FILED
COURT OF APPEALS
j` '
IN THE COURT OF APPEALS OF THE STATE O' WWAINGTON
2014 SEP - 3 AM 3: 22
DIVISION II
STATE OF WASHINGTON
ON
STATE OF WASHINGTON,
Respondent,
v.
UNPUBLISHED OPINION
NICHOLAS KEITH MAYER,
Appellant.
Melnick, J. — Nicholas Mayer appeals his convictions for first degree robbery with two
firearm enhancements, first degree burglary with two firearm enhancements, residential burglary,
three counts of theft of a firearm, three counts of second degree unlawful possession of a firearm,
and third degree theft. Nicholas' argues ( 1) insufficient evidence supported his first degree
burglary conviction, ( 2) the jury instructions for first degree burglary violated his right to a
unanimous jury verdict, ( 3) the trial court erred by denying his motions to suppress statements he
made to the officers, ( 4) the State improperly vouched for one of its key witnesses' credibility,
and ( 5) the trial court' s denial of his motion to continue the trial denied him effective assistance
of counsel. We affirm Nicholas' s convictions.
FACTS
I. BACKGROUND
On February 9, 2012, just after 9: 00 P. M., officers responded to a 911 call regarding a
robbery at the KC Teriyaki restaurant in Salmon Creek, Washington. When the officers arrived,
they interviewed the restaurant' s owner, Hui Choe, a restaurant employee, Aljuarsmi Ortiz, and
1
We refer to Nicholas Mayer and Emily Mayer by their first names to avoid confusion.
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two other witnesses. The officers believed that it was likely an " inside job," because the suspects
obviously knew about the side entrance and the restaurant' s closing procedures. 1 Report of
Proceedings ( RP) at 21.
Choe told the officers about his former employee, Emily Mayer, whom he had fired a few
months prior because he suspected her of stealing money. Choe also told the officers that Emily
had told him she had an older brother who did drugs. After reviewing their databases, the
officers determined that Nicholas was Emily' s older brother. At that point, the officers listed
Nicholas and Emily as potential suspects.
KC Teriyaki' s closes at 9: 00 P. M. Choe' s usual closing procedure is to turn off the open
sign and put the money from the day' s sales into a bank bag. At closing on February 9, Choe
removed the money from the register, approximately $ 800, and put it in a bank bag with his
wallet. He set the bag on a stool behind the counter. Choe then went into the kitchen to prepare
an order for a customer who had come in late; Choe told Ortiz he could leave for the night. Ortiz
stated that when Ortiz opened the side door to leave, two young men, approximately six feet tall,
wearing hoodies and bandanas over their faces and holding guns, pushed open the door, entered
the restaurant, and demanded money. The two men noticed the bank bag on the chair, grabbed
it, left through the side door, and ran across the street. Ortiz stated that it seemed as though the
two men were waiting for someone to open the side door so they could get into the restaurant.
A customer in the restaurant witnessed two men and Ortiz scuffle. She stated that one of
the two men had a handgun pointed at Ortiz, while the other grabbed something from under the
counter. The customer' s husband, who was waiting in his car outside the restaurant, saw two
men with covered faces running from the side of the restaurant. He stated that one of them
carried a gun. According to Choe, the restaurant' s side door is an iron door that is kept closed
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during business hours and, except in cases of emergencies, is used only by employees. The side
door is hidden by bushes and cannot be seen from the road. Ortiz further explained that
customers use the main, front entrance to enter the restaurant, and that the side door is used only
by employees, usually to take out the trash and exit at the end of a shift.
The following night the officers received a call from a person who identified himself as
Matt." Clerk' s Papers ( CP) at 484. He provided the police his phone number. Matt stated ( 1)
that a person named Nicholas Mayer was bragging about having recently robbed a Vancouver
restaurant; ( 2) that Nicholas had a revolver that he recently gave away to someone; and ( 3) that
Nicholas had a lot of cash, which was unusual for him. Matt also gave specific information that
Nicholas was with his girlfriend Sarah Baker, riding in a grey pickup. Based on Matt' s
information and their investigation, the officers went to the particular location Matt provided and
stopped a grey pickup. Inside the pickup were Nicholas, Baker, and another passenger, all of
whom went to the police precinct for interviews.
