FILED MARCH 10, 2020 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. 36035-1-III ) Respondent, ) ) OPINION PUBLISHED v. ) IN PART ) RICHARD JOHN RICHARDSON, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — Richard Richardson appeals his convictions for
conspiracy to commit first degree robbery and first degree felony murder, with first
degree burglary as the felony component. We substantially agree with his argument that
an instructional error, which incorrectly defined first degree robbery, requires reversal of
that conviction. We otherwise affirm.
FACTS
In January 2015, Richardson was homeless and spending most of his time either in
a skate park or in the House of Charity in Spokane. It was at the House of Charity where
Richardson met Chris Hall, Ricky Cox, and Isaiah Freeman. Cox and Richardson shared No. 36035-1-III State v. Richardson
methamphetamine with one another. Cox also knew Damien Stewart, who sold
methamphetamine to him.
In late January, Richardson, Hall, Cox, and Freeman were at the skate park where
they all smoked methamphetamine supplied by Richardson. Afterward, Richardson
demanded reimbursement from the others. The group decided Richardson would be
repaid with drugs from someone else.
Cox sent text messages to Damien Stewart, arranging a deal to buy an “eight ball”
of methamphetamine. The deal was a set up; Cox and the others planned to enter
Stewart’s apartment and take methamphetamine from him. The four men walked from
the skate park to Stewart’s apartment.
As they walked, some of the men discussed their plan to rob Stewart. Richardson
overheard some of these discussions. Freeman became angry and said he was going to
hurt Stewart and that he was going to “rob [Stewart] and kill him.” Report of
Proceedings (RP) at 291. Both Hall and Richardson expressed concerns, saying “[W]hat?
You’re not gonna . . . no, you’re not gonna do that.” Id. The group all thought Freeman
was not serious.
The four men arrived at Stewart’s apartment. Hall knocked on the door. Stewart
opened it and was mad that additional people had come over. Stewart and Hall argued
2 No. 36035-1-III State v. Richardson
over this outside the apartment for a short time. During the argument, Hall hit Stewart.
Freeman then pushed his way past Stewart and entered his apartment with Hall.
Richardson and Cox waited outside the apartment. During the time they were
outside, they could hear loud banging noises, which Cox later described sounded as if
someone was getting thrown around. A neighbor came out and asked the two men if
everything was okay. They responded that everything was fine. Cox then knocked on
Stewart’s door. Hall answered, and Richardson and Cox entered the apartment.
When Richardson and Cox entered the apartment, Freeman was holding Stewart
face down on the ground. Richardson and Cox began searching the apartment for
narcotics to steal, but were unable to find any. The men asked Stewart where his drugs
were, but he was unable to respond because he was slipping in and out of consciousness.
Richardson kicked Stewart in the face while Stewart was being held down by
Freeman. Freeman then told Richardson and Cox to hand him various objects—“[a]
frying pan, a knife, speaker boxes were involved from the stereo.” RP at 305. Freeman
then used the frying pan Richardson handed him to hit Stewart in an attempt to knock him
out. During the assault, both Richardson and Cox helped restrain Stewart.
Following the assault, the group left the apartment. Cox took two sleeping bags of
his from Stewart’s apartment. Freeman took Stewart’s wallet and phone. The group
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planned on using Stewart’s food stamp and money cards to obtain money with which to
buy drugs. However, they were not able to use the cards.
A neighbor found Stewart’s body and contacted the police. When police arrived,
they found the apartment in disarray with dried blood around the body and bloody
footprints on the ground. They also found a bloody belt and tie, a bloody stick, and the
frying pan that had been used in the assault. One of Stewart’s neighbors kept track of
vehicles arriving at Stewart’s apartment. Police were able to use this information to trace
a plate to Carla Ward. During the interview with Ward, officers learned that Stewart had
given Ward an electronic benefits transfer card. The card had belonged to Hall, but was
given by Hall to Stewart in exchange for drugs. Further investigation led police to arrest
Hall, Cox, Freeman, and Richardson.
