State v. Farnsworth

• Court: Washington Supreme Court
• Decided: June 23, 2016
• Docket: 91297-1
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) Petitioner, ) No. 91297-1 ) v. ) EnBanc ) CHARLES VERDEL FARNSWORTH, JR., ) ) Filed 'U' 1 '' ·---·~-·~_._t.._ _ 3 ·;n'!6 .. _u_ __ Respondent. ) __________________________) OWENS, J.- Robbery and theft are closely related crimes. While both

offenses involve stealing money or property, theft is elevated to robbery where the

defendant uses force or threatened force to take the property. The main question in

this case is whether certain conduct constituted a "threat of force," making the crime a

robbery, not a theft. The legislature has broadly defined "threat" to specifically

include "indirect[]" threats. RCW 9A.04.110(28). We have established in our case

law that a threat need not be explicit to quality-a threat can be implied by words or

conduct. As we recently held, where an ordinary person could reasonably infer a

threat of harm from the defendant's conduct, the defendant made an implied threat of

force. State v. Witherspoon, 180 Wn.2d 875,884,329 P.3d 888 (2014). Today, we State v. Farnsworth No. 91297-1

are asked to decide whether, under the circumstances here, respondent Charles

Farnsworth's handwritten note demanding money from a banlc teller contained an

implied threat of force.

Although the note did not convey an explicitly threatening message, we believe

it was laden with inherent intimidation. When a person demands money at a bank,

with no explanation or indication of lawful entitlement to money, it can imply a threat

of force because without such a threat, the teller would have no incentive to comply.

An ordinary banlc teller could reasonably infer an implied threat of harm under these

circumstances. Because of this implicit threat, banks have security guards and

distinctive policies in place to prevent harm flowing from precisely these types of

encounters. As Farnsworth's partner in crime explained, they were well aware that

banlcs generally instructed their employees to react to such notes as if they contained

an explicit threat; in fact, the pair relied on that knowledge and fear to commit this

crime. In this context, we hold that there is sufficient evidence that the pair's conduct

implied a threat of harm.

Additionally, Farnsworth asks us to find that cumulative trial court errors

deprived him of a fair trial. We find that no errors accumulated to deprive Farnsworth

of a fair trial. Consequently, we affirm Farnsworth's conviction for first degree

robbery.

2 State v. Farnsworth No. 91297-1

FACTS

On October 15,2009, Farnsworth and James McFarland were suffering heroin

withdrawals and had no money to purchase more. The pair made a plan to "rob" a

bank. 13 Report of Proceedings (RP) at 1208. The plan was for McFarland to wait

outside in the car while Farnsworth entered a banlc wearing a wig and sunglasses as a

disguise, and retrieve money. Farnsworth would present the note to the teller, which

read, "No die [sic] packs, no tracking devices, put the money in the bag." Clerk's

Papers (CP) at 34.

Farnsworth was "hem and hawing" while driving around, and McFarland grew

increasingly frustrated with him, until he finally reached his breaking point. 13 RP at

1233. He grabbed the wig and note from Farnsworth's hands and entered the banlc to

carry out their plan. While Farnsworth waited outside in the car, McFarland

approached a teller's counter, leaned through her window, and handed her the note.

The teller, Sarah Van Zuyt, testified that she instantly knew she was being robbed

when she read the note. She said she was "scared" and "in shock." 9 RP at 484.

Ms. Van Zuyt complied with the demand "[b]ecause I didn't want anybody else to get

harmed, and I didn't know what he was capable of doing." !d. at 486. She handed

him about $300 in small bills, and McFarland left. Farnsworth and McFarland drove

away, but they were pulled over and arrested a few blocks from the bank.

3 State v. Farnsworth No. 91297-1

Both Farnsworth and McFarland were charged with first degree robbery

pursuant to RCW 9A.56.200(1 )(b) (robbery committed in a financial institution).

Farnsworth faced the possibility of a life sentence under the Persistent Offender

Accountability Act (POAA) of the Sentencing Reform Act of 1981 if convicted of this

robbery, as he was previously convicted of a 2004 robbery and a 1984 vehicular

homicide in California. Ch. 9.94A RCW. The POAA requires a life sentence when a

repeat offender commits a third felony that is classified as a "most serious offense"

(often referred to as a "third strike"). RCW 9.94A.570, .030(33), (38).

Likewise, McFarland faced a life sentence under the POAA, as he also had

prior convictions of crimes classified as most serious offenses. He agreed to a plea

bargain for an 8- to 10-year sentence instead of a life sentence, whereby McFarland

would testify against Farnsworth in Farnsworth's jury trial for robbery. McFarland

agreed to testify against Farnsworth after Farnsworth acted rudely toward McFarland

while staying at Western State Hospital following arrest. 15 RP at 1430-31.

The jury was instructed on both first degree theft and first degree robbery; it

unanimously convicted Farnsworth of first degree robbery, and, per the jury

instructions, it did not consider the lesser-included crime of first degree theft. The

trial court found that the conviction was his third strike under the POAA and

sentenced him to life in prison without the possibility of release.

4 State v. Farnsworth No. 91297-1

Farnsworth appealed, arguing that the evidence was insufficient to support

robbery because (1) there was no threat offorce and (2) he agreed to aid only a theft,

not a robbery. Division Two of the Court of Appeals agreed, vacated his robbery

conviction, and remanded to the trial court for sentencing on first degree theft. State

v. Farnsworth, 184 Wn. App. 305, 314, 348 P.3d 759 (2014) (published in part).

Farnsworth also argued that he was deprived of a fair trial under the cumulative error

doctrine, raising six claimed errors. In the unpublished portion of its opinion, the

Court of Appeals found only one suspect error, which it deemed harmless. State v.

Farnsworth, No. 43167-0-II, slip op. (unpublished portion) at 14, 19 (Wash. Ct. App.

Oct. 28, 2014). Although raised by Farnsworth, the Court of Appeals did not reach

the issue of whether his earlier out-of-state conviction counted as a strike for purposes

of the POAA because once his robbery conviction was vacated, the POAA was not

implicated. !d. at 20.

The State petitioned this court for review, arguing that the Court of Appeals

erred in finding insufficient evidence of a threat and ofFarnsworth's accomplice

liability. Farnsworth cross petitioned, again raising five of his claimed trial court

errors and claiming his California conviction should not count as a strike for purposes

of the POAA. We granted discretionary review of both the petition and cross petition.

State v. Farnsworth, 183 Wn.2d 1001,349 P.3d 856 (2015).

5 State v. Farnsworth No. 91297-1

ISSUES

1. Was there sufficient evidence of a threat of force under these

circumstances?

2. Does the evidence show that Farnsworth had the requisite knowledge to

be liable as an accomplice to robbery?

3. Do Farnsworth's claimed trial court errors warrant reversal of his

conviction?