Subsequently, Deputy Tom Dennison called Matt, who agreed to and did provide a
statement. Dennison then interviewed Baker, who .stated that Nicholas admitted to her that he
had robbed a teriyaki restaurant.
Dennison later interviewed Nicholas. Before talking to him, Dennison read Nicholas his
Miranda2
rights from a card that he carried with him. Nicholas understood his rights, waived
them, and agreed to have his interview recorded. After starting the recording, Dennison re -read
Nicholas his Miranda rights. When asked if he understood his rights, Nicholas asked what he
would do if he wanted an attorney and could not afford one. Dennison responded that if
Nicholas was arrested and charged with a crime, when he went before a judge he would be
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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appointed an attorney if he could not afford one. Nicholas stated that he understood his rights
and would talk to Dennison. Nicholas admitted his involvement in the KC Teriyaki restaurant
robbery.
II. PROCEDURAL HISTORY
On February 24, 2012, the State charged Nicholas by amended information with first
degree robbery with two firearm enhancements, first degree burglary with two firearm
enhancements, residential burglary, three counts of theft of a firearm, three counts of second
degree unlawful possession of a firearm, third degree theft, and first degree attempted trafficking
in stolen property. Nicholas moved, under CrR 3. 6, to suppress his statements, arguing that the
officers unlawfully stopped and detained him. Nicholas also moved, under CrR 3. 5, to suppress
his alleged confession to the crimes, ' arguing that the officers gave him improper Miranda
warnings. The trial court denied both motions and entered findings of fact and conclusions of
law.
At the close of the State' s case, the trial court dismissed the trafficking charge. The jury
found Nicholas guilty on all other counts and the four firearm enhancements. Nicholas received
a 306 -month sentence, which included 240 months for the firearm enhancements. Nicholas
appeals.
ANALYSIS
SUFFICIENT EVIDENCE SUPPORTS NICHOLAS' S FIRST DEGREE BURGLARY CONVICTION
Nicholas argues there is insufficient evidence to support his burglary conviction because
he remained only in places open to the public in the KC Teriyaki restaurant. We disagree and
hold that there is sufficient evidence beyond a reasonable doubt that Nicholas unlawfully entered
and unlawfully remained in the restaurant.
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Evidence is sufficient if, when viewed in a light most favorable to the State, it permits
any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
State v. Salinas, 119 Wn.2d 192,. 201, 829 P. 2d 1068 ( 1992). " A claim of insufficiency admits
the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom,"
which should be interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201.
Circumstantial evidence and direct evidence are deemed equally reliable. State v. Delmarter, 94
Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " Credibility determinations are for the trier of fact and
cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).
A person is guilty of first degree burglary
if, with intent to commit a crime against a person or property therein, he or she
enters or remains unlawfully in a building and if, in entering or while in the
building or in immediate flight therefrom, the actor or another participant in the
crime ( a) is armed with a deadly weapon, or (b) assaults any person.
RCW 9A.52. 020( 1). " A person ` enters or remains unlawfully' in or upon premises when he or
she is not then licensed, invited, or otherwise privileged to so enter or remain." RCW
9A.52. 010( 5). A license or privilege to enter or remain in a building that is only partly open to
the public is not a license or privilege to enter or remain in that part of the building which is not
open to the public. RCW 9A.52. 010( 5).
Whether a defendant enters or remains unlawfully in a building is decided on a case by
case basis. State v. Collins, 110 Wn.2d 253, 258, 751 P. 2d 837 ( 1988). An individual' s presence
may be unlawful because of an implied limitation on, or revocation of, his privilege to be on the
premises." Collins, 110 Wri.2d at 258. If an individual exceeds the scope of his invitation into a
building, he has remained unlawfully therein. Collins, 110 Wn.2d at 255. Where a defendant' s
initial entry was clearly unlawful, the sufficiency of evidence that he or she remained unlawfully
follows automatically. State v. Cordero, 170 Wn. App. 351, 366, 284 P. 3d 773 ( 2012).
