Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
64839-0 |
| Title of Case: |
State Of Washington, Respondent V. Naveed Afzal Haq, Appellant |
| File Date: |
01/30/2012 |
SOURCE OF APPEAL
----------------
| Appeal from King County Superior Court |
| Docket No: | 06-1-06658-4 |
| Judgment or order under review |
| Date filed: | 01/14/2010 |
| Judge signing: | Honorable Paris K Kallas |
JUDGES
------
| Authored by | Ronald Cox |
| Concurring: | Anne Ellington |
| C. Kenneth Grosse |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Rita Joan Griffith |
| | Attorney at Law |
| | 4616 25th Ave Ne |
| | Pmb 453 |
| | Seattle, WA, 98105-4523 |
|
| | Mark A. Larranaga |
| | Walsh & Larranaga |
| | 705 2nd Ave Ste 501 |
| | Seattle, WA, 98104-1715 |
Counsel for Respondent(s) |
| | Donna Lynn Wise |
| | Attorney at Law |
| | W 554 King Co Courthouse |
| | 516 3rd Ave |
| | Seattle, WA, 98104-2385 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 64839-0-I
)
Respondent, ) DIVISION ONE
)
v. )
)
NAVEED AFZAL HAQ, ) PUBLISHED
)
Appellant. ) FILED: January 30, 2012
)
)
Cox, J. -- Naveed Haq appeals his judgment and exceptional sentences
for conviction of one count of first degree aggravated murder, three counts of
first degree attempted murder, two counts of second degree attempted murder,
and one count each of unlawful imprisonment and malicious harassment.
Though Haq alleges numerous errors in his trial below, we hold there were none
and affirm.
RCWs 9A.12.010 and 10.77.030(2) specify that an insanity defense must
be proven by a preponderance of the evidence. This latter statute places that
burden of proof on the defense. Haq fails in his burden to prove beyond a
reasonable doubt that these statutes are unconstitutional. Additionally, the State
did not violate any constitutional or statutory right of Haq by recording his jail
No. 64839-0-I/2
telephone calls and offering those recordings for admission into evidence at trial.
Nor did the trial court abuse its discretion in either its evidentiary or discovery
rulings. The trial court also properly instructed the jury regarding the aggravated
murder charge. The evidence was sufficient to convict Haq of the charge of
malicious harassment. Further, because we hold that there was no error below,
there was no cumulative error.
Naveed Haq entered the offices of the Jewish Federation of Greater
Seattle late in the afternoon of July 27, 2006. He was armed with two pistols.
Once inside, he demanded to speak with a manager. When advised that Haq
was armed, the manager alerted another to call 911 before she came out to
meet him in the reception area.
Shortly thereafter, Haq began shooting. He killed one woman and
seriously injured five other women.
Later, Haq spoke with a 911 operator who responded to an emergency
call from the Federation's offices. He demanded to be put in contact with the
media to "make a point" about America's foreign policy in Iraq and Israel. After
several minutes of conversation, Haq specifically demanded to be connected to
CNN, and he was told this demand was impossible. He then surrendered to the
police response team outside the building.
The State charged him with aggravated first degree murder, two counts of
attempted second degree murder, three counts of attempted first degree murder,
unlawful imprisonment, and malicious harassment. Haq raised defenses of
2
No. 64839-0-I/3
insanity and diminished capacity.
Before the incident at the Jewish Federation, doctors diagnosed and
treated Haq for bipolar disorder with psychotic features. Prior to trial, pursuant
to Superior Court Criminal Rule (CrR) 4.7 and RCW 10.77.060(2), the court
ordered Haq to submit to a mental-health examination by the State's mental
health expert. This expert testified at trial.
While awaiting trial, Haq was kept in solitary confinement in the King
County Jail. He was allowed one hour each day to use the telephone. The jail
recorded conversations between Haq and his parents, who live in Eastern
Washington. In accordance with jail policies, written notice of the recording of
telephone calls was provided to Haq and posted next to each telephone.
Additionally, before every phone call, Haq's parents received audio notice that
the conversation would be recorded.
Haq's first trial in 2008 ended in a mistrial due to the jury's inability to
reach a verdict. On retrial in 2009, the trial court, over defense objection,
admitted into evidence recordings of some of the jail telephone conversations
between Haq and his parents.
The jury convicted Haq of all counts as charged. The court sentenced
Haq to life in prison for the first degree aggravated murder conviction and
imposed further incarceration time for the other convictions.
Haq appeals.
CONSTITUTIONAL CLAIMS
3
No. 64839-0-I/4
Burden of Proof for Insanity Defense
Haq claims that RCW 9A.12.010 and RCW 10.77.030 are
unconstitutional. Specifically, he claims that the jury trial right of article I,
sections 22 and 23, carry with them the right to require the State to prove
beyond a reasonable doubt that an accused is sane.
We start with the well-established principle that a statute is presumed
constitutional, and the party challenging it has the burden to prove beyond a
reasonable doubt that it is unconstitutional.1 Haq fails in his burden to prove
beyond a reasonable doubt that either of these statutes is unconstitutional.
RCW 10.77.030(2) states that "[i]nsanity is a defense which the defendant
must establish by a preponderance of the evidence." Correspondingly, RCW
9A.12.010 states:
To establish the defense of insanity, it must be shown that:
(1) At the time of the commission of the offense, as a result of
mental disease or defect, the mind of the actor was affected to
such an extent that:
(a) He [or she] was unable to perceive the nature and quality of the
act with which he [or she] is charged; or
(b) He [or she] was unable to tell right from wrong with reference to
the particular act charged.
