FILED
MARCH 21, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33909-2-111
Respondent, )
)
V. )
)
NICHOLAS A. LIMPERT, ) UNPUBLISHED OPINION
)
Appellant, )
)
DESARAE M. DAWSON, )
)
Defendant. )
KORSMO, J. - Nicholas Limpert appeals his conviction for attempted second
degree assault, arguing that the court should not have admitted statements made by his
codefendant at trial, and that the prosecutor committed misconduct in closing argument.
We affirm.
FACTS
Mr. Limpert and Deserae Dawson jointly were charged with conspiracy to commit
robbery and robbery in the first degree. Mr. Limpert was also charged with attempted
second degree assault. The charges arose out of a failed narcotics transaction at a
Spokane hotel.
No. 33909-2-III
State v. Limpert
There is a reasonably large cast list for this production. In simplified form, victim
Makelle Hamilton, her brother, and her boyfriend had excess narcotics they wanted to
sell. They contacted an acquaintance, Brenden McCullough, and let him know they had
pills for sale. McCullough in tum contacted Mr. Limpert and Ms. Dawson, and the three
of them devised a plan to "short" Ms. Hamilton by disguising the size of the payment and
leaving with the full amount of drugs for a partial payment. 1
McCullough purchased the drugs by giving the undervalued amount of currency
and also leaving, as collateral, the telephone belonging to another acquaintance, Michelle
Pearson. McCullough, however, had no intention of ransoming the telephone with the
remaining balance owed on the transaction. He departed with the drugs.
Ms. Pearson learned about the misuse of her telephone and went to Ms. Hamilton
to retrieve it. Hamilton refused to return the phone and ejected Pearson from the hotel
room. Pearson alerted Limpert and Dawson that she needed help to recover her
telephone. Meanwhile, Ms. Hamilton's boyfriend had left to find McCullough, and then
her brother left to find both men. Limpert and Dawson arrived at the hotel room to find
Ms. Hamilton alone.
1
The plan used the time-honored "big roll" method of providing a roll of money
with the largest denomination on top and a large number of $1 bills underneath in order
to leave the impression that the full amount of payment was present.
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State v. Limpert
The duo demanded the return of Pearson's phone, with Limpert displaying a knife.
Hamilton questioned the need to use a knife against a woman, so Limpert put it away and
began choking Hamilton. 2 The victim's brother returned to the room and broke up the
fight. After the defendants departed, Hamilton's brother reported the incident to a
detective. The police investigated by contacting Ms. Hamilton and, later, Mr. Limpert
and Ms. Dawson. The pills were recovered from Dawson's vehicle. She told police that
she had not seen Limpert display a knife in the hotel room, but she had heard Hamilton
say, "he just pulled a knife." The statement was later qualified for admission at the CrR
3.5 hearing. Neither of the attorneys for the two defendants objected to use of the
statement.
At trial, Ms. Hamilton described the confrontation with Limpert and told jurors
that he had pulled a knife on her. After putting the knife away, he choked her. The
prosecutor subsequently called the detective to testify and elicited, without objection, the
statement that Dawson reported Hamilton saying that "he just pulled a knife." When
Limpert's counsel cross-examined the officer about where the two defendants had said
they went after leaving the hotel room, the prosecutor objected, stating that "by not
separating the defendants we're getting into the possibility of mixing some Bruton
2Although Limpert continues to deny choking her, the jury verdict establishes
otherwise.
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No. 33909-2-III
State v. Limpert
issues." Report of Proceedings (RP) at 344. Limpert's counsel then clarified his question
by asking where Ms. Dawson had said the two were going.
The State rested at the conclusion of the detective's testimony. Mr. Limpert's
counsel then called two witnesses who had discussed the incident with Ms. Hamilton.
Both testified that Hamilton told them there was no physical altercation and there was no
knife. Limpert's counsel then called Pearson to the stand. She testified that she had been
involved in an altercation with Hamilton during her unsuccessful initial attempt to
recover the telephone.
In closing, the prosecutor told jurors that taking a property by force or intimidation
constituted robbery. "A great example is O.J. Simpson. He's in prison in Nevada right
now for going into a motel room-." Defense counsel objected, stating "that's another
state's law." The court overruled the objection and the prosecutor concluded that
Simpson "thought he was going to get personal property of his own when he went into
that motel room." RP at 420-4 21. Limpert' s counsel attacked Hamilton's credibility and
stressed her statements to the two defense witnesses that there was no altercation and no
knife. He stressed that any assault Hamilton reported likely was the encounter with
Pearson, not with Limpert and Dawson.
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No. 33909-2-III
State v. Limpert
The jury acquitted Limpert of the robbery and conspiracy to commit robbery
counts, but convicted him of attempted second degree assault. 3 After sentencing, Mr.
Limpert timely appealed to this court.
ANALYSIS
This appeal raises three issues. 4 First, we consider Mr. Limpert's contention that
his confrontation clause rights were violated by Hamilton's "he pulled a knife" statement.
