State of Washington v. Rebecca Anne Clemmer

• Court: Court of Appeals of Washington
• Decided: February 4, 2021
• Docket: 37133-6
• Status: Unpublished

Opinion

FILED FEBRUARY 4, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 37133-6-III Respondent, ) ) v. ) ) REBECCA ANNE CLEMMER, ) UNPUBLISHED OPINION ) Appellant. )

KORSMO, J.P.T.1 — Rebecca Clemmer appeals from her Stevens County

conviction for vehicular homicide, raising challenges concerning her trial and the

judgment and sentence. We affirm the conviction and remand to strike two provisions of

the judgment.

FACTS

Several witnesses observed Ms. Clemmer driving erratically for nearly 20 miles on

northbound Highway 395 in northern Spokane and southern Stevens Counties. They

described a vehicle swerving from shoulder to shoulder over a considerable distance and

driving for extended periods of time in the oncoming lane, sending southbound vehicles

1 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150. No. 37133-6-III State v. Clemmer

off the roadway to avoid a collision. Ms. Clemmer testified that she was returning to her

Colville home after visiting her mother’s residence in Spokane.

Ms. Clemmer then parked in the middle of the highway near Clayton and began

consuming food purchased from a Zip’s restaurant. Passing motorists unsuccessfully

attempted to attract her attention, but she ignored them. She then accelerated in excess of

60 miles per hour, and swerved into the oncoming lane before striking a southbound

vehicle, killing the driver Erik Bruhjell. Mr. Bruhjell was on the shoulder attempting to

get off the roadway when she struck him. The first trooper on the scene, Don Field,

spoke to Ms. Clemmer while she was being treated in her car by medical personnel

before being extracted from the car. She told him she was in a hurry to get home and

pick up her children from daycare. When asked why she had stopped in the middle of the

road, she claimed to have parked on the side of the roadway.

Ms. Clemmer was transported by helicopter to a hospital in Spokane. Trooper

Ryan Senger arrived at the hospital after Clemmer. He advised her of her Miranda2

warnings. When the trooper asked if she wanted speak with him, “she asked about

speaking to an attorney and said that she should speak with one first.” Report of

Proceedings (RP) at 35-36. The trooper deemed the statement ambiguous and unclear,

but did not question her further due to her incoherence.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 No. 37133-6-III State v. Clemmer

Detective Jordan Rippee later visited Ms. Clemmer at the hospital, advised her of

her rights, and obtained her agreement to speak with him. She related the same story that

she later told the jury—she was going to visit her mother in Spokane, she took half of her

regular daily hydrocodone dosage, she stopped at Jack-in-the-Box for food, and she

started driving back to Colville. She did not remember the collision.

The Stevens County Prosecuting Attorney filed a single charge of vehicular

homicide. A CrR 3.5 hearing was conducted to qualify the statements made to the three

Washington State Patrol officers. Defense counsel sought to exclude only one statement:

Judge, my only issue is with respect to the state’s first witness, Trooper Field, and the incriminating statement in response to his question, “I was in a hurry—to get my kids from day care.”

RP at 48. The court concluded that the statements made to Trooper Field were not the

product of custodial interrogation and admitted them. Although not challenged, the court

also determined that Ms. Clemmer’s statement to Trooper Senger was ambiguous,

resulting in the conclusion that Ms. Clemmer voluntarily waived her rights in order to

speak with Detective Rippee.

A lengthy jury trial ensued, with the State calling 21 witnesses; Ms. Clemmer was

the sole defense witness.3 Without objection, both Trooper Senger and the phlebotomist

3 The defense intended to recall Detective Rippee as a defense witness, but instead took advantage of a period between State’s witnesses to ask further questions of the trooper. RP at 488-493.

3 No. 37133-6-III State v. Clemmer

testified to the existence of needle marks on Ms. Clemmer’s arm. Senger also testified

that Ms. Clemmer was impaired. On cross-examination, the trooper admitted he did not

know what drugs had been administered to Clemmer by medical staff and did not

acknowledge the injuries the woman had suffered in the wreck.

