Miranda warnings.
Shortly after arresting Ahmin Smith, Deputy Kevin Newport notified Crystal
Miller-Smith ofthe arrest. Miller-Smith received no further text messages after Newport
arrested Smith.
Deputy Kevin Newport placed Ahmin Smith in the former's patrol car. After
having been read his rights, Smith yelled at Deputy Newport, claimed Newport violated
his rights, stated he did not wish to speak with Newport, and directed Newport to take
him to jail. Deputy Newport never asked Smith any questions. During the journey,
Smith complained about Newport's driving, told Newport he slipped his handcuffs,
threatened to assault Newport if he were outside the car, and repeatedly spoke of suing
Newport and the Okanogan Sheriff's Department for false arrest.
PROCEDURE
On August 16,2012, the State of Washington charged Ahmin Smith with three
counts of harassment with threats to kill, with domestic violence enhancements, in
violation ofRCW 9A.46.020. The State alleged that Smith knowingly threatened to kill
Mark Miller, Deborah McDonald, and Crystal Miller-Smith, that each victim was a
family member, and that each victim was reasonably fearful because ofthe threat. On
January 3,2013, the State amended its information to add another count of harassment
with threats to kill, domestic violence, for his threats to Debra Miller. During the course
ofthe prosecution, Ahmin Smith repeatedly and vociferously accused law enforcement,
the prosecutor, the judge, and his attorneys with misconduct.
Ahmin Smith, on his own, brought motions to suppress evidence, to dismiss the
charges, to remove his counsel, for full discovery, for the trial court to take notice of
ineffective counsel, for a list of all equipment an Okanogan County sheriff deputy must
carry, to compel transcription of hearings, and to direct the court to follow the
constitution. The trial court denied the motions.
Ahmin Smith repeatedly reserved his right to a suppression hearing. Ahmin
Smith's first defense counsel, Emma Paulsen, declined to seek a suppression hearing
because, regardless ofthe means by which the sheriff deputies apprehended Smith, the
deputies gathered no evidence as a result of the arrest. On October 24,2012, the trial
court removed Emma Paulsen as Smith's counsel, at Smith's request when
communications between the two deteriorated.
Ahmin Smith's second defense attorney, Michael Lynch, also concluded Smith
lacked grounds for a suppression hearing. Lynch declared a hearing was unnecessary
because Smith did not answer any questions from law enforcement officers. Lynch
stated:
MR. LYNCH: Your Honor, there were statements that were made to the effect of, "I'm going to sue the police." There were statements made attributed to Mr. Smith at the time of his detention saying that he closed the door, meaning the door to the police vehicle, he wanted his attorney. There's an allegation that on the trip over from Coulee Dam to- Okanogan, that Mr. Smith advised-"he had been able to slip his hands out of his handcuffs and was making comments that if I stopped the car to check he would assault me." These are not statements attributed to Mr. Smith that were in response to any questions. And I don't know if they would be germane, relevant, to the trial or not. But-a 3.5 hearing requires the court to analyze whether the defendant was in custody, and if he was in custody was he advised of his rights. The police report indicates that he was advised of his rights upon his arrest. The statements are attributed to him on the trip over. And finally the court has to determine if the statements attributed to the defendant were made in response to police questioning. My review of the discovery material indicates that there are no 3.5 issues under that analysis.
RP at 66-67.
On January 2,2013, the day before trial, Ahmin Smith presented the court with a
letter he asserted came from the Washington State Bar Association (WSBA). Smith
asserted the letter vindicated his belief that police officers recorded their encounter with
him and engaged in misconduct. Throughout the proceedings, Smith frequently insisted
that law enforcement recorded his encounter and that the State hid the recordings from
him. Contrary to Smith's belief, the letter came from Emma Paulsen, the counsel he
dismissed. In the letter, counsel responds to the grievance Smith filed against her with
the WSBA, a copy of which the WSBA sent Smith. Upon learning the true nature of the
letter the court engaged in a colloquy with Smith:
COURT: I am on the verge of considering sending Mr. Smith to Eastern State Hospital for a competency evaluation. DEFENDANT: For wanting-for wanting my rights? THE COURT: No. DEFENDANT: My constitutional rights? THE COURT: I am concerned that you have an inability to hear and understand and perceive the nature ofthese proceedings, DEFENDANT: (Inaudible) THE COURT: -and that you fully appreciate what's going on. DEFENDANT: Oh, I do appreciate-. THE COURT: All you do is- DEFENDANT: (Inaudible). THE COURT: All you do is interrupt, you do not listen. And I'm unclear, unsure, I'm concerned about whether or not you have the ability to listen and comprehend. Because your practice, Mr. Smith, is simply to interrupt, continually, and not to accept or listen to anything that the court is trying to tell you. This is not-and I repeat-this is not indication from the Washington State Bar Association about evidence existing or not existing. It just isn't. Period. DEFENDANT: Well, how (inaudible) read it?
THE COURT: You're right; I haven't read it, because
DEFENDANT: (Inaudible) THE COURT: -it's not correspondence from them.
DEFENDANT: (Inaudible) this is talking about my case.
THE COURT: Once again you're expressing indication that you
don't understand, you're not willing to comprehend. DEFENDANT: (Inaudible) understand. I understand (inaudible) this evidence existed I've been asking for for the past (inaudible) THE COURT: Does the state have any position? I mean, the court has authority to consider a 10.77 motion on its own. MR. BOZARTH: Your Honor, I am not in a position to evaluate whether he's competent or just obstinate, to tell you the truth. I'll leave it to the court to-to make that decision. Or Mr. Lynch- THE COURT: Okay.