Second, we consider his claim that the prosecutor committed misconduct by referencing
the O.J. Simpson robbery case. Finally, we summarily address the contention that the
trial court erred by imposing mandatory court costs totaling $800.
Confrontation Clause
Mr. Limpert argues that his right to confront Ms. Dawson was violated when the
detective elicited Dawson's statement reciting Hamilton's statement about Limpert
pulling a knife. Because of the failure to raise this claim at trial, he has not established
3
Ms. Dawson likewise was acquitted on the robbery and conspiracy charges.
4
Mr. Limpert also filed a statement of additional grounds raising two contentions.
First, he argues that the acquittal on the robbery count was inconsistent with the
attempted assault conviction because the prosecutor had to prove an intent to commit
robbery in both charges. However, the failure to prove robbery does not necessarily
mean that there was no intent to commit robbery. The jury may have been dissatisfied
with some other element of the charge. Second, he contends that it was improper to run
the assault sentence consecutive to an identity theft conviction arising from an incident
after the assault incident. However, the court had absolute discretion to run the two I
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sentences concurrently or consecutively as it saw fit. RCW 9.94A.589(3).
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that there was manifest constitutional error justifying review of this issue, which also was
at worst harmless error.
The confrontation clause of the Sixth Amendment to the United States
Constitution guarantees an accused the right to confront the witnesses against him. U.S.
CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 42, 51, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). This right, which applies to the states via the Fourteenth
Amendment's due process clause, necessarily speaks to a defendant's right to cross-
examine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 404-405, 85 S. Ct. 1065, 13
L. Ed. 2d 923 ( 1965). This protection has special significance in the context of co-
defendants when one of them has made statements to the police that implicate the other
defendant. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476
(1968). There the court ruled that the defendant Bruton's confrontation rights were
violated when the codefendant's statement, implicating Bruton in a robbery, was
admitted into evidence at their joint trial even though it was accompanied by a limiting
instruction that told the jury only to consider the statement against the confessing
defendant. Id. at 124-126.
Modem confrontation clause analysis is driven by Crawford. There the court
concluded that the right of confrontation extended only to "witnesses" who "bear
testimony" against the accused. 541 U.S. at 51. This "testimonial" hearsay rule reflected
"an especially acute concern with a specific type of out-of-court statement." Id. "An
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No. 33909-2-III
State v. Limpert
accuser who makes a formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does not." Id.
RAP 2.5(a)(3) provides that an issue of "manifest error affecting a constitutional
right" may be raised for the first time on appeal. While the Sixth Amendment is clearly a
constitutional right, the question of whether the confrontation clause itself presents an
issue of "manifest error" typically is not one that initially can be decided on appeal. The
reason for that is that the confrontation right must be asserted at trial lest it be waived.
State v. O'Cain, 169 Wn. App. 228, 247-248, 279 P.3d 926 (2012); State v. Schroeder,
164 Wn. App. 164, 168, 262 P.3d 1237 (2011). 5 This rule was reasserted, post-Crawford,
in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009). There the Court stressed that the States were free to require that confrontation
rights be asserted in order to be preserved:
The defendant always has the burden of raising his Confrontation Clause
objection; notice-and-demand statutes simply govern the time within which
he must do so. States are free to adopt procedural rules governing
objections .... It is common to require a defendant to exercise his rights
under the Compulsory Process Clause in advance of trial, announcing his
intent to present certain witnesses. . . . There is no conceivable reason why
he cannot similarly be compelled to exercise his Confrontation Clause
rights before trial.
Id. at 327 (citations omitted).
5
This rule has long been followed by both the United States and Washington
Supreme Courts. See, e.g., State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985)
(citing cases in context of sentence revocation proceeding).
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No. 33909-2-111
State v. Limpert
By not objecting below, Mr. Limpert waived the confrontation claim on appeal.
Accordingly, there is no manifest error that he can assert in this proceeding. The facts of
this case also show why the waiver doctrine is important in this context. First, the "pulled
a knife" statement is not even testimonial hearsay under Crawford that would violate the
confrontation clause. The statement was made by Ms. Hamilton to the two defendants.
This was not "testimony" being provided to the government for the purpose of trial. It was
a remark between acquaintances. 6 Second, both the original declarant (Ms. Hamilton) and
the ultimate declarant (the detective), testified at trial, so there was no confrontation clause
violation as to either of them. The only person who was not available to testify was Ms.
Dawson. Yet, Mr. Limpert's counsel repeatedly and successfully questioned the detective
to get the substance of Dawson's interview with the detective before the jury. 7 It appeared
to be the joint strategy of both defendants to downplay Hamilton's credibility by
impeaching her "knife" testimony with the statements she subsequently made to the two
defense witnesses denying that a knife was used. To that end, Dawson's statement that
Hamilton claimed a knife was present was useful testimony for the defense.
6
See State v. Wilcoxon, 185 Wn.2d 324, 373 P.3d 224, cert. denied 137 S. Ct. 580
(2016) (statement by one defendant to other acquaintance not testimonial hearsay despite
Bruton doctrine).
