State Of Washington v. Brenda Nicholas

• Court: Court of Appeals of Washington
• Decided: January 12, 2015
• Docket: 70857-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON art y>~-' STATE OF WASHINGTON, No. 70857-1-1 Respondent, ro r~--,-" DIVISION ONE .^••' iV:- v.

UNPUBLISHED OPINION^ §?E BRENDA NICHOLAS,

Appellant. ) FILED: January 12,2015

Appelwick, J. — Nicholas appeals the calculation of her offender score, arguing

that the trial court erred in including foreign convictions without conducting a comparability

analysis. The State concedes this error. In addition, Nicholas raises eight issues in her

statement of additional grounds. We remand for resentencing. We otherwise affirm.

FACTS

On December 8, 2011, Seattle police responded to the scene of a homicide at Four

Freedoms House, an assisted living apartment complex for the elderly. Officers found

the victim, Francis Fleming, lying on his back with obvious signs of trauma to his head

and neck. Medics pronounced Fleming dead at the scene.

Detectives interviewed several Four Freedoms residents and discovered that

Fleming had a large amount of valuable coins in his apartment. The majority of the coin

collection was missing. Fleming's neighbor told police that Fleming kept many of the

coins in a leather brief case, which was also missing.

In the course of their investigation, police contacted Sylvia Sutton, a friend of

Fleming's who had moved out of Four Freedoms several months prior. Sutton told the

officers that she was the victim of a financial scam by a woman who professed to be a No. 70857-1-1/2

psychic. Sutton knew the woman as "Monica Marks." Sutton said that Marks was able

to get a very large amount of money from her and the case was currently under

investigation by the Elder Financial Abuse Detail of the Seattle Police Department. Sutton

also said that Marks knew about Fleming's coin collections and had expressed a strong

interest in them.

Detectives ran the name "Monica Marks" and the phone number she gave to

Sutton. They discovered that the number was associated with Brenda Nicholas and

another woman named Gilda Ramirez. They also discovered that the Kirkland Police

Department had investigated Nicholas and Ramirez for theft and trafficking in stolen

property. As part of that investigation, Kirkland police officers executed a search warrant

on a house in Lynnwood. Nicholas and Ramirez were present at the time of the search,

as was a man named Charles Jungbiuth. Officers seized several items, including a

leather briefcase. Inside the briefcase were papers with the full names of Fleming,

Nicholas, and Sutton.

Nicholas, Ramirez, and Jungbiuth were arrested for Fleming's murder. Ramirez

and Jungbiuth both admitted their involvement in the murder, but maintained that Nicholas

was the mastermind of the operation.

Nicholas was charged with one count of first degree murder with a deadly weapon

enhancement. Ramirez and Jungbiuth received plea deals for their testimony against

Nicholas.

Under a separate cause number, Nicholas was charged with theft related crimes

committed from September 26, 2007 through June 9, 2012. Nicholas pleaded guilty, in

that case, to two counts of first degree theft and one count of first degree identity theft. No. 70857-1-1/3

A jury found Nicholas guilty of first degree murder with a deadly weapon

enhancement. She was sentenced for her counts of murder, theft, and identity theft

together in a single hearing. The State calculated her offender score at five, which

included two prior out-of-state convictions. Based on that calculation, the court sentenced

Nicholas to 412 months in prison.

Nicholas appeals.

DISCUSSION

Nicholas argues that the trial court erred in including out-of-state convictions in her

offender score without conducting a comparability analysis. The State concedes this

error. Nicholas also raises eight issues in her statement of additional grounds.

I. Sentencing Error

Under the Sentencing Reform Act, an out-of-state conviction is included in a

defendant's offender score if the prior offense is comparable to a Washington offense.

RCW 9.94A.525(3). Classification of an out-of-state conviction is a mandatory step in the

sentencing process. Id. The State bears the burden of proving the existence of prior

convictions by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 920,

205 P.3d 113 (2009) (disapproved of on other grounds by State v. Jones. Wn.2d ,

338, P.3d 278 (2014)). Where the State fails to meet its burden and the defendant fails

to object, the proper remedy is to remand for resentencing to allow the State to present

evidence of the defendant's prior convictions. Mendoza, 165 Wn.2d at 930; see also

Jones. 538 P.3d at 281, 282-83.