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Here, Nicholas hid outside a side door to the KC Teriyaki restaurant. This iron door, not
usually used by customers except in emergencies, is kept closed during business hours. It is used
by employees to take the trash out and exit the restaurant at the end of a work shift. When Ortiz
exited the side door after the restaurant' s business hours, Nicholas pushed him back into the
restaurant, entered the door with a gun drawn, and demanded money.
When drawing all reasonable inferences in the State' s favor, we hold there is sufficient
evidence that Nicholas entered and remained unlawfully in the KC Teriyaki restaurant. He
exceeded the scope of his invitation. The time of Nicholas' s entry occurred after the restaurant' s
normal business hours. Nicholas did not enter the restaurant through the front entrance or for the
purpose of ordering or eating food; he forcefully entered through a hidden side entrance with the
intent to steal money. Accordingly, we hold there is sufficient evidence that Nicholas unlawfully
entered the restaurant. Thus, there is also sufficient evidence that he unlawfully remained in the
closed restaurant while he completed the robbery.
II. THE To CONVICT INSTRUCTION FOR FIRST DEGREE BURGLARY DID NOT VIOLATE
NICHOLAS' S RIGHT To A UNANIMOUS JURY VERDICT.
Nicholas argues there is insufficient evidence that he unlawfully remained in the
restaurant and because the jury instructions stated the jury could find him guilty for either
unlawful entering or unlawful remaining without requiring jury unanimity on either alternative,
he was deprived of his constitutional right .to a unanimous jury verdict. Because sufficient
evidence supports that Nicholas both unlawfully entered and unlawfully remained in the
restaurant, Nicholas received his constitutional right to a unanimous jury verdict.
We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d
378, 382, 103 P. 3d 1219 ( 2005). We also review constitutional challenges de novo. State v.
Cubias, 155 Wn. 2d 549, 552, 120 P. 3d 929 ( 2005).
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Nicholas contends State v. Klimes, 117 Wn. App. 758, 73 P. 3d 416 ( 2003), overruled in
part by State v. Allen, 127 Wn. App. 125, 110 P. 3d 849 ( 2005), supports this argument. But
Klimes is no longer good law. In Allen, Division One of this court retreated from its
overstatement in Klimes that the unlawful entering and unlawful remaining ways of committing
burglary are repugnant to one another. 127 Wn. App. at 132. " Regardless of whether the
defendant possessed an intent to commit a crime at the time of the unlawful entry, if the
defendant unlawfully remains with the intent to commit a crime, we see no reason such conduct
does not satisfy the requirements for burglary." Allen, 127 Wn. App. at 133. Thus, in most
burglary cases, juries can be instructed as to both means and no special jury instruction or
prosecutorial election of means is required. State v. Johnson, 132 Wn. App. 400, 409 -10, 132
P. 3d 737 ( 2006).
So long as there is sufficient evidence as to each means or so long as a reviewing
court can tell that the verdict was based on only one means which was supported
by substantial evidence, a general verdict finding the defendant guilty of burglary
will stand.
Johnson, 132 Wn. App. at 410.
Here, we already have found that there is sufficient evidence that. Nicholas both
unlawfully entered and unlawfully remained in the restaurant. Thus, this argument fails.
III. THE OFFICERS PROPERLY STOPPED AND DETAINED NICHOLAS
Nicholas argues the trial court erred by denying his motion to suppress because the
officers improperly relied on an anonymous tip to stop him. Nicholas argues this stop violated
his federal and state constitutional right to be free from unreasonable searches and seizures.
Because the officers had corroborated the tip they received from an unknown but named
informant with information the officers already knew, the officers' stop did not violate
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Nicholas' s constitutional right to be free from unreasonable searches and seizures. We hold the
trial court did not err by denying Nicholas' s motion to suppress.