Laboratory reports showed that Ms. Clemmer had 0.077 mg per liter of

hydrocodone in her system; therapeutic levels were between .01 mg to .05 mg.

Urinalysis testing also showed the presence of benzodiazepines, opiates, oxycodone, and

cannabis in her system.

Ms. Clemmer testified consistent with the statement she gave to Detective Rippee.

She was taking hydrocodone for pancreatic pain. She remembered stopping at Zip’s and

eating while driving, but did not remember anything else up until her arrival at the

hospital. Ms. Clemmer testified about previous hospitalizations for high blood pressure

and diabetic/blood sugar issues that had made her sleepy. She admitted on cross-

examination that she had told others that she fell asleep before the accident.

The prosecutor argued the case on the theory that Ms. Clemmer drove recklessly

and was under the influence of drugs. Defense counsel took issue with the latter theory,

arguing that Trooper Senger had rushed to characterize Clemmer as an illegal drug user

due to the needle marks and lacked supporting evidence for his theory. As to the reckless

driving, counsel argued that the driving was so extreme and unusual that it reflected

health problems rather than drug impairment.

4 No. 37133-6-III State v. Clemmer

The jury convicted Ms. Clemmer as charged. After the trial court imposed a top

end standard range sentence, Ms. Clemmer timely appealed to this court. A panel

considered the appeal without conducting argument.

ANALYSIS

In order, we initially consider Ms. Clemmer’s allegations that the trial court erred

in admitting her statements to Detective Rippee, that she received ineffective assistance

of trial counsel, and that the prosecutor erred in closing argument. We then jointly

address her challenges to the conditions of the judgment and sentence.4

Statements to Detective

Ms. Clemmer first challenges the trial court’s determination that the statements

she made at the hospital to Detective Rippee should not have been admitted at trial in

light of her assertion of her right to counsel to Trooper Senger. She waived and/or

invited this alleged error, which also was harmless.

RAP 2.5(a) acknowledges the basic principle of appellate review—appellate

courts will not review issues not raised in the trial courts. Matters of manifest

constitutional error may be raised for the first time on appeal if the record is adequate.

RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). Here,

the prosecutor properly qualified the statements she desired to use at trial in accordance

4 Due to the absence of multiple errors, we do not consider her claim of cumulative error.

5 No. 37133-6-III State v. Clemmer

with the dictates of CrR 3.5. State v. McFarland, 15 Wn. App. 220, 222, 548 P.2d 569

(1976); State v. Harris, 14 Wn. App. 414, 420-422, 542 P.2d 122 (1975). As part of that

process, the prosecutor put forth evidence that (1) Ms. Clemmer was not in custody when

questioned by Trooper Field, and (2) that she made an equivocal request for counsel to

Trooper Senger, which allowed Detective Rippee later to clarify and obtain a valid

waiver of right.

On appeal, Ms. Clemmer does not challenge the statements to Trooper Field, but

does now assert that the court erred in finding that her assertion of the right to counsel

was equivocal. She had the opportunity to present argument to the trial court on the topic

but expressly limited her concerns to one statement made to Trooper Field. She has

waived the opportunity to now complain about the statement to Detective Rippee. State

v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (failure to object to evidence and

seek to suppress it waived claim of error on appeal).

Alternatively, she also has invited the error about which she now complains. One

cannot cause an error and then attempt to benefit from the error on appeal. This is known

as the doctrine of invited error. E.g., State v. Studd, 137 Wn.2d 533, 545-549, 973 P.2d

1049 (1999). Ms. Clemmer refused to challenge the evidence below and did not object to

admission of the testimony at trial. If there was any error below, she invited it.

Finally, any error in the admission of the detective’s testimony concerning her

statements to him was harmless. The recitation of Ms. Clemmer’s travels in Spokane was

6 No. 37133-6-III State v. Clemmer

largely the same as her own trial testimony. The admission of the same evidence by the

State did not prejudice her.

The challenge to the testimony of Detective Rippee is without merit.

