STATE v. HAGINS, 29131-2-II (Wash.App. 4-27-2004)

No. 29131-2-II.The Court of Appeals of Washington, Division Two.
Filed: April 27, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 01-1-05013-5. Judgment or order under review. Date filed: 07/19/2002. Judge signing: Hon. Frederick Fleming.

Counsel for Appellant(s), Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.

Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.

MORGAN, A.C.J.

Andra Marc Hagins appeals convictions for first degree murder, first degree arson, and first degree robbery. We affirm.

In August 2001, Hagins and Leanne Hunter were boyfriend and girlfriend. Shad Phillips was a friend or acquaintance. Over a period of two or three days, the three of them got `high’ on drugs.[1] On or about August 26, 2001, they were at Phillips’s house when he declared that he wanted to `lay down for a while and try to get some sleep.’[2]

After Phillips left the room, Hagins told Hunter that he and she `were going to be going home, back to Bremerton.’[3] He showed her `a key to [Phillips’s] car and said that we were going to take the car.’[4] He asked her, `[D]oes [Phillips] have any money, you know, did you see how much drugs he has left, stuff like that[.]’[5] He said that he `had a bottle, like a wine bottle or something, in his hand, and he told me that he was going to hit [Phillips] in the head and knock him out, take whatever money and drugs he had, and that we were going to leave in the car.’[6]

Hunter went into the shower. As she turned it on, she `[heard] some noises coming from the living room, sounded like a struggle or a fight was occurring.’[7] Hunter heard a `big boom[,]’ followed by `heavy breathing and . . . somebody coming down the hallway.’[8] Hagins came into the room and told Hunter to get out of the house. As she left, Hunter saw Phillips `laying on the ground.’[9] Phillips’s body was found later, with blunt force trauma to the back of the head.

Hunter got into the passenger side of Phillips’s car, which was in the garage. As she did, she heard `a spraying noise[,]’ followed by `what sounded like a fire starting, like a poof sounds[.]’[10] Hagins then entered the garage and got into the driver’s seat of Phillips’s car. He was carrying a `round log’ and a spray can.[11]

Hagins drove to Olympia. On route, he was `smoking crack cocaine’ belonging to Phillips.[12] When he and Hunter reached Olympia, he stopped and told her to throw the log and the spray can out of the window, which she did. They abandoned Phillips’s car and went to a bar, where Hunter was surprised to see that Hagins had money. Ultimately, he left her at her grandmother’s house.

About a week later, Hagins told Hunter to tell the police that she was the one who had killed Phillips. Hagins instructed her to say that after Phillips had raped her, she had `grabbed a fireplace log’ and hit him in the back of the head.[13]

The next morning, Hunter told a detective that she was `the one you’re looking for,’ and that she, not Hagins, had killed Phillips.[14]
Eventually however, she implicated Hagins and led the police to the fireplace log and spray can that Hagins had told her to throw from the car. When the log was compared to one still at Phillips’s house, the two `appeared . . . exactly the same, from the same tree, the same log[;]’[15] in fact, they appeared to be `two pieces of wood from the same fir tree, [the] same branch[.]’[16] Also, the shape of the log found in Olympia was consistent with the pattern of the injury on the back of Phillips’s head.

The police recovered Phillips’s wallet from a dumpster outside a motel in Olympia. It contained Phillips’s `belongings, credit cards and social security card.’[17]

The police found Phillips’s car in a parking lot in Olympia. It had a cigarette butt in the ashtray. The butt had saliva on it, from which DNA was extracted. A DNA comparison showed that `Phillips could not be the source of the . . . cells recovered from the cigarette butt, but . . . [that] Hagins could be. . . .’[18]

On September 28, 2001, the State charged Hagins with first degree felony murder committed in the course of a robbery, first degree arson, and first degree robbery. During the ensuing jury trial, a juror (`Juror 14′) told the judicial assistant that `[w]hen he left the building the person in the courtroom with the jersey on, sitting with the defendant’s father, took an elevator, went down the stairs, he evidently went — they went two different directions, but ended up in the same place. And this person went to [Juror 14’s] car like he knew where it was, followed [Juror 14], came within feet of him, looked at him, got on the telephone, and then walked away and came back down to the building. It just felt very strange . . ., like he had been followed,’ and he felt `intimidated’ and `concerned.’[19]

When the court learned of this development, it granted both sides an opportunity to question the jurors. Juror 14 said that when he went to lunch, he thought he might have been followed by a person who had been sitting near Hagins’s father during the morning court session. This had made the juror `kind of nervous’ and `cautious[,]’[20] but he thought that he could `still be a fair and impartial juror and base [his] verdict on the evidence and witnesses in court[.]’[21] He had not discussed the incident with other jurors, although they might have `overheard’ his conversation with the judicial assistant.[22] Hagins moved for a mistrial or to excuse Juror 14. The court excused the juror but deferred its decision on a mistrial until after the other jurors had been questioned.