When reviewing the denial of a suppression motion, we determine whether substantial
evidence supports the challenged findings of fact and whether the findings of fact support the
conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009). " Evidence is
substantial when it is enough ` to persuade a fair -
minded person of the truth of the stated
premise. "' Garvin, 166 Wn.2d at 249 ( quoting State v. Reid, 98 Wn. App. 152, 156, 988 P.2d
1038 ( 1999)). Unchallenged findings of fact are considered verities on appeal. State v. Lohr,
164 Wn. App. 414, 418, 263 P. 3d 1287 ( 2011). We review de novo the trial court' s conclusions
of law pertaining to the suppression of evidence. Garvin, 166 Wn.2d at 249.
Here, Nicholas does not assign error to any of the trial court' s findings of fact from the
CrR 3. 6 hearing. Accordingly, our review is limited to a de novo determination of whether the
trial court derived proper conclusions from the unchallenged findings.
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington State Constitution prohibit unreasonable searches and seizures. State v. Day, 161
Wn.2d 889, 893, 168 P. 3d 1265 ( 2007). Generally, warrantless searches and seizures are
unreasonable and violate the Fourth Amendment and article I, section 7. Garvin, 166 Wn.2d at
249. There are " a few `jealously and carefully drawn exceptions' to the warrant requirement,"
Terry3
including investigative stops. State v. Duncan, 146 Wn.2d 166, 171, 43 P. 3d 513 ( 2002)
quoting State v. Williams, 102 Wn.2d 733, 736, 689 P. 2d 1065 ( 1984)). A police officer may
conduct a warrantless investigative stop based upon less evidence than is needed to establish
probable cause to make an arrest. State v. Acrey, 148 Wn.2d 738, 746 -47, 64 P. 3d 594 ( 2003).
3
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).
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But the officer must have " a reasonable suspicion, grounded in specific and articulable facts, that
the person stopped has been or is about to be involved in a crime." Acrey, 148 Wn.2d at 747.
A reasonable, articulable suspicion means that there ` is a substantial possibility that criminal
conduct has occurred or is about to occur. "' State v. Snapp, 174 Wn.2d 177, 197 -98, 275 P. 3d
289 ( 2012) ( quoting State v. Kennedy, 107 Wn.2d 1, 6, 726 P. 2d 445 ( 1986)). The officer' s
suspicion must relate to a particular crime rather than a generalized suspicion that the person
detained is " up to no good." State v. Bliss, 153 Wn. App. 197, 204, 222 P. 3d 107 ( 2009).
Information supplied by another person may authorize an investigative stop if the
informer' s tip demonstrates some "` indicia of reliability. "' State v. Lesnick, 84 Wn.2d 940, 943,
530 P. 2d 243 ( 1975) ( quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed.
2d 612 ( 1972)). Our Supreme Court first stated that reliability can be established if (1) the
informant was reliable or ( 2) the officer's corroborative observation suggests either the presence
of criminal activity or that the information was obtained in a reliable fashion. State v. Z U.E.,
178 Wn. App. 769, 781, 315 P. 3d 1158 ( 2014) ( citing Lesnick, 84 Wn.2d at 944). Our Supreme
Court subsequently clarified that "` reliability by itself generally does not justify an investigatory
detention.' Instead, a reliable informant' s tip also must be supported by a ` sufficient factual
basis' or ` underlying factual justification' so officers can assess the probable accuracy of the
informant' s conclusion." Z.U.E., 178 Wn. App. at 781 ( quoting State v. Sieler, 95 Wn.2d 43, 48,
621 P. 2d 1272 ( 1980)). Thus, " an informant' s report can provide reasonable justification for an
officer' s investigative stop in two situations: ( 1) when the information available to the officer
showed that the informant was reliable or ( 2) when the officer' s observations corroborate either
the presence of criminal activity or that the informant' s report was obtained in a reliable
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fashion." Z.U.E., 178 Wn. App. at 782 ( citing Sieler, 95 Wn.2d at 47 -48; Lesnick, 84 Wn.2d at
944).