Effective Assistance of Counsel

Ms. Clemmer next argues that her counsel failed to perform effectively by failing

to object to Trooper Senger’s opinion that she was impaired and to the testimony of the

trooper and the phlebotomist concerning the needle marks in her arms. This was a clear

case of trial strategy.

Long-settled standards govern review of ineffective assistance claims. An

attorney must perform to the standards of the profession; the failure to live up to those

standards will require a new trial when the client has been prejudiced by counsel’s

failure. McFarland, 127 Wn.2d at 334-335. In evaluating ineffectiveness claims, courts

must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a

basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). Thus, to prevail on a claim of ineffective assistance, the

defendant must show both that her counsel erred and that the error was so significant, in

light of the entire trial record, that it deprived her of a fair trial. Id. at 690-692. When a

claim can be disposed of on one ground, a reviewing court need not consider both

Strickland prongs. Id. at 697.

7 No. 37133-6-III State v. Clemmer

The decision to object to evidence is a matter of trial tactics. E.g., State v.

Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (object). This court has noted that

a reviewing court presumes that a “failure to object was the product of legitimate trial

strategy or tactics, and the onus is on the defendant to rebut this presumption.” State v.

Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007) (citing cases).

Here, counsel did not object when Trooper Senger, qualified as an expert,

expressed his opinion that Ms. Clemmer was impaired by drugs. Ms. Clemmer does not

point to any defect in the trooper’s qualifications or otherwise explain that he was not

qualified to express an opinion. Instead, she claims that the expression of that opinion

was improper under State v. Quaale, 182 Wn.2d 191, 340 P.3d 213 (2014), and that

counsel could not have been engaged in trial strategy. 5 However, the record

demonstrates the contrary.

Counsel did not object to testimony from Senger and the phlebotomist that needle

marks were present on Ms. Clemmer’s arm, nor did he challenge Senger’s opinion that

Ms. Clemmer was driving while impaired. Counsel did, however, effectively cross-

examine Senger about the basis for his opinion and demonstrated that the trooper was

unfamiliar with Clemmer’s medical history or treatment resulting from the accident,

including the pain killers with which she had been treated. Instead, pointing to the

5 We need not address respondent’s argument that appellant gives Quaale an overly expansive reading.

8 No. 37133-6-III State v. Clemmer

testimony about the needle marks and lack of information about the medical intervention,

counsel later argued to the jury that Senger had rushed to judgment and assumed illicit

drug usage without properly investigating his client’s background or considering the

effects of the accident and the ensuing treatment on his client’s condition. RP at 850-

852.

The cross-examination of Senger’s opinion became the central defense to the

impairment prong of the vehicular homicide charge. Counsel understandably did not

object to the testimony or to the needle mark observations since they were a foundation to

that defense. It was counsel’s trial strategy to permit the testimony and then

counterattack it. The strategy was effectively employed.

Ms. Clemmer has not established that counsel performed ineffectively. Her claim

of ineffective assistance fails.

Prosecutorial Misconduct

Ms. Clemmer also argues that the prosecutor committed misconduct in closing

argument by shifting the burden of proof to the defense. The argument did not shift the

burden.

Claims of prosecutorial misconduct also are reviewed under familiar standards.

The appellant bears the burden of demonstrating prosecutorial misconduct on appeal and

must establish that the conduct was both improper and prejudicial. State v. Stenson, 132

Wn.2d 668, 718, 940 P.2d 1239 (1997). Prejudice occurs where there is a substantial

9 No. 37133-6-III State v. Clemmer

likelihood that the misconduct affected the jury’s verdict. Id. at 718-719. The allegedly

improper statements should be viewed within the context of the prosecutor’s entire

argument, the issues in the case, the evidence discussed in the argument, and the jury

instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

Reversal is not required where the alleged error could have been obviated by a

curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The

failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned

that it evinced an enduring and resulting prejudice that could not have been neutralized

by an admonition to the jury. Id.; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174

(1988). A prosecutor has “wide latitude” in arguing inferences from the evidence

presented. Stenson, 132 Wn.2d at 727. In addition, once a defendant presents evidence,

a prosecutor can fairly comment on what was not produced. State v. Barrow, 60 Wn.