4. Does Farnsworth's out-of-state conviction compare to a strike for

purposes of sentencing under the POAA?

ANALYSIS

1. Sufficient Evidence Supports an Implied Threat ofForce under These Circumstances

We are first asked to decide whether there was sufficient evidence of a threat of

force during the crime. Specifically, the State asks us to reverse the Court of Appeals'

finding that the use of the demand note here was insufficient to show any implicit or

explicit threat offorce. For the reasons explained below, we hold that under these

circumstances-including the use of a demand note with no claim of legal entitlement

to the money, the note's reference to dye packs, and the defendants' awareness that

banking personnel would treat the note as a threat-there was sufficient evidence of

an implied threat of force.

6 State v. Farnsworth No. 91297-1

In a challenge to the sufficiency of the evidence, we must examine the record to

determine whether any rational finder of fact could have found that the State proved

each element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,221, 616

P.2d 628 (1980). When a defendant challenges the sufficiency of the evidence, he or

she admits the truth of all of the State's evidence. State v. Homan, 181 Wn.2d 102,

106, 330 P.3d 182 (2014). In such cases, appellate courts view the evidence in the

light most favorable to the State, drawing reasonable inferences in the State's favor.

I d. Circumstantial and direct evidence are to be considered equally reliable. State v.

Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).

At issue in this case is whether there was sufficient evidence of a threat of force

during the crime. That is because the distinguishing element between robbery and

theft is the use or threatened use of force. Robbery is committed when a person

unlawfully takes the property of another "by the use or threatened use of immediate

force, violence, or fear of injury to that person .... " RCW 9A.56.190. Theft, on the

other hand, does not require any use of force. It is simply the wrongful taking of the

property of another with intent to deprive him or her of such property. RCW

9A.56.020(l)(a).

Washington's criminal code defines "threat" as "to communicate, directly or

indirectly the intent" to take a certain action. RCW 9A.04.11 0(28) (emphasis added).

In many robberies, the threat offorce is explicit. For instance, a robber might directly

7 State v. Farnsworth No. 91297-1

communicate to a teller, "Hand over the money, or I will shoot you." Other times, the

threat is clearly implied by conduct, such as pointing a gun at a bank teller and simply

stating, "Give me the money." At issue in this case is whether, under the

circumstances, the demand note given to the teller contained an indirect

communication of implied threat of force.

We recently considered an implied threat in Witherspoon and articulated an

objective standard to determine if the defendant used intimidation to take property: we

ask if"an ordinary person in the victim's position could reasonably infer a threat of

bodily harm from the defendant's acts." 180 Wn.2d at 884. There, the victim

returned home to find an unknown car in her driveway and Witherspoon at the side of

her home. Id. at 881. His left hand was behind his back. Id. The victim asked what

he had behind his back and he replied that he had a pistol. Jd. He then drove away.

!d. Applying the objective standard above to these facts, this court found that a

rational jury could infer that Witherspoon made an implied threat of force when he

told her he had a pistol, despite the fact that he did not brandish a weapon. Id. at 885.

Unlike in Witherspoon, Farnsworth and McFarland did not state that they had a

weapon. But some lower Washington courts have found that a demand note presented

to a banlc contains an implied threat based on the social and historical context of bank

robberies. For instance, the Court of Appeals affirmed a trial court's ruling that a

person demanding money from a teller communicated an implied threat because it

8 State v. Farnsworth No. 91297-1

was "objectively reasonable" for a bank teller to fear harm in the circumstances, even

though no explicit threat was made. State v. Collinsworth, 90 Wn. App. 546, 551, 966

P.2d 905 (1997). Division One explained, "No matter how calmly expressed, an

unequivocal demand for the immediate surrender of the bank's money, unsupported

by even the pretext of any lawful entitlement to the funds, is fraught with the implicit

threat to use force." !d. at 553.

Division Two also found an implicit threat when a person handed a bank teller

demand notes that contained statements such as '"This is a robbery,"' '"Put $3,000 in

envelopes,"' and '"I will be watching you."' State v. Shcherenkov, 146 Wn. App.

619, 622-23, 191 P.3d 99 (2008). Twice the defendant kept his hand in his pocket,

but he never brandished a weapon or even spoke to the teller. Id. The bank tellers

said they felt threatened and that they complied to avoid harm to others. !d. Division

Two found that a rational jury could reasonably interpret an implied threat from his

hand in his pocket and the text of the notes. Id. at 629.

We find the reasoning of these courts to be persuasive. Under Witherspoon's

objective test, the facts here support a finding that a reasonable person in the teller's

position could reasonably infer a threat of bodily harm. Just as Witherspoon knew

that if he told the victim he had a gun she would let him leave with her belongings,

Farnsworth and McFarland !mew that a banlc teller would comply with whatever they

wrote in the note if they conveyed a threat. McFarland testified, "[W]henever you're

9 State v. Farnsworth No. 91297-1

robbing a bank, banlc tellers are supposed to do exactly what you told them. Because

they want to get somebody out of there. They figure the danger or potential danger to

the place." 14 RP at 1254. They knew if the note conveyed a serious demand, it

would imply a threat of force that would compel compliance. The dissenting judge on

the Court of Appeals reasoned, "Indeed, without the implicit threat to use force, it is

difficult to imagine why the teller would comply with the note's demand for money."

Farnsworth, 184 Wn. App. at 316-17 (Worswick, J., dissenting in part).

In fact, the teller did feel threatened. She said she "knew [she] was getting

robbed" instantly upon reading the note and complied to avoid anyone getting hurt. 9

RP at 482, 486. An ordinary person in her position could likewise reasonably infer

that McFarland threatened to use force, as McFarland made no attempt to feign lawful

entitlement to the money and instead demonstrated an unlawful intent by ordering her

not to include dye packs in the money.

The note read, "No die [sic] packs, no tracking devices, put the money in the

bag." CP at 34. While this note does not imply McFarland had a weapon, his words

conveyed a threat. As the Court of Appeals in Collinsworth explained, demanding

that a teller not include dye packs with the money "underscor[ed] the seriousness of

his intent." 90 Wn. App. at 553.

Additionally, the evidence shows that Farnsworth and McFarland planned to

commit a "robbery." When their drug money ran out, McFarland testified that

10 State v. Farnsworth No. 91297-1

"[Farnsworth's] talking about doing this robbery. And I said, well, I'll go with you on

it. And we'd go in and I'd drive. He was supposed to do the robbery and I was

supposed to drive." 13 RP at 1207. Although the Court of Appeals essentially

dismissed the pair's use of the term "robbery," calling it a colloquialism "similar to

people saying their house was robbed when they really meant it was burglarized,"

Farnsworth, 184 Wn. App. at 310 n.5, their use of the term was significant because

they acknowledged the differences between the terms. In his testimony, McFarland's

use of various terms was not accidental: he distinguished between robbery and

"boosting," which he likened to "shoplifting" or stealing. 13 RP at 1205; 14 RP at

1277. McFarland's word choice illustrates his intent to commit a robbery in the bank,

as opposed to the crime of theft.

