State v. Larson

160 Wash. App. 577

• Court: Court of Appeals of Washington
• Decided: March 15, 2011
• Docket: No. 28174-4-III
• Status: Published

Opinions

¶1 Robert E. Larson appeals his convictions for first degree robbery, two counts of first degree assault, and two counts of drive-by shooting. Mr. Larson mainly contends the trial court erred in denying his new trial request based on expected exculpatory testimony from an alleged coparticipant who had pleaded guilty. We agree the expected testimony is not newly discovered evidence and his trial counsel’s tactical decision not to call this witness at trial does not amount to ineffective assistance. We reject the contention that the State improperly threatened the coparticipant with perjury to dissuade him from testifying at trial. Lastly, we find no merit in Mr. Larson’s statement of additional grounds for review (SAG). Accordingly, we affirm.

Brown, J.

FACTS

¶2 The charged events occurred in April 2008 as part of a string of drug-buy robberies in Spokane Valley. During one robbery of Jenna Lee Hall and Aramis Turner, the victims recognized the perpetrators. As a result, Matthew Dunham and Anthony Kongchunji, as well as Nick Smith and Mr. Dunham’s brother Larry were arrested.

¶3 In a plea bargain, Mr. Dunham offered information about the robbery string; he described his involvement in the Hall-Turner robbery, a robbery in the Dishman area on April 21, and related he was the driver during the earlier robbery of Joni Jeffries and Cliff Berger. He indicated he had committed all of the robberies with Anthony Kongchunji. Regarding the Hall-Turner robbery for which he had been arrested, Mr. Dunham acknowledged Mr. Smith and his brother Larry were involved. Regarding the other robberies, he implicated Robert Larson, Paul Statler, and Tyler Gassman.

¶4 The State charged Mr. Larson, Mr. Statler, and Mr. Gassman with one count of first degree robbery; two counts of attempted first degree murder, or alternatively two counts of first degree assault; and two counts of drive-by shooting for the Berger-Jeffries incident. The State added firearm sentence enhancement allegations to the robbery and assault charges.

¶5 The prosecutor originally listed the date of the offense as “on or about April 15, 2008.” Clerk’s Papers (CP) at 1-2. Mr. Larson’s defense was alibi. In October 2008, the State located Kyle Williams, who claimed to know the incident occurred on April 17 based on his cell phone records. However, the State did not move to amend the information until January 12, 2009, the morning of trial. The trial court denied dismissal motions but sanctioned the State $8,000 for carelessness. The court continued the case for three weeks to allow defense counsel additional preparation time.

¶6 At trial, Mr. Williams specified the April 17 incident date. The evidence showed Ms. Jeffries and Mr. Berger gave Eric Weskamp and his friend, “Rob,” $4,000 to buy oxycontin from Mr. Kongchunji. Mr. Weskamp and Rob went outside to meet Mr. Kongchunji, who had arrived in a pickup truck. Mr. Weskamp recognized the driver, Mr. Dunham. The pair began to enter the truck but quickly realized something was amiss. At that point, three unknown men confronted them with a shotgun and pistol; one struck Mr. Weskamp in the face multiple times with the shotgun and forced him to the ground, then the men robbed the pair and fled in the truck with Mr. Kongchunji and Mr. Dunham. The pair then returned home and announced they had been robbed. Mr. Berger ran outside in time to see the vehicle pulling away. He and Mr. Williams pursued the truck in Mr. Williams’ car. Mr. Berger and Mr. Williams caught up to the fleeing truck; then their car came under gunfire, causing them to call off the pursuit. No one called police or sought medical attention.

¶7 Before the Berger-Jeffries trial, Mr. Kongchunji pleaded guilty to committing that robbery and the Dishman robbery, naming Mr. Dunham, Mr. Larson, Mr. Statler, and Mr. Gassman as coparticipants. After pleading, but before the Berger-Jeffries robbery trial, Mr. Kongchunji spoke with Mr. Larson’s counsel. During the interview, Mr. Kongchunji allegedly exculpated Mr. Larson in the BergerJeffries robbery. Mr. Larson’s attorney amended his witness list to include Mr. Kongchunji and filed an order requesting that Mr. Kongchunji be held in jail as a material witness. Shortly thereafter, Mr. Larson’s attorney learned Mr. Kongchunji had given police a “free talk” in which he had apparently named Mr. Larson as a coparticipant in the Jeffries/Berger robbery. At about the same time, Mr. Larson’s attorney and Mr. Kongchunji were told that if Mr. Kongchunji testified, he could face further criminal charges. Mr. Kongchunji’s attorney then told Mr. Larson’s attorney not to speak with his client and that his client was not going to testify at trial. Mr. Larson’s attorney did not further attempt to subpoena Mr. Kongchunji to testify.