(2) The defense of insanity must be established by a
preponderance of the evidence.[2]
These statutes clearly provide that insanity is an affirmative defense that
must be proven by a preponderance of the evidence. RCW 10.77.030(2) places
1 State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994).
2 (Emphasis added.)
4
No. 64839-0-I/5
the burden of proving this affirmative defense on the defendant. Thus, the
question before us is whether Haq has proven beyond a reasonable doubt that
these presumptively constitutional statutes are unconstitutional.
Haq bases his argument on article 1, sections 21 and 22. Both concern
the right to a jury trial under the Washington Constitution.
Article 1, section 21 provides that the "right of trial by jury shall remain
inviolate . . . ." Under article 1, section 22:
[i]n criminal prosecutions the accused shall have the right to
appear and defend in person, or by counsel, to demand the nature
and cause of the accusation against him, to have a copy thereof, to
testify in his own behalf, to meet the witnesses against him face to
face, to have compulsory process to compel the attendance of
witnesses in his own behalf, to have a speedy public trial by an
impartial jury of the county in which the offense is charged to have
been committed and the right to appeal in all cases.
We note that nowhere among the enumerated rights of section 22 is there
any mention of either the quantum of proof required to show insanity or who
bears that burden in a criminal prosecution.
State supreme court precedent makes clear that the rights provided for in
the Washington Constitution are to be interpreted as they were at common law
in the territory at the time of adoption of the state constitution in 1889.3 Thus, we
examine relevant authorities to determine whether the jury trial right in 1889
included a requirement that the State prove beyond a reasonable doubt that an
accused was sane.
Haq does not cite any statutory authority that existed in 1889 to support
3 City of Pasco v. Mace, 98 Wn.2d 87, 96, 653 P.2d 618 (1982).
5
No. 64839-0-I/6
his claim, nor was he able to state any during oral argument. We thus assume
there was none at the time of the adoption of our state constitution.
Of the cases close to the time of statehood, two are particularly relevant
in addressing this question of whether the government was required to prove the
sanity of the accused. Likewise, these cases are also important in addressing
whether proof beyond a reasonable doubt was the required quantum of proof.
In 1904, 15 years after the adoption of the constitution, the supreme court
decided State v. Clark.4 There, a jury convicted Clark of first degree murder, and
a court sentenced him to death.5
Clark and the female victim lived together in a house in Olympia.6 A
witness testified that early one morning she was awakened by Clark calling her
in a muffled voice from the room where he and the victim slept.7 The witness
went to the door of the room, but the door was bolted shut.8 After a short time,
Clark succeeded in unbolting and opening the door.9 When he did so, he fell
and struck his head against the door jamb, apparently rendering him
unconscious.1 Clark's hands, face, and clothes were covered in blood.11 Inside
the room, the victim was lying on the bed.12 Her forehead was crushed and a
4 34 Wash. 485, 76 P. 98 (1904).
5 Id. at 487.
6 Id.
7 Id. at 487-88.
8 Id. at 488.
9 Id.
1 Id.
11 Id.
12 Id.
6
No. 64839-0-I/7
long gash cut across her throat.13
At trial, Clark asserted an insanity defense.14 He also testified in his
defense.15 He related his movements the previous day and evening before the
victim's death.16 He claimed not to recall that another trial witness had come into
the bedroom the previous evening while the victim appeared to be alive.17 He
also claimed that he remembered someone "poking something down [his] throat"
and that he "came to and found [himself] lying in a strange bed, just like a person
would wake up out of a dream."18
On appeal following his conviction and sentence, he raised several claims
of instructional error. Among them was the claim that the trial court erred by
giving the jury the following instruction:
You are instructed that every man is presumed to be sane, and to
intend the natural and usual consequences of his own acts. As the
law presumes a man to be sane until the contrary is shown, I
charge you that the burden of proving insanity as a defense to
a crime is upon the defendant to establish by a
preponderance of the evidence, and unless insanity is
established by a fair preponderance of the evidence the
presumption of sanity must prevail.[19]
In deciding whether the instruction was legally correct, the supreme court
surveyed the question of the quantum of proof required to establish insanity
among the courts of many other states and the United States Supreme Court.
13 Id.
14 Id. at 488-89.
15 Id. at 489.
16 Id.
17 Id. at 490.
18 Id.
19 Id. at 493 (emphasis added).
7
No. 64839-0-I/8
After duly considering other jurisdictions' conflicting authorities over the quantum
of proof needed to establish the defense of insanity, the court held:
[i]t is no injustice to a defendant to presume that [the defendant] is
sane, and to require him to prove the unnatural condition of mind,
which he alleges as a defense for a crime admitted . . . .
Notwithstanding the weighty reasons advanced by the learned
courts in the class first named, we desire to adopt the rule laid
down by the trial court in this case [that insanity must be proven by
the defense by a preponderance of the evidence].[2]
Thus, only 15 years after the adoption of the Washington Constitution, the
supreme court decided that the quantum of proof required to establish insanity in
this state was the preponderance of the evidence standard. Moreover, it also
held that the defendant who claims the defense of insanity bears the burden of
establishing this affirmative defense.21
It is significant that the supreme court surveyed the common law of other
jurisdictions to decide these two questions in Clark. Had the court believed
there was any settled common law in Washington on these questions, it would
have said so. Yet, it did not. The limited discussion of Washington common law
on this question, together with the court's decision to choose from competing
lines of authority in other jurisdictions, greatly undermines the argument that Haq
now makes on appeal. We conclude that there was no settled common law in
Washington requiring the State to prove a defendant's sanity before the court
decided Clark. Because this decision was merely 15 years after the adoption of
the constitution, there is no reason to believe there was any common law on this
2 Id. at 498.
21 Id. at 497-98.
8
No. 64839-0-I/9
question at the time of statehood.