MR. BOZARTH: He's probably in a better position than I am.
THE COURT: All right.
Well, the other way to approach it, I suppose, is simply to-Mr.
Smith's made his record about this evidence. I know ofnothing to indicate
that in fact it does exist. Mr. Lynch, I guess I'll leave it to you to deal with during trial. MR. LYNCH: I understand, your Honor. And I should tell the court that- If it's a question of Mr. Smith's being unable to understand where he is, what the nature of the proceedings are,-there's a very low threshold that Eastern State applies towards issues of competency. Mr. Smith hasn't demonstrated any lack of ability regarding appreciate of where he is and what's going on. He has strong opinions about things, perhaps to the detriment of his ability to understand another's point of view. But I'm not certain that that rises to the level of incompetence. I wouldn't object if the state-ifthe court brought it on its own motion, but-I don't feel compelled at this point to make such a motion.
RP at 137-40.
Shortly thereafter, on January 2, the trial court renewed its concern:
THE COURT: Okay. I'm going to renew my concern about Mr. Smith's inability to comprehend, or inability and unwillingness to accept what's going on. And between now and tomorrow morning I'm going to take under advisement my own-my own concern. And counsel, you should be fully prepared; this case may not go to trial tomorrow. And if it doesn't it will be because Mr. Smith's on his way to Eastern. I'm just not going to continue this. This is-We're not making any progress. We're not accomplishing anything. We're talking about things which we shouldn't even be talking about. Or that we've already talked about multiple times. And the reason that it's being discussed again is because of, once again, either an unwillingness or an inability to comprehend and understand what's going on. At a readiness calendar there are basically two questions: Is the state ready, is the defense ready. Yes, or no, and that's it. We've spent a half hour talking about things which we should ordinarily have talked about tomorrow, and we've accomplished nothing. So, I'm leaving the case set for trial.
RP at 145.
Despite defense counsels' conclusion that no hearing was needed, the trial court
held a erR 3.5 confession hearing the first day of the trial. Deputy Kevin Newport
testified during the hearing. The trial court found that the statements made by Ahmin
Smith to Sheriff Deputy Newport were spontaneous, unsolicited, and voluntary.
Accordingly, the trial court ruled that any statements made by Smith would be
admissible.
On the first day of trial, the trial court also considered a motion by Ahmin Smith
to serve as co-counsel. In denying the motion, the court said:
You are competent to stand trial. Y ou-. I'm convinced that you understand what's going on, but, frankly, I think that-whether or not you're just trying to make this more difficult, or if you're not wanting to listen, I don't know what your intentions are. But it simply flat not appropriate to allow you to act as counsel because I fear that you would be inviting either a mistrial or, worst case scenario, a conviction that is not based on the evidence but rather your misconduct.
RP at 209.
At trial, Deputy Kevin Newport testified that, after Ahmin Smith's arrest, he
explained to Smith that the arrest was for felony harassment. Newport told the jury of
Smith's decision not to talk to police. Deputy Newport, in the presence ofthe jury, also
opened a brown bag that contained Smith's cell phone. The exterior of the bag was
labelled, "Felony Harassment ... suspect* Smith, Ahmin." Ex. 105.
On January 4,2013, a jury found Ahmin Smith guilty of four counts of felony
harassment with special enhancements for threatening family members. At sentencing,
No. 3 I 390-5-II1 State v. Smith
the trial court mentioned that one juror, after the verdict, commented that "this was not a
slam-dunk; this wasn't an easy decision." RP at 515.
The trial court sentenced Smith to the top ofthe standard range 42 months'
confmement for each count, to be served concurrently. The court commented:
The truth is, one ofthese texts to these four individuals would have been enough upon which to convict you. But the evidence is that you sent dozens oftext messages to these four people which were threatening in nature and contained threats in so many words and so many different ways to kill those four individuals. To me, the sheer number, the sheer volume of the text messages is particularly disturbing. And I think because ofthat the evidence is overwhelming that a reasonable person could conclude that you intended to carry out the threats. This is a case of domestic violence. There's no question in my mind but that you were trying to use these threats and intimidating these people, trying to get your wife to do something, and that's classic domestic violence.
With a standard range of 33 to 43 months, we know the presumptive range, the presumptive midpoint sentence of38 months is where the court is to start in its assessment in terms of a sentence .... I'm satisfied that the sheer volume here of email, the threats, the nature ofthe threats, and-Mr. Smith's unwillingness to accept any sort of a responsibility for his actions, whether they're criminal or not, to me warrants a sentence at the higher end ofthe standard range. As it turns out the court's sentence this-this afternoon is three and a half years, which, if you do the math, is 41 months-42 months; correction -and so it is virtually the high end ofthe standard range.
RP at 516-18.
LAW AND ANALYSIS
Ahmin Smith asks this court to reverse his convictions and remand his case for a
new trial because inadmissible opinion testimony and unacceptable evidence improperly
swayed the jury. He contends these errors alone or cumulatively are sufficient to
overturn his convictions. But even considering that evidence, Smith contends the
evidence supporting his convictions is insufficient. Alternatively, Smith argues the trial
court erred when it expressed concern for his competency, but did not hold a competency
hearing.