We determine the propriety of an investigative stop —the reasonableness of the officer' s
suspicion —based on the " totality of the circumstances." Snapp, 174 Wn.2d at 198. The focus is
on what the officer knew at the time of the stop. State v. Lee, 147 Wn. App. 912, 917, 199 P. 3d
445 ( 2008). A court must base its evaluation of reasonable suspicion on "` commonsense
judgments and inferences about human behavior. ' Lee, 147 Wn. App. at 917 ( quoting Illinois v.
Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 ( 2000)).
Whether a warrantless investigative stop was justified or represents a constitutional
violation is a question of law, which we review de novo. State v. Bailey, 154 Wn. App. 295,
299, 224 P. 3d 852 ( 2010). The State bears the burden of showing the propriety of an
investigative stop. Acrey, 148 Wn. 2d at 746. If the initial stop .was unlawful, the evidence
discovered during that stop is not admissible because it is fruit of the poisonous tree. Kennedy,
107 Wn.2d at 4.
In this case, considering the totality of the circumstances, the information available to the
officer demonstrated the informant' s reliability. Thus, the Terry stop was proper. The day after
the incident at the KC Teriyaki restaurant,
a person named Matt called 911 to
following: He had a friend named
report the
Nicholas Mayer, who was about 24 or 25 years old; Nicholas had been bragging
about committing an armed robbery of a restaurant in Vancouver within the past
several days; Nicholas had a " butt load of cash on him," which is not normal for
Nicholas; Nicholas had a revolver, which he recently gave to someone; Nicholas
was with his girlfriend, named Sarah Baker; Nicholas and Sarah were traveling in
a grey Dodge Dakota ( pick up truck), and that they had just arrived at a bar at
Dollars Corner ( in Battleground); and Nicholas was known to have Heroin on
him.
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CP at 484. Matt did not want to provide his last name, but he did provide his telephone number.
Matt, therefore, is classified as an unknown, but named, informant and cannot be characterized
as an anonymous informant.
Although Matt did not want to provide any additional personal information, he did
provide significant corroborating information regarding the armed robbery of the KC Teriyaki
restaurant. The officers were aware that Choe had recently fired Emily for suspected stealing
and that she had an older brother who had " a drug problem." 1 RP at 22. Matt told officers that
Nicholas was bragging about having recently robbed a Vancouver restaurant and that he
frequently had heroin in his possession. Through their independent investigation, the officers
knew of Emily' s brother, Nicholas. The police considered Nicholas and Emily to be possible
suspects. Matt identified the individual he called about as Nicholas Mayer. The officers were
aware that the suspects were armed at the time of the robbery. Matt stated that Nicholas had
recently given away a gun. The officers were also aware that approximately $ 800 had been
taken from the KC Teriyaki restaurant. Matt stated that Nicholas had a lot of cash on hand,
which was unusual. Thus, the information Matt provided corroborated information that the
officers already knew. Additionally, Matt provided specific information as to Nicholas' s
location, whom he was with, and what type of vehicle he was driving. The officers found the
pickup where Matt said it could be located. When the officers stopped the grey pickup, there
were three occupants, including Nicholas and Baker.
Malt' s the information the police already possessed. The
reliable tip corroborated
officers' stop did not violate Nicholas' s constitutional right to be free from unreasonable
searches and seizures. We hold the trial court did not err by denying Nicholas' s motion to
suppress.
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IV. NICHOLAS RECEIVED PROPER MIRANDA WARNINGS
Nicholas also argues the trial court erred by denying his motion to suppress his
statements because the officer' s Miranda warnings did not properly apprise him of his right to an
attorney. The officer read Nicholas his Miranda warnings and then explained the process to
obtain an attorney if Nicholas could not afford one. We hold that the warnings Nicholas
received satisfied Miranda and the trial court did not err by denying Nicholas' s motion to
suppress his statements.
When reviewing the denial of a suppression motion, we determine whether substantial
evidence supports the challenged findings of fact and whether the findings of fact support the
conclusions of law. Garvin, 166 Wn.2d at 249. " Evidence is substantial when it is enough ` to
persuade a fair -
minded person of the truth of the stated premise. "' Garvin, 166 Wn.2d at 249
quoting Reid, 98 Wn. App. at 156). Unchallenged findings of fact are considered verities on
appeal. Lohr, 164 Wn. App. at 418. We review de novo the trial court' s conclusions of law
pertaining to the suppression of evidence. Garvin, 166 Wn.2d at 249.