The Clark case also casts doubt on some of the reasoning in the sole
case on which Haq relies to advance his argument, McAllister v. Washington
Territory.22
The territorial supreme court decided McAllister 17 years before the
adoption of the state constitution in 1889. McAllister was convicted in a lower
court of second degree murder.23 He and the victim, Walker, exchanged angry
words in a saloon, and Walker struck McAllister in the forehead with a beer
mug.24 Walker quickly left the scene, and McAllister followed, with a pistol in
hand.25 McAllister fired at Walker, but missed.26 Walker then grabbed
McAllister, a scuffle ensued, and McAllister shot and killed Walker.27
McAllister was charged with first degree murder and pled not guilty by
reason of insanity.28 At issue on appeal from his conviction was whether the trial
court committed error by giving a jury instruction that required McAllister to prove
insanity by a preponderance of the evidence.29
22 1 Wash. Terr. 360 (1872).
23 Id. at 361.
24 Id. at 363-64.
25 Id. at 364.
26 Id.
27 Id.
28 Id. at 365.
29 Id. at 365-66. The instruction stated:
It is claimed by [McAllister] that at the time of the alleged shooting,
by reason of a wound received upon his head, he was deprived of
his reasoning faculties, and was not conscious of what he was
doing, and did not know that he was committing a crime.
This is a matter of defense that must be substantially proved by the
defendant as an independent fact, and the burden is on the
9
No. 64839-0-I/10
In addressing this instruction, the territorial supreme court discussed the
burden of proof in a passage of its opinion on which Haq heavily relies. The
court stated:
The rule of law, as to the burden of proof in criminal cases we all
agree, is this: The burden is on the Territory to make out every
material allegation in the indictment beyond all reasonable doubt.
The learned Judge who tried the cause in the District Court
repeatedly, in the instructions given on his own motion, and in
those asked on the part of the defendant, told the jury that such
was the rule of law. The force and effect of this rule cannot be
destroyed by any action of the prosecuting officer so far as the
facts constituting the res gestae are concerned. Part of the facts
included in the res gestae may be developed by the Territory, and
part by the defense, but still the rule is the same. The defendant is
entitled to the instruction that the jury must be satisfied of his guilt
beyond all reasonable doubt on all the facts so put in evidence,
and so the jury were told, except as shown above. And we are
satisfied that so far as the facts attending the killing are
concerned -- at least so far as those facts are included in the res
gestae, that the burden of proof never shifts. This is as true of the
defense of insanity under the limitations stated above, as of any
other defense. But if insanity is set up as a separate and distinct
defense, and its proof does not consist of the facts attending the
killing, then the proof must be made out by the defendant, the legal
presumption of sanity being sufficient for the indictment in the
absence of all evidence to the contrary.[3]
In Clark, our state supreme court referred to the same passage of the
defendant to prove it.
The law presumes a man sane and possessed of his reasoning
faculties until the contrary is proved.
And if in the case before you the killing be admitted, or clearly
proved, then the defendant in order to excuse the same by reason
of his being deprived of his reason at the time of said act, must
satisfy you by the evidence of such fact, to wit: That at the time of
the commission of said act, he was deprived of his reasoning
faculties in so far as to be unconscious that he was committing a
crime.
3 Id. at 366.
10
No. 64839-0-I/11
McAllister case. After noting that each side cited McAllister in support of
conflicting arguments, the Clark court stated:
The [McAllister] opinion is to the effect that when the proof of
insanity is made as a part of the res gestae, the burden of proving
insanity is not upon the State; but where the proof does not consist
of facts attending the killing, then the burden of proving insanity is
upon the defendant. It will be readily seen, therefore, why each
side of this controversy claims the case as an authority in its favor.
But it is difficult to imagine a case where the slayer is insane
and where the proof of insanity is not a part of the res gestae,
but is independent of the facts attending the killing.[31]
The last sentence of this quotation from Clark casts considerable doubt
on
the discussion in McAllister concerning who bears the burden of proving
insanity. In 1904, the Clark court could not imagine a case where an accused is
insane and proof of insanity is not a part of the res gestae. We have the same
difficulty over 100 years later.
To the extent the discussion in McAllister rests on the assumption that our
state supreme court later questioned in Clark, that segment of McAllister holds
little or no persuasive value. Thus, we cannot agree with Haq's reliance on
McAllister as a correct statement of the common law in Washington in 1872 that
the government bore any burden to prove sanity in a criminal case. More
importantly, we reject his claim that the common law of the territory at the time of
adoption of the state constitution in 1889 required the government to prove
beyond a reasonable doubt that an accused was sane. Rather, the sanity of the
accused was presumed, and the accused had the burden to prove by a
31 Clark, 34 Wash. at 495-96 (emphasis added).
11
No. 64839-0-I/12
preponderance of the evidence the affirmative defense of insanity.
There is an additional reason why Haq's reliance on McAllister is
unpersuasive. The statement in the above passage on which he relies is dictum
to the extent that it suggests that the government must prove beyond a
reasonable doubt that an accused is sane. We draw this conclusion from the
following passage in Clark:
The [McAllister] court, however, in that case sustained the conviction
upon an instruction substantially as in this case, because it was held
that the facts did not warrant any instruction upon the question of
insanity. . . .[32]
Our supreme court's statement in Clark further undermines Haq's reliance
on McAllister. Because the McAllister court decided that there was no reason to
give the insanity instruction based on a lack of evidence, its statement about
who bears the burden of proof is not helpful.
State v. Strasburg,33 which the supreme court decided six years after
Clark, is also helpful to our assessment of Haq's claims. The criminal charge in
that case was for first degree assault.34 A jury convicted Strasburg as charged.