Admissibility ofEvidence
Ahmin Smith contends much ofDeputy Kevin Newport's testimony was
inadmissible. At trial, his counsel failed to object to most ofthis testimony. Under RAP
2.5, Smith is procedurally barred from raising the contentions for the first time on appeal.
But RAP 2.5 provides an exception for errors of constitutional magnitude. To benefit
from this exception, Smith must show the errors are ''truly ofconstitutional dimension"
and that the errors are manifest. State v. O'Hara, 167 Wn.2d 91,98,217 P.3d 756
(2009); State v. Grimes, 165 Wn. App. 172, 185-86,267 P.3d 454 (2011). To determine
whether an error is truly of constitutional dimension, appellate courts first look to the
asserted claim and assess whether, if the claim is correct, it implicates a constitutional
interest as compared to another form oftrial error. O'Hara, 167 Wn.2d at 98. There
must be a plausible showing that the asserted error had practical and identifiable
consequences in the trial ofthe case. State v. Gordon, 172 Wn.2d 671,676,260 P.3d 884
(2011); Grimes, 165 Wn. App. at 180. If Smith shows manifest constitutional error, the
burden shifts to the State to prove the errors harmless beyond a reasonable doubt.
Grimes, 165 Wn. App. at 186. To hurdle these procedural bars, Smith alleges three errors
ofconstitutional magnitude affected the outcome of his trial.
Improper Opinion Testimony
Ahmin Smith frrst contends the court violated his right to a jury trial and his
counsel provided ineffective assistance in violation ofthe Sixth Amendment to the
United States Constitution when the jury heard Deputy Kevin Newport testifY that he
arrested Smith for felony harassment and saw a brown bag containing Smith's cell phone
labelled "Felony harassment ... suspect Smith, Ahmin." Ex. 105. He argues this
evidence improperly invades the fact-finding province of the jury. Both a defendant's
right to a jury trial and to effective assistance of counsel are issues of constitutional
magnitude. State v. Greiff, 141 Wn.2d 910, 924, 10 P.3d 390 (2000); State v. We, 138
Wn. App. 716, 730, 158 P.3d 1238 (2007). Having shown the errors are of constitutional
magnitude, he must show the errors are manifest.
In the context of ineffective assistance, Ahmin Smith must show his counsel
performed deficiently and, as a result, suffered actual prejudice. Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient
performance based on the failure to object to the admission of testimony, Smith must
No. 31390·5-III State v. Smith
show that the trial court would likely have sustained the objection. In re Det. ofStout,
159 Wn.2d 357, 377, 150 P.3d 86 (2007); In re Det. ofStrand, 139 Wn. App. 904, 912,
162 P.3d 1195 (2007), affd, 167 Wn.2d 180,217 P.3d 1159 (2009). Thus, he must show
Deputy Newport's testimony and exhibit 105 were likely inadmissible and as a result of
admitting the evidence he suffered prejudice. As Smith admits, the test is the same for
establishing practical and identifiable consequences from invading the fact-fmding
province of the jury. Br. of Appellant at 12-13; We, 138 Wn. App. at 722-23.
The burden is on Ahmin Smith to show his counsel performed deficiently. State v.
Grier, 171 Wn.2d 17,33,246 P.3d 1260 (2011). This court starts with the strong
presumption that counsel's representation was effective. State v. Studd, 137 Wn.2d 533,
551,973 P.2d 1049 (1999). To rebut this presumption, a defendant must demonstrate
trial counsel's conduct could not be characterized as a legitimate trial strategy or tactic.
Grier, 171 Wn.2d at 17; State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563
(1996). "The relevant question is not whether counsel's choices were strategic, but
whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct.
1029, 145 L. Ed. 2d 985 (2000).
Ahmin Smith argues the court would have sustained the objection because Deputy
Kevin Newport's testimony and the exhibit invaded the province of the jury by opining
on a question of ultimate fact-the guilt of Smith. Smith is correct that no witness may
opine on the guilt ofthe accused. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012
(1967). But neither Newport nor the exhibit opined on his guilt.
To detennine whether a witness's testimony constitutes improper opinion
testimony, courts consider the type of witness, the specific nature ofthe testimony, the
nature of the charges, the type of defense, and other evidence before the trier of fact.
State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). When a police officer
opines impennissibly, it raises additional concerns because an officer's testimony often
carries a special aura of reliability. State v. Kirkman, 159 Wn.2d 918,928, 155 P.3d 125
(2007); State v. Rafay, 168 Wn. App. 734, 806,285 P.3d 83 (2012).
Ahmin Smith focuses on Deputy Kevin Newport's profession and ignores the
other factors. Deputy Newport repeatedly testified that he "arrest[ed]" Smith for "felony
harassment." RP at 248, 252,254. Written on exhibit 105, a brown bag containing
Ahmin Smith's cell phone, is "Felony harassment ... suspect Smith, Ahmin." Neither is
a comment on Smith's guilt. Newport testified as to why he arrested Smith. He did not
declare him guilty. Smith might as well have objected to the use ofjury instructions,
since the instructions also stated the State charged him with felony harassment.
Smith's defense was that someone else sent the text messages. He did not contend
the messages were never sent. Balancing these factors in light ofthe other evidence, the
trial court would unlikely have sustained an objection.
