No. 21277-7-III.The Court of Appeals of Washington, Division Three. Panel Ten.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Asotin County. Docket No. 02-1-00013-6. Judgment or order under review. Date filed: 06/28/2002. Judge signing: Hon. William D Acey.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, 1314 S Grand Blvd Ste 2, Spokane, WA 99202-1174.
Counsel for Respondent(s), Benjamin Curler Nichols, Asotin County Prosecutors Office, PO Box 220, Asotin, WA 99402-0220.
KURTZ, J.
Brian Nollette Jr. was convicted of first degree kidnapping and second degree assault. He appeals, challenging the to-convict instruction for the kidnapping charge submitted to the jury. Mr. Nollette argues the instruction included alternate means that are supported by evidence in the record. Mr. Nollette also contends that he received ineffective assistance of counsel because his attorney failed to move to suppress the statements Mr. Nollette made to the police before he was placed in custody. Finally, Mr. Nollette contends the prosecutor’s comment in closing that Mr. Nollette had failed to produce evidence indicating that he did not commit the crime constituted prosecutorial misconduct. Pro se, Mr. Nollette argues that the court erred by ordering the firearm enhancements be served consecutively to his sentence. We affirm Mr. Nollette’s convictions.
FACTS
On January 16, 2002, Kim Heimgartner was driving home. She saw a man, Brian Nollette, crossing the street, holding a young girl by the arm. He approached a car with the girl in tow, and when he went to open the back door, the girl tried to run away. Mr. Nollette grabbed the girl by her backpack, opened the door, and put her inside. Then he climbed in the car and drove away.
Ms. Heimgartner turned her car around and began following Mr. Nollette’s car. When it appeared he was driving toward a mountain area, Ms. Heimgartner called 911 and reported a possible kidnapping.
James Nelson, a Fish and Wildlife Officer, heard the dispatch and offered to respond to the scene. He drove toward the reported location of the vehicle, until he encountered a car with a male driver and a young female passenger, followed by a car driven by a woman with a cell phone in one hand. He followed Mr. Nollette to the main highway, then activated his emergency lights.
Twelve-year-old Megan Van Cleave had been walking home from school when Mr. Nollette got out of his parked car, approached her, and grabbed her by the arm. He showed her a gun, and told her that as long as she cooperated, she would not be hurt. He grabbed the backpack she was wearing, put her in the car, and closed the door.
As they drove away, he asked her what grade she was in, and whether she went to church. After a period of silence, he told her that they were being followed. After he saw emergency lights, Mr. Nollette pulled over and stopped the car. He told Megan to leave her backpack and to get away from the car as quickly as possible.
Seconds after he stopped the car, Officer Nelson saw a girl jump out of the car and run toward him. He told her to get behind his car, and then asked her what had happened. She told Officer Nelson that Mr. Nollette had abducted her and she warned him that Mr. Nollette had a gun. Officer Nelson ordered Mr. Nollette to put his hands up, or against the windshield. Mr. Nollette did not comply.
A few minutes later, Washington State Patrol Trooper Grove K. Bancroft arrived at the scene. After speaking with Officer Nelson, Trooper Bancroft drew his gun, and using the public address system, ordered Mr. Nollette to roll down the window and put his hands out. Several other officers then arrived at the scene, including Trooper Terry Risedorf and Asotin County Sheriff John Jeffers.
Trooper Bancroft next contacted Mr. Nollette by cell phone. The trooper told Mr. Nollette to roll down his window and put his hands out the window. Mr. Nollette refused, stating that he was comfortable in his car. When the trooper asked him if he had any weapons, Mr. Nollette responded that he had a .357 revolver in the car.
Mr. Nollette told the trooper that he wanted an aid car at the scene, so if he was shot he would have a better chance at surviving. The trooper ordered an aid car. When it arrived, the trooper told Mr. Nollette that it was his turn to bargain with the police. Mr. Nollette responded that he had let the girl go, and that was his act of good faith.
Later, Trooper Bancroft asked Mr. Nollette why he was behaving this way. Mr. Nollette responded that it was so he could get the attention that he thought he deserved. Mr. Nollette also read the trooper a note that he had written, which the trooper interpreted to be a suicide note.
Eventually, Mr. Nollette got out of his car, and Sheriff Jeffers searched and handcuffed him. The following day, Sheriff Jeffers spoke with Mr. Nollette in jail. Mr. Nollette told the sheriff that he had considered committing suicide by inducing a police officer to shoot him. He said he had chosen Megan because she looked like someone who had been mean to him and he wanted to know why people were mean to him.