On appeal, he claimed that the trial court erred by refusing to admit
evidence tending to prove that he was insane at the time of the commission of
the charged crime.35 The exclusion of that evidence at trial was based on a
1909 statute that barred the use of the defense of insanity to a criminal charge.36
32 Id. at 496 (emphasis added).
33 60 Wash. 106, 110 P.1020 (1910).
34 Id. at 110.
35 Id. at 111-12.
36 Id.
12
No. 64839-0-I/13
It is noteworthy that Strasburg challenged the statute, in part, on the basis
that it violated the right provided by article 1, section 21, that the "jury trial shall
remain inviolate," a right at issue in this case.37 The supreme court held in
Strasburg that the 1909 law was unconstitutional, but of particular note is the
way in which the court expressed its holding:
[I]t seems too plain for argument that one accused of [a] crime
had the right, prior to and at the time of the adoption of our
constitution, to show, as a fact in his defense, that he was
insane when he committed the act charged against him, the
same as he had the right to prove any other fact tending to show
that he was not responsible for the act. Indeed, his right to prove
his insanity at the time of committing the act was as perfect even
as his right to prove that his physical person did not commit the
act, or set in motion a chain of events resulting in the act.[38]
This language reinforces our view that the common law at the time of the
adoption of our state constitution placed the burden of proving insanity on
the accused.
Clark and Strasburg make clear that the accused bears the burden of
proving this affirmative defense. Likewise, the cases also show that the
quantum of proof required to prove insanity has been a preponderance of the
evidence at least since Clark and as far back as McAllister.39 There is no reason
to conclude that the common law was any different at the time of adoption of our
state constitution in 1889, 15 years before the Clark decision and 21 years
before Strasburg.
Haq next argues that a Gunwall analysis of article I, section 21 and 22,
37 Id. at 112.
38 Id. at 115-16 (emphasis added).
39 See Clark, 34 Wash. at 496.
13
No. 64839-0-I/14
shows that the government must prove beyond a reasonable doubt that an
accused is sane. We disagree.
The United States Supreme Court has held that state constitutions may
provide greater protections than those afforded under the federal constitution.4
To assess whether Washington's Constitution provides such broader
protections, we apply the analysis enunciated in State v. Gunwall.41 "In
assessing whether the Washington Constitution affords greater protection of a
right than the federal constitution, this court's decision in Gunwall requires the
consideration of six factors: (1) textual language, (2) differences between the
texts, (3) constitutional history, (4) preexisting state law, (5) structural
differences, and (6) matters of particular state or local concern.42 The supreme
court has held that the language of the Washington Constitution, its structure,
and its textual difference from the United States Constitution all indicate that
"Washington's right to a jury trial [is broader] . . . than the federal right."43 But,
"[e]ven if the right to jury trial is broader under our state constitution, we still
must determine the nature and extent of the right."44
Though article I, section 21, contains the term "inviolate," which indicates
a broader state jury trial right under the first Gunwall factor,45 none of the factors
indicate that this right encompasses the allocation of the burden of proof. The
4 State v. Smith, 150 Wn.2d 135, 149, 75 P.3d 934 (2003).
41 106 Wn.2d 54, 720 P.2d 808 (1986).
42 Smith, 150 Wn.2d at 149.
43 Id. at 152.
44 Id. at 153.
45 Id. at 149-50.
14
No. 64839-0-I/15
right to a jury trial is contained in two Washington constitutional provisions rather
than the federal Constitution's one. But, as the Smith court noted, "this fact fails
to provide guidance as to the scope of that right. . . . [T]he extent of the right
must be determined from the law and practice that existed in Washington at the
time of our constitution's adoption in 1889."46 Most importantly, there is neither
constitutional history nor preexisting state law supporting the conclusion that a
broader right to a jury trial encompassed the allocation of the burden of proof
regarding sanity.
McAllister is not helpful, and Haq does not point to any other case or
statute that supports his argument. Nor have we found any support for a claim
that such a burden is of particular state or local concern. Though article I,
section 21 and 22, may be more protective than the federal right to a jury trial,47
Haq must still show that his claims fall within this broader scope of the jury trial
right. He has failed to do so.
Haq argues that the supreme court's holding in Strasburg makes clear
that the allocation of the burden of proof in insanity cases as it currently stands
is unconstitutional. But, Strasburg did not address the specific issue argued by
Haq, except to say, as we noted earlier, that one accused of a crime had the
right to allege an insanity defense.48 The Strasburg court considered a statute
passed by the legislature that prevented a defendant from entering a plea of
46 Id. at 151.
47 See id. at 149-50.
48 Strasburg, 60 Wash. at 119-20.
15
No. 64839-0-I/16
insanity.49 The court held that:
[t]he right of trial by jury must mean that the accused has the right
to have the jury pass upon every substantive fact going to the
question of his guilt or innocence. . . . [I]t would be entirely
feasible for a state legislature . . . to impose such onerous and
oppressive restrictions . . . upon this right as to make it practically
unavailing to a party . . . . But this would be a palpable violation of
the spirit and intent of the constitutional provision . . . .[5]
But, imposing the burden of proof, as here, is not so onerous or oppressive as to
deprive Haq of the right to have the jury determine whether he was insane. The
right to due process discussed in Strasburg is not helpful in deciding the
separate question of the scope of the jury trial right under our state constitution.
Nor is Haq's reliance on Apprendi v. New Jersey51 persuasive. In
Apprendi, the United States Supreme Court stated that "'[it] is unconstitutional
for a legislature to remove from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal defendant is exposed.'"52
But, requiring a defendant to show insanity by a preponderance of the evidence
does not remove an issue from the jury's purview, and thus Apprendi is not
applicable here.
