State Of Washington, V. Dawn Renee Rolfe

• Court: Court of Appeals of Washington
• Decided: April 18, 2022
• Docket: 83432-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 83432-1-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

DAWN RENEE ROLFE,

Appellant.

SMITH, J. — A jury convicted Dawn Renee Rolfe of three counts of

conspiracy to commit murder with firearm enhancements and one count of

unlawful possession of a firearm. On appeal, Rolfe claims that her three counts

of conspiracy to commit murder violate double jeopardy. She also raises

evidentiary issues and ineffective assistance of counsel. We agree that the

multiple conspiracy convictions violate double jeopardy, requiring us to vacate

two of the counts. We affirm the remaining count and remand for resentencing.

FACTS

Dawn and Richard Rolfe 1 had been married for more than 25 years.

Richard left Rolfe in January 2019, and moved to his mother’s 23 acre property.

In April of that year, Richard began dating Stacy Peabody. Peabody moved in

with Richard a few months later.

Rolfe had hoped that she and Richard would get back together. Rolfe

1 We refer to Richard Rolfe by his first name simply for the purpose of clarity due to the fact that he and Appellant share the same last name.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 83432-1-I/2

became very angry when she discovered that Richard had a girlfriend. Her

financial situation deteriorated and she blamed Richard for her difficulties. Rolfe

grew increasingly angry and resentful.

One day, over drinks with her friend and co-worker, Brenda Mortensen,

Rolfe explained that she wanted to kill Richard, his mother, and Peabody. Rolfe

said she had been planning for a couple of months. She wanted to find someone

to carry out the murders to look like a home invasion, but was willing to do it

herself if necessary.

Mortensen alerted police and agreed to help with the investigation.

Mortensen met with Rolfe to offer assistance in obtaining an untraceable firearm

and recorded their conversation. The police arrested Rolfe when she went to

Mortensen’s house to pick up the gun. The State charged her with one count of

second degree unlawful possession of a firearm and three counts of attempted

murder in the first degree with firearm enhancements and three charges of

conspiracy to commit murder in the first degree with firearm enhancements in the

alternative.

During trial, the jury heard approximately three hours of recordings

Mortensen made of her conversations with Rolfe. The State also introduced a

recording of Rolfe’s interview with Detective Lorenzo Gladson. Additionally,

Rolfe, Richard, his mother, Peabody, Rolfe’s son, and other police officers

testified.

The jury acquitted Rolfe of the attempted first degree murder charges but

convicted her of the three alternative charges of conspiracy to commit first

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degree murder with firearm enhancements. The jury also convicted Rolfe of

unlawful possession of a firearm. The court sentenced Rolfe to a standard range

sentence of 398.25 months, including firearm sentencing enhancements.

ANALYSIS

Double Jeopardy

Rolfe claims that her multiple convictions for conspiracy to commit murder

violate the constitutional protections against double jeopardy. The State

concedes and we agree.

Under the Fifth Amendment of the United States Constitution, no person

shall “be subject for the same offense to be twice put in jeopardy of life or limb.”

U.S. CONST. amend. 5. Additionally, article I, section 9 of the Washington State

Constitution provides that “[n]o person shall . . . be twice put in jeopardy for the

same offense.” W ASH. CONST. art. I § 9. The double jeopardy doctrine protects

defendants from “being (1) prosecuted a second time for the same offense after

acquittal, (2) prosecuted a second time for the same offense after conviction, and

(3) punished multiple times for the same offense.” State v. Linton, 156 Wn.2d

777, 783, 132 P.3d 127 (2006) as amended (June 19, 2006). Double jeopardy

claims are questions of law that are reviewed de novo. State v. Hughes, 166

Wn.2d 675, 681, 212 P.3d 558 (2009).

The Washington Supreme Court has determined that for double jeopardy

purposes, the unit of prosecution for conspiracy is “an agreement and an overt

act rather than the specific criminal objects of the conspiracy.” State v. Bobic,

140 Wn.2d 250, 266, 966 P.2d 250 (2000). A single agreement to commit

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multiple crimes amounts to one violation of the conspiracy statute when each

crime is a step in the advancement of the scheme as a whole. Bobic, 140 Wn.2d

at 266. Here, the State concedes that under the controlling case law, Rolfe’s

actions support only one conviction for conspiracy. We accept this concession,

vacate two of the convictions for conspiracy to commit first degree murder with

firearm enhancements, and remand for resentencing.

Improper Opinion

Rolfe argues that she was denied a fair trial because the recording of her

interview with Detective Gladson included improper opinions on her veracity,

intent, and guilt. Rolfe failed to object to this evidence.

We may refuse to review any claim of error which was not raised in the

trial court. RAP 2.5(a). As an exception to the rule, a party may raise a manifest

error affecting a constitutional right for the first time on appeal. RAP 2.5(a)(3).

“The defendant must demonstrate that ‘(1) the error is manifest, and (2) the error

is truly of constitutional dimension.’ ” State v. Dillon, 12 Wn. App. 2d 133, 139–

40, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020)

(quoting State v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)). This requires the

defendant to identify a constitutional error and show how the error actually

affected their rights at trial. State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d

125 (2007).