During police interrogation, Richardson initially denied ever going inside
Stewart’s apartment. Detective Randy Lesser told Richardson the police had found DNA1
evidence linking Richardson to Stewart’s apartment. The statement was a ruse, no such
evidence existed. After hearing this, Richardson told Detective Lesser he and Cox had
entered the apartment and described a version of the above events. Specifically,
Richardson admitted being in the apartment and seeing the assault, but left out
1 Deoxyribonucleic acid.
4 No. 36035-1-III State v. Richardson
incriminating details such as kicking Stewart, restraining him, and handing Freeman the
frying pan.
The State charged all four men with various degrees of murder, burglary, and
robbery. The State charged Richardson by amended information with first degree felony
murder, with first degree burglary as the felony component, and with conspiracy to
commit first degree robbery, with a deadly weapon enhancement.
Richardson moved to exclude Freeman’s statements made on the way to Stewart’s
apartment. The trial court initially ruled the statements were testimonial and barred by the
confrontation clause. The State moved for reconsideration and argued Freeman was a
coconspirator with Richardson, which made the statements nontestimonial. The trial
court granted the State’s reconsideration motion and ruled Freeman’s statements on the
way to Stewart’s residence were nontestimonial and were admissible.
Cox and Hall both agreed to testify against Richardson in exchange for pleading
guilty to second degree murder and getting significantly reduced sentences. During the
trial, both related consistent stories, describing the events as discussed above, including
Freeman’s statements he made on the way to Stewart’s apartment.
After the parties presented their cases, the trial court instructed the jury.
Instruction 15 was the court’s intended instruction for first degree robbery:
5 No. 36035-1-III State v. Richardson
A person commits the crime of robbery when she—he or she unlawfully and with intent to commit theft thereof takes personal property from the person or in the presence of another who is the owner of the property and the taking was against that person’s will by the use or threatened use of immediate force, violence or fear of injury to that person. A threat to use immediate force or violence may be either expressed or implied. The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking, in either of which case, the degree of force is immaterial. The taking constitutes robbery, even if death precedes the taking whenever the taking and a homicide are part of the transaction.
RP at 920-21. Richardson did not object that the instruction failed to correctly
define first degree robbery.
The jury found Richardson guilty as charged. The trial court sentenced
Richardson and imposed a number of legal financial obligations (LFOs) and
postjudgment interest.
Richardson timely appealed.
ANALYSIS
Richardson raises several claims on appeal: (1) the trial court violated his
constitutional rights by admitting Freeman’s out-of-court testimonial statements,
(2) instructional error lowered the State’s burden of proof for first degree robbery,
(3) error in calculating the offender score, and (4) error in imposing certain LFOs. In his
statement of additional grounds for review, Richardson raises three additional arguments.
6 No. 36035-1-III State v. Richardson
1. FREEMAN’S OUT-OF-COURT STATEMENTS WERE NONTESTIMONIAL
Richardson contends that Freeman’s out-of-court statements were testimonial. He
argues the trial court, by admitting them, deprived him of his constitutional right under
the confrontation clause to confront his accuser. We disagree.
The confrontation clause of the Sixth Amendment to the United States
Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him . . . .” U.S. CONST. amend. VI. This
right protects a defendant, charged in a criminal prosecution, from defending against
testimony given out of court by witnesses who are unavailable, unless the defendant had
the opportunity to cross-examine the witness at another time. Crawford v. Washington,
541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We review allegations of
confrontation clause violations de novo. State v. Wilcoxon, 185 Wn.2d 324, 329, 373
P.3d 224 (2016).
While the confrontation clause protects criminal defendants against testimonial
statements from nontestifying defendants, nontestimonial statements are not barred under
the clause. Id. at 334. Testimonial statements are statements acting in substitute of in-
court testimony. Id. Affidavits, prior testimony, statements taken under police
interrogation, and other pretrial statements that the declarant would reasonably expect to
7 No. 36035-1-III State v. Richardson
be used in prosecution are all testimonial. Id. at 334-35. Conversely, statements made
casually to a friend or acquaintance are not testimonial. Id. at 335. In Wilcoxon, a
codefendant in a burglary case told a friend, after the burglary, that he and another man
had discussed burgling a business. Id. at 327. The Wilcoxon court held the statements
were not testimonial because they were not designed to prove past fact or substitute for
live testimony, and were not statements the codefendant would have expected to be used
in a prosecution. Id. at 335.