In sum, Haq fails in his burden to prove beyond a reasonable doubt that
the statutes he challenges are unconstitutional. Accordingly, we reject his claim
that his convictions should be overturned on this basis.
Separation of Powers
49 Id. at 111-12.
5 Id. at 118-19.
51 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
52 Id. at 490.
16
No. 64839-0-I/17
For the first time on appeal, Haq argues that RCW 10.77.020(5) is
unconstitutional because it violates the separation of powers inherently required
by the Washington Constitution. Specifically, he claims that the statute, which
mandates exclusion of evidence of insanity upon a failure of a defendant to
agree to a court-ordered mental health examination, is an unconstitutional
infringement on the courts' power. According to Haq, admission or exclusion of
evidence is exclusively a judicial function. Because Haq did not raise this issue
below, and cannot show that this claimed error is "manifest" under Rule of
Appellate Procedure 2.5(a), we do not reach the merits of this claim.
Under RAP 2.5(a)(3), an issue first raised on appeal may be reviewed by
an appellate court where it is a manifest error affecting a constitutional right.
This court outlined the analytical steps under RAP 2.5(a)(3) in State v. Lynn.53
First, the reviewing court must make a cursory determination as to
whether the alleged error in fact suggests a constitutional issue.
Second, the court must determine whether the alleged error is
manifest. Essential to this determination is a plausible showing by
the defendant that the asserted error had practical and identifiable
consequences in the trial of the case. Third, if the court finds the
alleged error to be manifest, then the court must address the merits
of the constitutional issue. Finally, if the court determines that an
error of constitutional import was committed, then, and only then,
the court undertakes a harmless error analysis.[54]
In determining whether the error's consequences were identifiable, the trial
record must be sufficient to determine the merits of the claim.55 "If the facts
necessary to adjudicate the claimed error are not in the record on appeal, no
53 67 Wn. App. 339, 835 P.2d 251 (1992).
54 Id. at 345.
55 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
17
No. 64839-0-I/18
actual prejudice is shown and the error is not manifest."56
In State v. McFarland,57 the defendants argued, for the first time on
appeal, that the court's failure to suppress evidence obtained from a warrantless
arrest was improper.58 The supreme court held that, to show actual prejudice,
[e]ach Defendant . . . must show the trial court likely would have
granted the motion [to suppress] if made. It is not enough that the
Defendant allege prejudice -- actual prejudice must appear in the
record. In each case, because no motion to suppress was made,
the record does not indicate whether the trial court would have
granted the motion. Without an affirmative showing of actual
prejudice, the asserted error is not "manifest" and thus is not
reviewable under RAP 2.5(a)(3).[59]
CrR 4.7(b)(2)(viii) provides the court with discretion to require the
defendant to "submit to a reasonable physical, medical, or psychiatric inspection
or examination." The supreme court has held that CrR 4.7 provides courts the
power to compel a defendant to submit to a court ordered mental health
examination by a state expert if he asserts an insanity defense.6 Further, if a
defendant refuses to submit to such an examination, the supreme court has
concluded that the trial court may exclude defense expert witness testimony on
the defendant's insanity and diminished capacity.61
In this case, Haq fails to show actual prejudice. CrR 4.7 alone would
have permitted the court, in the proper exercise of its discretion, to exclude
56 Id.
57 127 Wn.2d 322, 899 P.2d 1251 (1995).
58 Id. at 333-34.
59 Id.
6 State v. Hutchinson, 111 Wn.2d 872, 881-83, 766 P.2d 447 (1989) (
"Hutchinson I").
61 State v. Hutchinson, 135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998) (
"Hutchinson II").
18
No. 64839-0-I/19
Haq's defense witness testimony had he refused to comply with a court-ordered
examination. There would have been no need to consider the effect of the
statute Haq now challenges for the first time on appeal.
Haq argues that he "vigorously sought to preclude a compelled mental
examination conducted by a state-retained expert." He also claims that, as part
of this challenge below, he argued that RCW 10.77.020(5) "impermissibly
required a defendant to exercise his right to self-incrimination. . . ."62 However,
that is not the substance of his claim here.63 Thus, Haq's argument fails to meet
the burden required by RAP 2.5(a)(3) to show actual prejudice.
Haq argues that State v. Ramos64 and State v. Aguirre65 are akin to his
case, and thus, that he may raise this issue for the first time on appeal. But
these cases are not persuasive. In Ramos, the court merely quoted RAP
2.5(a)(3) in a footnote and summarily noted that "Ramos raises this
constitutional argument, as he may, for the first time on appeal."66 In Aguirre, the
court noted the limited nature of RAP 2.5(a)(3) but then employed its
discretionary power and reviewed the State's separation of powers argument.67
Further, in both cases, the statute being challenged was the basis for the
convictions in question. Here, Haq's constitutional challenge regards an aspect
62 Reply Brief of Appellant at 24.
63 See State v. Carneh, 153 Wn.2d 274, 282, 103 P.3d 743 (2004)
(holding that court-ordered examinations of those defendant's who plead
insanity and the admission of this examination is not an infringement of the
defendant's Fifth Amendment rights).
64 149 Wn. App. 266, 202 P.3d 383 (2009).
65 73 Wn. App. 682, 871 P.2d 616 (1994).
66 Ramos, 149 Wn. App. at 270 n.2.
67 Aguirre, 73 Wn. App. at 687-88.
19
No. 64839-0-I/20
of discovery, not the basis for his actual conviction, and thus is distinguishable
from both Aguirre and Ramos.
Accordingly, we do not reach the substantive question of whether RCW
10.77.020 is unconstitutional because it violates the separation of powers.