Under these circumstances, the defendants' conduct conveyed an implied threat

of force designed to compel a reasonable person in the teller's position to give

McFarland money. Therefore, we find that there was sufficient evidence to

demonstrate a threat of force.

Farnsworth contends that adopting this standard would create a strict liability

crime and result in any demand for money inside a banlc being automatically

interpreted as a threat. This, he argues, would mean that any unlawful demand for

money at a bank would constitute robbery. This concern is understandable but

ultimately unfounded. In every such case, the circumstances will be unique and

11 State v. Farnsworth No. 91297-1

context-dependent, causing courts to determine whether the evidence supports an

objective finding of a threat under our Witherspoon standard. For instance, a demand

that arises out of confusion or mistake might not constitute a threat. Context matters.

In contrast, a theft does not rise to the level of a robbery because it involves no

use or threat of force to effectuate the same outcome: taking another person's

property. For example, a theft would occur where an individual induced the bank

teller to place money on the counter and then took it without having any entitlement to

it. It would be a theft, not a robbery, because the hypothetical lacks even an implied

threat of force. See, e.g., United States v. Wagstaff, 865 F.2d 626, 627, 629 (4th Cir.

1989) (finding insufficient evidence of robbery because the defendant did not take

money '"by intimidation"' where he removed money from a cash drawer without

communicating with bank personnel). However, as the Collinsworth court observed,

where a person demands the bank's money, "unsupported by even the pretext of any

lawful entitlement to the funds," the demand can contain an implicit threat of force.

Collinsworth, 90 Wn. App. at 553; see also United States v. Hopkins, 703 F.2d 1102,

1103 (9th Cir. 1983) (finding sufficient evidence of"intimidation" for robbery when a

man presented the teller a note stating it was a robbery and demanding money).

In summary, a threat need not be direct or explicit to support a robbery

conviction. A demand note for money at a bank can carry with it an implied threat of

harm if the teller does not comply. Here, because Farnsworth's and McFarland's

12 State v. Farnsworth No. 91297-1

conduct could cause an ordinary person in the teller's position to reasonably infer a

threat of force from their demand note, we find sufficient evidence of a threat of force.

2. Sufficient Evidence Supports Farnsworth's Liability as an Accomplice to First Degree Robbery

Farnsworth asks us to find that there was insufficient evidence to support his

conviction based on accomplice liability. However, we disagree because, as we

concluded above, the crime committed was a robbery and Farnsworth planned the

crime exactly as it occurred.

A person may be liable for the acts of another if he or she is an accomplice to

the act. RCW 9A.08.020(1 ), (2)(c). One is an "accomplice" of another if the person

aids or agrees to aid the other in planning or committing the crime, with the

knowledge that it will promote or facilitate the commission of such crime. RCW

9A.08.020(3)(a)(ii). The Court of Appeals found insufficient evidence that

Farnsworth knowingly aided a robbery, and instead held that he agreed to aid only a

theft. Farnsworth, 184 Wn. App. at 313-14. A person is construed to have adequate

knowledge when he or she acts with knowledge that his or her conduct will promote

the specific crime charged. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000).

Thus, the question is whether Farnsworth agreed to aid in the commission of a

robbery, including the use or threatened use of force or violence.

Since we find that the crime committed contained an implied threat, we also

find that Farnsworth had the requisite knowledge because he helped plan the crime

13 State v. Farnsworth No. 91297-1

exactly as it was committed. There was no deviation from their plan other than which

member of the pair would enter the bank and who would wait in the car to drive them

away after (and, of course, the evidence supporting the threat of force was not

contingent on which of the two of them actually entered the banlc). Most importantly,

Farnsworth wrote the note that McFarland used. In fact, McFarland did not even read

the note until later; he simply trusted Farnsworth's "experience" to write a note that

would compel the teller to hand over the money. 14 RP at 1253. Given our finding

that under the circumstances, the note written by Farnsworth contained an implied

threat, we find sufficient evidence that Farnsworth was an accomplice to the crime of

3. Farnsworth Was Not Deprived of a Fair Trial Due to Cumulative Error

Farnsworth argued on appeal that the cumulative effect of six errors deprived

him of a fair trial. In the unpublished portion of its opinion, the Court of Appeals

found only one suspect error, which it deemed harmless, and thus found that

Farnsworth was not deprived of a fair trial under the cumulative error doctrine.

Farnsworth now raises five claims of error to this court. We find that the trial court

did not err, and even if it had, any such errors were harmless. Thus, he was not

deprived of a fair trial.

We review evidentiary rulings for an abuse of discretion by the trial court.

State v. Darden, 145 Wn.2d 612,619,41 P.3d 1189 (2002). An abuse of discretion

14 State v. Farnsworth No. 91297-1

occurs where a trial court's decision is manifestly unreasonable or made for untenable

reasons. Id.

A. Excluding McFarland's Plea Agreement Was Not Error

Farnsworth claims that the trial court erred when it excluded McFarland's plea

agreement, preventing Farnsworth from the opportunity to meaningfully cross-

examine and impeach McFarland. Generally, evidence of a plea agreement under

these circumstances would be properly admitted to allow the jury to be privy to any

possible bias McFarland had in testifying against Farnsworth. See Davis v. Alaska,

415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (defendants are entitled to

expose the jury to facts from which they can weigh the witness' reliability). We find

that because the jury was informed of the contents of the plea agreement, it learned of

McFarland's possible bias and motive in testifying against him. Consequently, we

find the trial court made a reasonable decision in excluding the actual plea agreement,

which had the potential to confuse the jury without adding any relevant information.

At trial, McFarland testified that he pleaded guilty to first degree theft.

Farnsworth sought to admit McFarland's guilty plea agreement, which would show

that he pleaded guilty to both first degree theft and first degree robbery; the latter

charge would be removed if he testified. McFarland testified as to his plea agreement

with the State on both direct examination and cross-examination. He told the jury he

was facing "this bank robbery, and the third strike I would have had to fought. ...

15 State v. Farnsworth No. 91297-1

You get a third strike, it's life [in prison] without [parole]." 14 RP at 1259. He told

the jury that in exchange for complying with the State by testifying against

Farnsworth, he would receive a shorter sentence. McFarland testified, "[T]hey

usually drop your charges down to a lower crime and you get a little lesser

sentence .... " !d. at 1348. On cross-examination, Farnsworth's counsel inquired

into the plea agreement and the benefit McFarland would receive for testifying: a

possible eight-year sentence instead of life imprisonment. Thus, the jury was well

informed of its contents through McFarland's own testimony.