Richardson argues statements made by coconspirators are testimonial. He bases
his argument on the idea a coconspirator would reasonably believe his out-of-court
statements about planning a crime would be used in a prosecution. We disagree.
Apprehension of possible criminal charges is not the test used in determining
whether a statement is testimonial. Examples of testimonial statements discussed in
Wilcoxon and Crawford are statements made when there is a reasonable belief
prosecution is under way or will soon be under way. Affidavits, testimony, and police
interrogation are all given under circumstances leading directly to prosecution and are
given in situations where a witness will be on notice of likely prosecution. On the other
hand, statements made by a coconspirator planning a crime are not given under
circumstances where the declarant is on notice of likely prosecution.
8 No. 36035-1-III State v. Richardson
We do not need to delve in specific line drawing here. Statements made by
coconspirators in furtherance of a conspiracy are nontestimonial. Crawford, 541 U.S. at
56; see also State v. Sanchez-Guillen, 135 Wn. App. 636, 145 P.3d 406 (2006)
(statements given by the defendant’s mother in an attempt to arrange for the defendant to
be transported out of the country to avoid arrest were nontestimonial).
The statements made in this case by Freeman were made while the group was on
their way to the victim’s apartment. They were part of an ongoing discussion about how
they would enter Stewart’s apartment and take his drugs. These statements, made by a
coconspirator in furtherance of the conspiracy, are nontestimonial and are not barred by
the confrontation clause.
2. THE TRIAL COURT FAILED TO INSTRUCT ON AN ESSENTIAL ELEMENT OF THE CHARGED CRIME
a. The trial court erred, and the error was not harmless
Richardson contends the trial court erred by giving an instruction that failed to
correctly define first degree robbery. He notes that robbery in the first degree is
distinguished from robbery in the second degree in that it requires proof of one of three
additional elements. Specifically, a person is guilty of first degree robbery if “(a) In the
commission of a robbery or of immediate flight therefrom, he or she: (i) Is armed with a
9 No. 36035-1-III State v. Richardson
deadly weapon; or (ii) Displays what appears to be a firearm or other deadly weapon; or
(iii) Inflicts bodily injury.” RCW 9A.56.200(1).
The State rightly concedes the trial court erred. The State further rightly concedes
that it cannot establish harmless error. Here, although Freeman said he planned on killing
Stewart, there was evidence that the threat was merely braggadocio’s street talk.
Moreover, there was evidence that Richardson was concerned by the statement. A jury
could have reasonably found there was no agreement to cause Stewart bodily injury.
b. No authority supports the State’s invited error argument
The State first responds that Richardson invited the instructional error by failing to
object. It fails to cite any authority to support its argument. We presume no such
authority exists. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193
(1962).
c. The error is reviewable because it involves a manifest error of constitutional magnitude
The State next responds that Richardson is precluded from having the error
reviewed because he failed to object to the jury instruction. Generally, a party who
fails to object to a jury instruction in the trial court waives a claim of error on appeal.
RAP 2.5(a); State v. Schaler, 169 Wn.2d 274, 282, 236 P.3d 858 (2010). Our refusal to
review unpreserved errors encourages parties to make timely and well-stated objections
10 No. 36035-1-III State v. Richardson
so the trial court has an opportunity to correct the error. State v. Guzman Nunez, 160 Wn.
App. 150, 157, 248 P.3d 103 (2011), aff’d, 174 Wn.2d 707, 285 P.3d 21 (2012).
An oft-cited exception allows review of certain unpreserved errors. RAP 2.5(a)(3)
allows appellate review of manifest errors affecting a constitutional right. Richardson
contends the error is reviewable because the error reduced the State’s burden of proof.