No. 3 1390-5-III State v. Smith
Ahmin Smith fails to show counsel performed deficiently or that he was denied his
right to a jury trial. Therefore, this court need not address the remaining ineffective
assistance prong. State v. Hendrickson, 129 Wn.2d at 78.
Improper Comment on Ahmin Smith's Right to Remain Silent
Ahmin Smith next argues that Deputy Kevin Newport violated his Fifth
Amendment right to remain silent when he testified that Smith did not want to talk to
him. "No person shall be ... compelled in any criminal case to be a witness against
himself." U.S. CONST. amend. V; see also CONST. art. I, § 9. The right against self-
incrimination is liberally construed. State v. Holmes, 122 Wn. App. 438, 443, 93 P.3d
212 (2004). The right seeks to prohibit the inquisitorial method of investigation in which
the accused is forced to disclose the contents of his mind, or speak his guilt. State v.
Easter, 130 Wn.2d 228,236,922 P.2d 1285 (1996).
Whether a comment on a defendant's silence is of constitutional proportions
depends on whether the comment was direct or indirect. Holmes, 122 Wn. App. at 445.
If direct, the defendant need not prove the error was manifest. State v. Romero, 113 Wn.
App. 779, 790-91, 54 P.3d 1255 (2002); RAP 2.5(a)(3). Instead, the State must prove the
alleged error harmless beyond a reasonable doubt. Romero, 113 Wn. App. at 794.
A law enforcement officer makes a direct comment when he or she explicitly
references that a defendant invoked his or her right to remain silent. State v. Pottorff, 138
Wn. App. 343, 346, 156 P.3d 955 (2007); Romero, 113 Wn. App. at 793. For example,
in Romero, this court found a police officer made a direct comment about the defendant's
right to remain silent when the officer testified, "I read him his Miranda warnings, which
he chose not to waive, would not talk to me." 113 Wn. App. at 793. Similarly, a court
found an officer made a direct comment When the officer testified he read the defendant
his Miranda rights and the defendant refused to talk. State v. Curtis, 110 Wn. App. 6, 9,
37 P.3d 1274 (2002).
On the other hand, a law enforcement officer makes an indirect comment on the
right to remain silent when a jury could infer from the comment the defendant attempted
to exercise his right to remain silent. Pottorff, 138 Wn. App. at 347. For example, a
court found a police officer made an indirect comment when the officer testified the
defendant claimed he was innocent and agreed to take a polygraph, but only after
discussing the matter with his attorney. State v. Sweet, 138 Wn.2d 466,480,980 P.2d
1223 (1999). Courts deem an indirect comment on silence as not reversible error absent a
showing of prejudice. State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996);
Sweet, 138 Wn.2d at 481. Critical to this detennination of prejudice is whether there is a
legitimate purpose behind the witness's comment other than to infonn the jury that the
defendant refused to talk to police. Romero, 113 Wn. App. at 789; Curtis, 110 Wn. App.
at 13-14.
Deputy Kevin Newport testified that, as he walked up the driveway to Ahmin
Smith's home, he told Smith he needed to talk to him. Newport explained that he sought
No. 31390-5-1II State v. Smith
to "get a reaction, see how he was going to react one way or the other, at that point." RP
at 252. Smith started to stand and appeared as ifhe was going to go inside his home. "At
that point the 'I want to talk to you' wasn't going to work so [Newport] told him
basically that he was under arrest for harassment, felony harassment." RP at 252.
Newport testified that Smith "got up, was on the porch at that point saying 'I don't want
to talk to you,' went inside the residence and closed the door." RP at 253.
Ahmin Smith maintains that Deputy Newport's testimony served no purpose other
than to inform the jury the former exercised his constitutional right to remain silent. The
State argues that Newport sought to explain to the jury how he conducted his
investigation. But the manner of the investigation was not relevant to the issue at hand,
the guilt or innocence of Ahmin Smith. Assuming the investigation was relevant, Deputy
Newport could have explained how he conducted his investigation without referencing
Smith's choice not to speak to police. Where, as here, there is no relevant purpose for
referencing Smith's refusal to talk to police, courts find the witness directly commented
on a defendant's right to remain silent. Romero, 113 Wn. App. at 789; Curtis, 110 Wn.
App. at 13-14.
The State also argues Deputy Kevin Newport's comments are mere references to
Ahmin Smith's silence, which were not intended to be used as substantive evidence of his
guilt. "[1]t is constitutional error for a police witness to testifY that a defendant refused to
speak with him or her." Romero, 113 Wn. App. at 790 (citing Easter, 130 Wn.2d at 241).
Newport testified that Smith told him, "I don't want to talk to you." RP at 253. Deputy
Newport directly commented on Smith's right to remain silent. A direct comment is an
error of constitutional magnitude. Romero, 113 Wn. App. at 790-91.
Since Ahmin Smith shows a constitutional error, this court reviews the comment
on Smith's silence under the constitutional harmless error analysis. Romero, 113 Wn.
App. at 790-91. Unlike the other errors Smith alleged for the first time on appeal, Smith
need not show the error is manifest. Instead, this court must decide if the error was
harmless error beyond a reasonable doubt. Easter, 130 Wn.2d at 242. We conclude any
error is harmless because the State never again brought up his silence and because ofthe
overwhelming evidence against Smith.
Ahmin Smith contends Deputy Kevin Newport's comments prejudiced him
because the other evidence against him was weak. To substantiate his claim, Smith
emphasizes that one juror reportedly said the case was not a slam dunk. But in
determining whether an error was harmless beyond a reasonable doubt, a reviewing court
does not consider a comment by one juror.
The State never attempted to exploit the fact that Ahmin Smith refused to speak to
police. Courts generally refuse to reverse a conviction when the comment on the
defendant's silence is brief, the testimony does not imply guilt from the refusal, and the
prosecutor did not refer to the statement in argument. Lewis, 130 Wn.2d at 706-07.
No. 3 I 390-5-III State v. Smith
Deputy Kevin Newport's comment on Smith's refusal was brief, he did not imply guilt
from the comment, and the State never referred to Smith's refusal in argument.
Overwhelming evidence supports Ahmin Smith's conviction. The jury saw 92
messages sent from Ahmin Smith's phone. Crystal Miller-Smith and her family testified
that those gruesome threats made them fearful that he would carry them out. While
Smith contends someone else sent the messages, Miller-Smith testified that she spoke
with Smith over the phone between messages. On that call, she recognized his voice and
he continued to threaten her. When Deputy Newport arrived at Smith's home to arrest
him, Newport observed Smith on his phone, apparently texting. The texts ended with
Smith's arrest. In light ofthis evidence, Deputy Newport's testimony that Smith refused
to speak with him was harmless beyond a reasonable doubt.
Unreasonable Seizure
The third and last error Ahmin Smith argues is of constitutional dimension is
Deputy Kevin Newport's decision to open Smith's door and arrest him without a warrant.
Smith argues he preserved this issue. If this court disagrees, he argues Deputy Newport's
conduct is of constitutional dimension, for two reasons, such that an objection was
unnecessary. First, he argues his counsel provided ineffective assistance for refusing to
raise this issue. Second, he argues Deputy Newport's seizure violated his rights under the
Fourth Amendment to the United States Constitution and article I, section 22 of
Washington's Constitution. Both ineffective assistance and an unreasonable seizure can
No. 31390-5-1I1 State v. Smith
be of constitutional dimensions. State v. Jones, 163 Wn. App. 354, 359-60,266 P.3d 886
(2011); We, 138 Wn. App. at 730.
The State contends Ahmin Smith did not preserve this issue. While Smith
requested a suppression hearing, his counsel did not. When a defendant is represented by
competent counsel, the attorney has the ultimate authority in deciding which legal
arguments to advance. State v. Bergstrom, 162 Wn.2d 87, 95, 169 P.3d 816 (2007); State
v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80 (2006). That authority expressly extends to
decisions about whether to seek suppression of unconstitutionally obtained evidence.
Henry v. Mississippi, 379 U.S. 443, 451-52,85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); see
also 3 WAYNE R. LAFAVB, CRIMINAL PROCEDURE § 11.6, Counsel's Control Over
Defense Strategy (2d ed. 2004). Both of Smith's defense counsel declined to seek a
CrR 3.6 hearing. Emma Paulsen, the counsel he dismissed, explained that "regardless of
what the officers did in apprehending him, no evidence or information ... was gathered
as a result of that arrest." RP at 18. His second counsel, Michael Lynch, concurred. The
State is entitled to rely on these representations advanced by defense counsel. Bergstrom,
162 Wn.2d at 96. Therefore, Smith's objections did not preserve the alleged error for
appeal.
Even if this court considered Ahmin Smith's objection, his failure to specifically
object barred him from claiming error. State v. Embry, 171 Wn. App. 714, 741, 287 P.3d
648 (2012). Smith repeatedly moved for a CrR 3.6 hearing, arguing Deputy Kevin
Newport illegally arrested him. But Smith never identified the testimony he wished the
court to suppress.
Ahmin Smith's counsel's representations also bar him from raising the issue as a
manifest constitutional deprivation of his right to be free from unreasonable seizures.
Appellate courts do not review even manifest constitutional issues, if expressly
recognized at trial and deliberately not litigated. Johnson v. United States, 318 U.S. 189,
199-200,63 S. Ct. 549, 87 L. Ed. 704 (1943); State v. Valladares, 99 Wn.2d 663,671-72,
664 P.2d 508 (1983); State v. Hayes, 165 Wn. App. 507, 515, 265 P.3d 982 (2011); State
v. Walton, 76 Wn. App. 364,370,884 P.2d 1348 (1994). Both defense counsel
articulated deliberate reasons for not requesting a CrR 3.6 hearing. They had the express
authority to decide whether to seek suppression of purported unconstitutionally obtained
evidence. Henry, 379 U.S. at 451-52. Their decisions waived Smith's ability to raise the
issue on appeal. Hayes, 165 Wn. App. at 515-17.
To avoid the waiver, Ahmin Smith argues counsel provided ineffective assistance
when they refused to request a CrR 3.6 hearing. A criminal defendant is entitled to a
reasonably competent counsel to help assure the fairness of our adversary process.
Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). This
right stems from the coextensive protections enumerated in both the federal and
Washington Constitutions. U.S CONST. amend. VI; CONST. art. I, § 22. To meaningfully
protect an accused's enumerated right to counsel, the United States Supreme Court held
an accused is entitled to "effective assistance of counsel." Strickland v. Washington, 466
U.S. at 686. Under Strickland, courts apply a two-prong test: whether (1) counsel's
perfonnance failed to meet a standard of reasonableness and (2) actual prejudice resulted
from counsel's failures. Strickland, 466 U.S. at 690-92. To prevail on his or her claim, a
defendant must satisfy both prongs. Hendrickson, 129 Wn.2d at 78. If a defendant fails
to establish one prong ofthe test, this court need not address the remaining prong.