The trial court heard argument from the parties about admitting the plea

agreement, and ultimately excluded the plea agreement as being confusing,

misleading, and irrelevant, under ER 401 and 403. 15 RP 1395-1400. In general,

only relevant evidence is admissible. ER 402. Evidence is relevant if it has any

tendency to make the existence of any consequential fact more probable or less

probable. ER 401. However, relevant evidence is inadmissible if the danger of unfair

prejudice, confusion of the issues, or misleading the jury substantially outweighs its

probative value. ER 403.

The colloquy between the trial court, prosecutor, and Farnsworth's counsel

shows that the document contained some extrinsic information that might have been

misleading, confusing, or irrelevant. See 15 RP 1395-1400. As discussed, the jury

heard McFarland testify about the contents of the plea agreement, thus learning about

16 State v. Farnsworth No. 91297-1

the potential motive McFarland had to testify against Farnsworth. The plea agreement

would have added no new information that the jury did not already know from

McFarland's own testimony, and thus admitting it had the potential to confuse the

jury. Consequently, we believe that the trial court properly excluded it and do not

fmd it was error to do so.

Moreover, we do not have a copy ofthe plea agreement to review on this

appeal. Generally, we cannot speculate upon facts that are not part of the record. 1

State v. Blight, 89 Wn.2d 38, 46, 569 P.2d 1129 (1977). Thus, our review consists

only of the trial court's ruling and Farnsworth's briefing about the contents of the

document. Farnsworth's description of the discrepancy between the plea agreement

and McFarland's testimony does not warrant finding an error. The jury was well

informed of the deal McFarland was receiving, and the jury could infer his motive to

testify. Even if Farnsworth had presented the plea agreement to us and could show

the trial court erred by excluding it, the error would have been harmless, as discussed

in the next section.

' Furthermore, it is questionable whether counsel did enough to preserve this issue for appellate review. See RAP 2.5(a). Counsel would have been well advised to make a clearer objection on the record.

17 State v. Farnsworth No. 91297-1

Even If Excluding McFarland's Plea Agreement Had Been Error, It Would Have Been Harmless Error

Even if excluding the plea agreement had been error, it would not be a ground

for reversing Farnsworth's conviction unless the error prejudiced the defendant. State

v. Grenning, 169 Wn.2d 47, 57,234 P.3d 169 (2010). Such an error is prejudicial

where, '"had the error not occurred, the outcome of the trial would have been

materially affected."' State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)

(quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). 2 Applying

that rule, we have often held that an erroneous admission or exclusion of evidence

was harmless where the evidence merely provided additional evidence of something

already shown by overwhelming untainted evidence (such additional evidence is often

referred to as '"merely cumulative"'). State v. Gonzalez Flores, 164 Wn.2d 1, 19, 186

P .3d 1038 (2008) (quoting Dennis J. Sweeney, An Analysis ofHarmless Error in

Washington: A Principled Process, 31 GONZ. L. REV. 277, 319 (1995)).

Here, the exclusion of McFarland's plea agreement did not materially affect the

outcome of the trial. As discussed above, the jury was well aware of the benefit

2 The dissent contends that Farnsworth raised a constitutional error rather than an evidentiary error, and that thus the proper standard is whether the error is harmless beyond a reasonable doubt. Farnsworth's briefs are not clear on this issue, as they do not discuss either standard, but we need not decide this issue because this error was hmmless under either standard. The plea agreement was probative of one thing: McFarland's potential motive in testifying against Farnsworth. As we have explained, the jury was made awme by McFarland that he would receive a lower sentence in exchange for testifying. Since they received the relevant information necessary to evaluate McFarland's credibility, the exclusion of the plea agreement was harmless beyond a reasonable doubt.

18 State v. Farnsworth No. 91297-1

McFarland received by testifying against Farnsworth. It would be different if the plea

agreement was excluded and the jury did not otherwise learn of the plea deal. Under

those circumstances, the jury would have not learned of McFarland's potential bias

and would have been unable to judge the veracity of McFarland's testimony.

However, that is simply not the case here. McFarland's statements fully infonned the

jury of the deal he was to receive in exchange for his testimony against Farnsworth,

and the plea agreement was merely cumulative of other evidence presented. From

that, the jury already had the relevant information to evaluate McFarland's motive to

testify. Therefore, we find that even if it had been error to exclude the plea

agreement, the error would have been harmless.

B. The Trial Court Did Not Err By Admitting Evidence ofFarnsworth's Prior Acts

Farnsworth argues that the trial court erred by allowing the jury to hear

information about his prior acts in two instances: (1) the prosecutor's opening

statement, which discussed Farnsworth's two 2004 convictions for robbery while

wearing a wig without eliciting evidence thereof during trial, and (2) testimony

regarding Farnsworth's rude conduct toward McFarland at Western State Hospital.

As discussed below, we fmd that neither ruling was in error.

a. State's Opening Statement

Before trial, the parties argued to the trial court about the admissibility of

Farnsworth's prior robbery convictions. The trial court decided to allow the evidence

19 State v. Farnsworth No. 91297-1

because the prior robberies went to prove Farnsworth's knowledge as to the planning

ofthe present robbery, as he carried them out in a similar manner (by wearing a wig

and sunglasses). 4 RP at 161. Accordingly, during her opening statement, the

prosecutor commented on Farnsworth's prior robbery convictions committed while

wearing a wig. However, she did not end up eliciting evidence thereof during trial.

Farnsworth moved for a mistrial, which the trial court denied. 17 RP at 1675-77.

A prosecutor's opening statement may outline the anticipated evidence that

counsel has a good faith belief will be produced at trial. State v. Campbell, 103

Wn.2d 1, 15-16, 691 P .2d 929 (1984 ). The defendant bears the burden of showing the

prosecutor acted without good faith. !d. at 16.

Here, when the State mentioned the robberies in its opening statement, it

intended to elicit evidence of the robberies, as evidenced by the arguments prior to

trial about the admissibility thereof. Farnsworth does not claim the prosecutor acted

in bad faith by noting his prior robbery convictions in its opening statement, nor does

the record show bad faith. Instead, the record shows that the prosecution changed its

strategy and opted to elicit such evidence in rebuttal. In response, the defense

changed its strategy, and then the State decided not to elicit evidence regarding the

prior robberies. Therefore, this claim of error fails because the State's opening merely

outlined anticipated evidence that would be produced at trial, as allowed by our case

law.