We disagree. The court’s instructions required the State to prove every element beyond a
reasonable doubt.
The infirmity is not that the instruction reduced the State’s burden of proof, but
rather that it omitted an essential element of the crime charged. As we explained in State
v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256 (2003):
The constitution requires the jury be instructed on all essential elements of the crime charged. [State v. Linehan, 147 Wn.2d 638, 653, 56 P.3d 542 (2002)]; U.S. CONST. amend. VI; CONST. art I, § 22. An instruction that omits an essential element of a crime relieves the State of its burden of proving each element of the crime beyond a reasonable doubt. Linehan, 147 Wn.2d at 654. Such an error is a violation of due process and harmless solely if the reviewing court is “convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error.” Id. (citing State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996)). Because jury instructions omitting elements of the charged crime constitute a “manifest error affecting a constitutional right,” this court may consider the issue for the first time on appeal. RAP 2.5(a)(3); see State v. Eastmond, 129 Wn.2d 497, 502, 919 P.2d 577 (1996).
11 No. 36035-1-III State v. Richardson
We conclude that Richardson’s unpreserved claim of instructional error is
reviewable because the court’s instruction failed to include the essential elements of the
charged crime.
d. Reversal and remand is the appropriate remedy
The State further responds that the proper remedy for this error is to reverse and
remand for resentencing on the lesser included offense of conspiracy to commit second
degree robbery. To support this assertion, the State relies on In re Personal Restraint of
Heidari, 174 Wn.2d 288, 274 P.3d 366 (2012). However, the State’s reliance is
misplaced.
In Heidari, the court reaffirmed the rule put in place by State v. Green, 94 Wn.2d
216, 616 P.2d 628 (1980), that remand for resentencing on a lesser included offense is
only appropriate when the jury was explicitly instructed on the lesser offense. Heidari,
174 Wn.2d at 293-94, 296 (Johnson, J., concurring/dissenting).
The State argues this rule applies here because the jury was instructed on all of the
elements of conspiracy to commit second degree robbery. However, while the elements
in the jury instructions may have been enough to prove conspiracy to commit second
degree robbery, that was not a crime that was charged or put before the jury. The court in
Heidari specifically explained that Green was in effect when the State pursues an “all or
12 No. 36035-1-III State v. Richardson
nothing” strategy. Heidari, 174 Wn.2d at 294. In order to avoid this, the court suggested
the State would only need to request a lesser included offense instruction at trial. Id.
“[I]f jurors are not asked to decide the defendant’s guilt or innocence on a lesser included
offense, the defendant is denied the opportunity of defending against such a charge and
might forgo strategies, arguments, and the presentation of evidence relative to that
charge.” Id. In this case, the State did not request a lesser included instruction, and
Richardson was not afforded an opportunity to defend against that charge.
In those circumstances where double jeopardy prevents a retrial on a reversed
charge, courts allow resentencing on a lesser included offense. Heidari, 174 Wn.2d at
291; Green, 94 Wn.2d at 234-35; State v. Williams, 199 Wn. App. 99, 111, 398 P.3d 1150
(2017); State v. Hummel, 196 Wn. App. 329, 358-59, 383 P.3d 592 (2016); State v.
Johnson, 185 Wn. App. 655, 669-70, 342 P.3d 338 (2015); State v. Scherz, 107 Wn. App.
427, 436-37, 27 P.3d 252 (2001). But double jeopardy considerations are not in play
here, and the State is free to retry the reversed conviction. Resentencing on a lesser
included offense is not appropriate. We reverse Richardson’s conviction for conspiracy
to commit first degree robbery and remand that charge for a new trial.
Our reversal of Richardson’s robbery conviction reduces his offender score and
will require him to be resentenced on his murder conviction. We, therefore, decline to
13 No. 36035-1-III State v. Richardson
address his third and fourth arguments—purported error in calculating his offender score
and error in the imposition of LFOs.