The Fifth Amendment to the United States Constitution states that "[ n] o person ... shall
be compelled in any criminal case to be a witness against himself." Article I, section 9 of the
Washington State Constitution states that "[ n] o person shall be compelled in any criminal case to
give evidence against himself" The protection provided by the state provision is coextensive
with that provided by the Fifth Amendment. State v. Unga, 165 Wn.2d 95, 100, 196 P. 3d 645
2008).
Prior to any custodial interrogation, a suspect must be informed that " he has the right to
remain silent, that anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed
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for him prior to any questioning." Miranda v. Arizona, 384 U. S. 436, 479, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 ( 1966). Although no magic words are required, Miranda warnings must " clearly
inform[]" the individual of his rights. Miranda, 384 U. S. at 471. The Miranda warnings are
not themselves rights protected by the Constitution but [ are] instead measures to insure that the
right against compulsory self incrimination
- [ is] protected." Michigan v. Tucker, 417 U.S. 433,
444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 ( 1974). " Reviewing courts therefore need not examine
Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is
simply whether the warnings reasonably "` conve[ y] to [ a suspect] his rights as required by
Miranda. ' Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 ( 1989)
quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696 ( 1981))
alteration in original).
In Duckworth, the officers told the suspect " that he had the right to remain silent, that
anything he said could be used against him in court, that he had the right to speak to an attorney
before and during questioning, that he had this right to the advice and presence of a lawyer even
if [he could] not afford to hire one, and that he had the right to stop answering at any time until
he] talked to a lawyer." 492 U. S. at 203 ( alteration in original) ( internal quotation marks
omitted). The officers then added " that they could not provide respondent with a lawyer, but that
one would be appointed if and when you go to court." Duckworth, 492 U. S. at 203 ( internal
quotation marks omitted). The Supreme Court stated that "[ w]e think it must be relatively
commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain
counsel," and held that these initial warnings satisfied Miranda. Duckworth, 492 U. S. at 204 -05.
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Here, the officers read Nicholas his Miranda warnings, and he waived his rights by
stating, " Let' s talk." CP at 486. The officers then asked to record Nicholas' s interview, to
which Nicholas agreed. Once the officers began recording, the following exchange occurred:
DEPUTY DENNISON: Okay. Do I have your permission to record this
statement?
MR. MAYER: Yes.
DEPUTY DENNISON: Okay. So you ( inaudible). I read you your
Miranda prior to it, but now that we' re on — on recording, I' m going to read it to
you again, okay? You have the right to remain silent. Anything you say can be
used against you in a court of law. You have the right at this time to talk to a
lawyer and have him present with you while you are being questioned. If you
cannot afford to hire a lawyer, one will be appointed to represent you before
questioning if you wish. You can decide at any time to exercise these rights and
not answer any any statements.
questions or make Do you understand each of
these rights as I' ve explained them to you?
MR. MAYER: Yes. Um, If I wanted an attorney and I can' t afford one,
what —what would —?
DEPUTY DENNISON: If you wanted an attorney —you know, if you
were charged with a crime and arrested, if you wanted an attorney and couldn' t
afford one, the Court would be willing to appoint you one. Do you want me to go
over that with you again?
MR. MAYER: Yeah, but how would that work? Will you be —how it—
how I—
DEPUTY DENNISON: You' re not under arrest at this point, right?
MR. MAYER: Oh, okay. Okay.
DEPUTY DENNISON: So, if you were, then you would be taken to jail
and then you' d go before a. judge and then he would ask you whatever at that
point, if you were being charged, you would be afforded an attorney if you
couldn' t hi —you know, if you weren' t able to afford one.
MR. MAYER: All right. I understand.
DEPUTY DENNISON: Understand?
MR. MAYER: Yeah.