20 State v. Farnsworth No. 91297-1

b. Farnsworth's Rude Conduct at Western State Hospital

At trial, the judge allowed McFarland to testify regarding Farnsworth's rude

conduct toward him when they were at a hospital together after the crime. Farnsworth

claims that decision violated ER 404(b) because the evidence had no probative value

and prejudiced the jury against him. Farnsworth is correct that ER 404(b) precludes

evidence of conduct intended to show that the defendant acted in conformity therewith

in the charged incident. However, such evidence may "be admissible for another

purpose, such as proof of motive, plan, or identity." State v. Foxhoven, 161 Wn.2d

168, 175, 163 P.3d 786 (2007).

In this case, the State elicited testimony not to show that Farnsworth was

dangerous or acting in conformity with his conduct, but rather to offer evidence of

McFarland's motive to testify against him. On the stand, McFarland explained that he

considered "taking the beef for [Farnsworth]," but after Farnsworth acted rudely

toward him while they were at a hospital together, 3 McFarland decided to testify

against him. 15 RP at 1431. Since the purpose of eliciting the testimony was to show

McFarland's motive to testify against Farnsworth, it was not error to allow it under

ER404(b).

C. Allowing Detective's Testimony regarding Statements Made by Farnsworth Was Not Error

3 While at a hospital together after their arrest, McFarland testified that Farnsworth called him a '"fucking stool pigeon"' and also "flipped [McFarland] the bird," pulled his pants down and "grabbed his private parts and says, 'Suck on these you son of a bitch."' 15 RP at 1430.

21 State v. Farnsworth No. 91297-1

Prior to trial, Farnsworth was ordered to provide a sample of his handwriting.

He refused. At trial, the detective who attempted to obtain the handwriting sample

relayed statements Farnsworth made to him when refusing to provide the handwriting

sample. Specifically, the detective testified about Farnsworth's anger and his reasons

for not complying with the court order. Farnsworth did not object to this testimony at

the time, but he now claims that this testimony violated his constitutional right to

remain silent.

Normally, we do not review such errors raised for the first time on appeal,

although RAP 2.5(a) allows an appellate court to review an error not raised at trial if it

was a manifest error affecting a constitutional right. To show that an error was

manifest, one must demonstrate that the claimed error had identifiable consequences

to the outcome of the trial whereby the court must put itself in the trial court's shoes

to determine if the trial court could have corrected the error, given what the trial court

knew at that time. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015).

Here, Farnsworth claims the error affected his constitutional right to remain

silent. Accepting that, we must look to see if the error was "manifest." We conclude

that admitting the detective's testimony was not manifest error. McFarland's detailed

testimony implicating Farnsworth had a much greater impact than the detective's

testimony that Farnsworth was angry about providing a handwriting sample.

Therefore, given what the trial court knew at the time, it would not reasonably

22 State v. Farnsworth No. 91297-1

conclude that admitting the detective's testimony would have identifiable

consequences as to the outcome of Farnsworth's trial. Therefore, this is not a

manifest error that would warrant our review despite Farnsworth's failure to raise this

issue at trial.

D. Farnsworth's Presumption ofInnocence Was Not Violated

Farnsworth claims that his presumption of innocence was violated because he

was marked with in-custody status as he sat in a "hard wooden chair," instead of the

"soft, padded, leather chairs" counsel sat in. Answer to Pet. for Review and Cross-

Pet. at 18. A criminal defendant's presumption of innocence is violated where the

defendant lacks the appearance of"a free and innocent man." State v. Finch, 137

Wn.2d 792, 844, 975 P.2d 967 (1999) (the defendant's right to a fair trial was violated

when he appeared before the jury in physical restraints). Finch pointed to prison garb

and shackles or handcuffs as examples of physical markings of in-custody status. !d.

at 844.

We find that the trial court did not err by allowing Farnsworth to sit in the

wooden chair because a wooden chair does not carry the same association as do the

physical restraints that this court is typically concerned with. See, e.g., State v. Clark,

143 Wn.2d 731, 774, 24 P.3d 1006 (2001) (considering whether defendant's shackling

upon entering the jury auditorium was unconstitutional); State v. Jennings, 111 Wn.

App. 54, 61, 44 P.3d 1 (2002) (considering whether a stun belt restraining defendant

23 State v. Farnsworth No. 91297-1

was unconstitutional shackling). Thus, we find that Farnsworth's presumption of

innocence was not violated and the trial court was not in error.

E. The Cumulative Error Doctrine Does Not Warrant Reversal

The trial judge did not err by excluding McFarland's plea agreement, but even

if it had been error, it was harmless because all of the relevant information from the

plea agreement was already in front of the jury. As discussed above, Farnsworth's

other claims were also not error. Therefore, there can be no accumulation of error that

would warrant reversal under the cumulative error doctrine. See State v. Weber, 159

Wn.2d 252, 279, 149 P.3d 646 (2006) (holding that the doctrine is inapplicable when

"the errors are few and have little or no effect on the outcome of the trial").

4. The Issue of Comparability Is Remanded to the Court ofAppeals

Finally, Farnsworth asks us to find that his prior out-of-state conviction is not

legally comparable to a strike in Washington for purposes of sentencing under the

POAA. The Court of Appeals did not reach this issue because it reversed his robbery

conviction on other grounds. Having affirmed his conviction, we now remand this

comparability issue to the Court of Appeals to consider on its merits.

CONCLUSION

We hold that the evidence in this case was sufficient to establish an implied

threat of force. In the banking context, a demand note for money under these

circumstances objectively conveys an implied threat of force or violence, even though

24 State v. Farnsworth No. 91297-1

no explicit threat was made. None of Farnsworth's other claims are meritorious, and

thus we affirm his conviction. We remand the issue of the comparability of

Farnsworth's earlier out-of-state conviction to the Court of Appeals to decide on its

merits.

25 State v. Farnsworth No. 91297-1

WE CONCUR:

26 State v. Farnsworth (Charles V.)

No. 91297-1

MADSEN, C.J. (concurring)~! agree with the lead opinion that there was

sufticient evidence to find an implied threat of force and to support Charles Farnsworth's

conviction based on accomplice liability. I write separately because I agree with the

dissent's conclusion that the plea agreement should have been admitted into evidence and

failure to do so amounted to constitutional error. However, because I would hold that the

error was harmless beyond a reasonable doubt, I concur in the lead opinion. State v. Farnsworth (Charles V), No. 91297-1 (Gordon McCloud, J., dissenting in part)

GORDON McCLOUD, J. (dissenting in part)-I agree with the lead opinion

that the evidence was sufficient to convict Charles Farnsworth of first degree

robbery. But I disagree with its conclusion that the trial court properly excluded

key state witness James McFarland's written plea agreement, leaving the jury with

McFarland's slanted characterization of its details instead. With a cooperating

codefendant witness's plea agreement, the devil is in the details: they establish the

extent of the benefit that the witness stands to gain, what will trigger the benefit,

and why the witness might testify falsely to gain that benefit. Excluding the plea

agreement with all its details therefore violated Farnsworth's right to confront and

cross-examine witnesses. U.S. CoNST. amend. VI; WASH. CoNST. art. I, § 22. For

that reason, I respectfully dissent from the portion of the lead opinion rejecting that

claim.