When the other jurors were questioned, some said that they had overheard Juror 14 say he had been followed. Some believed he might mistakenly have thought he was being followed when in reality he and the other person were coincidentally walking to the parking lot at the same time. One juror said, `I guess [Juror 14] doesn’t know that somebody was following him. I don’t know that it wasn’t a coincidence.’[23] Another juror explained that he had once followed Hagins’s trial counsel `the whole way up the hill’ after leaving the courtroom, without meaning to, simply because they were headed in the same direction.[24] None of the jurors thought that his or her ability to be fair and impartial had been affected. Based on these responses, the trial court denied Hagins’s motion for a mistrial.

The State’s witnesses testified essentially as set forth above. Hagins chose not to testify but presented several witnesses not pertinent here. During closing arguments, the prosecutor stated that Hagins could not explain his `proximity to’ the getaway car `and ultimately to the murder[;]’ that Hagins could not `explain away’ the fact that he had been in Phillips’s car; and that the evidence did not contradict Hunter’s testimony.[25] The prosecutor also said that some of Hagins’s trial counsel’s arguments were `red herrings.’[26] The prosecutor further said that although Phillips had `led a screwed up life[,]’ including drugs and prostitution, he `might some day have turned his life around.’[27] Hagins objected to some but not all of the prosecutor’s statements. The jury convicted, and the trial court imposed a standard range sentence.

Hagins makes several claims on appeal. He argues through counsel that the trial court abused its discretion by denying a mistrial based on the incident with Juror 14; that his counsel rendered ineffective assistance by not requesting a curative instruction regarding Juror 14; and that the prosecutor engaged in misconduct by commenting on Hagins’s failure to present evidence. He argues pro se that the State failed to comply with his discovery requests and that the evidence is insufficient to support his conviction for first degree robbery.

I.
Hagins claims that the trial court abused its discretion by denying a mistrial based on the incident with Juror 14. In alternative but equivalent terms, he contends that the trial court was required to grant a mistrial, or that it had no discretion to deny a mistrial.

When deciding a motion for mistrial, a trial court generally has discretion.[28] Thus, the Washington Supreme Court has said:

A trial court’s denial of a motion for mistrial will be overturned only when there is a `substantial likelihood’ that the error prompting the . . . mistrial affected the jury’s verdict. Further, this court has held that trial courts `should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.’[29]

In this case, the trial court carefully questioned not only Juror 14, but the other jurors also. It excused Juror 14 even though he denied that his ability to be fair had been affected. It credited the truthfulness of the other jurors, who said they did not know what had happened and had not been affected by it. With the jurors before it, the trial court had discretion to grant or deny a mistrial, and it did not abuse that discretion by ruling as it did.

II.
Hagins argues that his counsel rendered ineffective assistance by failing to request an instruction that would have highlighted the Juror 14 incident. To show ineffective assistance, he must demonstrate (1) deficient performance and (2) resulting prejudice.[30] To show deficient performance, he must demonstrate that counsel’s omission fell below an objective standard of reasonableness and was not tactical.[31]
To show resulting prejudice, he must demonstrate `a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’[32]

Even though the court did not expressly instruct the jury to disregard the Juror 14 incident, its questioning of the jury necessarily imparted that message. An instruction would have highlighted the incident without accomplishing anything more than what had already been done. We conclude that counsel’s failure to request such an instruction was reasonable; that it did not affect the outcome of the case; and that Hagins has not shown deficient performance or resulting prejudice.

III.
Hagins claims that `[he] was denied a fair trial by improper statements made by prosecutors during closing arguments.’[33] Preliminarily, we set aside the statements to which Hagins did not object. `A defendant’s failure to object to a prosecuting attorney’s improper remark constitutes a waiver of such error, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.’[34] The statements to which Hagins did not object either were not erroneous or were so minor that any problem could easily have corrected by a contemporaneous objection and curative instruction. Hence, none of those statements warrants relief.

We turn to the statements to which Hagins did object. He claims on appeal that those statements impermissibly shifted the burden of proof or commented on his failure to take the stand; maligned his trial counsel; and either went beyond the evidence or appealed to the jury’s passion or prejudice.