App. 869, 871-873, 809 P.2d 209 (1991); State v. Guizzotti, 60 Wn. App. 289, 298, 803

P.2d 808 (1991); State v. Contreras, 57 Wn. App. 471, 788 P.2d 1114 (1990)

In closing, defense counsel argued that the troopers had attempted to portray his

client in a bad light. One example he gave was that Trooper Senger had mentioned Ms.

Clemmer’s lack of remorse as a factor in his assessment of her condition. RP at 852.

Counsel also argued that his client did not remember what happened, leaving counsel to

only theorize possibilities. RP at 857. In rebuttal, the prosecutor responded that Ms.

Clemmer’s behavior in the hospital and on the witness stand were factors weighing on

10 No. 37133-6-III State v. Clemmer

her credibility, and that she showed no remorse at any time for the accident she had

caused or the life she had taken. RP at 861-862. Instead, the focus of her testimony was

on how she had been impacted by the collision. The prosecutor then continued,

The only tears were when she first got on the stand for herself because she doesn’t want to be charged with this crime—she knows she was driving under the influence. She couldn’t even tell you she wasn’t.

RP at 862.

Ms. Clemmer now alleges that the prosecutor’s comments on Ms. Clemmer’s

testimony amounted to faulting the defense for not providing evidence and shifted the

burden of proof to the defense. They did not. In context, the statements were nothing

more than recalling the defendant’s own testimony and contrasting her lack of knowledge

and lack of remorse for the victim with her knowledge of her behavior before the

accident and her concern for her own future. The prosecutor’s remarks were comments

on credibility and inferences to be drawn from the evidence. They did not amount to

suggesting that the defendant had to provide any evidence or meet a burden of proof.

Rather, the comments pointed out the holes in the defendant’s story by noting what was

missing from it, as well as the holes in her presentation that suggested her denial was not

credible.

These were not burden-shifting comments. There was no error, let alone error so

egregious that it could not have been cured by a proper objection. The prosecutor did not

commit misconduct in closing argument.

11 No. 37133-6-III State v. Clemmer

Sentencing Conditions

Ms. Clemmer points to a scrivener’s error in the judgment form and also argues

that several sentencing conditions are not crime-related. She did not make any of these

arguments to the trial court, so this court need only address a couple of her points.

The record reflects that Ms. Clemmer is not a minor. Accordingly, the judgment

provision indicating that notice should be sent to the Department of Licensing to revoke a

juvenile’s driver’s license is erroneous. It should be struck.

Despite finding Ms. Clemmer indigent, the court nonetheless required her to pay

fees for community supervision. This was error. State v. Ramirez, 191 Wn.2d 732, 426

P.3d 714 (2018). We also direct the trial court on remand to strike this provision.

Ms. Clemmer challenges three additional community custody conditions on the

basis that they are not related to her crime. One of the challenges is an allegation that the

prohibition on associating with known illegal drug users is improper, while the other

challenged conditions indicate she should obtain a drug/alcohol evaluation and not

possess alcohol containers. Whether a community custody condition is crime-related is

an inherently factual consideration. Accordingly, any challenge to such a condition

normally must initially be raised in the trial court. State v. Peters, 10 Wn. App. 2d 574,

591, 455 P.3d 141 (2019); State v. Casimiro, 8 Wn. App. 2d 245, 249, 438 P.3d 137,

review denied, 193 Wn.2d 1029 (2019). We believe that is the case here. For instance, in

our common experience, evaluators and treatment providers typically include potential

12 No. 37133-6-III State v. Clemmer

alcohol abuse in conjunction with drug treatment. If that is not the case in Stevens

County, then a timely question to the trial court could have clarified its intention on this

point. In the absence of such a record, we will not speculate about the possibilities,

particularly given the court’s unchallenged chemical dependency finding. Accordingly,

we decline to consider the crime-relatedness of these provisions.

The judgment is affirmed and the case remanded to strike the two noted sentence

provisions.

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.

_________________________________ Korsmo, J.P.T.

WE CONCUR:

_________________________________ Fearing, J.

_________________________________ Siddoway, A.C.J.