At sentencing, the State calculated Nicholas's standard range sentence based on

an offender score of five. The offender score included two prior convictions from No. 70857-1-1/4

California. The State did not provide the sentencing court with documentation pertaining

to the California convictions. It did not cite to the statute or statutes under which Nicholas

was convicted or provide the elements of the crimes. It simply listed the prior crimes as

"grand theft" and "theft of elder/depend[e]nt a[d]ult $400+."

The court sentenced Nicholas with an offender score of five. Neither the State nor

the trial court conducted a comparability analysis. The State concedes that this was

improper.

The State also concedes that Nicholas did not waive her right to a comparability

analysis. Unless the State provides a certified copy of the judgment and sentence, a

defendant must affirmatively acknowledge the facts and information introduced for the

purposes of sentencing. Mendoza. 165 Wn.2d at 930. "The mere failure to object to a

prosecutor's assertions of criminal history does not constitute such an acknowledgement.

Nor is a defendant deemed to have affirmatively acknowledged the prosecutor's asserted

criminal history based on his agreement with the ultimate sentencing recommendation."

id. at 928 (citation omitted) (footnote omitted).

During her trial testimony, Nicholas acknowledged having California convictions

for "grand theft" and "theft and embezzlement." The prosecutor asked her if the

convictions were related to "the psychic thing," and Nicholas replied, "Yes." Neither the

prosecutor nor Nicholas expanded further on the convictions. We agree that this was

insufficient to constitute an affirmative acknowledgment of the facts and information

relating to her out-of-state convictions. Furthermore, in Nicholas's plea agreement, she

did not check the box that read: "The defendant understands that one or more convictions

from other jurisdictions have been included in the offender score, and agrees that these No. 70857-1-1/5

convictions have been properly included and scored according to the comparable offense

definitions provided by Washington law." Nicholas did not waive her right to a

comparability analysis.

Likewise, Nicholas's counsel did not waive a comparability analysis on her behalf.

Counsel did not object to the State's offender score calculation and requested a sentence

at the low end of the associated standard range. But, counsel's agreement to an offender

score calculation or sentencing recommendation is not an affirmative acknowledgement

of criminal history. State v. Lucero. 168 Wn.2d 785, 788-89, 230 P.3d 165 (2010).

The trial court did not engage in the mandatory comparability analysis. Nicholas

did not waive her right to that analysis. We accept the State's concession of error and

remand for resentencing.

II. Statement of Additional Grounds

Nicholas also raises several additional grounds for relief.

A. Romani Interpreter's Testimony

Nicholas argues that the trial court erred in allowing the State's witness Tony Urich

to testify as a Romani language interpreter. The State called Urich to interpret a jail phone

call between Nicholas and her husband in which Nicholas spoke both English and

Romani.

The admission or refusal of evidence lies largely within the sound discretion of the

trial court. Maehren v. City of Seattle. 92 Wn.2d 480, 488, 599 P.2d 1255 (1979). Absent

an abuse of discretion, we will not reverse the trial court's decision to allow certain

evidence. State v. Jones. 95 Wn.2d 616, 628, 628 P.2d 472 (1981). No. 70857-1-1/6

During pretrial motions in limine, the State informed the court that it intended to

call Urich as a witness. Defense counsel did not object to Urich's qualifications at that

time. After Urich testified on direct, defense counsel requested that he be able to question

Urich's qualifications on cross-examination. The State asked that the court first review

Urich's qualifications on the record. The court agreed and questioned Urich about his

background and experience speaking Romani. It concluded that he was qualified to

testify as an interpreter. Defense counsel then cross-examined Urich.