Hendrickson, 129 Wn.2d at 78.
To satisfy the fIrst prong, the defendant must show that, after considering all the
circumstances, counsel's perfonnance fell below an objective standard of reasonableness.
State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). The burden is on the
defendant to show defIcient performance. Grier, 171 Wn.2d at 17. This court starts with
the strong presumption that counsel's representation was effective. Studd, 137 Wn.2d at
551. To rebut this presumption, a defendant must demonstrate trial counsel's conduct
could not be characterized as a legitimate trial strategy or tactic. Grier, 171 Wn.2d at 17;
Hendrickson, 129 Wn.2d at 77-78. "The relevant question is not whether counsel's
choices were strategic, but whether they were reasonable." Roe, 528 U.S. at 481. To
show defIcient perfonnance based on the failure to object to the admission oftestimony,
Smith must show that the trial court would likely have sustained the objection. Stout, 159
Wn.2d at 377; Strand, 139 Wn. App. at 912.
Ahmin Smith does not contest that Deputy Kevin Newport possessed probable
cause or could make a warrantless arrest. Smith contends the trial court would have
suppressed testimony regarding his post-arrest statements and actions because Deputy
Kevin Newport arrested him inside his home without exigent circumstances.
The Washington Constitution and the Fourth Amendment prohibit police from
making a warrantless entry into a suspect's residence to effectuate an arrest without
exigent circumstances. CONST. art. I § 7; Payton v. New York, 445 U.S. 573, 576, 100 S.
Ct. 1371,63 L. Ed. 2d 639 (1980); State v. Holeman, 103 Wn.2d 426,428-29,693 P.2d
89 (1985). Since Deputy Kevin Newport lacked a warrant, the State must show exigent
circumstances merited Newport opening Smith's door to arrest him.
The State bears the burden of proving that the exigent circumstances exception
applies. State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009). Appellate courts look
at the totality of the circumstances to determine whether the evidence supports a finding
of exigency. Smith, 165 Wn.2d at 518. This court considers six factors in analyzing the
situation:
(1) the gravity or violent nature ofthe offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) whether there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) a likelihood that the suspect will escape ifnot swiftly apprehended; and (6) the entry is made peaceably.
State v. Cardenas, 146 Wn.2d 400,406,47 P.3d 127 (2002).
The evidence supports the finding that the exigent circumstances permitted
warrantless entry and Smith's arrest. The gruesome threats to murder four people were
extremely grave. Crystal Miller-Smith did not know whether Ahmin Smith possessed
any weapons, but the number and nature ofthe threats supported a belief that Smith could
be armed. The information was trustworthy. Deputy Kevin Newport observed the text
messages sent to Miller-Smith, Miller-Smith verbally confirmed the messages were sent
from her husband, and when Newport arrived at Smith's home, he appeared to be texting.
Deputy Newport knew Smith was on the premises because he saw Smith deliberately
walk into his home after Newport announced that he was under arrest. Although the
record does not indicate if Smith would escape if not swiftly apprehended, the darkness
lent conditions for escape. Smith was not peaceably detained. Newport and two officers
dragged Smith from his home and onto the ground before handcuffing him.
The State need not prove all six factors to show exigent circumstances. State v.
Allen, 178 Wn. App. 893, 911, 317 P.3d 494, review granted, 180 Wn.2d 1008,325 P.3d
913 (2014). The balance of factors establishes exigent circumstances leading to Ahmin
Smith's arrest. Therefore, counsel was unlikely to succeed in suppressing any statements
made after the allegedly illegal arrest.
Trial counsel's reasons behind their respective decisions not to seek a CrR 3.6
hearing are reflected in the record. They articulated that "regardless of what officers did
in apprehending him, no evidence or information ... was gathered as a result ofthat
arrest." RP at 18. "So whether or not the arrest process was lawful, it d[id] not impact
the evidence which the State ... present[ed] at trial." RP at 118. Defense counsel's
decisions may not have been strategic, but they were reasonable. Roe, 528 U.S. at 481.
Even assuming the arrest was illegal and the trial court would have suppressed the
statements Deputy Newport attributed to Smith, Smith establishes no prejudice from the
evidence. Smith contends he was prejudiced because the evidence against him was weak.
Smith argues little evidence connects him to the text messages and the victims testified
that he could carry out the threats, not that he would. We already addressed these
arguments in another context and will address them again below. In short, Smith fails to
show the result would have been different had the court excluded the evidence of Smith's
conduct with officers.
Bad Act Evidence
Ahmin Smith argues the court erred by permitting Deputy Kevin Newport to
testify to Smith's bad behavior after the arrest. Smith contends allowing this evidence
was error since it was irrelevant to any ofthe charged elements and unduly prejudiced
him. Smith waived any objection to his post-arrest behavior as bad act evidence. State v.
Chase, 59 Wn. App. 501, 508, 799 P.2d 272 (1990). He may not raise the admission of
bad act evidence for the first time on appeal because it is not of constitutional magnitude.
State v. Jackson, 102 Wn.2d 689,695,689 P.2d 76 (1984); Chase, 59 Wn. App. at 508.