1 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

I. THE TRIAL COURT COMPLETELY EXCLUDED MCFARLAND'S ACTUAL PLEA AGREEMENT BUT ADMITTED HIS SLANTED CHARACTERIZATION OF IT INSTEAD

McFarland was a key witness for the State. His testified for three days; no

other witness testified for anywhere near that amount of time. He was the one who

entered the bank to rob it; Farnsworth did not. He was the one who was caught on

camera; Farnsworth was not. He was the one who requested the money from the

teller; Farnsworth did not. 13 Verbatim Report of Proceedings (RP) at 1233, 1256-

58. And, critically, he was the one who testified that Farnsworth had plotted with

him to rob that bank; Farnsworth did not. E.g., 14 RP at 1259.

While there was independent evidence corroborating the fact that McFarland

entered the bank, wore a disguise, handed the demand note to the teller, got $333,

and then left, there was no evidence corroborating McFarland's claims about what

he and Farnsworth agreed about or disagreed about in the truck right before

McFarland entered the bank. Specifically, there was no evidence to corroborate

McFarland's trial claim that Farnsworth manipulated McFarland into entering the

bank-as opposed to McFarland's earlier statements that Farnsworth instead

completely "backed out" of the robbery before it ever happened.

2 State v. Farnsworth (Charles V), No. 91297-1 (Gordon McCloud, J., dissenting in part)

That made McFarland's credibility critical for the State and attacking

McFarland's credibility critical for the defense.

The State realized this; it preemptively moved to exclude McFarland's plea

agreement so that the defense could not cross-examine McFarland about its details.

The deputy prosecutor argued that the written plea agreement was entirely

inadmissible despite its impeachment value: "I do not know the basis nor how he

would be able to give an entire plea form to the jury." 15 RP at 1395.

Defense counsel also realized this; so he opposed the State's motion to

exclude McFarland's guilty plea. He argued that the guilty plea exposed

inaccuracies in McFarland's testimony and thus allowed Farnsworth to challenge

McFarland's credibility. Specifically, he explained that when McFarland testified

in the State's case in chief, he left the impression that he had already gained the

main benefit of his plea bargain even before he testified at trial by claiming that

under the plea agreement, he had pleaded guilty to only theft, not first degree

robbery; he testified, "I didn't enter no guilty plea to first degree robbery and first

degree theft, I don't think. It was just supposed to be first degree theft, from what I

understand." 14 RP at 1347. 1 Defense counsel explained that the real plea

1McFarland claimed that he had already avoided the robbery with its third-strike consequence: "I was facing -- I was facing this bani( robbery, and the third strike I would have had to fought." 14 RP at 1259. 3 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

agreement could expose that misstatement: "This document [the plea agreement]

does not say that he's looking at 8 to 10 years," as McFarland claimed; instead, it

indicates he is facing life without parole because it shows a plea to first degree

robbery. 15 RP at 1399. Defense counsel also explained that McFarland "did not

articulate, at least not such that I understood, that he understood that the count was

going to be vacated. I believe he thought that it had already perhaps had been."

Id. at 1400.

Defense counsel was correct about these factual inaccuracies in McFarland's

testimony. Indeed, the lead opinion acknowledges that McFarland's testimony

created the misimpression that he had already gained the benefit of his plea

bargain. Lead opinion at 15. It was a misimpression because in reality, McFarland

had actually pleaded guilty to both first degree theft and first degree robbery before

he testified. His only hope of escaping the life-without-parole consequence of that

first degree robbery, third-strike plea was for the State to move to dismiss the

robbery after it heard McFarland's testimony against Farnsworth. The State

agreed that that was the true meaning of the plea agreement and that McFarland's

testimony to the contrary was incorrect; the prosecutor told the trial court: "Well,

here is where the confusion is going to come in. Because he is a three-striker, I

can't amend the document. I can't amend his charges up front because then,

4 State v. Farnsworth (Charles V), No. 91297-1 (Gordon McCloud, J., dissenting in part)

obviously, the benefit of the bargain has been given before any performance." 15

RP at 1396. The prosecutor even read the language of that specific portion of the

plea agreement out loud for the judge to hear. !d. at 1397. 2

So the prosecutor knew that in reality, McFarland had already pleaded guilty

to both theft and first degree robbery and that he had no hope of avoiding its third

strike, life without parole consequence unless the State moved to dismiss after

McFarland testified. The defense also knew that. So did the judge. But the trial

court ruled that the jury couldn't hear that.

Instead, the jury heard only McFarland's characterization of the benefit he

expected to receive from testifying, and that it was not that much. 3 According to

McFarland, he did not plead guilty to the most serious charge and he had already

received the benefit of his bargain.

2 According to the prosecutor, "On Page 4 of 6 under 'Prosecutor's obligations' it indicates that 'If Mr. McFarland completely fulfills all his obligations as listed above, the state will move the court to vacate his conviction to Count I, Robbery in the First Degree; Count II, Theft in the First Degree shall remain and the defendant will be sentenced as to that cOtmt."' 15 RP at 13 97. 3 McFarland's testimony also left the impression that he accurately understood and related what his plea agreement contained. But he did not. As Farnsworth's counsel explained, "And he's indicated that he doesn't know what the standard range sentence for Theft I is, and it's contained in this [plea agreement]. And he's initialed various parts of this [plea agreement]. He signed at the very end of it." !d. at 1398.

5 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

II. EXCLUDING THE ACTUAL PLEA AGREEMENT AND LEAVING THE JURY WITH ONLY MCFARLAND'S MISLEADING CHARACTERIZATION OF IT VIOLATED THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES

The trial court excluded the actual plea agreement as irrelevant because

McFarland had already admitted to some but not all of the agreement's terms. !d.

at 1399 ("His motivation is 8 to 10 years versus life in prison; that's what he's

already testified to."). It also excluded the plea agreement as too confusing,

because McFarland's testimony about its terms differed from its actual terms. Id.

at 1399-1400 (sustaining prosecutor's objection based on "[ER] 403; confusing,

misleading. [ER] 401; irrelevant."). The lead opinion upholds both decisions.

Lead opinion at 15-17.

But the fact that the State's key witness claimed confusion (rather than

deceit) about the plea agreement's details is not a reason to exclude the real plea

agreement as too "confusing" for the jury under Rules of Evidence (ER) 403. And

the fact that the State's key witness admitted to some but not all of the incentives

the plea agreement provided does not make the details of the omitted incentives

"irrelevant" to the jury's assessment of witness credibility under ER 401.