Deputy Tim Herrick searched Mr. Nollette’s car. Among the items he found in the car were a suicide note on the dashboard, a black rucksack on the front passenger seat, and a set of chef’s knives in a carrying case on the floor behind the passenger seat. Inside the rucksack he found ammunition, two disposable cameras, a roll of duct tape, wire cutters, candy, breath mints, dice, and a bag of black plastic ties.
The State charged Mr. Nollette with first degree kidnapping while armed with a firearm and second degree assault while armed with a firearm. Instruction Number 26, the `to-convict’ instruction, read as follows:
To convict the defendant of the crime of kidnapping in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 16th day of January, 2002, the defendant intentionally abducted another person;
(2) That the defendant abducted that person with intent:
(a) to hold the person as a shield or hostage; or
(b) to facilitate the commission of the felony of murder, rape of a child, child molestation, assault in the second degree, assault in the third degree, or robbery; or
(c) to inflict bodily injury on the person; or
(d) to inflict extreme mental distress on that person; and
(3) That the acts occurred in Asotin County, State of Washington.
Clerk’s Papers at 133.
The court also gave the jury several instructions related to the definitions of rape of a child, sexual intercourse, child molestation, sexual contact, second degree assault, assault, third degree assault, and robbery.
Mr. Nollette was convicted. He appeals.
ANALYSIS
Jury Instruction. Mr. Nollette argues that the court erred because it gave instructions to the jury for which no evidence existed. Specifically, Mr. Nollette contends that the to-convict instruction allowed the jury to convict him of first degree kidnapping with the intent to facilitate the commission of the felonies of murder, rape of a child, child molestation, second or third degree assault, or robbery. Yet, Mr. Nollette complains, no evidence in the record existed to support any of these felonies. As a result, the jury could have convicted Mr. Nollette for having intent to commit any of these crimes, without evidence to support the conviction. In response, the State notes the to-convict instruction was offered by Mr. Nollette and argues the invited error doctrine bars review of this issue.
The doctrine of invited error prohibits a party from setting up error in the trial court and then complaining of it on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984)). This doctrine precludes review of an instructional error even when the alleged error is one of constitutional magnitude. Henderson, 114 Wn.2d at 871 (quoting State v. Tyson, 33 Wn. App. 859, 864, 658 P.2d 55 (1983)). The rule that “[a] party may not request an instruction and later complain on appeal that the requested instruction was given” is a strict one. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (quoting Henderson, 114 Wn.2d at 870). As a result, Mr. Nollette cannot now complain that the to-convict instruction, or any of the instructions that support that instruction with related definitions of crimes, were given in error. Review of this issue is precluded by the doctrine of invited error.
Ineffective Assistance of Counsel. Mr. Nollette contends that he received ineffective assistance of counsel because his attorney did not request that his statements to the police be suppressed. We presume effective assistance. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). A defendant has the burden of showing ineffective assistance. McFarland, 127 Wn.2d at 334-35; Thomas, 109 Wn.2d at 225-26. To meet this burden, a defendant must show (a) deficient performance and (b) resulting prejudice. McFarland, 127 Wn.2d at 334-35; Thomas, 109 Wn.2d at 225-26.
In this case, Mr. Nollette made several statements to the police while he was still in his car, before he was taken into custody. Mr. Nollette argues that during this time, he was surrounded by police officers, and therefore not free to leave the scene. As a result, the officer’s questions constituted a custodial interrogation. Because Mr. Nollette had not received his Miranda[1] warnings, he argues, his statements should have been suppressed.
Miranda applies when the interview or examination is a `(1) custodial (2) interrogation (3) by a state agent.’ State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992). Miranda safeguards exist `as soon as a suspect’s freedom of action is curtailed to a . . . `degree associated with formal arrest.” State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458 (1989) (quoting State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986)). As such, a person is considered in custody only if, based upon objective circumstances, a person reasonably believes his or her freedom of action is curtailed. Short, 113 Wn.2d at 41.
An interview or discussion becomes an interrogation when some degree of compulsion is present. State v. Birnel, 89 Wn. App. 459, 467, 949 P.2d 433
(1998) (citing State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479
(1995)). An officer’s statements or questions will not constitute interrogation if they are not “`reasonably likely to elicit an incriminating response’ from the suspect.” Birnel, 89 Wn. App. at 467
(quoting State v. Breedlove, 79 Wn. App. 101, 112, 900 P.2d 586 (1995)).