Sufficiency ofthe Evidence
Ahmin Smith contends insufficient evidence underlies his convictions for felony
harassment. He argues the victims, Crystal Miller-Smith, Mark Miller, Deb Miller, and
Deborah McDonald, did not believe he would carry out the threats and that the text
messages stated Deb Miller would live so she could watch him harm her husband, Mark
Miller.
A defendant who argues insufficient evidence supports his conviction admits the
truth of the State's evidence and all reasonable inferences that a trier of fact can draw
from that evidence. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). When
reviewing a challenge to the sufficiency ofthe evidence, this court reviews the evidence
in the light most favorable to the State to determine whether "any rational trier of fact
could have found guilt beyond a reasonable doubt." Romero, 113 Wn. App. at 797
(citing Salinas, 119 Wn.2d at 201). This court does not review credibility determinations
made by the jury. Romero, 113 Wn. App. at 798.
A person is guilty of felony harassment if the person knowingly threatens to kill
someone, immediately or in the future, and the person by words or conduct places the
person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020;
State v. e.G., 150 Wn.2d 604,609,80 P.3d 594 (2003). The person threatened need not
hear of the threat from the defendant so long as the threatened person learns ofthe threat
and, as a result, feared the threat would be carried out. State v. Kiehl, 128 Wn. App. 88,
93, 113 P.3d 528 (2005). The statute requires the person threatened both subjectively
feel fear and that fear must be reasonable. RCW 9A.46.020(1)(b); State v. E.J.y', 113
Wn. App. 940, 953, 55 P.3d 673 (2002).
Ahmin Smith argues the victims did not believe he would carry out the threats, but
only thought it possible he could carry out those threats. The State argues the victims'
belief that Ahmin Smith could carry out the threats is sufficient to uphold his conviction.
In E.J. y., the court found sufficient evidence where the victim testified that she was a
"little frightened." 113 Wn. App. at 953. The State argues the witnesses' testimony here
passes this low bar. But the E.J. Y. court made this statement'" [a]ssuming the evidence
establish[ ed] the victim's subjective fear. '" 113 Wn. App. at 953 (quoting State v.
Alvarez, 74 Wn. App. 250, 260-61,872 P.2d 1123 (1994), affd, 128 Wn.2d 1,904 P.2d
754 (1995)) (some alteration in original). In other words, the State asks this court to
conflate the subjective fear requirement with the requirement that the fear the victim felt
was reasonable.
Next, the State equates the victims' beliefs that Smith could carry out the threats
with a "conditional threat." This court upheld a defendant's conviction, where the
defendant threatened to "kick [an officer's] ass, if [he] wasn't in handcuffs." State v.
Cross, 156 Wn. App. 568,580,234 P.3d 288 (2010), remanded, 166 Wn. App. 320
(2012). The court found a conditional threat falls under the defmition of a threat
established in RCW 9A.04.110. Cross, 156 Wn. App. at 582. But the officer still had to
subjectively fear that Cross would have carried out the threat had he not been handcuffed.
See Cross, 156 Wn. App. at 583-84. Unlike the officer in Cross, Smith's victims did not
testifY they feared he would carry out the threats.
Ahmin Smith's victims testified that they believed it very possible he could carry
out the threats. Thus, Ahmin Smith urges the court to reverse his conviction because the
victims did not use the magic word "would." But courts review both victims' words and
conduct when analyzing their fear. E.J.y', 113 Wn. App. at 953. Smith's threats caused
Crystal Miller-Smith enough fear that she approached her father, Mark Miller, to show
him the texts. She testified that she "had no idea what he was capable of at that point, he
was so angry and-threatening that [she] didn't--didn't feel like [she] could just wait to
see what he would do." RP at 374-75. Miller-Smith testified that she was very upset and
concerned for the safety ofherself and her family. She deemed Smith capable of carrying
out the threats and feared for her and her father's safety. The fear also led her to call
police and change the locks on her home.
Mark Miller testified that the texts shocked him and caused him to fear for his
safety. Out of fear for his family's safety, Miller turned on the exterior lights to his home
and set out game cameras. Both Crystal Miller-Smith's mother, Deborah McDonald, and
stepmom, Deb Miller, were also shocked, scared, and upset by the threats because they
believed "if very possible" Ahmin Smith could carry out those threats since he knew
where they lived. Viewing the words and conduct ofthe victims in the light most
favorable to the State, a reasonable jury could find they subjectively feared Smith would
carry out his threats, regardless of whether the victims used talismanic words.
Ahmin Smith also contends insufficient evidence supports his conviction for
threatening to kill Deb Miller for another reason. He argues the text messages show Deb
would live so she could watch the harm done to her husband. But other text messages
indicated Smith would "murk [Crystal Miller-Smith's] whole family;" that he would
"murk hi[m] & wife," ostensibly Mark Miller and his wife Deb Miller; and that "bye 10
am [Miller-Smith's] whole family will b dead;" Smith "[g]uaranteed =)." Exs. 10, 19,
20, 53. Viewed in the light most favorable to the State, Smith threatened to kill Deb
Competency
Ahmin Smith contends the court erred when it expressed concern for his
competency but did not hold a competency hearing.
Criminal defendants who lack the capacity to understand the nature and object of
the proceedings against them, to consult with counsel, and to assist in preparing their
defense may not be subjected to trial. Drope v. Missouri, 420 U.S. 162, 171,95 S. Ct.
896,43 L. Ed 2d 102 (1975); In re Pers. Restraint ofBenn, 134 Wn.2d 868, 932, 952
P.2d 116 (1998). A competency hearing is required "[w]henever a defendant has pleaded
not guilty by reason of insanity, or there is reason to doubt his or her competency."