Recording of Jail Telephone Calls as a Violation of Right to Counsel
Haq next claims that the recording of King County Jail inmates' telephone
conversations and the supplying of these recordings to the prosecution as an
investigative tool violates his Sixth Amendment right to counsel. We disagree.
The Sixth Amendment to the United States Constitution guarantees "[i]n
all criminal prosecutions, the accused shall . . . have the Assistance of Counsel
for his defence." The United States Supreme Court has held that a person's
right to counsel attaches "at or after the time that judicial proceedings have been
initiated against him . . . ."68 Once this right attaches, the government may not
interrogate a defendant without his waiver of counsel.69 When the State
knowingly exploits "an opportunity to confront the accused without counsel
being present[,]" its actions are "as much a breach of the State's obligation
not to circumvent the right to assistance of counsel as is the intentional
creation of such an opportunity."7 Such knowing exploitation, or "deliberate
elicitation," has been found to occur where: (1) a codefendant becomes a
68 Fellers v. U.S., 540 U.S. 519, 523, 124 S. Ct. 1019, 157 L. Ed. 2d 1016
(2004) (quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 51 L. Ed.
2d 424 (1977)).
69 Brewer, 430 U.S. at 401.
7 State v. Sargent, 111 Wn.2d 641, 645-46, 762 P.2d 1127 (1988)
(quoting Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481
(1985)).
20
No. 64839-0-I/21
government informant and transmits his conversations to the police (whether
such transmission occurred after a meeting initiated by the government agent or
a codefendant),71 and (2) where a fellow prisoner engages in conversation with
the defendant after he is told by government officials to be alert to any
incriminating statements made by the defendant.72
Here, it is undisputed that the right to counsel had attached at the time of
Haq's calls to his family. It is also undisputed that the government did not
interrogate Haq during these telephone conversations. He was talking to family
members, and there is no suggestion that they were government agents who
questioned their son on behalf of the State.
This case is analogous to United States v. Hearst.73 There, while in
custody, the defendant,
communicated [with a visitor] over a telephone-like
intercommunication system . . . . Most of the conversation between
the two was monitored and recorded through a switchboard-type
device operated by a deputy sheriff. . . . Officials at the jail had
previously determined to record all of appellant's conversations
with her visitors in accordance with the jail policy. . . .
The jail supervisor delivered the recording of the
conversation . . . to the FBI and the prosecution.[74]
Hearst argued that his case was comparable to Massiah v. United
States.75 There, the defendant made incriminating statements to a fellow
71 See Massiah v. U.S., 377 U.S. 201, 204-05, 84 S. Ct. 1199, 12 L. Ed.
2d 246 (1964); Moulton, 474 U.S. at 174-75.
72 See U.S. v. Henry, 447 U.S. 264, 271-72, 100 S. Ct. 2183, 65 L. Ed. 2d
115 (1980).
73 563 F.2d 1331 (9th Cir. 1977), cert denied, 435 U.S. 1000 (1978).
74 Id. at 1344.
75 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).
21
No. 64839-0-I/22
conspirator, who had agreed to work with government agents and been
instructed to engage Massiah in conversation.76 The government agents
listened to these conversations over a radio transmitter.77 The Hearst court held
there was no violation of the Massiah rule. "The obvious problem with applying
Massiah to the facts surrounding the making of the . . . tape is the absence of
any governmental effort to elicit incriminating statements from
appellant."78 The court held that interrogation is a prerequisite for a Sixth
Amendment violation as no such protection of the right to assistance of counsel
comes into play if there is no interrogation.79
Additionally, the state supreme court has noted that for there to be a Sixth
Amendment violation, there must be an agency relationship between an
informant and the government, such that "there [is] at least an implicit agreement
between the parties with respect to the current undertaking. Furthermore, the
principal must have the ability to control that undertaking."8
As we have explained, the phone recordings that were admitted into
evidence at trial were between Haq and his parents. Neither parent agreed to
work with the government to elicit information. The telephone records were
neither a product of interrogation nor an investigatory technique that otherwise
sought to circumvent Haq's right to counsel. Thus, Haq's statements during the
76 Id. at 202-03.
77 Id.
78 Hearst, 563 F.2d at 1347 (emphasis added).
79 Id. at 1348.
8 In re Pers. Restraint of Benn, 134 Wn.2d 868, 912, 952 P.2d 116 (1998)
(internal citations omitted).
22
No. 64839-0-I/23
recorded telephone conversations did not violate his Sixth Amendment right to
counsel.
Haq argues that the psychological impact of his solitary confinement
should support a finding that the recording of his phone calls to his parents was
a forced suspension of his Sixth Amendment right. Though the Supreme Court
in United States v. Henry81 did acknowledge the potential psychological effects
of confinement, it did so in the context of "ploys of undercover Government
agents."82 Here, there was no undercover agent engaging in any ploys. Haq's
family was clearly and explicitly told prior to each conversation that their
conversations could be recorded, and Haq was informed of the same facts in
writing.
Haq also relies on the United States Supreme Court's statement in Maine
v. Moulton:83 "knowing exploitation by the State of an opportunity to confront the
accused without counsel being present is as much a breach of the State's
obligation not to circumvent the right to the assistance of counsel as is the
intentional creation of such an opportunity."84 But, nowhere in Massiah, Moulton,
or Henry did the court suggest that passive listening by the government to
conversations of a pre-trial detainee is violative of his Sixth Amendment right. In
fact, in Henry, the Court noted that "[t]he situation where the 'listening post' is an
inanimate electronic device differs; such a device has no capability of leading
81 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).
82 Id. at 273-74.
83 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).