¶8 In closing argument, defense counsel argued Mr. Dunham testified against the defendants to protect his brother Larry and receive a light sentence. The jury found Mr. Larson and his codefendants guilty of the robbery, assaults, and drive-by shootings, finding they were then armed with a firearm.

¶9 After trial, Mr. Kongchunji wrote to Mr. Statler’s father exculpating Mr. Statler, Mr. Gassman, and Mr. Larson. Mr. Kongchunji explained he refused to testify in the first trial because he was threatened with additional charges, including perjury, if he testified for the defendants.

¶10 At Mr. Statler’s Dishman trial, Mr. Kongchunji related he and Mr. Dunham devised a plan while in jail to pin the robberies on Mr. Larson, Mr. Statler, and Mr. Gassman to protect Mr. Dunham’s brother Larry and their friend Mr. Smith. Mr. Kongchunji testified he and Mr. Dunham committed the Dishman robbery with the “same people I always go rob people with; Larry [Mr. Dunham’s older brother], Nick [Smith], Matt [Mr. Dunham].” CP at 115. The jury acquitted Mr. Statler of the Dishman robbery; the State dismissed those charges against Mr. Larson and Mr. Gassman.

¶11 Mr. Larson and his codefendants unsuccessfully moved for a new trial, arguing Mr. Kongchunji’s exculpatory testimony was newly discovered and claiming the State committed misconduct by threatening a potential witness. The trial court reasoned Mr. Kongchunji was an available witness because he had no Fifth Amendment protection after pleading guilty and counsel had made no attempt to compel his testimony. Further, the letter and testimony were not relevant because they related only to the Dishman robbery. Finally, the court reasoned Mr. Kongchunji’s testimony would merely rebut or impeach Mr. Dunham. Without addressing misconduct, the judge noted sufficient evidence supported the jury verdicts. Mr. Larson appealed.

ANALYSIS

A. New Trial Motion

f 12 The issue is whether the trial court erred in denying Mr. Larson’s CrR 7.5(a)(3) motion for a new trial based upon newly discovered evidence.

f 13 We review a trial court’s new trial ruling for abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). A court abuses its discretion when an order is manifestly unreasonable or based on untenable grounds. State v. Roche, 114 Wn. App. 424, 435, 59 P.3d 682 (2002). “A discretionary decision ‘is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard.’ ” State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008) (emphasis omitted) (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). “Indeed, a court ‘would necessarily abuse its discretion if it based its ruling on an erroneous view of the law.’ ” Id. (quoting Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)). Denial of a new trial is entitled to less deference by a reviewing court than the granting of a new trial. State v. Briggs, 55 Wn. App. 44, 60, 776 P.2d 1347 (1989).

¶14 A trial court may grant a new trial under CrR 7.5(a)(3), based on newly discovered evidence, solely when the defendant shows the evidence “(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.” Williams, 96 Wn.2d at 223 (emphasis omitted). The absence of any one of these five factors is grounds to deny a new trial. Id. Mr. Larson fails to meet his burden because the evidence was discovered before trial. Therefore, the trial court did not err in denying Mr. Larson’s new trial motion. Even so, we acknowledge other factors are also unsatisfied.