RCW 10.77.060(1). Thus, unless an insanity defense is raised, a hearing is required only
ifthe court makes a threshold determination that there is reason to doubt the defendant's
competency. State v. Lord, 117 Wn.2d 829, 901,822 P.2d 177 (1991).
The determination of whether a competency examination should be ordered rests
generally within the discretion ofthe trial court. State v. Heddrick, 166 Wn.2d 898, 903,
215 P.3d 201 (2009). This court reviews a trial court's exercise of discretion for abuse.
Lord, 117 Wn.2d at 901. A court abuses its discretion when it exercises it on untenable
grounds, for untenable reasons, or uses an incorrect legal standard. Heddrick, 166 Wn.2d
at 903.
In determining whether to order a formal inquiry into the competence of an
accused, courts consider the defendant's appearance, demeanor, conduct, personal and
family history, past behavior, and medical and psychiatric reports. State v. Dodd, 70
Wn.2d 513,514,424 P.2d 302 (1967); In re Pers. Restraint o/Fleming, 142 Wn.2d 853,
863, 16 P.3d 610 (2001). Courts also give considerable weight to the attorney's opinion
regarding his client's competency and ability to assist the defense. Lord, 117 Wn.2d at
901.
Ahmin Smith's personal and family history, past behavior, and medical and
psychiatric reports are absent from the record, as is any mention of his appearance or
demeanor. The conduct that piqued the trial court's concern and his counsel's opinion
about his client's competency are recited above. The court's concern stemmed from its
frustration with Smith's recalcitrance rather than his ability to aid in his own defense. No
evidence was presented that Smith is delusional, only that he refused to understand the
law and maintained an obsession with a claim he was recorded.
The trial court reflected for a day whether to order a competency review. The next
day, the court considered a motion by Ahmin Smith to serve as co-counsel. When
denying the motion, the court observed that Smith was competent to stand trial.
On appeal, Ahmin Smith contends his statements reflected possible psychosis,
obsession, delusional thinking, paranoia, or other potential mental defects. But Smith
presents no evidentiary support for his possible diagnoses. Smith could not accept the
lack of recordings, but many people are obstinate in their beliefs without any psychosis.
As his trial counsel acknowledged, "Mr. Smith hasn't demonstrated any lack of ability
regarding appreciate [sic] ofwhere he is and what's going on." RP at 139. Weighing
Smith's conduct in light of his counsel's representation, the court correctly concluded
Smith was competent. The record confrrms the court's decision not to hold a competency
Cumulative Error
Ahmin Smith contends cumulative errors warrant reversing his convictions. The
cumulative error doctrine mandates reversal when the cumulative effect of nonreversible
errors materially affected the trial's outcome. State v. Russell, 125 Wn.2d 24,93-94,882
P.2d 747 (1994). The only trial error was allowing Deputy Kevin Newport to testify that
Smith refused to talk to him. That error is harmless beyond a reasonable doubt.
Therefore, cumulative errors did not deny Ahmin Smith a fair trial.
Statement ofAdditional Grounds (SA G)
Ahmin Smith contends the State improperly withheld exculpatory evidence and
repeats his appellate counsel's argument that Deputy Kevin Newport's arrest was illegal.
Neither argument has merit. We previously addressed the latter argument.
Ahmin Smith argues the State withheld phone records for August 12-13,2012, and
evidence that text messages continued to be sent to Crystal Miller-Smith while he was in
custody. He also contends the phone records in the record on appeal are different from
the records admitted at triaL
Ahmin Smith continued to send text messages until after 1 a.m. on August 13,
2012. The phone records admitted at trial only cover August 12. Smith presents no
evidence that the State withheld records for August 13. There is no evidence the State
possessed those records. Similarly, there is no evidence that Smith sent text messages
after Deputy Newport arrested Smith. Contrary to Smith's contention, the phone records
the superior court forwarded to this court are the originals, stamped as exhibit 55, and
dated January 3,2013, the day the trial court admitted the records .
. Motion to Terminate Services ofAppellate Counsel
On April 9, 2014, Ahmin Smith moved this court to terminate the assistance of his
appellate counsel and appoint new counsel. Smith argues his appellate counsel provided
ineffective assistance when she refused his request to raise certain issues.
We deny Ahmin Smith's motion because RAP 10.10 affords him the opportunity
to present an SAG. This opportunity provides an effective remedy. The SAG permitted
him to raise any issues he believed appellate counsel did not adequately address. RAP
10.10. The court informed him ofthis right in a letter dated June 3, 2013, and he
exercised his right in an SAG and an amendment to the SAG, respectively filed on July
29 and August 22. In his SAG, he raised some of the issues he contends his trial counsel
refused to raise.
Additionally, Ahmin Smith's appellate counsel's refusal to assert Smith's
additional arguments does not constitute ineffective assistance for the same reasons we
deny the issues raised in the SAG. Those issues lack merit. The remaining issues that he
raised with his lawyer but not in his SAG must wait. To substantiate these claims, Smith
requires additional evidence. The appropriate avenue for addressing these claims is a
personal restraint petition. State v. McFarland, 127 Wn.2d at 335.
CONCLUSION
We deny Ahmin Smith's motion for termination of the services of appellate
counsel and affirm Smith's convictions.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
, \f i
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