84 Id. at 176.
23
No. 64839-0-I/24
the conversation into any particular subject or prompting any particular replies."85
The Court reiterated this distinction in Moulton, distinguishing between the
actions of the government informant in the case, who had "frequently pressed
Moulton for details" and "the 'listening post,'" which "cannot or does not
participate in active conversation and prompt particular replies."86
Haq argues that by recording and listening to the phone calls, the King
County Jail employees acted as government agents. They are government
agents, but that fact is not analytically helpful. The United States Supreme
Court has held that mere government agent interaction with a pre-trial detainee
does not itself violate a defendant's right to counsel.87 Recording of telephone
conversations under the procedures here is simply an interaction, nothing more.
Consequently, we reject Haq's argument.
Recording of Jail Telephone Calls as a Violation of Equal Protection
Haq contends that the recording policies of King County Jail, as
compared to the policies in place in the Department of Corrections' (DOC)
facilities, violated his Fourteenth Amendment right to equal protection. This
argument is unpersuasive.
The equal protection clauses of the Fourteenth Amendment to the United
States Constitution and article I, section 12 of the Washington Constitution
85 Henry, 447 U.S. at 272 n.9.
86 Moulton, 474 U.S. at 176 n.13.
87 Kuhlmann v. Wilson, 477 U.S. 436, 460, 106 S. Ct. 2616, 91 L. Ed. 2d
364 (1986) (where the government agent did not ask questions of the defendant,
but "'only listened' to respondent's 'spontaneous' and 'unsolicited' statements"
no Sixth Amendment violation occurred).
24
No. 64839-0-I/25
require that people similarly situated under the law receive similar treatment
from the State.88 In order to determine whether a state action violates equal
protection, one of three different bases of review is employed -- strict scrutiny,
intermediate scrutiny, or rational basis review.89 The appropriate level of
scrutiny depends upon the nature of the alleged classification and the rights
involved.9 Suspect classifications (such as race, alienage, and national origin)
are subject to strict scrutiny.91 Strict scrutiny also applies to laws burdening
fundamental rights or liberties.92 Intermediate scrutiny applies only if the statute
implicates both an important right and a semi-suspect class, not accountable for
its status.93 Absent a fundamental right or suspect class, or an important right or
semi-suspect class, a law will be upheld under rational basis review so long as it
bears a rational relation to some legitimate end.94
Haq argues that the King County jail recording and dissemination policies
infringe his fundamental right to privacy and counsel. We have already rejected
the claim that there is any violation of his Sixth Amendment right to counsel.
Further, for reasons that we explain later in this opinion, there is no violation of
any right to privacy that he could claim as a prisoner in the jail. Thus, the
recording and dissemination of his phone calls do not implicate a fundamental
right and consequently do not require strict scrutiny.
88 State v. W.W., 76 Wn. App. 754, 758, 887 P.2d 914 (1995).
89 State v. Harner, 153 Wn.2d 228, 235-36, 103 P.3d 738 (2004).
9 State v. Hirschfelder, 170 Wn.2d 536, 550, 242 P.3d 876 (2010).
91 Id. (internal quotation marks and citations omitted).
92 Id. (internal quotation marks and citations omitted).
93 Id. (internal quotation marks and citations omitted).
94 Id. (internal quotation marks and citations omitted).
25
No. 64839-0-I/26
Haq does not allege that he is part of either a suspect or semi-suspect
class. Consequently, we apply rational basis review to the King County Jail
recording policy. Rational basis review only requires that the governmental
action in question bear a rational relation to some legitimate end.95 Safety,
security, and the right of government to reduce criminal activity are all legitimate
ends that support the King County Jail regulations.96 Thus, Haq fails to show
any violation based on rational basis review.
Additionally, even if strict scrutiny were to apply to the governmental
actions here, it is not clear that Haq is similarly situated to those held in the
DOC's facilities. For a court to engage in equal protection analysis, the
individual alleging a violation must establish that he or she is similarly situated
with other persons in a class.97 Thus, in State v. Osman,98 the court noted that
to make out his equal protection claim, the defendant must "first establish his
classification by showing he was treated differently from others who were
similarly situated."99 Additionally, in Harmon v. McNutt,1 where requirements for
transfer to mental health facilities were applied differently as between prisoners
95 Am. Legion Post #149 v. Washington State Dep't of Health, 164 Wn.2d
570, 604-05, 192 P.3d 306 (2008).
96 See Bell v. Wolfish, 441 U.S. 520, 540, 99 S. Ct. 1861, 60 L. Ed. 2d
447 (1979).
97 State v. Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006); see also In
the Interest of J.R., 156 Wn. App. 9, 20, 230 P.3d 1087 (quoting State v.
Handley, 115 Wn.2d 275, 289-90, 796 P.2d 1266 (1990)), review denied, 170
Wn.2d 1006 (2010).
98 157 Wn.2d 474, 139 P.3d 334 (2006).
99 Id. at 485.
1 91 Wn.2d 126, 130, 587 P.2d 537 (1978).
26
No. 64839-0-I/27
and nonprisoners,101 the supreme court concluded that "[w]e need not address
defendant's contention that there is a rational basis for classification between
prisoners and nonprisoners . . . . Rather, we need only to look at the treatment
afforded persons who, like plaintiff, are enmeshed in and subject to the criminal
justice system."102
The court's analysis in Osman and Harmon is persuasive here. Haq's
equal protection claim is based on an argument that he is similarly situated to
those held at Washington DOC penal institutions. He is not. Haq notes in his
opening brief that:
it is safe to presume that [individuals at the Department of
Corrections] have already been convicted and therefore the
investigation would not be for the crime of which they were
convicted; but rather a new and separate allegation -- a significant
difference than the broad position taken by King County Jail [where
individuals may be investigated for ongoing prosecutions].103
This difference does not support Haq's equal protection claim but instead
highlights that those under the aegis of the DOC are not similarly situated to him.