Rolfe alleges that Detective Gladson provided improper opinions that

violated her constitutional right to a jury trial. “The right to have factual questions

decided by the jury is crucial to the right to trial by jury.” State v. Montgomery,

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163 Wn.2d 577, 590, 183 P.3d 267 (2008). “The general rule is that no witness,

lay or expert, may ‘testify to his opinion as to the guilt of a defendant, whether by

direct statement or inference.’ ” City of Seattle v. Heatley, 70 Wn. App. 573, 577,

854 P.2d 658 (1993) (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12

(1987)). When determining whether statements are impermissible opinion on

guilt, courts consider the circumstances of the case including the type of witness

involved, the specific nature of the testimony, the nature of the charges, the type

of defense, and the other evidence before the trier of fact. Heatly, 70 Wn. App.

at 579. Expressions of personal belief as to the guilt of defendant, intent of the

accused, or veracity of witnesses are improper opinion testimony. Montgomery,

163 Wn.2d at 591.

According to Rolfe, the improper opinions arose when the jury heard a

recording of her police interview. The recording included a statement from

Detective Gladson, “I believe that your intent was to see Richard, Stacy, and

Penny all dead.” Detective Gladson then indicated that he believed that Rolfe

was intending to commit a triple homicide.

DETECTIVE GLADSON: Did you ever watch a crime show where the wife gets dumped after 25-year marriage and that her -- her husband stands to inherit his mom's riches, or 23 acres, and all her jewelry, her -- MS. ROLFE: [Indiscernible]. DETECTIVE GLADSON: -- triple wide and leaves his wife high and dry and the wife plots to do a triple homicide? Did you ever see that episode? MS. ROLFE: No. DETECTIVE GLADSON: That's what just happened. MS. ROLFE: No, it didn’t.

These exchanges both occurred during police interrogation. Courts

have determined that testimony recounting similar statements made in the

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police interrogation process are not expressions of personal beliefs

amounting to improper opinion testimony. See State v. Curtiss, 161 Wn.

App. 673, 697, 250 P.3d 496 (2011); State v. Notaro, 161 Wn. App. 654,

661, 255 P.3d 774 (2011); State v. Smiley, 195 Wn. App. 185, 189-90,

379 P.3d 149 (2016). The role of Detective Gladson’s statements as an

interrogation tactic rather than personal belief is clear where, as here, the

jury heard the actual statements as made during the interrogation.

The recorded statements are not improper opinion testimony and

therefore do not satisfy the manifest constitutional error exception to RAP

2.5(a). We decline to address the merits of Rolfe’s challenge to admission

of this evidence.

Ineffective Assistance of Counsel

Rolfe claims that her trial counsel was ineffective for failing to object to

admission of the alleged opinion testimony.

For a successful claim of ineffective assistance of counsel, a defendant

must establish both objectively deficient performance and resulting prejudice.

State v. Emery, 174 Wn.2d 741, 754-55, 278 P.3d 653 (2012). Where ineffective

assistance is predicated on a failure to object, the defendant must show that

representation “fell below prevailing professional norms, that the proposed

objection would likely have been sustained, and that the result of the trial would

have been different if the evidence had not been admitted.” In re Pers. Restraint

of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004) (footnotes omitted. Courts

engage in a strong presumption of effective representation. State v. McFarland,

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127 Wn.2d 322, 335, 899 P.2d 1251 (1995) as amended (Sept. 13, 1995). “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. 697, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant alleging ineffective assistance of

counsel shows prejudice when there is a reasonable probability that but for

counsel’s error, the result of the trial would have been different. State v.

Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563, 572 (1996).

Given the overwhelming evidence, there is no reasonable probability the

outcome of the trial would have been different with an objection. In particular, the

jury heard Mortensen’s detailed testimony and listened to recordings of the

conversations in which Rolfe plotted the murders. Rolfe cannot establish

prejudice to support her ineffective assistance of counsel claim.

Motion for Mistrial

Rolfe claims the trial court erred by denying her motion for a mistrial in

response to witness testimony suggesting evidence of other crimes.

Trial courts should grant a mistrial only when the defendant has been so

prejudiced that nothing short of a new trial can insure a fair trial. State v.

Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). When determining if a trial

irregularity is so prejudicial as to require a mistrial, we analyze the (1) seriousness

of the irregularity, (2) whether the irregularity was cumulative of other admissible

evidence, and (3) whether the court could cure the irregularity with an instruction

to disregard the remarks. State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190

(1987). We review a trial court’s denial of a motion for mistrial for abuse of

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discretion. Rodriguez, 146 Wn.2d at 269. “A trial court’s denial of a motion for

mistrial will be overturned only when there is a ‘substantial likelihood’ that the error

prompting the request for a mistrial affected the jury’s verdict.” Rodriguez, 146

Wn.2d at 269, (internal quotation marks omitted) (quoting State v. Russell, 125

Wn.2d 24, 85, 882 P.2d 747 (1994)).

When testifying, Richard was asked if he had much contact with Rolfe

after he left her in January 2019. Richard responded, “Not really. A little bit at

the beginning from a case that she was going through from when I – I left.” Rolfe

moved for a mistrial alleging the testimony violated the motion in limine

prohibiting testimony about a prior arrest. The trial court concluded “there was

no reference to really anything” and denied the motion for mistrial. When asked

whether the parties wanted a curative instruction for the jury, Rolfe declined.

The trial court had ruled on a motion in limine to limit any testimony

concerning a prior domestic violence charge against Rolfe. The court allowed

testimony about the argument between Rolfe and Richard as long as “there's no

direct reference to any assaultive behavior, and obviously no reference to any

arrests that were made or charges filed.” Richard’s mention of his involvement in

“a case” with Rolfe could be considered a violation of the motion in limine.

However, Richard’s statement was general and did not specify Rolfe’s

involvement in a criminal case or domestic violence case. No other witnesses

testified similarly. The court offered to give a curative instruction, but Rolfe

indicated that curative instruction would be counterproductive. The trial court’s

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assessment of the comment and resulting denial of the motion for a mistrial was

not an abuse of discretion.

We vacate two of Rolfe’s convictions for conspiracy to commit murder with

firearm enhancements, affirm the remaining count, and remand for resentencing.

WE CONCUR: