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[[COURTLISTENER_SUBOPINION {"id":"987669","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
FILED
April 16, 2013
In tbe Office of tbe Clerk of Court
W A State Court of Appeals, Division [II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 29710-I-III
Respondent, )
)
v. )
)
JOEL CAMERON CONDON, )
) UNPUBLISHED OPINION
Appellant. )
SIDDOWAY, A.C.J. Joel Condon, the shooter in a home invasion robbery that
resulted in the death of Carmelo Ramirez, appeals his conviction for aggravated first
degree murder and burglary. He raises eight challenges, but we find reversible error in
only one instance: the trial court's failure to instruct the jury on second degree intentional
murder as a lesser degree offense to the State's charge of first degree premeditated
murder. We affirm Mr. Condon's convictions of first degree burglary, unlawful
possession of a firearm, and a firearm enhancement. We reverse his conviction of
aggravated first degree murder on the basis of the instructional error and remand for a
new trial on the murder charges.
No. 2971O-I-III
State v. Condon
FACTS AND PROCEDURAL BACKGROUND
At around 8 p.m. on an evening in January 2009, two men burst through the front
door of the home in Toppenish where Carmelo Ramirez and Enedina Gregorio lived with
their three children. Evidence later revealed that the two men-Joel Condon and Jesus
Padilla Lozano-had impulsively decided to rob the home of a drug dealer from whom a
mutual acquaintance had purchased cocaine earlier in the evening. Their acquaintance
described the dealer as having flashed a great deal of cash. Apparently Mr. Condon and
Mr. Lozano traveled to the wrong residence, because instead of encountering a drug
dealer, they encountered Mr. Ramirez and Ms. Gregorio preparing to eat dinner, their 13
year-old son Jesus watching television with his cousin, and two younger children playing
in a bedroom.
Three witnesses testified at trial to their personal knowledge of the invasion. Their
testimony was somewhat conflicting. Among the uncontested evidence was that the two
men burst into the home; that the taller of the two (Mr. Condon was several inches taller)
brandished a handgun immediately upon entering; that the two men yelled demands in
English, which the Spanish-speaking family members either did not understand or only
partially understood; that early on in the encounter, Ms. Gregorio followed her I3-year
old son Jesus into a bedroom where the two younger children had been playing and
helped the three children escape out a back window; and that Ms. Gregorio then either
returned or was pulled back into the main room ofthe home.
2
No. 29710-1-II1
State v. Condon
Ms. Gregoria's version of events was that after helping the children escape she
returned to the main room, where she saw her husband trying to take the handgun from
Mr. Condon. She testified that Mr. Lozano grabbed her, she struggled, but he succeeded
in throwing her face-down on a sofa where he held her hands behind her back. She stated
that she then heard a shot ring out shortly after Martin Gutirrez, a friend of the family
who had been invited to dinner, arrived at the front of the home. The prosecutor
suggested in closing argument that the men had seen the headlights of Mr. Gutirrez's car.
Ms. Gregorio inferred that the shooting began because, with the arrival of Mr. Gutirrez,
the men were scared. The intruders then ran from the home through the back door and
she and her husband ran out the front, enlisting Mr. Gutirrez to drive Mr. Ramirez to the
hospital.
Ms. Gregorio did not realize that her husband had been seriously injured, although
it turned out he had been shot twice, with one bullet entering his thigh and the other
passing through his elbow into his chest, where it clipped his aorta. Mr. Ramirez lost
consciousness before Mr. Gutirrez could reach the hospital; nurses at the Farm Workers
Clinic, where Mr. Gutirrez stopped to get more immediate help, were unable to save him.
Mr. Lozano's version was that on the day of the crime he and Mr. Condon had
been riding around with Mr. Condon's friend "Eight Ball" and Eight Ball's girl friend.
Mr. Lozano had known Mr. Condon (whom he knew as "Wak-Wak") for only a month.
Since meeting, they had smoked pot together virtually every day, often hanging out with
3
No. 29710-I-III
State v. Condon
Eight Ball. In the early evening, Eight Ball left the car to purchase cocaine and, on his
return, told the others about the cash he observed in the home of the dealer. Upon
hearing that, Mr. Condon and Mr. Lozano decided to commit the robbery. Mr. Lozano
testified that the plan was only to steal money and drugs. He claimed to be unaware until
they entered the home that Mr. Condon had a gun.
According to Mr. Lozano, he and Mr. Condon were dropped off by Eight Ball's
girl friend about a quarter mile from the Ramirez/Gregorio home and walked to what they
believed was the drug dealer's home, where Mr. Condon kicked in the door and entered
first. Following their entry, Mr. Ramirez defended against the invasion by fighting with
Mr. Lozano, not with Mr. Condon, and eventually managed to get Mr. Lozano into a
chokehold. It was after "1 was like turning purple," according to Mr. Lozano, that Mr.
Condon fired two shots at Mr. Ramirez. Report of Proceedings (RP) at 797. Mr. Lozano
agreed that he and Mr. Condon then ran out through the back of the home, although he
claims he returned once, for just a moment, to see ifhe could find any cash, because "we
were there for money so I might as well-you know, not went for nothing." RP at 798.
Jesus Ramirez, who was 15 by the time of trial, testified that he was sitting in the
living room with his cousin when the men burst in; his parents were in the kitchen and
stood up immediately upon the intrusion. Jesus left for his bedroom where his younger
brother and sister joined him. He was directing them to hide under his bed when his
4
No. 29710-1-111
State v. Condon
mother came in, followed by the smaller intruder, whose entry she blocked. She opened
the window and told the children to leave, which they did.
Mr. Lozano dropped his cell phone during the crime and police quickly traced it to
him through the telephone number of his mother, who placed calls to the phone the
evening of the crime and whose number was stored within the phone. Within days, there
were news reports that Mr. Lozano was a suspect, in response to which he initially fled to
Mexico.
He did not stay long, turning himself in approximately six weeks later. In a
recorded statement that he provided to Detective Brian Jackson approximately seven
weeks after the crime, he described the man he knew as Wak-Wak as a tall, light skinned
"native," who had a tattoo on his neck ofa scroll with writing. Ex. 106, at 15. Other
detectives in the department later identified Mr. Condon from the description.
Shortly after the State filed charges against Mr. Condon and before his
arraignment, the State requested an order requiring him to participate in a lineup. Mr.
Condon asked the court to order that the lineup be double-blind and sequential. A
double-blind sequential lineup is one in which neither the officer conducting the lineup
nor the witness knows which person is the suspect and which are the decoys. The
participants in the lineup are presented to the witness in sequence, rather than
simultaneously. The court ordered the lineup but denied Mr. Condon's request that it be
sequential and double-blind.
5
No. 2971O-1-III
State v. Condon
Detective Jackson, the lead investigator on the case, conducted a six-person lineup.
in which Mr. Condon and the five others, each wearing jail-issued clothing and Ace
bandages around their necks (to hide Mr. Condon's tattoo), stood side-by-side. Mr.
Condon was taller than the others; Detective Jackson would later explain that he used
individuals who were in custody and tried to include only individuals who were at least
six feet tall, but was unsuccessful. Mr. Condon was the only Native American.
Detective Jackson testified that this was because the other Native Americans available to
participate all had long hair that would distinguish them from Mr. Condon, whose hair
was short. In addition to Mr. Condon, then, the participants comprised four Hispanics
and one Caucasian. Mr. Condon's lawyer objected to the lineup procedure and to the use
of a Caucasian police officer as one of the decoys.
Ms. Gregorio was the first witness asked to view the lineup and quickly identified
Mr. Condon. She made her identification within 10 seconds, stating that "she couldn't be
one hundred percent but she was pretty sure" and "she recognized him from his face."
RP at 89. Jesus Ramirez and his cousin were unable to identify anyone from the lineup
after a minute of observation.
Mr. Condon moved to suppress Ms. Gregorio's identification of him, arguing the
lineup was impermissibly suggestive. At the hearing on his motion to suppress, he called
Dr. Geoffrey Loftus, an experimental psychologist whose area of research is human
perception and human memory. Dr. Loftus testified to what he believed to be
6
No. 29710-1-111
State v. Condon
shortcomings in the conduct of the lineup and aspects of Ms. Gregorio's identification
that, in his opinion, cast doubt on the reliability of the identification. The court denied
the motion to suppress.
Shortly before trial, Mr. Lozano made a deal with the State. He testified against
Mr. Condon at trial.
At trial, Ms. Gregorio made an in-court identification of Mr. Condon and testified
about her pretrial identification. At trial she claimed to be "one hundred percent sure that
it was him." RP at 749.
In the court's conferences with the lawyers during the course of trial, Mr. Condon
asked that the jury be instructed on second degree intentional murder as a lesser offense
to first degree premeditated murder. After hearing extensive argument on the issue, the
trial court refused to give the instruction.
The jury convicted Mr. Condon of aggravated first degree murder, first degree
burglary, unlawful possession of a firearm in the second degree, and firearm
enhancements. The trial court imposed the mandatory minimum penalty for aggravated
first degree murder: life without the possibility of parole. RCW 10.95.030. It imposed a
sentence of 176 months for the conviction of first degree burglary (a term including a 60
month firearm enhancement) and 60 months for the conviction of second degree unlawful
possession of a firearm. It directed that the portion of the latter two sentences not
attributable to the firearm enhancements run concurrently. Mr. Condon appeals.
7
No. 2971O-1-II1
State v. Condon
ANALYSIS
Mr. Condon makes the following assignments of error: (1) there was insufficient
evidence to prove premeditation; the trial court erred in (2) refusing to instruct the jury on
second degree intentional murder, (3) denying his motion to suppress Ms. Gregorio's
identification given a lineup that he argues was unduly suggestive, and (4) excluding
expert testimony addressing eyewitness perception and memory; and (5) the prosecutor
committed misconduct, (6) he was denied effective assistance of counsel, (7) the
accomplice liability statute is unconstitutionally overbroad, and (8) the trial court
miscalculated his offender score. We address the assignments of error in tum.
I
Mr. Condon first argues that the State's evidence of premeditated intent-all
circumstantial-was insufficient. He points to the testimony of his partner in the crime,
Mr. Lozano, who said the intent was only to rob; the absence of any evidence of
statements by Mr. Condon admitting or implying a different intent; the trajectory of the
two shots, which would not ordinarily have been fatal; and the fact that, while he entered
the home with a drawn pistol, he did not shoot anyone until (depending on which
eyewitness account was believed) Mr. Ramirez tried to take the gun from Mr. Condon or
was strangling Mr. Lozano in a chokehold.
Due process requires the State to prove all elements of the crime beyond a
reasonable doubt. State v. Washington,
135 Wn. App. 42, 48
, 143 PJd 606 (2006).
8
No. 29710-1-III
State v. Condon
Evidence is sufficient to support a conviction if, 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. Kintz,
169 Wn.2d 537, 551
,
238 P.3d 470
(2010). "'A claim
of insufficiency admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom.'"
Id.
(quoting State v. SaUnas,
119 Wn.2d 192,201
,
829 P.2d
1068
(1992)). We defer to the trier of fact on issues of conflicting testimony, credibility
of witnesses, and the persuasiveness of the evidence. State v. Thomas,
150 Wn.2d 821,
874-75
,
83 P.3d 970
(2004) (citing State v. Cord,
103 Wn.2d 361,367
,
693 P.2d 81
(1985)), abrogated in part on other grounds by Crawford v. Washington,
541 U.S. 36
,
124 S. Ct. 1354
,
158 L. Ed. 2d 177
(2004).
To be convicted for first degree premeditated murder, the prosecution must prove
beyond a reasonable doubt that with a premeditated intent Mr. Condon caused the death
of Mr. Ramirez. RCW 9A.32.030(1)(a); Clerk's Papers at 216-19. It is the element of
premeditation that distinguishes first from second degree murder. State v. Bingham,
105
Wn.2d 820,823
,
719 P.2d 109
(1986). The premeditation "must involve more than a
moment in point of time." RCW 9A.32.020.
Premeditation may be proved by circumstantial evidence where the supporting
inferences are reasonable and the evidence is substantial. State v. Gregory,
158 Wn.2d
759,817
,
147 P.3d 1201
(2006); State v. Gentry,
125 Wn.2d 570,598
,
888 P.2d 1105
(1995). The defendant's motive, procurement ofa weapon, stealth, and method of killing
9
No. 29710-1-II1
State v. Condon
are "particularly relevant" factors to establish premeditation. State v. Pirtle,
127 Wn.2d
628,644
,
904 P.2d 245
(1995); State v. Sherrill,
145 Wn. App. 473, 484-85
,
186 P.3d
1157
(2008). Specifically, '''[t]he planned presence ofa weapon necessary to facilitate a
killing has been held to be adequate evidence to allow the issue of premeditation to go to
the jury.'" State v. Massey,
60 Wn. App. 131, 145
,
803 P.2d 340
(1990) (alteration in
original) (quoting Bingham,
105 Wn.2d at 827
).
Viewing the evidence in the light most favorable to the State, the evidence that
Mr. Condon brought a loaded handgun to the Ramirez/Gregorio residence, intended to
commit a robbery, and wielded the handgun when he kicked in the door is sufficient
evidence to support the element of premeditation.
II
Faced with the first degree premeditated murder charge, Mr. Condon asked that
the court instruct the jury on the lesser degree offense of murder in the second degree,
intentional murder. The trial court refused. Mr. Condon's next assignment of error is to
the trial court's refusal to give the requested instruction.
A defendant has a statutory right to have lesser degree offenses presented to a jury.
RCW 10.61.003, .010. The State concedes that legally, second degree murder is a lesser
degree offense. A second requirement must be met to present the lesser degree offense,
however: a factual showing (more particularized than that required for other instructions)
that "the evidence must raise an inference that only the lesser included/inferior degree
10
No. 29710-1-111
State v. Condon
offense was committed to the exclusion of the charged offense." State v. Fernandez-
Medina,
141 Wn.2d 448,455
,6 PJd 1150 (2000). It was this requirement that the court
found lacking. 1
The standard of review we apply to jury instructions depends on the decision
under review. The instructions must be sufficient to allow the parties to argue their
theory of the case. Havens v. C&D Plastics, Inc.,
124 Wn.2d 158, 165
,
876 P.2d 435
(1994). Whether or not that standard has been met is a question of law that we review de
novo. Cox v. Spangler,
141 Wn.2d 431,442
,5 PJd 1265,
22 P.3d 791
(2000). Whether
the court's instructions to the jury are accurate statements of the law is also a question of
law that we review de novo. State v. Becklin,
163 Wn.2d 519, 525
, 182 PJd 944 (2008).
Once these threshold requirements have been met, we then review the judge's wording,
choice, or the number of instructions for abuse of discretion. State v. Hathaway,
161 Wn.
App. 634, 647
, 251 PJd 253 (selection of more general, rather than specific, instruction;
abuse of discretion standard applied), review denied,
172 Wn.2d 1021
(2011); Anfinson v.
FedEx Ground Package Sys., Inc.,
159 Wn. App. 35
, 244 PJd 32 (2010) (abuse of
I While the trial court offered an alternative rationale that Mr. Condon must satisfy
the State v. Workman,
90 Wn.2d 443
,
584 P.2d 382
(1978) test for both first degree
premeditated murder and felony murder in order to be entitled to instruction on second
degree murder, the State does not rely on that basis for the trial court's decision on
appeal. It was erroneous. See State v. Schaffer,
135 Wn.2d 355
,
957 P.2d 214
(1998)
(defendant was entitled to instruction on manslaughter as a lesser degree charge to first
degree premeditated murder even though it would not have been a lesser degree charge of
second degree felony murder, which was also charged).
11
No. 2971O-1-II1
State v. Condon
discretion standard applies to number of instructions and specific wording), aff'd,
174
Wn.2d 851
,
281 P.3d 289
(2012).
The failure of the trial court properly to instruct the jury is presumed to be
prejudicial to the defendant unless the error affirmatively appears harmless. State v.
Southerland,
109 Wn.2d 389,390-91
,
745 P.2d 33
(1987). Since the right to a lesser
included offense instruction derives from a statute, nonconstitutional harmless error
analysis applies.
Id. at 391
.
The State defends the trial court's conclusion that the evidence did not raise the
inference that only intentional murder was committed to the exclusion of premeditated
murder. "[T]he intentional but unpremeditated killing of a human being, unless it is
justified or excusable, is murder in the second degree. The state can raise a homicide to
first degree murder by proving that the intentional unjustified killing of a human being
waspremeditated." State v. Thomas,
58 Wn.2d 746,751
,
364 P.2d 930
(1961) (Mallery,
1., dissenting), overruled on other grounds by State v. Rogers,
83 Wn.2d 553
,
520 P.2d
159
(1974). When inquiring whether the evidence raises the inference that only the lesser
degree offense was committed, the court must consider all of the evidence presented at
trial and view it in the light most favorable to the party requesting the instruction.
Fernandez-Medina,
141 Wn.2d at 455-56
.
The period of premeditation required for first degree murder may be short. But
the very existence of a lesser degree "intentional" crime and the legislature's definition of
12
No. 2971 O-l-III
State v. Condon
premeditation as requiring "more than a moment in point oftime/' RCW 9A.32.020 and
.030, makes clear that more is required to prove premeditation than simply that the
defendant first formed the intent to commit murder and then acted upon it. Our Supreme
Court has defined premeditation as "'deliberate/ormation oland reflection upon the
intent to take a human life [that] involves the mental process of thinking beforehand,
deliberation, reflection, weighing or reasoning/or a period o/time, however short.'"
Gregory,
158 Wn.2d at 817
(emphasis added) (alteration in original) (quoting State v.
Hoffman,
116 Wn.2d 51,82-83
,
804 P.2d 577
(1991».
In section I, we viewed the evidence in a light most favorable to the State for
sufficiency of evidence purposes and readily determined that the evidence presented by
the State was enough to support premeditation. But the evidence in this case-'some
conflicting-could support a number of conclusions. Here, viewing the evidence in a
light most favorable to Mr. Condon, we just as readily determine that it could support a
verdict of second degree murder to the exclusion of premeditated murder. A jury could
conclude from the testimony of the eyewitnesses that Mr. Condon shot Mr. Ramirez in
reaction to Mr. Ramirez trying to wrest the handgun from him, or that he shot Mr.
Ramirez because Mr. Lozano was turning purple from Mr. Ramirez's chokehold. This
affirmative evidence suggesting that Mr. Condon acted intentionally, but impulsively,
would not support the element of premeditation required for first degree premeditated
murder. It '''would permit a jury to rationally find [the] defendant guilty of the lesser
13
No. 29710-1-111
State v. Condon
offense and acquit him of the greater.'" Fernandez-Medina,
141 Wn.2d at 456
(quoting
State v. Warden,
133 Wn.2d 559, 563
,
947 P.2d 708
(1997)).
The State argues that Mr. Condon did not defend on the basis that he was
concerned about being disarmed or about Mr. Ramirez's chokehold on Mr. Lozano,
however; it argues "[t]he defense theory was simply that the State had not proven its case
against him." Br. ofResp't at 15. But this is the precise point addressed and rejected in
Fernandez-Medina. There, the defendant claimed an alibi, yet requested an instruction
that ifhe committed assault, it was only second degree assault. The Supreme Court
embraced the reasoning of State v. McClam,
69 Wn. App. 885
,
850 P.2d 1377
(1993) that
defendants can present inconsistent defenses. In McClam, as here, the defendant relied
on affirmative evidence presented by the State, not him, that tended to support a lesser
offense. The trial court is to view "all of the evidence that is presented at trial" in the
light most favorable to the defendant's request for the instruction. Fernandez-Medina,
141 Wn.2d at 456
(emphasis added).
It was error, then, for the trial court to refuse Mr. Condon's request for the
instruction. But the error does not require reversal if it was harmless. The error was not
prejudicial unless, within reasonable probabilities, had the error not occurred, the
outcome of the trial would have been materially affected. Southerland,
109 Wn.2d at
391
.
14
No. 29710-1-111
State v. Condon
Washington courts have found the failure to instruct on a lesser degree offense to
be harmless in only those cases where other verdicts returned by the same jury
demonstrate the jury's implicit rejection of the lesser degree offense. For instance, where
a jury rejects an intermediate degree offense; it is valid to infer that it would have rejected
other, even lesser degree offenses. See State v. Guilliot,
106 Wn. App. 355
,
22 P.3d 1266
(2001); State v. Hansen,
46 Wn. App. 292
,
730 P.2d 706
,
737 P.2d 670
(1986).
Otherwise, Washington decisions appear to subscribe to the view that
"as the law gives the defendant the unqualified right to have the inferior
degree passed upon by the jury, it is not witFiin the province of the court to
say that the defendant was not prejudiced by the refusal of the court to
submit that phase of the case to the jury, or to speculate upon probable
results in the absence of such instructions."
State v. Parker,
102 Wn.2d 161,163-64
,
683 P.2d 189
(1984) (quoting State v. Young,
22
Wash. 273, 276
,
60 P. 650
(1900)).
The State argues that the jury's returning a verdict of guilty of premeditated
murder rather than felony murder makes this case like Guilliot and Hansen. We disagree.
The instructions given with respect to those two crimes did not draw the jury's attention
to the difference between premeditation and intent, as instruction on second degree
murder would have. Consider the State's closing argument:
Now, what does premeditation mean? Is this some multi-week plan
or days or even hours? No, not necessarily. Premeditated means thought
over beforehand. When a person, after any deliberation; I'm talking about
Instruction No. 10, forms intent to take a human life, the killing may follow
15
No. 29710-1-III
State v. Condon
immediately after the formation of the settled purpose and it will still be
premeditated.
RP at 1134. We cannot say that the jury implicitly rejected the possibility that Mr.
Condon's shooting was intentional but impulsive rather than premeditated. Its attention
was not effectively drawn to the distinction.
If given the option, the jury might have found Mr. Condon's actions to be
intentional but impulsive rather than premeditated. We cannot conclude that the error
was harmless.
One can, however, fairly infer from the jury's conviction of Mr. Condon for first
degree murder, first degree burglary and possession of a firearm, that it would have
convicted him of the alternative crime of first degree felony murder charged in count one.
But the jury was instructed that it need not return a verdict on the felony murder charge if
it found Mr. Condon guilty of first degree premeditated murder. As a result, it did not
complete a verdict form for felony murder. Conviction of first degree felony murder at
the trial below, or in a future trial, would not subject Mr. Condon to the mandatory
minimum sentence of life in prison without the possibility of parole presented by the
aggravated first degree murder charge.
We must, therefore, reverse the conviction of first degree aggravated murder and
remand for a retrial of the murder charges.
16
No. 2971 0-1-III
State v. Condon
Because the instructional error does not affect Mr. Condon's convictions of first
degree burglary and unlawful possession of a firearm, we tum to his remaining
assignments of error.
III
Mr. Condon next argues that evidence of Ms. Gregorio's pretrial identification of
him should have been suppressed and her in-court identification excluded because her
initial identification was tainted by an impermissibly suggestive lineup. He places
principal reliance on the fact that the lineup took place after Ms. Gregorio had attended
two court hearings at which she saw him and that she may also have seen him on
television news. Br. of Appellant at 25-26. He argues several reliability issues as
additional reasons for suppressing the evidence.
Mr. Condon filed his opening brief and assigned error before the United States
Supreme Court's decision in Perry v. New Hampshire, _ U.S. _,
132 S. Ct. 716
,
181 L.
Ed. 2d 694
(2012). The parties completed their briefing before this court decided State v.
Sanchez,
171 Wn. App. 518
, 288 P.3d351 (2012),petitionjorreviewjiled, No. 88603-2
(Wash. Mar. 27,2013), and the Washington Supreme Court decided State v. Allen,_
Wn.2d _,
294 P.3d 679
(2013). Mr. Condon's arguments cannot succeed in light of the
three decisions' holdings addressing the limited situations in which the due process
clause requires excluding eyewitness identification evidence.
17
No. 29710-1-111
State v. Condon
The decisions establish that the United States Constitution" 'protects a defendant
against a conviction based on evidence of questionable reliability[, not by prohibiting
introduction of the evidence, but] by affording the defendant means to persuade the jury
that the evidence should be discounted as unworthy of credit.'" Allen,
294 P.3d at 685
(quoting Perry, 132 S. Ct. at 723). Constitutional safeguards available to defendants to
counter the State's evidence include the Sixth Amendment rights to counsel, compulsory
process, and confrontation plus cross-examination of witnesses. Apart from these
guarantees, state and federal statutes and rules ordinarily govern the admissibility of
evidence, and juries are assigned the task of determining the reliability of the evidence
presented at trial. Perry, 132 S. Ct. at 723.
For the exclusion of eyewitness identification to be required by the due process
clause, the unnecessarily suggestive circumstances ofthe identification must have been
arranged by law enforcement. Sanchez,
171 Wn. App. at 573
. The due process clause
does not require a judicial inquiry into identifications whose reliability is in doubt for
other reasons. Perry, 132 S. Ct. at 730. Moreover, "due process concerns arise only
when law enforcement officers use an identification procedure that is both suggestive and
unnecessary." ld. at 724 (citing Mansonv. Brathwaite,
432 U.S. 98,107,109,112-13
,
97
S. Ct. 2243
,
53 L. Ed. 2d 140
(1977».
With this limitation and standard in mind, we review a trial court's decision on
whether to admit an out-of-court identification for abuse of discretion. State v. Kinard,
18
No. 29710-1-111
State v. Condon
109 Wn. App. 428, 432
,
36 P.3d 573
(2001); State v. Birch,
151 Wn. App. 504, 514
,
213
P.3d 63
(2009). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. State v. Neal,
144 Wn.2d 600,609
,
30 P.3d
1255
(2001).
Consideration of a challenge to an out-of-court lineup identification involves two
steps. State v. Ramires,
109 Wn. App. 749, 761
,
37 P.3d 343
(2002). First, the defendant
must show the lineup procedure was impermissibly suggestive.
Id.
If it is, then the court
considers the reliability factors set forth in Neil v. Biggers,
409 U.S. 188, 199-200
,
93 S.
Ct. 375
,
34 L. Ed. 2d 401
(1972), which can overcome the corrupting effect of the
suggestive identification procedure. Sanchez,
171 Wn. App. at 573
. If the defendant
does not meet the initial burden of demonstrating that the lineup was impermissibly
suggestive, the inquiry ends. Ramires,
109 Wn. App. at 761
.
Mr. Condon claims that Ms. Gregorio's identification at the lineup was
impermissibly suggestive because it took place after she attended two of his court
hearings and possibly saw him on television. These circumstances were not arranged by
lawenforcement. Whether her familiarity with Mr. Condon from having seen him in
court cast doubt on her identification was therefore a matter for cross-examination, not
suppression.
As to the circumstances of the lineup itself, Mr. Condon has not identified aspects
of the lineup that were both suggestive and unnecessary. Detective Jackson's explanation
19
No. 29710-1-III
State v. Condon
of his difficulty in enlisting participants sharing more similarities with Mr. Condon stands
unchallenged. In denying the suppression motion, the trial court commented on the
testimony of the defense expert, Dr. Loftus, who acknowledged that the State had taken
some affirmative steps helpful to the reliability of the lineup, such as providing the
participants with similar clothing and covering their necks in order to obscure Mr.
Condon's distinctive tattoo. Having reviewed pictures of the participants in the lineup,
the trial court observed they were "remarkably similar in many regards." RP at 382.
Because Mr. Condon has not demonstrated that the State created an unduly suggestive
lineup procedure, we need not consider the Biggers factors.
IV
Mr. Condon next argues that the trial court abused its discretion by excluding the
testimony of Dr. Loftus. The trial court's decision to exclude the evidence was informed
in part by Dr. Loftus's live testimony at the suppression hearing, during which Dr. Loftus
summarized and previewed the opinions to which he expected to testify at trial.
At the suppression hearing, Dr. Loftus testified concerning what studies have
revealed about how memories of a complex event form and persist. His principal point,
as it related to eyewitness identification in legal proceedings, was that given the manner
in which memories are formed and refined, a witness may have a memory that seems real
and in which the witness has great confidence but that has become less accurate over
time. This is especially true if postevent information is provided.
20
No. 2971O-I-II1
State v. Condon
Dr. Loftus also testified to what he perceived to be three shortcomings of the
lineup conducted by Detective Jackson, based on his understanding of the procedure and
photographs he had received of the six participants, both individually, and as they
appeared at the lineup. His criticisms of the lineup were that (1) it was not double-blind,
(2) it was not sequential, and (3) Mr. Condon was the tallest participant in the lineup.
Mr. Condon's height was a concern because Dr. Loftus understood that in originally
describing the shooter, Ms. Gregorio emphasized that he was tall but was unable to recall
details of his face. Because she had focused on his height, she would be inclined to
identify a participant who was tall.
The trial court also relied upon the testimony ofDetective Jackson presented at the
suppression hearing. Detective Jackson testified that at the time of the lineup Ms.
Gregorio initially stepped into the back of the viewing room; that he encouraged her to
get closer to the mirror so that she could see all six participants; and that within about
10 seconds of stepping closer, she pointed to Mr. Condon and told the interpreter who
was present that he was the man who was in the house that night. After she made the
identification, Mr. Condon's lawyer and his investigator questioned her about how
certain she was, in response to which she stated that she could not be 100 percent sure but
that she was pretty sure and that she recognized him from his face.
The detective acknowledged that Ms. Gregorio had always described the shooter
as quite tall and that, at 6 feet 2 inches, Mr. Condon was the tallest participant in the
21
No. 2971O-1-III
State v. Condon
lineup. In defense of the lineup, however, he testified that while he had not achieved his
goal of including only participants who were 6 feet tall or taller, he had been able to
include some participants who were 6 feet tall. He also testified that Ms. Gregorio is only
4 feet 11 inches and that many people are tall compared to her.
A defendant in a criminal case has a constitutional right to present the testimony of
witnesses in order to establish a defense. State v. Cheatam,
150 Wn.2d 626,648
,
81 P.3d
830
(2003). Our Supreme Court held in Cheatam that when eyewitness identification is a
key element of the State's case, the trial court must carefully consider whether expert
testimony on the reliability of eyewitness identification evidence would assist the jury in
assessing the reliability of eyewitness testimony.
Id. at 649
; see also State v. Allen,
161
Wn. App. 727, 741
,
255 P.3d 784
, aff'd,
294 P.3d 679
(2011). The admission of expert
testimony on the reliability of eyewitness identification is still within the discretion of the
trial court, though, and will only be reversed if the court abuses that discretion. State v.
Cae,
109 Wn.2d 832, 844
,
750 P.2d 208
(1988). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds. Neal,
144 Wn.2d
at 609
.
The eyewitness testimony below was not key in the sense that it was in Cheatam,
in which the evidence against the defendant was only the rape victim's identification and
a forensic expert's testimony to an inconclusive visual match between the defendant's
shoe and a photograph of a footprint at the scene of the crime. Here, the State presented
22
No. 29710-I-III
State v. Condon
Mr. Lozano's testimony that Mr. Condon was his partner in the crime and the shooter. It
also presented evidence of Mr. Condon's admissions to ajailhouse informant and
recorded conversations between Mr. Condon and his girl friend in which he made
statements that could be understood as inculpatory. Cross-racial identification was not
identified by Dr. Loftus as a concern and the trial court commented that he did not realize
Mr. Condon was Native American until he was told. RP at 382.
The trial court concluded that Mr. Condon would be able to explore the
weaknesses in Ms. Gregorio's identification through cross-examination and that expert
testimony discrediting this single aspect of the evidence would not be helpful and could
be confusing to the jury. Mr. Condon thereafter did engage in extensive cross-
examination of Ms. Gregorio and Detective Jackson concerning her identification and
challenged her identification in closing argument. If the relevance or helpfulness of
expert testimony is debatable, a trial court's decision to exclude it will be upheld.
Cheatam,
150 Wn.2d at 652
. While another trial court might have admitted Dr. Loftus's
testimony, we cannot say that the trial court abused its discretion in excluding it.
v
Mr. Condon next complains ofprosecutorial misconduct, citing the prosecutor's
representation that the State had an unusual amount of evidence against Mr. Condon and
the theme of the prosecutor's rebuttal argument maligning defense counsel.
23
No. 29710-1-111
State v. Condon
A defendant claiming to have been denied a fair trial as a result of prosecutorial
misconduct bears the burden of establishing that the prosecutor's misconduct was both
improper and prejudicial. State v. Finch,
137 Wn.2d 792, 839
,
975 P.2d 967
(1999). A
defendant's failure to object to a prosecutor's improper remark constitutes a waiver,
unless the remark was so flagrant and ill-intentioned that it evinces an enduring and
resulting prejudice that could not have been cured by an instruction to the jury. Gregory,
158 Wn.2d at 841
.
Mr. Condon did not object to the prosecutor's comment suggesting a surplus of
evidence against him. The statement was in reply to Mr. Condon's closing argument,
which had emphasized, among other matters, the dearth of forensic evidence and the fact
that Jesus Ramirez and his cousin had not identified Mr. Condon. Early in his rebuttal,
the prosecutor said, "The State doesn't have much? If only the State had this much
evidence in all of our cases." RP at 1153. After recapping its evidence, the prosecutor
repeated, "[I]f only the State had so much evidence in all of our cases." Id. at 1154.
It is misconduct for a prosecutor to suggest that evidence not presented at trial
provides additional grounds for finding a defendant guilty, State v. Russell,
125 Wn.2d
24,87
,
882 P.2d 747
(1994). A similar problem is presented here, with a prosecutor
suggesting that the State's case is stronger than most, because the jury is invited to trust
the prosecutor's knowledge rather than evidence that the jury can assess for itself. An
opinion of the sort expressed here is less problematic than implying to the jury that
24
No. 2971 O-I-III
State v. Condon
additional evidence exists against the defendant who is on trial, which the jury has not
seen, however. A jury is unlikely to view the sort of opinion expressed by the prosecutor
in this case as relevant to its task.