¶15 When considering whether newly discovered evidence will probably change the trial’s outcome, the trial court considers the credibility, significance, and cogency of the proffered evidence. State v. Barry, 25 Wn. App. 751, 758, 611 P.2d 1262 (1980). Here, Mr. Kongchunji exculpated Mr. Larson, Mr. Statler, and Mr. Gassman in a letter to Mr. Statler’s father, but he inculpated Mr. Larson in the free talk and when entering his guilty plea. Considering these disparities, while Mr. Statler was acquitted, we cannot say the same would hold true for the Berger-Jeffries robbery. Mr. Larson argues Mr. Dunham’s testimony was uncorroborated, but he ignores the potential corroborative effect of having Mr. Kongchunji admit he identified Mr. Larson as one of his coparticipants on at least two other occasions. Considering the potential harmful effect of Mr. Kongchunji’s testimony, Mr. Larson’s counsel could tactically decide not to risk the potential harmful effect of calling Mr. Kongchunji.

¶16 Mr. Larson mistakenly argues Mr. Kongchunji was unavailable during trial. He relies on State v. Slanaker, 58 Wn. App. 161, 791 P.2d 575 (1990), but his reliance is misplaced because in Slanaker, the witness was unavailable because she actually could not be located. Id. at 162-63. Here, Mr. Kongchunji was in the local jail and was not unavailable in that sense.

¶17 Mr. Larson next argues due diligence did not require his defense counsel to attempt to compel Mr. Kongchunji’s testimony; he mistakenly relies on State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976). In Burri, it was the prosecutor who prevented the witness from speaking to defense counsel. Here, it was Mr. Kongchunji’s defense counsel who allegedly prohibited Mr. Larson’s counsel from contacting Mr. Kongchunji. Mr. Larson argues Mr. Kongchunji’s letter and testimony were posttrial recantations that could not have been anticipated, citing State v. Scott, 150 Wn. App. 281, 294, 297, 207 P.3d 495 (2009). But in Scott, the recanting witness’s original testimony was the sole evidence used to convict Mr. Scott and, thus, her recantation essentially voided the case against him. Here, Mr. Kongchunji’s original implications were not used as evidence to convict Mr. Larson; rather, it was another witness’s testimony that was the primary evidence used to convict. And, Mr. Kongchunji recanted to defense counsel before trial.

fl8 Finally, amicus asserts “snitch” testimony is inherently unreliable. Justice Sanders in his dissent in State v. Ish, 170 Wn.2d 189, 208 n.18, 241 P.3d 389 (2010) recently commented, “ ‘[T]he feds gave $100 million to snitches in one recent year - their reliability is dubious.’ ” (Quoting Ryan Blitstein, The Inside Dope on Snitching, Miller-McCune, Oct. 23, 2009, available at http://www.miller-mccune.com/legalaffairs/the-inside-dope-on-snitching-3387/ (last visited Sept. 27, 2010).) But, Washington courts recognize that an informant or snitch may have an interest in testifying against the defendant; therefore, trial courts must give 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.05, at 184 (3d ed. 2008) (WPIC) whenever there is uncorroborated accomplice testimony. State v. Sherwood, 71 Wn. App. 481, 485, 860 P.2d 407 (1993) (quoting State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)). Pattern jury instructions set out the appropriate wording for such an instruction. WPIC 6.05 states, “Testimony of an accomplice, given on behalf of the [plaintiff], should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.” The court provided this instruction to Mr. Larson’s jury. A jury is presumed to follow the court’s instructions. State v. Yates, 161 Wn.2d 714, 763, 168 P.3d 359 (2007). The jury found Mr. Dunham’s testimony was truthful beyond a reasonable doubt. This court will not substitute its judgment for that of the jury’s. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

¶19 In sum, the trial court did not abuse its discretion when it denied a new trial based on newly discovered evidence.

B. Ineffective Assistance

¶20 The next issue is whether trial counsel was ineffective for failing to subpoena Mr. Kongchunji and compel his testimony at trial.

¶21 “We review a challenge to the effective assistance of counsel de novo.” State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).

¶22 A defendant possesses the right to effective assistance of counsel in criminal proceedings. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To prove ineffective assistance of counsel, Mr. Larson must show that (1) defense counsel’s representation was deficient, falling below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

¶23 A deficient performance claim cannot be based on matters of trial strategy or tactics. State v. Weber, 137 Wn. App. 852, 858, 155 P.3d 947 (2007) (citing State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001)). “The decision whether to call a witness is generally presumed to be a matter of trial strategy or tactics.” Id.

¶24 Mr. Larson’s counsel admitted she believed Mr. Kongchunji had exculpatory evidence. In her new trial motion, Mr. Larson’s counsel claimed she did not further interview or subpoena Mr. Kongchunji because she felt that to do so would be “crossing the line” since his counsel said, “[D]o not talk to my client again,” and he indicated Mr. Kongchunji would not testify. Report of Proceedings (May 20, 2009) at 20. As noted above, counsel had to balance any positive effect of Mr. Kongchunji’s exculpatory evidence against the necessarily negative effect of his admitting on cross-examination that he had twice earlier incriminated Mr. Larson. Given all, Mr. Larson fails to overcome the presumption that his counsel’s failure to call Mr. Kongchunji was tactical. Therefore, he fails to prove deficient performance. If an ineffective assistance claim can be resolved on one prong, the court need not address the other prong. State v. Staten, 60 Wn. App. 163, 171, 802 P.2d 1384 (1991). Since counsel’s performance was not deficient, we do not address prejudice. In sum, Mr. Larson did not receive ineffective assistance of counsel.

C. Misconduct

¶25 Mr. Larson contends he was denied a fair trial because the State committed misconduct by threatening Mr. Kongchunji with potential new charges, including perjury if he testified inconsistently with a prior statement.

¶26 We review an alleged due process violation de novo. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006).

f27 Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee persons accused of a crime the right to a fair trial. State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). The Washington Constitution provides similar safeguards. Const, art. I, §§ 3, 22. If a defendant’s due process right to a fair trial was violated, he is entitled to a new trial. CrR 7.5(a)(5); State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). Due process requires that a defendant have a meaningful opportunity to present a complete defense. Lord, 117 Wn.2d at 867. The right to present a defense includes the right to offer the testimony of witnesses and to compel their attendance, if necessary. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 , 18 L. Ed. 2d 1019 (1967)). When a defense witness is threatened and those threats effectively keep that witness off the stand, the accused is deprived of due process of law. State v. Carlisle, 73 Wn. App. 678, 679, 871 P.2d 174 (1994) (citing Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972)).

¶28 However, where the State simply provides the witness with a truthful warning, no constitutional violation occurs. Id. (quoting United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991)). Additionally, the Ninth Circuit has noted, “[P]erjury warnings are not improper per se and . . . ‘the Sixth Amendment is not implicated every time a prosecutor or trial court offers advice regarding the penalties of perjury.’ ” United States v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) (quoting United States v. Davis, 297 U.S. App. D.C. 396, 974 F.2d 182, 187 (1992)).

¶29 Here, Mr. Kongchunji acknowledged in his written guilty plea that he committed the Berger-Jeffries robbery with Mr. Larson, Mr. Statler, and Mr. Gassman. Upon indicating that he would testify otherwise, the detectives cautioned Mr. Kongchunji against offering false testimony and reminded him of the consequences of perjury. Mr. Larson asserts that even such a warning interfered with Mr. Kongchunji’s “free and unhampered choice to testify.” Reply Br. of Appellant at 11. While “ ‘substantial government interference with a defense witness’s free and unhampered choice to testify amounts to a violation of due process,’ [a] defendant alleging such interference is required to demonstrate misconduct by a preponderance of the evidence.” Vavages, 151 F.3d at 1188 (citation omitted) (quoting United States v. Little, 753 F.2d 1420, 1438 (9th Cir. 1984)). Mr. Larson has not made such a showing.

D. SAG

¶30 Mr. Larson’s concerns about his perception of perjury threats to Mr. Kongchunji have been adequately briefed by counsel and will not be further considered. See RAP 10.10(a). We now turn to his remaining concerns.

¶31 Constitutionality of the Public Defenders’ Office. Mr. Larson was represented by the public defenders’ office. Mr. Larson argues that chapter 36.26 RCW, chapter 43.101 RCW, and WAC 139-15-110 establish a conflict between public defenders and the prosecutor’s office due to their compensation and training originating from a common source. His argument is without merit because RCW 36.26.080 clearly specifies that a public defender’s loyalties are to his or her client, not the state.

¶32 Firearm Enhancement/Double Jeopardy. We review double jeopardy claims de novo. State v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773 (2010). Mr. Larson claims his two counts of drive-by shooting and two counts of first degree assault violate double jeopardy principles, especially since the jury found he was armed with a firearm during these events. “Both our federal and state constitutions protect persons from being twice put in jeopardy for the same offense.” State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010); U.S. Const, amend. V; Const, art. I, § 9. This includes “being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense.” State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).

f 33 “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). Double jeopardy is not violated if the legislature intends multiple punishments. Id. at 368. “In short, when a single trial and multiple punishments for the same act or conduct are at issue, the initial and often dispositive question is whether the legislature intended that multiple punishments be imposed.” Kelley, 168 Wn.2d at 77.

f34 In Kelley, our Supreme Court reviewed the legislature’s intent as to whether cumulative punishments are intended by imposition of a deadly weapon/firearm enhancement. Id. at 78. The court in Kelley concluded cumulative punishment is clearly intended. Id. at 80. Thus, no double jeopardy violation occurred by imposing a deadly weapon enhancement.

¶35 Regarding the assault and drive-by shooting charges, if it is unclear whether the legislature intended that multiple punishments be imposed, the court must employ the “same evidence” test. In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536-37, 167 P.3d 1106 (2007) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Here, the statutory language does not disclose any legislative intent, so we apply the same evidence test — whether the offenses are identical in fact and in law. Id. at 537. If each offense contains an element not contained in the other, requiring proof of a fact that the other does not, the offenses are not the same. Id.

¶36 Assault and drive-by shooting do not violate double jeopardy because each requires proof of facts that the other does not. Assault requires intent to inflict great bodily harm, which is not required for drive-by shooting. See RCW 9A.36.011(1), .045(1). Drive-by shooting requires the discharge of a firearm, which assault does not. RCW 9A.36.045(1). Division Two of this court has reached the same conclusion in a similar context. State v. Vincent, 131 Wn. App. 147, 158, 120 P.3d 120 (2005).

¶37 Amendment of Offense Date. A ruling on a motion to amend an information is reviewed for abuse of discretion. State v. James, 108 Wn.2d 483, 490, 739 P.2d 699 (1987). CrR 2.1(d) allows an information to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced. The defendant must show prejudice. State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968).

¶38 Mr. Larson knew the offense date was “on or about April 15, 2008.” CP at 1-2. Changing an offense date to April 17, by just two days, would be covered under the “on or about” language. Further, other courts have held, “ ‘Where the [information] alleges that an offense allegedly occurred “on or about” a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.’ ” State v. Bergin, 214 Conn. 657, 574 A.2d 164, 173 (1990) (alteration in original) (quoting United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988)); see also United States v. Mitov, 460 F.3d 901, 907 (7th Cir. 2006).

¶[39 While Mr. Larson stresses the amendment affected his alibi defense, the trial court sanctioned the State $8,000 for carelessness in its delay and allowed additional preparation time. No prejudice is shown when, as here, time remains to prepare a defense. State v. Murbach, 68 Wn. App. 509, 512, 843 P.2d 551 (1993).

¶40 Filing in District Court. Mr. Larson contends the prosecutor’s office acted in bad faith when it filed his case in district court instead of superior court. He asserts the purpose of filing in district court is to allow time for investigation before removing the case to superior court, according to the prosecutor’s office policy on superior court direct filings. He argues no investigation took place here for more than one month after filing; thus, the State violated its own office policy. Nothing in the record supports this allegation. If Mr. Larson wishes a reviewing court to consider matters outside this record, a personal restraint petition is the appropriate means to raise such issues. McFarland, 127 Wn.2d at 338.

¶41 Allowing False Testimony. Mr. Larson argues his due process rights were violated because the State knowingly presented false testimony. A conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. In re of Pers. Restraint of Benn, 134 Wn.2d 868, 936-37, 952 P.2d 116 (1998). The State called Mr. Williams as a witness. Mr. Williams testified about the car chase, car damage, and the offense date. Mr. Larson has not shown, nor does the record support, that Mr. Williams lied or that the State knew any of his testimony to be false. Further, Mr. Williams was subject to cross-examination and the jury was left to determine the credibility of his testimony. Thus, his argument fails.

¶42 Affirmed.

Sweeney, J., concurs.