Reversed in part and remanded.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
SAG I: POLICE DECEPTION DID NOT COERCE CONFESSION
Richardson contends police coerced a confession from him. We disagree.
A confession is inadmissible unless it is voluntary. State v. Adams, 138 Wn. App.
36, 46, 155 P.3d 989 (2007). The inquiry into whether a confession is voluntary is
whether, under the totality of the circumstances, the confession was coerced. Id. This
court looks into the tactics used by the police to determine whether they were improper as
well as the mental state of the defendant. Id. Actual coercion requires a showing the
defendant’s will was overborne by the interrogators. State v. Mayer, 184 Wn.2d 548, 568
n.8, 362 P.3d 745 (2015). Here, Mr. Richardson contends the police conduct was
14 No. 36035-1-III State v. Richardson
improper because they told him they had physical and deoxyribonucleic acid evidence
linking him to the scene when they did not.
However, police deception alone does not rise to the level of coercive behavior.
Ortiz v. Uribe, 671 F.3d 863, 869 (9th Cir. 2011); see also State v. Stackhouse, 90 Wn.
App. 344, 354, 957 P.2d 218 (1998) (confession was voluntary when defendant waived
his right to counsel despite police failing to inform him that his attorney was trying to
contact him). There is no showing police did anything more than simply lying to
Richardson and this, in and of itself, does not show his will was overborne. Thus, there
was no coercion here and the confession was admissible.
SAG II: EVIDENCE WAS SUFFICIENT TO CONVICT
Richardson contends there was insufficient evidence to convict him of first degree
felony murder. We disagree.
The State’s theory against Richardson was that he was an accomplice to burglary
in the first degree, and in furtherance of that felony, caused the death of Stewart.
To prove a defendant is guilty of felony murder in the first degree, the State must
prove, beyond a reasonable doubt,
He or she commits or attempts to commit the crime of . . . burglary in the first degree . . . and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants.
15 No. 36035-1-III State v. Richardson
RCW 9A.32.030(1)(c).
In those circumstances where a defendant is not the only participant in the crime, it
is a defense to first degree felony murder that the defendant,
(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and (iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
Id.
Richardson argues the evidence was insufficient to convict him here
because there was no physical evidence proving he murdered Stewart. He asserts
he went to Stewart’s apartment only to pick up a food stamp card belonging to Hall
and was told it would take only 30 minutes.
In a sufficiency challenge, the inquiry is “whether, after viewing the evidence in
the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). All reasonable inferences are drawn in the State’s favor, and the evidence is
interpreted most strongly against the defendant. Id. This court’s role is not to reweigh
16 No. 36035-1-III State v. Richardson
the evidence and substitute its judgment for that of the trier of fact. Green, 94 Wn.2d at
221.
Construing the evidence in the light most favorable to the State, the
evidence established that Richardson accompanied the three men with a plan to
enter Stewart’s apartment and steal methamphetamine from him. In fact, this is
substantially what happened. Once Richardson entered Stewart’s apartment, the
first thing he did was look for drugs. Not finding any, the group stole other items
from Stewart. In furtherance of this, Freeman killed Stewart. Richardson aided in
Stewart’s killing by helping to restrain him and by giving Freeman a frying pan
during the attack. We conclude the State presented sufficient evidence to prove
the required elements of first degree felony murder beyond a reasonable doubt.
SAG III: CANNOT REVIEW INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Richardson finally contends his counsel was ineffective because he refused to
contact or call certain witnesses, failed to discuss the case sufficiently with him, failed to
review the evidence, and did not consult him about requesting a lesser included offense
instruction. However, these arguments refer to facts outside the appellate record and this
court is precluded from considering facts not in the record. State v. McFarland, 127
Wn.2d 322, 335, 899 P.2d 1251 (1995). Therefore, we do not review these issues.
17 No. 36035-1-III State v. Richardson
Reversed in part and remanded for further proceedings.
L,..... .-<.,. c. ... - (s\N\." ~ , c.. ~. Lawrence-Berrey, CJ.
WE CONCUR:
Fearing, J. )