Instead, those factors make details about the plea agreement's actual terms

more relevant and admissible--because the contradiction between the real plea

bargain terms and McFarland's slanted characterization of them could show that 6 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

the witness still had a motive to curry favor with the State, and that he was trying

to hide that. The United States Supreme Court has clearly held that evidence of a

plea bargain between the State and a testifying witness is admissible on cross-

examination for just this reason. In Delaware v. Van Arsdall, for example, the

Supreme Court reviewed a trial court's decision to deny cross-examination

regarding the prosecutor's agreement to dismiss the witness's criminal charges.

475 U.S. 673, 676, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). The Court ruled that

barring all such inquiry violated Van Arsdall's rights under the confrontation

clause and that "a criminal defendant states a violation of the Confrontation Clause

by showing that he was prohibited from engaging in otherwise appropriate cross-

examination designed to show a prototypical form of bias on the part of the

witness, and thereby 'to expose to the jury the facts from which jurors ... could

appropriately draw inferences relating to the reliability of the witness."' I d. at 680

(alteration in original) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105,

39 L. Ed. 2d 347 (1974)). 4

4 Accord Olden v. Kentucky, 488 U.S. 227,231, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) ('"exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination."' (quoting Davis, 415 U.S. at 316-17 and citing Greene v. McElroy, 360 U.S. 474,496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959)). 7 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

Washington courts, of course, follow this authority. They also hold that the

right to confront and cross-examine includes the right to expose a cooperating

witness's plea agreement's details-its "specific reasons"-suggesting bias: '"The

right of cross examination allows more than the asking of general questions

concerning bias; it guarantees an opportunity to show specific reasons why a

[codefendant] witness [testifying pursuant to a plea bargain] might be biased in a

particular case."' State v. Portnoy, 43 Wn. App. 455, 461, 718 P.2d 805 (1986)

(some emphasis added) (first alteration in original) (quoting State v. Brooks, 25

Wn. App. 550, 551-52, 611 P.2d 1274 (1980)). "Such cross examination is the

price the State must pay for admission of a codefendant's testimony to that plea.

The jury needs to have full information about the witness's guilty plea in order to

intelligently evaluate his testimony about the crimes allegedly committed with the

defendant." ld.; see Brooks, 25 Wn. App. at 551-52 ("Great latitude must be

allowed in cross-examining a key prosecution witness, particularly an accomplice

who has h1rned State's witness, to show motive for his testimony. The right of

cross-examination allows more than the asking of general questions concerning

bias; it guarantees an opportunity to show specific reasons why a witness might be

biased in a particular case. Here, the dropping of the deadly weapon allegation

pursuant to the plea bargain agreement obviated a mandatory 5-year minimum

8 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

term for Macklin if he were sentenced to prison. The jury was entitled to consider

that evidence in weighing Macklin's credibility." (emphasis added) (citations

omitted)); State v. Ahljinger, 50 Wn. App. 466, 475 n.4, 749 P.2d 190 (1988). 5

The lead opinion certainly recognizes that the right to confront and cross-

examine witnesses is a right of constitutional magnitude. Lead opinion at 15. The

lead opinion rejects the confrontation clause claim, though, because it concludes-

as did the State and the trial court--that McFarland's testimony was close enough

to the truth that the real truth did not matter. 15 RP at 1399 (prosecutor argues,

"Mr. McFarland's understanding is correct. He doesn't have the mechanics

exactly correct. And that as he sits here today he still is charged as a three-striker.

But his consideration in exchange for his cooperation is that I vacate it afterwards;

so the substance is accurate"; court agrees); lead opinion at 17 ("The jury was well

informed of the deal McFarland was receiving .... ").

But it really was not that close. The jury did not get to hear that McFarland

had already pleaded guilty to the three-strikes charge and that he therefore had a

greater incentive to testify favorably for the State than he admitted. The jury did

not get to hear that he was unable to describe things in the plea agreement

accurately, despite having read and initialed those specific provisions. The jury

5 See also United States v. Schoneberg, 396 F.3d 1036, 1041-44 (9th Cir. 2004) (summarizing reasons for this rule). 9 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

heard defense counsel's questions on these points, but McFarland never admitted

the truth and the court prevented defense counsel from proving it up.

III. THE STATE HAS NOT PROVED THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT

The State made no argument that the confrontation clause error was

harmless. The lead opinion addresses this issue anyway.

A. The Constitutional Harmless Error Standard

To address the issue properly, we must acknowledge that violating the

confrontation clause is an error of constitutional magnitude because it infringes on

the defendant's Sixth Amendment and article I, section 22 rights to confront

witnesses against him. VanArsdall, 475 U.S. at 673; Davis, 415 U.S. at 318. It

therefore requires reversal unless the State shows that it is harmless beyond a

reasonable doubt. VanArsdall, 475 U.S. at 680; Chapman v. California, 386 U.S.

18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). "The correct inquiry is whether,

assummg that the damaging potential of the cross examination were fully

realized," we can nevertheless say that the error was "harmless beyond a

reasonable doubt." Van Arsdall, 475 U.S. at 684. I therefore address the

importance of McFarland's testimony in context and then the importance of the

excluded evidence.

10 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

B. McFarland Alone Provided the Critical Testimony That Farnsworth Planned and Executed the Robbery with Him

McFarland's testimony was important. It covered three days and spans three

volumes of transcript. See 13-15 RP (Oct. 20, 24 and 25, 2011). He entered the

bank-Farnsworth did not; he was caught on camera inside the bank-Farnsworth

was not; he gave the note to the teller-Farnsworth did not; and he took the money

and left the bank-Farnsworth did not.

To be sure, all of McFarland's testimony about his entering the bank,

robbing the teller, and leaving with the money was corroborated by statements

from other neutral witnesses and cameras. But there was a critical piece of

evidence that McFarland alone provided: his testimony that Farnsworth helped

plan, and then followed through by helping to execute, this specific heist. The

State !mew that that testimony from McFarland on this point was critical; its

closing argument aclmowledged that the jury could not convict Farnsworth unless

they found he actively helped with this particular robbery. 6 The State therefore

understood that testimony from McFarland on this point had to be believable. E.g.,

14 RP at 1314 (McFarland vehemently defends his truthfulness at trial). In short,

6 "Sitting on your behind and not necessarily interfering or preventing it, not what we're talking about. We're talking about somebody who is willing to take some kind of role in allowing or making this crime happen." 17 RP at 1617. 11 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

McFarland's credibility was critical to the State because it formed the bases for its

argument that Farnsworth was the brains of the operation.

It necessarily follows that attacking McFarland's credibility was critical for

the defense because it formed the basis for their theory that at the last minute,

McFarland went off on his own after Farnsworth backed out. E.g., 17 RP at 1639

(defense counsel's closing argument that "[McFarland] needs to give the State

what they want in his testimony"), 1640-50, 1653 (Defense's closing: "[T]here's

only two significant issues in the case: Can you believe Mr. McFarland, and was

[the bank teller] scared .... ").