DEPUTY DENNISON: Okay. So you do understand your rights?
MR. MAYER: Yes.
DEPUTY DENNISON: Keep your rights in mind. Do you want to
explain to us or talk to us about — all right, you know, I told you why you' re here.
There was a robbery at the — at KC Teriyaki and your name has come up. So,
keeping your rights in mind, do you want to talk to us about it?
MR. MAYER: Okay.
1 RP at 78 -80.
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In this case, like in Duckworth, Nicholas received Miranda warnings and then was also
told the process to have an attorney appointed if he could not afford one. Deputy Dennison
believed Nicholas' s question about an attorney pertained to how he could get an attorney if he
could not afford one and that he did not request an attorney at that time. For this reason Deputy
Dennison explained the process for having an attorney appointed. As the Duckworth Court
noted, it is relatively common for a suspect to ask when and how he will obtain counsel if he
cannot afford one. 492 U.S. at 204 -05. Thus, we hold that the warnings Nicholas received
satisfied Miranda, and the trial court did not err by denying Nicholas' s motion to suppress his
statements.
V. STATE WITNESS' S TESTIMONY REGARDING PLEA BARGAIN DID NOT VIOLATE NICHOLAS' S
RIGHT To HAVE A FAIR AND IMPARTIAL JURY BE THE SOLE JUDGE OF THE FACTS
Nicholas argues the State improperly bolstered Emily' s credibility by questioning her
about a condition of her plea bargain to testify truthfully. Nicholas argues that by allowing
Emily' s testimony, the trial court violated his constitutional right to have the jury be the sole
judge of the facts and to determine the credibility of witnesses. We hold that the State did not
improperly vouch for Emily' s credibility by questioning her about the condition of her plea
bargain to testify truthfully.
Generally, the State cannot admit evidence that a witness has agreed to testify truthfully
in its case in chief. State v. Ish, 170 Wn.2d 189, 198, 241 P. 3d 389 ( 2010). On redirect,
however, the State may question its witness about an agreement to testify truthfully where the
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defense first questioned the witness about the agreement on cross- examination.4 Ish, 170 Wn.2d
at 198 -99.
Here, a condition of Emily' s plea bargain was to testify truthfully in Nicholas' s trial. On
cross -examination, Nicholas questioned Emily about reasons to doubt her credibility, including
that she had received a plea bargain. Nicholas specifically asked Emily, " And the agreement
says you' re supposed to testify truthfully" and " according to what you told them earlier ?" 4B RP
at 802 -03. On redirect, the State questioned Emily about her plea bargain and her obligation
under the plea bargain to testify truthfully.
Because Nicholas questioned Emily about her plea bargain on cross -examination, he
opened the door to this subject for redirect. Thus, the trial court did not err by allowing the State
to question Emily on redirect about her obligation to testify truthfully. Nicholas was not denied
his right to have the jury be the sole judge of witness credibility.
VI. TRIAL COURT DID NOT ERR BY DENYING NICHOLAS' S MOTION To CONTINUE
Nicholas argues he was denied effective assistance of counsel because the trial court
denied his motion for a continuance of the trial date. We disagree and hold the trial court did not
err and that Nicholas was not denied effective assistance of counsel.
4
A defendant may, however, impeach a witness on cross -examination by
referencing any agreements or promises made by the State in exchange for the
witness' s testimony. During such cross -examination, the agreement may be
marked as an exhibit, but not necessarily admitted, and relevant portions may be
disclosed to the
jury. If the agreement contains provisions requiring the witness
to give truthful testimony, the State is entitled to point out this fact on redirect if
the defendant has previously attacked the witness' s credibility.
Ish, 170 Wn.2d at 198 -99.