During the time that Mr. Nollette spoke on the telephone with Trooper Bancroft, he informed the trooper that he had a gun, that he let the girl go as an act of faith on his part in terms of negotiating with the police, and the reason he had acted as he had was so that he could get the attention he thought he deserved. He also read the trooper a note that was interpreted as a suicide note.
Mr. Nollette’s freedom of action was certainly curtailed when he was surrounded by multiple law enforcement officers and patrol cars. However, the discussion over the telephone did not have the element of compulsion present. That is, the officers’ statements and questions did not rise to the level of an interrogation because the questions were not reasonably likely to elicit an incriminating response. Rather, it appeared that most of the discussion with the trooper was designed to induce Mr. Nollette to surrender peacefully. In the absence of compulsion, the conversation between Mr. Nollette and the trooper did not compel the trooper to give Mr. Nollette his Miranda warning.
Because Miranda was not implicated, Mr. Nollette’s counsel cannot be found deficient because he failed to request a hearing to suppress Mr. Nollette’s statements to the police made prior to his surrender. Mr. Nollette has not shown deficient performance.
Prosecutorial Misconduct. Mr. Nollette argues that the prosecutor engaged in misconduct in the closing argument. Specifically, Mr. Nollette points to the statement the prosecutor made, `Convict Brian Nollette because he did it. And you haven’t seen any evidence that says he didn’t.’ Report of Proceedings at 1434.
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury’s verdict. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593
(1998) (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245
(1995)).
In determining whether a prosecutor’s remarks require a new trial, this court must view them in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). If the defendant does not object, the issue of prosecutorial misconduct is waived unless the misconduct was 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.’ State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
In this case, Mr. Nollette failed to object to the State’s remark. Because of this failure, the court analyzes this issue under the flagrant and ill-intentioned test. Generally, a prosecutor cannot comment on the lack of defense evidence because the defendant has no duty to present evidence. State v. Cleveland, 58 Wn. App. 634, 647, 794 P.2d 546 (1990).
However, when a prosecutor’s remarks are invited, provoked, or occasioned by defense counsel and when they rely on or respond to defense counsel’s acts or statements, the remarks generally do not provide grounds for reversal. State v. LaPorte, 58 Wn.2d 816, 822, 365 P.2d 24
(1961). In opening statements, Mr. Nollette told the jury that the State would not be able to prove that he planned to use the items found in his car to harm or injure the victim. He stated that he would present evidence that would show the items were in the car for innocent purposes. Later, in closing, Mr. Nollette argued that the State failed to keep its promise to produce evidence that he planned to harm the victim, and that he had kept his promise to prove that the items found in the car were there for innocuous purposes.
From a careful review of the opening statements and closing arguments, it appears that Mr. Nollette made certain promises to the jury as to what the evidence would reveal. After the close of evidence, he maintained that he had kept his promise, and the evidence was favorable to him, and the State had failed to produce incriminating evidence. Then, in rebuttal, the State asserted that Mr. Nollette should be convicted because he committed the crime, and because the evidence Mr. Nollette claimed that he had introduced did not reveal that he did not commit the crime. Thus, we conclude that the State’s remark was invited or provoked by Mr. Nollette’s opening and closing remarks, and in direct response to what he alleged he had proven, despite the fact that he did not have to prove anything.
Under these circumstances, where the prosecutor’s remarks were made in response to the defense’s assertions, we conclude the remarks were not so flagrant and ill-intentioned that the result was prejudice that could not have been alleviated by an admonition to the jury.
Firearm Enhancements. Mr. Nollette contends, pro se, that the court erred by imposing consecutive sentences for his firearm enhancements. He misapprehends the controlling law.
RCW 9.94A.510(3)(e) provides in part:
Notwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.
A firearm enhancement is not a separate sentence or a separate substantive crime but a statutorily-imposed sentence increase for a particular crime based upon certain factors involved in the crime. In re Post Sentencing Review of Charles, 135 Wn.2d 239, 253, 955 P.2d 798
(1998) (citing Washington Sentencing Guidelines Comm’n, Adult Felony Sentencing app. G, at G-1 (1996)).
In this case, the jury found that Mr. Nollette was armed with a gun when he abducted the victim. As a result, the court did not err by ordering the firearm enhancements be served consecutively.
Affirmed.
The 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.
BROWN, C.J. and KATO, J., concur.
(1966).