We turn first to the statements that Hagins says impermissibly shifted the burden proof or commented on his failure to testify. The State bears the burden of proving every element of its case beyond a reasonable doubt,[35] and it may not shift any part of that burden to the defendant.[36] A prosecutor may not comment on the defendant’s failure to testify, but he or she may argue that the evidence is undisputed, provided that he or she does not identify a non-testifying defendant as the one who could dispute it.[37]

In this case, the prosecutor argued that Hagins `cannot explain . . . away his proximity to . . . the getaway car, and ultimately to the murder.’[38] He also argued that `Hagins cannot explain away that he was in that car.’[39] He also pointed repeatedly to the absence of evidence e.g., `there is no evidence that [Hagins] got to the hospital any way other than but in that stolen getaway car.’[40] The prosecutor did not err by stating the last, for he or she was merely arguing that no evidence contradicted the State’s case. The prosecutor approached error by making the first two statements (`Hagins cannot explain . . .’), but given that he or she might just as well have said, `There is no evidence that contradicts Hagins’s use of the car,’ we decline to find that error actually occurred.

We turn next to statements that Hagins says improperly assailed his trial counsel. Each case turns on `the particular facts and circumstances[,]’[41] and the cases nationally have reached varying results.[42] A `young, zealous prosecutor’ can certainly go too far,[43] as when he says in the presence of the jury, `Counsel is deliberately trying to mislead.’[44] The prosecutor here remained within bounds to the extent he or she referred to the arguments as misleading, but erred to the extent he or she referred to counsel as misleading.

We turn last to the statements that Hagins’s claims went beyond the evidence or appealed to passion and prejudice. The prosecutor erred to the extent he implied or attempted to imply that Phillips was an innocent man who had `gotten in over his head’ and been led astray by Hagins especially since the prosecutor had obtained rulings in limine that barred the defense from showing the unsavory aspects of Phillips’s life.

Having found that the prosecutor improperly argued in two ways, we turn to whether those improprieties were prejudicial or harmless. Error is harmless if, beyond a reasonable doubt, a reasonable jury would have reached the same result without the error.[45] Whether viewed individually or cumulatively, the errors found or assumed here could not possibly have affected the outcome of the trial because the evidence as a whole overwhelmingly demonstrated guilt. Although the prosecutor’s argument was not free of misconduct, the misconduct was clearly harmless beyond a reasonable doubt.

IV.
Citing State v. Cannon,[46] Hagins argues pro se that the trial court was required to dismiss, or in the alternative to suppress the State’s DNA evidence, because the State failed to comply with several discovery requests. The State requested and received several continuances because of delay in testing the DNA found on the cigarette butt in Phillips’s car. On the Friday before trial was to start, the State furnished Hagins’s counsel with `over 1,200 pages of discovery . . . [and] two computer disks containing raw data regarding the DNA testing, which requires software that I don’t have, is unavailable to the general public, and costs well over ten thousand dollars.’[47] Hagins moved to dismiss for lack of timeliness, but his motion was denied. He then moved for a two-week continuance to review the DNA evidence, which was granted.

In State v. Cannon, the Washington Supreme Court held `that in order to show prejudice justifying dismissal, the defendant must establish `by a preponderance of the evidence that interjection of new facts into the case when the State has not acted with due diligence will compel him to choose between prejudicing either of these rights.”[48] The court concluded that Cannon had not met his burden.

The same is true here. Hagins did not propose or obtain findings that the State interjected new facts, that the State acted without due diligence, or that he suffered prejudice. We decline to make such findings ourselves. Moreover, as in Cannon, the record shows that defense was on notice of the DNA evidence long before trial. Hagins did not meet his burden, and the trial court did not abuse its discretion by granting his request for a two-week continuance to review the DNA evidence.

V.
Lastly, Hagins argues pro se that the evidence is insufficient to support his conviction for first degree robbery. Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find each essential element of the crime beyond a reasonable doubt.[49] Hunter testified that Hagins told her that he `had a bottle, like a wine bottle or something, in his hand, and he told me that he was going to hit [Phillips] in the head and knock him out, take whatever money and drugs he had, and that we were going to leave in the car.’[50] She further testified that they fled in Phillips’s car and, as they did so, that Hagins was smoking Phillips’s crack cocaine. Phillips was later found dead, apparently having been hit in the head with a log. Taking this evidence in the light most favorable to the State, we hold that it was sufficient.

Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

SEINFELD, J. and HOUGHTON, J., concur.