7
Interestingly, when the prosecutor warned of possible Bruton problems with the
phrasing of a defense question, Limpert's counsel immediately rephrased his questions in
a manner that expressly brought the confrontation problem to the fore. The decision was
clearly tactical.
8
No. 33909-2-111
State v. Limpert
These facts demonstrate why the alleged confrontation clause violation was not
manifest in this case. The statement itself was not testimonial and could only be turned
into an arguable confrontation clause issue by use of an unavailable middle person in the
hearsay chain. But, that evidence was part of the defense theory to paint Hamilton as an
unreliable witness. Having made use of Dawson's evidence, Mr. Limpert should not now
be allowed to claim constitutional error.
Regardless, any error in admitting Ms. Hamilton's statement also was harmless.
"It is well established that constitutional errors, including violations of a defendant's
rights under the confrontation clause, may be so insignificant as to be harmless." State v.
Guloy, 104 Wn.2d 412,425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986);
Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). "A
constitutional error is harmless if the appellate court is convinced beyond a reasonable
doubt that any reasonable jury would have reached the same result in the absence of the
error." Guloy, 104 Wn.2d at 425.
Here, the original declarant testified at trial that she made the statement, so the
evidence was at most cumulative to her direct evidence. Additionally, the knife
testimony went to the robbery and conspiracy charges that resulted in acquittals, while
the attempted assault count was based on the unchallenged testimony that Limpert
strangled Hamilton. The "pulled a knife" statement simply did not affect the verdict in
the least.
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No. 33909-2-111
State v. Limpert
The first argument is without merit. The claim of error was waived and, at most,
amounted to no more than harmless error.
Prosecutor's Argument
Mr. Lim pert next argues that the prosecutor committed misconduct by referencing
the conviction of sports figure O.J. Simpson for robbery in Nevada. He challenged the
analogy on different grounds in the trial court and fails here to establish such significant
error that he is entitled to any relief.
To prevail on a claim of prosecutorial misconduct, a defendant must establish that
the prosecutor's conduct was both improper and resulted in prejudice in light of the
context of the entire record and the circumstances at trial. State v. Thorgerson, 172
Wn.2d 438,442, 258 P.3d 43 (2011). Prejudice exists only where there is a substantial
likelihood the misconduct affected the jury's verdict. Id. at 442-443. When a defendant
fails to object to an improper remark, he or she waives a claim of error unless the remark
is "' so flagrant and ill intentioned that it causes an enduring and resulting prejudice that
could not have been neutralized by an admonition to the jury.'" Id. at 443 (quoting State
v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged
statement will be reviewed for a "substantial likelihood" that it affected the verdict, while
unchallenged statements will be considered only if the error was too egregious for a I
timely objection to be worthwhile. This court reviews alleged improper comments in the
context of the total argument, the issues in the case, the evidence addressed in the I
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No. 33909-2-111
State v. Limpert
argument, and the instructions given to the jury. State v. Brown, 132 Wn.2d 529,561,
940 P .2d 546 ( 1997).
The challenged comment falls in between the two noted extremes because the
argument Mr. Limpert presents now is different than the one he presented to the trial
court. There he argued the comment was improper because it involved the law of another
state, but here he claims that referencing the divisive figure of O.J. Simpson is an appeal
to passion and prejudice as well as a reference to evidence outside the record. Thus,
because the objection in the trial court is not the one he makes now, this claim is best
treated as if he made no objection at trial. His original objection gave the trial court no
reason to consider whether mere mention of the name of O.J. Simpson was affecting his
right to a fair trial or required reference to evidence outside of the record, let alone
whether some curative statement to the jury would have been in order.
We need not consider whether the remark constituted error since it is quite clear
that it did not likely affect the verdict. The purpose of the analogy was to open the
prosecutor's remarks on the robbery charge with the reminder of a similar robbery
conviction resulting from an attempt to reclaim one's personal property in a hotel room.
Since the jury acquitted on the robbery and the associated conspiracy count, we are quite
certain that the O.J. Simpson analogy was not prejudicial to Mr. Limpert. Accordingly,
even if the remark constituted such egregious misconduct that a proper objection was
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No. 33909-2-III
State v. Limpert
excused, Mr. Limpert would not prevail because the comment simply did not harm his
case.
The misconduct claim is meritless.
Legal Financial Obligations
The trial court imposed $800 worth of legal financial obligations (LFOs) that the
legislature has mandated be imposed at sentencing--the crime victim's compensation
penalty, the filing fee, and the DNA testing fee. Mr. Limpert argues that the court should
have conducted the individualized inquiry into his ability to pay before imposing any
LFOs.
This argument has been rejected many times and we will not add to what has been
said previously. See generally State v. Stoddard, 192 Wn. App. 222,225, 366 P.3d 474
(2016); State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).
Accordingly, the judgment is affirmed.
A majority of the panel has determined 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:
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State of Washington v. Nicholas Adam Limpert
Combined Opinion