The prosecutor's statements are also less of a concern given the context in which
they were made. The prosecutor was responding to the defense argument inventorying
all of the evidence the State did not pursue or had not found. And defense counsel
conveyed one comparison of his own, arguing,
We have a shoe print, we have photographs ont; but nobody does
anything with it. We don't take the door off and haul it down to the
sheriff's department, which I have seen done in the past. We don't take
better photographs; they're two there, they're not terrible photographs. But
the simple point is we don't do anything with what we have.
RP at 1142 (emphasis added).
The prosecutor, as an advocate, is entitled to make a fair response to the arguments
of defense counsel. Russell,
125 Wn.2d at 87
. A prosecutor's remarks must be examined
within the context of the trial to determine the probable effect they would have on the
jury's ability to judge the evidence fairly and, "[i]n this context, defense counsel's
conduct, as well as the nature of the prosecutor's response, is relevant." United States v.
Young,
470 U.S. 1, 12
,
105 S. Ct. 1038
,
84 L. Ed. 2d 1
(1985).
Given the fleeting nature of the prosecutor's statements, considering them in light
of the preceding argument by the defense, and mindful of the court's instructions, we are
confident that they did not interfere with the jury's ability to judge the evidence fairly.
25
No. 2971O-1-III
State v. Condon
Mr. Condon's second allegation of misconduct presents a more serious problem.
The prosecutor's rebuttal argument was, indeed, organized as a primer for jurors on truth-
distorting tactics of defense lawyers-what he characterized as "Defense 101." RP at
1154. He suggested that here, as in other cases, defense lawyers "distract from the
evidence," "[c]reate resentment toward the police," "[c]onfuse the witnesses," "[c]onfuse
the law," and "impugn the police" by either treating them as "jack booted thug liars" or
"really nice and they just didn't get the job done ... keystone cops." RP at 1154-57. The
prosecutor drew Mr. Condon's objection when he argued, while describing defense
counsel's cross-examination of Ms. Gregorio, "And confusing the witnesses-did you
see the trick that [defense counsell-it was actually quite skillful." Id. at 1156.
"It is improper for the prosecutor to disparagingly comment on defense counsel's
role or impugn the defense lawyer's integrity." State v. Thorgerson,
172 Wn.2d 438,
451
, 258 P.3 d 43 (2011). In Thorgerson, the Supreme Court unanimously condemned a
prosecutor's arguments that "'[t]he entire defense is sl[e]ight of hand. Look over here,
but don't pay attention there .... Look at everything except what matters.'"
Id.
(second
alteration in original). It held that the argument "went beyond the bounds of acceptable
behavior," and, inasmuch as the argument was planned in advance, was ill-intentioned
misconduct. 2
Id. at 452
. In State v. Warren,
165 Wn.2d 17,29
,
195 P.3d 940
(2008), the
2 The members of the court were divided on whether the misconduct required
reversal. The dissent, which believed reversal was required, observed that '" [s ]leight of
26
No. 29710-1-III
State v. Condon
court held that it was misconduct for a prosecutor to describe defense counsel's argument
as '" an example of what people go through in a criminal justice system when they deal
with defense attorneys'" and as a '" classic example of taking these facts and completely
twisting them to their own benefit, and hoping that you are not smart enough to figure out
what in fact they are doing.'" In State v. Gonzales, III Wn. App. 276, 283-84,
45 P.3d
205
(2002), the court strongly criticized a prosecutor's argument that unlike defense
attorneys, prosecutors take an oath to '" see that justice is served.'"
In light of these and other precedents, it is hard to imagine that the prosecutor did
not recognize that his "Defense 10 1" theme was improper. The points that he then made
about the evidence were a fair response to the arguments of defense counsel. But it was
unquestionably misconduct to introduce each of his points with a theme disparaging
defense lawyers as, e.g., "distracting from the evidence," "confusing the facts," or
"confusing the law."
Where a defendant timely objects to prosecutorial misconduct, reversal is required
if the appellate court determines there is a substantial likelihood the misconduct affected
the jury's verdict. Gregory,
158 Wn.2d at 841
. Where the defendant not only objects but
moves for a mistrial, "we give deference to the trial court's ruling because it is in the best
position to evaluate whether the prosecutor's comment prejudiced the defendant."
Id.
hand' implies trickery or wrongdoing and can be interpreted as an attack on counsel
rather than on counsel's arguments."
172 Wn.2d at 466
(Chambers, J., dissenting).
27
No. 2971O-1-III
State v. Condon
"The trial court should grant a mistrial only when the defendant has been so prejudiced
that nothing short of a new trial can ensure that the defendant will be fairly tried." State
v. Emery,
174 Wn.2d 741, 765
,
278 P.3d 653
(2012). When reviewing a trial court's
denial of a mistrial for abuse of discretion, abuse will be found only when no reasonable
judge would have reached the same conclusion. ld.
This was a seven-day trial. Mr. Condon's lawyer's conduct during the trial was
professional and effective and his closing argument was well-organized and measured. It
is unlikely that the prosecutor's ill-considered comments would outweigh the impression
the jury had already formed of defense counsel. The trial court had also instructed the
jurors before closing arguments that "[t]he lawyers' remarks, statements and arguments
are intended to help you understand the evidence and apply the law .... You must
disregard any remark, statement or argument that is not supported by the evidence or the
law in my instructions." RP at 1102-03.
The trial court was in the best position to assess any prejudice. While it should
have sustained the objection to the prosecutor's disparaging remarks, we do not doubt its
judgment that Mr. Condon was not prejudiced.
VI
Mr. Condon next argues that he received ineffective assistance of counsel because
his lawyer failed to object to the admission of Mr. Lozano's unredacted recorded
interview from March 2009 as substantive evidence and failed to seek an instruction
28
No. 2971O-1-III
State v. Condon
limiting the jury's use of the evidence to its proper purpose. The 55-minute recorded
interview included allegations that Mr. Condon belonged to a gang and frequently used
illegal drugs.
The Sixth Amendment and article I, section 22 of the Washington State
Constitution guarantee the right to counsel. To prevail on his ineffective assistance
claim, Mr. Condon must show both that "counsel's representation fell below an objective
standard of reasonableness," Strickland v. Washington,
466 U.S. 668,688
,
104 S. Ct.
2052
,
80 L. Ed. 2d 674
(1984), and that there is a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different,"
id. at 694
. A claim for ineffective assistance presents a mixed question of law and fact,
which appellate courts review de novo. State v. Cross,
156 Wn.2d 580, 605
,
132 P.3d 80
(2006).
The video recording was offered and admitted after Mr. Condon's lawyer
established in cross-examining Mr. Lozano that he had not originally named Mr. Condon
as his partner in the crime and suggested that Mr. Lozano fabricated Mr. Condon's
involvement as the shooter in order to obtain lenient treatment. The challenge to Mr.
Lozano's testimony was exemplified by the following cross-examination:
Q. . .. For the 'past twenty-four months you have been held in custody
correct? Or, I'm sorry, twenty-two months?
A. Yes.
29
No. 2971O-1-III
State v. Condon
Q. And throughout the pendency of that time you have consistently
denied that Mr. Condon was in any way involved in this incident
haven't you?
A. Yes.
Q. Now, approximately eight days ago when you were four days away
from commencing trial you elected to contact the authorities and
give a statement correct?
A. Yes.
RP at 818-19. After questioning Mr. Lozano about the plea agreement he had reached
with the State, defense counsel continued:
Q. So you have a substantial reason to testify today and tell us all of
these stories?
A. Not stories. It's what happened.
Q. Okay. It's quite easy to point the finger at someone else isn't it?
A. Yeah.
Q. Now you were only able to provide a vague description of this
person to Detective Jackson correct? In your statement on March
10th ?
A. Yeah.
Q. Tall, skinny, maybe Native American?
A. Yeah.
Q. And that-tall, skinny and tattoos-okay. Tall, skinny and tattoos.
That is a description that would fit most of the players on a local
basketball team, isn't it?
A. I wouldn't know.
Q. Now you knew you were going to testify today correct?
A. Yes.
Q. And you have practiced your testimony correct? .
A. No.
Q. No? And you have not reviewed it in any way?
A. Testimony?
Q. Yeah. Rehearsed it?
A. No.
30
No. 29710-1-III
State v. Condon
Q. Now twice during the interview Detective Jackson asked you for the
gentleman's name that you were with and neither time you could
give it to him correct?
A. Yes.
Q. But later after all the media exposure, three months later you were
able to provide a name? Isn't that true?
A. Yes.
RP at 820-22.
After this cross-examination, the next witness called by the State was Detective
Jackson, for the purpose ofidentifying and offering the State's video recording of his
March 10 interview of Mr. Lozano. The State's position was that contrary to the
implication of the cross-examination, Mr. Lozano's original statement was "remarkably
consistent" with his trial testimony. RP at 834. Anticipating that Mr. Condon would
object to the video recording as hearsay, the State argued that the recording was not
hearsay because Mr. Lozano had testified at trial, was subject to cross-examination
concerning the statement, and the statement was "consistent with the declarant's
testimony and is offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive." ER 80 1(d)(1)(ii).
On appeal, Mr. Condon argues that his lawyer was confused about the statement's
hearsay status and therefore objected ineffectively; that he failed to argue, as he should
have, that Mr. Lozano had always had an incentive to lie; that he should have argued for
exclusion of much of the recording, which was unduly prejudicial; and that he should
have asked for a limiting instruction. We disagree. Review ofthe record reveals that Mr.
31
No. 29710-1-III
State v. Condon
Condon's trial lawyer understood the probable admissibility of the recording and had
tactical reasons for allowing the entire recording to be played.
First, Mr. Condon is wrong in arguing that a limiting instruction would have been
appropriate. A prior consistent statement admissible under ER 801 (d)( 1)(ii) is admissible
as substantive evidence ifnot objectionable on other grounds. State v. Walker,
38 Wn.
App. 841, 844
,
690 P.2d 1182
(1984); Tome v. United States,
513 U.S. 150, 157
,
115 S.
Ct. 696
,
130 L. Ed. 2d 574
(1995) (observing that equivalent statements are nonhearsay
and admissible as substantive evidence under Fed. R. Evid. 80l(d)(1)(B)).
Second, the arguments on appeal misperceive the trial lawyer's position on the
hearsay status of the evidence. When the lawyer stated that the prosecutor "is saying that
I am going to say that the-video and audio of the interview is hearsay and I-and I am
supposedly objecting to it on that basis," RP at 829 (emphasis added), we do not
understand him to have been confused about his own objection. Rather, the prosecutor
had assumed in offering the evidence that Mr. Condon would object to the recording as
hearsay and, based on that assumption, he preemptively offered ER 80 1(d)(1)(ii) as an
exemption authorizing admission of the evidence. The prosecutor assumed wrong.
When we review the arguments in the trial court as a whole, it appears that Mr. Condon's
lawyer always recognized that the recording was not hearsay if offered to rebut a claim of
recent fabrication, hence his comment that he was "supposedly" objecting to the evidence
as hearsay.
32
No. 2971O-1-III
State v. Condon
Third, the argument that Mr. Lozano had a motive to lie at the time of his initial
interview by Detective Jackson on March 10 ignores the fact that he had a different
motive to lie shortly before trial, when he contacted the State and offered to testify
against Mr. Condon. There was substantial evidence that at the time of his initial
interview, Mr. Lozano did not realize that he could be charged with anything as serious
as murder for his unarmed participation in an unsuccessful robbery. Toward the end of
the interview, the detective explained felony murder~ This argument on appeal as to why
the ER 801(d)(1)(ii) exemption did not apply is not persuasive and it was not ineffective
assistance for the trial lawyer not to raise the argument below.
We view the trial lawyer's decision not to request redaction of the recording as
tactical. It is fair to say that casting doubt on Mr. Lozano's credibility was the lawyer's
most important task in defending Mr. Condon. The jury could believe that Ms. Gregorio
was truthful and yet still question the reliability of her identification. If the jury believed
that Mr. Lozano was truthful, though, anything Mr. Lozano might have said about drug
use or gang affiliation would be the least of Mr. Condon's problems-the State's murder
charge would be effectively proved. As the trial court said to Mr. Condon's lawyer when
admission of the recording was being argued, "I think you've raised the issue [of
fabrication] and I-frankly-I don't know how you-you would have avoided it. I
mean, you had to raise the issue." RP at 834 (emphasis added).
33
No. 29710-1-111
State v. Condon
Had defense counsel moved to exclude any of the recording, he would have been
least successful in excluding statements about Wak-Wak. It was those statements that
were, after all, the rationale for admitting the recording. And so long as Mr. Lozano's
statements about Wak-Wak were going to come in, a reasonable trial lawyer could
conclude that it might as well be in the context of the entire recording rather than in a
pared-down form that would emphasize Mr. Lozano's consistent statements. Especially
given the importance of discrediting Mr. Lozano and this particular recording, which trial
counsel described as follows:
[T]he performance of Mr. Padilla Lozano on his interview with Detective
Jackson is at times utterly incoherent, bizarre, pointless, rambling and 1
think the detective was even having trouble getting him to stay on point. 1
mean it's ...
. . . every other word is F - and you know, you get a headache
listening to it because it's so incoherent.
RP at 836.
Mr. Condon has not demonstrated any performance or omission by his trial lawyer
that fell below an objective standard of reasonableness. We therefore need not address
whether, but for the asserted unprofessional errors, the result of the proceeding would
have been different.
34
No. 2971O-1-III
State v. Condon
VII
Mr. Condon next argues that the accomplice liability statute, RCW 9A.08.020, is
unconstitutionally overbroad because it criminalizes speech and conduct protected by the
First Amendment.