It is, of course, true that there was sufficient other evidence to connect

Farnsworth with McFarland's robbery. That other evidence included Farnsworth's

statement that McFarland was wearing the wig and sunglass disguise when he left

the truck and headed for the bank. Clerk's Papers at 2-3; 12 RP at 1051. It

included testimony from other witnesses that Farnsworth drove the truck that

brought McFarland to the bank. 11 RP at 766-67, 810-11. It also included

testimony that McFarland met that truck shortly after he left the bank and fmmd

Farnsworth still driving, and that officers then stopped the truck and found the wig,

sunglasses, and cash from the bank inside. 10 RP at 616; 11 RP at 752; 13 RP at

1061. It further included testimony that Farnsworth denied knowing that

12 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, .T., dissenting in part)

McFarland was heading inside to rob the bank, but when arrested afterward and

told by the detectives that they were facing first degree robbery charges, he

responded, "'We didn't have a gun."' 15 RP at 1484. And, finally, it included

expert testimony that "Charles Farnsworth wrote the questioned [demand] note and

that James McFarland did not." 12 RP at 1028.

But the evidence that Farnsworth was the "brains" of the operation and that

he followed through on any prior statements about wanting to rob this bank was

thin and contradictory. Critically, there was McFarland's testimony that

Farnsworth had actually "backed out" of any prior agreement to rob a bank and

that McFarland at the last minute dashed off on his own without McFarland's help,

assistance, or approval. E.g., 13 RP at 1208 (McFarland testifies Farnsworth

"backed out two or three times -- three times as a matter of fact."), 1219

(McFarland treats backing out as a sign of weakness, testifying that his "dope

lady" accused him of backing out, and McFarland defends his honor by explaining,

"[Farnsworth's] the one that backed out, not me."), 1231 (right before this robbery,

"[Farnsworth] would just make up excuses for not going ahead and going through

with this"), 1232 (same), 1233 ("[Farnsworth] was just-- you know, I wasn't really

-- I just seen that he wasn't going to do it and I got mad. I got mad. I reached over

and snatched the wig out of his hand and said, 'Give me that son of a bitch.' I said,

13 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

'You ain't going to do nothing.' I snatched the wig, put it on. I says, 'Wait right

here. I'll be back in two minutes."'), 1238 (same), 1239 ("It's been five to six hours

and this kind of thing. [Farnsworth h]as been backing out and backing out and

backing out. So I grabbed the wig out of his hand. I said, 'Give me that son of a

bitch. I'm going up there."'); 14 RP at 1306 (same); 15 RP at 1380 (same).

As the State itself summarized, "At trial, McFarland explained how the

defendant obtained the wig that he wore into the bank and that it was the defendant

who was actually supposed to do the robbery. The defendant continually backed

out, and McFarland was quite drunk from trying to drown the effects of going

without heroin, that he really couldn't drive. [15 RP at] 1380; [14 RP at] 1301.

Ultimately, in a moment of frustration, McFarland grabbed the wig and glasses

and went into the Credit Union. [14 RP at] 1306." Br. ofResp't at 7 (emphasis

added); RP (Trial, Opening Statements) (Oct. 13, 2011) at 5-6 (State's opening

statement: "It was Mr. Farnsworth that was supposed to do the robbery but he kept

backing out.").

The State had to deal with that wrinkle in its case in closing, and it did so by

arguing that Farnsworth was faking backing out and really using "manipulative

behavior ... for the purpose that Mr. McFarland suggested, which is that he just

wanted to wear McFarland down to get him to take the bigger risk." 17 RP at 1622

14 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

(emphasis added). Thus, the critical issue for the jury was whether or not to

believe McFarland's "suggestion" about Farnsworth's major role in planning and

then manipulating McFarland into doing the robbery himself. If McFarland's

testimony on these points were not believable, then probably all the State could

have proved was rendering criminal assistance afterward. RCW 9A.76.050(3).

That is not a third strike.

In context, McFarland's testimony and credibility were critical to

Farnsworth's conviction of first degree robbery, which is a third strike offense.

C. McFarland's Plea Agreement Would Have Enabled the Defense To Cast Doubt on McFarland's Claims of Honesty, Impartiality, and Lack of Bias

Given this context, the excluded evidence was very important. Exclusion

allowed McFarland to avoid tough questions about whether he misperceived the

plea agreement (which could have bolstered an argument that he also misperceived

Farnsworth's supposed acquiescence in the robbery), misremembered the plea

agreement (which could have bolstered an argument that he also misremembered

Farnsworth's supposed role in the robbery), or lied about the agreement (which

could have bolstered an argument that he lied about Farnsworth's role in the

robbery). McFarland's hope for a future benefit based on his performance at

15 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., dissenting in part)

Farnsworth's trial certainly provided him with more incentive to curry favor with

the State than a "done deal" would have.

To be sure, as the State argued, Farnsworth was able to show that McFarland

"was a long-time heroin addict, an alcoholic, had failed rehabilitation, had made a

routine of stealing to support himself, was homeless with no means of support, had

contemplated stealing a car on the day of the robbery, and in fact stole some

merchandise that day. He further demonstrated that the witness was very familiar

with the Department of Corrections, had a high offender score, and spent a large

portion of his adult life incarcerated. It's difficult to imagine being able to paint a

more dreary or unfavorable image of witness than was allowed." Br. of Resp't at

12; see also 13 RP at 1200 (McFarland testifies he was so sick from withdrawal the

day of the robbery, he was hallucinating). But evidence that McFarland was

"dreary or unfavorable" is not the same as evidence that he had a strong incentive

to slant his testimony to curry favor with the State.

I agree with the lead opinion that the evidence of Farnsworth's involvement

with McFarland in a prior plan to rob something was sufficient. But the evidence

of Farnsworth's assistance with this particular robbery was not strong. Some

testimony even made this particular robbery sound like it was McFarland's own

16 State v. Farnsworth (Charles V), No. 91297-1 (Gordon McCloud, J., dissenting in part)

personal, individual moment of drunken frustration after Farnsworth had "backed

out." McFarland's credibility about Farnsworth's planning and execution of this

particular robbery was therefore critical.

Given that context, I cannot say that the constitutional error of excluding the

plea agreement that could have impeached McFarland is harmless beyond a

reasonable doubt. The reason is that cross-examination about that plea

agreement's details could have revealed the extent of the benefit that the witness

expected from testifying favorably to the State, what would trigger that benefit,

and hence why the witness might testify falsely to gain that benefit. I therefore

respectfully dissent in part.

17 State v. Farnsworth (Charles V.), No. 91297-1 (Gordon McCloud, J., Dissenting)