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A. MOTION To CONTINUE
We review a trial court' s decision to deny a continuance to determine if the trial court
exercised its discretion based on untenable grounds or reasons. In re Dependency of V.R.R., 134
Wn. App. 573, 581, 141 P. 3d 85 ( 2006). A court considers various factors when it decides a
motion to continue, including diligence, due process, the need for an orderly procedure, the
possible effect on the trial, and whether the court previously granted continuances. V.R. R., 134
Wn. App. at 581. To show that the, denial of a continuance violated the right to due process, the
defendant must show either that he was prejudiced by the denial or that the outcome would have
been different if the continuance had been granted. V. R.,
R. 134 Wn. App. at 581.
Nicholas argues he was prejudiced because his counsel received late DNA evidence and
therefore did not have time to employ an expert to evaluate and counter the DNA evidence to
prepare a defense. The record, however, does not support Nicholas' s assertion. Instead, the
record demonstrates that Nicholas' s counsel was well -
prepared and made a strong case for him.
Nicholas' s counsel extensively cross -examined the State' s DNA witness, questioning the DNA
witness about, among other things, the DNA locations on a chromosome used to evaluate the
DNA evidence; the collection, storage, and testing processes; the precautions taken to avoid
contamination; and the statistical analysis performed. Nicholas fails to show prejudice and does
not establish ineffective assistance of counsel. Thus, his due process argument fails.
Further, Nicholas received the DNA evidence on September 24, but did not move for a
continuance until the readiness hearing on October 4, four days before trial was set to begin. The
trial court noted the " somewhat short on provision of this evidence," but that Nicholas did not
move to continue until the readiness hearing, " which makes it very short notice to reschedule the
entire trial, which does have a number of witnesses." 2 RP at 240. The trial court also stated
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that it was familiar with a portion of the evidence from the CrR 3. 5 and CrR 3. 6 hearings and
that the DNA evidence was not a central part of the State' s case and was not critical evidence.
Thus, considering the importance of evidence, the timeframe of when the evidence was
introduced and when Nicholas moved to continue, and that trial was set to begin in only four
days, the trial court concluded that a continuance was not justified.
In a similar case, our Supreme Court affirmed the trial court' s denial of the defendant' s
motion to continue to obtain an expert witness. State v. Downing, 151 Wn.2d 265, 274, 87 P. 3d
1169 ( 2004). The court held that although the defendant was surprised and did act diligently to
secure an expert, a continuance was unnecessary because the expert testimony would not change
any material facts. Downing, 151 Wn.2d at 274. In so holding, the court stated: " While
reasonable minds may differ, we cannot say that . the trial court' s determination that the
maintenance of orderly procedure outweighed the reasons favoring a continuance, such as
surprise and due diligence, was manifestly unreasonable." Downing, 151 Wn.2d at 274.
Similarly, here, we determine that the DNA evidence was not central to the State' s case.
Instead, the DNA evidence merely corroborated extensive witness testimony and Nicholas' s
confession during his interview after arrest. The trial court weighed the timeline of events
against the evidence at issue and concluded that a continuance was not necessary. Although
reasonable minds may differ, we hold that the trial court' s decision was not manifestly
unreasonable. We hold the trial court did not err by denying Nicholas' s motion to continue.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
To prove ineffective assistance of counsel, Nicholas must show that counsel' s
performance was so deficient that it "fell below an objective standard of reasonableness" and that
the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816
1987) ( quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674
1984)). There is a strong presumption that defense counsel' s performance was not deficient.
State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). Performance was not deficient
if counsel' s conduct can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn.2d
856, 863, 215 P. 3d 177 ( 2009). To establish prejudice, the defendant must show a reasonable
probability that the deficient performance affected the outcome of the trial. Thomas, 109 Wn.2d
at 226. We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P. 3d 916 ( 2009).
Nicholas' s counsel was well -
prepared and had a significant breadth of knowledge
regarding DNA testing and interpretation of the results. Nicholas' s counsel extensively cross -
examined the State' s DNA witness. Thus, Nicholas does not establish deficient performance.
Furthermore, as we established above, the trial court' s denial of Nicholas motion to continue did
not prejudice him. Having failed to meet both prongs of the test, Nicholas does not show that his
counsel rendered ineffective assistance.
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We affirm Nicholas' s convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
T,../,
j orgen, J.
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State Of Washington, V Nicholas Keith Mayer
Combined Opinion