Under RCW 9A.OB.020(3)(a)(ii), one may be convicted as an accomplice ifhe,
acting "[w lith knowledge that it will promote or facilitate the commission of the crime,
he or she ... [a]ids or agrees to aid such other person in planning or committing it.,,3 The
statute does not define "aid" but Washington decisions have long accepted the pattern
jury instruction's definition of "aid." It first appeared in Washington cases in the
instruction cited in State v. McKeown,
23 Wn. App. 582, 591
,
596 P.2d 1100
(1979):
"The word' aid' means all assistance whether given by words, acts,
encouragement, support or presence. A person who is present at the scene
and is ready to assist by his or her presence is aiding in the commission of
the crime."
The definition appears to be unique to the Washington statute.
"The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that 'Congress shall make no law ... abridging the freedom of
speech.'" Virginia v. Black,
538 U.S. 343,358
,
123 S. Ct. 1536, 1551
. Ed. 2d 535
(2003) (alteration in original). A state criminal law "may be invalidated as overbroad if
3 We quote the current version ofRCW 9A.08.020, which was amended by Laws
of2011, chapter 336, section 351 to make the language gender neutral.
35
No. 29710-1-III
State v. Condon
'a substantial number of its applications are unconstitutional, judged in relation to the
statute's plainly legitimate sweep. '" United States v. Stevens,
559 U.S. 460
,
130 S. Ct.
1577, 1587
,
176 L. Ed. 2d 435
(2010) (quoting Wash. State Grange v. Wash. State
Republican Party,
552 U.S. 442
,449 n.6,
128 S. Ct. 1184
,
170 L. Ed. 2d 151
(2008)).
Mr. Condon relies on Brandenburg v. Ohio,
395 U.S. 444, 447
,
89 S. Ct. 1827
,
23
L. Ed. 2d 430
(1969), in which the United States Supreme Court held that "the
constitutional guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or
produce such action." He argues that the accomplice liability statute runs afoul of the
First Amendment by criminalizing "aid" or "agreement to aid," defining it to include pure
speech, and then failing to limit the speech that it criminalizes to speech directed to
inciting or producing imminent lawless action.
Divisions One and Two of our court have rejected this same First Amendment
challenge to the accomplice liability statute. In State v. Coleman,
155 Wn. App. 951,
960-61
,
231 P.3d 212
(2010), Division One relied on the mens rea requirement imposed
by the statute, likening it to the pedestrian interference ordinance that our Supreme Court
concluded was not overbroad in City ofSeattle v. Webster,
115 Wn.2d 635
,
802 P.2d
1333
(1990). In State v. Ferguson,
164 Wn. App. 370, 376
,264 PJd 575 (2011),
Division Two adopted the Coleman analysis, adding that the statute's language forbids
36
No. 297l0-l-III
State v. Condon
only advocacy directed at and likely to incite or produce imminent lawless action, thereby
conforming to Brandenburg's limitations.
Mr. Condon argues that we should reject Coleman and Ferguson as wrongly
decided because they erroneously rely on cases involving conduct, whereas the act of
"aiding" can involve pure speech. He also argues that the decisions rely for
constitutionality on the mens rea required for criminal liability, which, he argues, is
insufficient in and of itself to avoid First Amendment problems.
Justice Utter observed in Webster that specific intent does not always save
ordinances from overbreadth challenges.
115 Wn.2d at 648
(Utter, J., concurring in part
and dissenting in part). In McCoy v. Stewart,
282 F.3d 626
(9th Cir.), cert. denied,
537
U.S. 993
,
123 S. Ct. 468
,
154 L. Ed. 2d 361
(2002), the Ninth Circuit granted habeas
relief to a prisoner serving time under an Arizona statute that made it a crime to
participate in a criminal syndicate, rejecting the reasoning of the Arizona appellate courts
that the statute survived First Amendment attack because it required proof of intent to
promote or further the criminal objectives of a criminal syndicate. Summarizing
Brandenburg, Hess v. Indiana,
414 U.S. 105
,
94 S. Ct. 326
,
38 L. Ed. 2d 303
(1973), and
other decisions, the Ninth Circuit observed that "timing is crucial, because speech must
incite imminent lawless action to be constitutionally proscribable," "a state cannot
constitutionally sanction' advocacy of illegal action at some indefinite future time,'" and
37
No. 29710·1-111
State v. Condon
[0]ther decisions confirm that speech that advocates, teaches, or
justifies lawlessness in an abstract way is fully protected, so long as it is not
directed to inciting imminent lawless action. The protection afforded an
individual's abstract advocacy of lawlessness endures even if the individual
hopes that someday such lawlessness may occur.
282 F.3d at 631
& n.5 (quoting Hess,
414 U.S. at 108
).
Mr. Condon's examples of lawful action falling within the sweep of the
accomplice liability statute's prohibitions are "[the] college professor who praises
ongoing acts of criminal trespass by Occupy Wall Street protestors," "[the] journalist sent
to cover the protest," and "[the] attorney who agrees to represent the protestors pro
bono." Br. of Appellant at 48.
The accomplice liability statute has been construed to apply only when the
accomplice acts with knowledge of the specific crime that is eventually charged, rather
than with knowledge of a different crime or generalized knowledge of criminal activity.
State v. Cronin,
142 Wn.2d 568, 578-79
,
14 P.3d 752
(2000); State v. Roberts,
142
Wn.2d 471,512
,
14 P.3d 713
(2000). And the required aid or agreement to aid the other
person must be "in planning or committing [the crime]." Statutes are presumed to be
constitutional and wherever possible '''it is the duty of [the] court to construe a statute so
as to uphold its constitutionality.'" In re Det. ofDanforth,
173 Wn.2d 59, 70
,
264 P.3d
783
(2011) (quoting State v. Reyes,
104 Wn.2d 35, 41
,
700 P.2d 1155
(1985)). We
construe the accessory liability statute to require that the accessory have some affirmative
and direct connection to the planning and commission of a particular crime. Thus read, it
38
No. 29710-1-111
State v. Condon
does not reach the "mere advocacy" of a college professor, the visibility provided by a
journalist, or comfort or support to the criminal that is unrelated to planning or
committing the crime. Brandenburg, on which Mr. Condon so heavily relies, "expressly
encompassed nothing more than 'mere advocacy. '" McCoy,
123 S. Ct. at 469
(Stevens,
J., statement respecting denial of petition for writ of certiorari).
We therefore agree with Divisions One and Two that that accomplice liability
statute is constitutional.
VIII
Mr. Condon's final assignment of error was to his offender score. He
acknowledges in his reply briefthat he overlooked an acknowledgment of his offender
score by his trial lawyer during sentencing proceedings. He makes no further argument.
There was no error.
We affirm Mr. Condon's convictions of first degree burglary, unlawful possession
of a firearm, and a firearm enhancement. We reverse his conviction of aggravated first
degree murder on the basis of the instructional error and remand for a new trial on the
murder charges.
39
No. 2971O-1-II1
State v. Condon
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
(\
\,
Kulik, J.
40Case Information
- Court
- Wash. Ct. App.
- Decision Date
- April 16, 2013
- Status
- Precedential