Nicholas asserts that Urich was not adequately qualified. No one is certified to

interpret Romani. In the absence of a certified interpreter, the trial court must determine

if the proposed interpreter is qualified. See RCW 2.43.030(1 )(b). Urich was a native

Romani speaker who had previous experience interpreting the language. Nicholas was

able to cross-examine Urich about his qualifications. Under these circumstances, it was

not an abuse of discretion to permit him to testify. See, e.g.. State v. Laureano, 101

Wn.2d 745, 766-67, 682 P.2d 889 (1984) (trial court properly permitted interpreter to

testify where defendant's principal language was Spanish and interpreter was of Cuban

descent and defendant was able to cross-examine interpreter about her qualifications and

translation), overruled on other grounds by State v. Brown. 113 Wn.2d 520, 782 P.2d

1013, 787 P.2d 906 (1990).

Nicholas further asserts that the court improperly considered Urich's qualifications

after his testimony, rather than before. During motions in limine, defense counsel

explicitly stated that he did not object to Urich's qualifications. Based on that stipulation,

the trial court did not abuse its discretion in failing to consider Urich's qualifications prior

to his testimony. No. 70857-1-1/7

Nicholas also argues that the jury should have been present for the questioning of

Urich's qualifications, so it could make its own conclusion about whether he was qualified.

But, whether a witness is qualified is a matter within the sound discretion of the trial court.

See, e.g.. State v.Rodriguez. 163 Wn. App. 215, 231-32, 259 P.3d 1145 (2011); Barci v.

Intalco Aluminum Corp.. 11 Wn. App. 342, 352, 522 P.2d 1159 (1974). It is the jury's job

to determine a witness's credibility. State v. Schneider. 36 Wn. App. 237, 243, 673 P.2d

200 (1983). And, the jury was able to do so here when Urich testified.

Finally, Nicholas contends that the judge should have allowed her to present her

written interpretation of the phone calls so the jury could compare them to Urich's

testimony. But, Nicholas did not request this from the court. And, Nicholas was able to

testify about her interpretations that differed from Urich's.

The trial court did not abuse its discretion in admitting the interpreter's testimony.

B. Failure to Grant Mistrial

Nicholas argues that trial court erred in failing to grant a mistrial after a juror fainted

upon viewing Fleming's autopsy photos. We review a trial court's denial of a motion for

mistrial for abuse of discretion. State v. Hopson. 113 Wn.2d 273, 284, 778 P.2d 1014

(1989). After the juror fainted, defense counsel orally moved for a mistrial. Counsel

subsequently withdrew the motion. The trial court thus did not abuse its discretion in not

granting the motion.

C. Ineffective Assistance of Counsel

Nicholas maintains that counsel's choice to withdraw the motion for mistrial was

against her wishes and constituted ineffective assistance of counsel. To prevail on a

claim of ineffective assistance, a defendant must show that (1) counsel's performance fell

7 No. 70857-1-1/8

below an objective standard of reasonableness based on consideration of all the

circumstances and (2) the deficient performance prejudiced the trial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

The reasonableness inquiry requires the defendant to show the absence of

legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland.

127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Matters of trial strategy are generally left to

counsel's professional discretion. In re Per. Restraint of Davis. 152 Wn.2d 647, 720,101

P.2d 1 (2004). There may be sound tactical reasons not to request a mistrial. State v.

Dickerson. 69 Wn. App. 744, 748, 850 P.2d 1366 (1993). Here, Nicholas fails to show

that counsel's decision to withdraw the motion was not a legitimate trial tactic.

Nicholas lists numerous additional ways in which she perceived counsel's

performance to be deficient. But, her remaining assertions lack the required specificity

for our review. RAP 10.10(c) ("[T]he appellate court will not consider a

defendant/appellant's statement of additional grounds for review if it does not inform the

court of the nature and occurrence of alleged errors."); State v. O'Connor. 155 Wn. App.

282, 293-94, 229 P.3d 880 (2010) (declining to review statement of additional grounds

where appellant did not explain the underlying facts for his claims).

D. Failure to Grant Continuance

Nicholas maintains that the trial court erred in denying defense counsel's motions

for a continuance. But, counsel's motions and their respective denials are not part of the

record before us. We cannot review this challenge. See Bulzomi v. Dep't of Labor &

Indus.. 72 Wn. App. 522, 525, 864 P.2d 996 (1994) ("An insufficient record on appeal

precludes review of the alleged errors.").

8 No. 70857-1-1/9

E. Admission of Autopsy Photos

Nicholas argues that the trial court erred in allowing the State to present graphic

photos of Fleming's autopsy, because they were extremely prejudicial. Under ER 403,

evidence may be excluded if the danger of unfair prejudice substantially outweighs its

probative value. The trial court has wide discretion in balancing the probative value of

evidence against its potential prejudicial impact. State v. Coe. 101 Wn.2d 772, 782, 684

P.2d 668 (1984). A trial court abuses its discretion only if its decision was manifestly

unreasonable, exercised on untenable grounds, or based on untenable reasons. Gorman

v. Pierce County. 176 Wn. App. 63, 84, 307 P.3d 795 (2013), review denied, 179 Wn.2d

1010, 316 P.3d 495 (2014).

Nicholas moved to exclude "autopsy photos in excess of what is needed to explain

Mr. Fleming's injuries or more gruesome than what is needed to explain his injuries or the

circumstances of his death." Nicholas asked that the court exclude a group of four specific

photos and admit only one or two out of a second group of four. The court considered

the photos individually. It excluded several of the photos as impermissibly inflammatory.

It admitted one photo from the first group to show cause of death. It also admitted two

photos from the second group, finding that their likely prejudicial effect did not outweigh

their probative value.

The photographs are not part of the record before this court. But, we can see from

the record that is before us that the court carefully considered the photographs, their

relevance, and their potential to prejudice the jury. The court gave a legitimate reason

for admitting the photo from the first group. And, in admitting the other photos, the court No. 70857-1-1/10

granted Nicholas's request to admit only one or two photos from the second group. This

was not an abuse of discretion.

F. Admission of Jail Phone Call Recordings

Nicholas maintains that the trial court erred in allowing the prosecution to use the

recording of a second jail phone call. She protests that the State did not follow proper

procedure by submitting the tape into evidence before playing it to the jury. But, the failure

to follow procedure does not require reversal where it does not affect the ultimate

admissibility of the evidence. See, e.g.. State v. Hettrick. 67 Wn.2d 211, 220, 407 P.2d

150(1965).

During Nicholas's testimony, the State sought to play a portion of the phone call

for impeachment purposes. Defense counsel initially objected that he had not heard the

call. The court took a recess so counsel could listen to the recording. After listening to

the tape, counsel had no objections. Nicholas thus waived a challenge to the tape's

admissibility on appeal. RAP 2.5(a) ("The appellate court may refuse to review any claim

of error which was not raised in the trial court.").

G. Detective's Failure to Answer Questions

Nicholas argues that the trial court erred in allowing State's witness Detective

Cloyd Steiger to refuse to answer questions from the defense. During cross-examination,

Detective Steiger declined to answer questions concerning an ongoing investigation.

Nicholas's counsel did not object.1 We decline to review this claim on appeal. RAP

2.5(a).

1 Nicholas asserts—without citation—that her "counsel was upset and addressed the judge about it." But, the record shows that counsel did not object during the testimony or at any other time that day. Nicholas does not point to a time when counsel raised this

10 No. 70857-1-1/11

H. Cumulative Error

Finally, Nicholas alleges that cumulative error warrants the reversal of her

conviction. The accumulation of otherwise nonreversible errors may deny the defendant

a fair trial. Coe, 101 Wn.2d at 789. Nicholas fails to show that any errors occurred at her

trial, as the only error involved her sentencing. Accordingly, there is no cumulative error.

We remand for the sentencing court to conduct a comparability analysis and for

resentencing. We otherwise affirm.

WE CONCUR:

issue to the court. We decline to comb the record for evidence to support her claim. See RAP 10.10(c) ("[T]he appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review.").