Thus, Haq's claim fails.
Finally, it is not clear that differential treatment does exist between those
inmates at King County Jail and DOC facilities. RCW 9.73.095(3)(b), which
governs the Department of Correction's recording of inmates' phone
conversations, states that "[t]he contents of any intercepted and recorded
conversation shall be divulged only as is necessary to safeguard the orderly
101 Id.
102 Id.
103 Opening Brief of Appellant at 65.
27
No. 64839-0-I/28
operation of the correctional facility, in response to a court order, or in the
prosecution or investigation of any crime."104 Though Haq is likely correct
that such investigation does not involve prior convictions, the provision still
allows for use of phone calls for reasons other than safety and security of the
correctional institution itself. This is consistent with the use of Haq's recorded
conversations while incarcerated in the King County Jail as evidence at his
second trial.
To summarize, Haq fails to demonstrate that the King County Jail's
recording of his phone calls violates his right to equal protection under the laws.
Dissemination of Jail Telephone Calls as a Violation of Right to Privacy
Haq argues that dissemination of his telephone calls to the King County
Prosecutor violated his right to privacy under article I, section 7 of the
Washington Constitution. We hold that under the circumstances here, such
dissemination was not a constitutional violation.
Article I, section 7 provides that "[n]o person shall be disturbed in his
private affairs . . . without authority of law." "In determining whether a certain
interest is a private affair deserving article I, section 7 protection, a central
consideration is the nature of the information sought -- that is, whether the
information obtained . . . reveals intimate or discrete details of a person's life."105
Article I, section 7, provides protections that are "qualitatively different from, and
104 (Emphasis added.)
105 State v. Jorden, 160 Wn.2d 121, 126, 156 P.3d 893 (2007) (citing
State v. Jackson, 150 Wn.2d 251, 262, 76 P.3d 217 (2003)).
28
No. 64839-0-I/29
in some cases broader than, those provided by the Fourth Amendment."106 But,
[ ]
this court found in State v. Archie107 that it does not apply to either agreed to
recordings or to the dissemination of a jail inmate's calls.108
In Archie, the defendant was charged with burglary and assault and held
in pretrial detention in King County Jail.109 Prior to trial, the court issued a no-
contact order, which Archie violated by telephoning his victim.11 These
recordings were admitted as evidence at trial.111 Posted near the jail's
telephones were signs warning that all calls were subject to recording and
monitoring.112 Further, when Archie's calls were answered, a recorded message
stated:
Hello, this is a call at no expense to you from . . . [name of inmate .
. . ] [an] inmate at the King County Detention Facility. This call will
be recorded and subject to monitoring at any time. To accept this
call, dial three. To refuse this call, dial nine or hang up now. . . .[113]
Despite these warnings, Archie argued the recording and use of such recording
at trial violated his right to privacy under article I, section 7.114 But, this court
held:
[b]alancing the circumstances here against the privacy protection
106 City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134 (1994)
(citing City of Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988));
Gunwall, 106 Wn.2d at 65; State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436
(1986).
107 148 Wn. App. 198, 199 P.3d 1005, review denied, 166 Wn.2d 1016
(2009).
108 Id. at 203-04.
109 Id. at 200.
11 Id. at 200-01.
111 Id. at 201.
112 Id.
113 Id.
114 Id. at 200.
29
No. 64839-0-I/30
usually applied to telephone communications, we are persuaded
that Archie's phone calls from the jail were not private affairs
deserving of article I, section 7 protection. Further, where one
participant in a conversation has consented, the recording does
not violate article I, section 7."[115]
Haq's case is analogous to Archie. Haq was also a pretrial detainee, held
in King County Jail. He, too, passed the signs posted near the telephones
advising him that his conversations would be monitored and recorded. His
parents heard the recorded warning prior to every phone call. And his recorded
conversations were admitted as evidence at trial, like Archie's. Consequently,
Haq's privacy rights under the Washington Constitution were not violated by the
admission of the telephone recordings into evidence at trial.
Haq argues that the disclosure of his jail calls to the prosecutor's office
"solely for investigative purpose" distinguishes his case from Archie. In Archie,
Haq argues, the monitoring and release of the defendant's phone calls served
the legitimate basis of prevention of any ongoing criminal conduct, while Haq's
conversations did not contain any indication of such conduct. This may be so,
but the Archie decision did not rest on the ongoing criminal conduct of Archie.
Instead, the holding in Archie was based on the defendant's limited privacy
rights as a detainee, combined with warnings of possible recording.116 Thus,
Haq's analysis is not persuasive. Further, like the defendant in Archie, Haq had
a no-contact order in place.117
115 Id. at 204.
116 Id. at 203-05.
117 Clerk's Papers at 24 (under the terms of the no-contact order, Haq was
not to contact any employees of the Jewish Federation).
30
No. 64839-0-I/31
While there may be limits to the State's use of jail telephone recordings,
we are not confronted here with a case that demands us to define what they are.
Given the legitimate penal interests of the King County Jail, and Haq's limited
privacy rights as a detainee, recording and admission into evidence of his phone
conversations with his parents did not violate his right to privacy.
PRIVACY ACT
Haq argues that the delivery of recordings of his telephone calls to the
King County Prosecutor violated the privacy act. He is mistaken.
Under the Washington Privacy Act:
(1) it . . . [is] unlawful for any individual, partnership, corporation,
association, or the state of Washington . . . to intercept, or record
any:
(a) Private communication transmitted by telephone . . . between
two or more individuals . . . without first obtaining the consent of all
the participants in the communication.[118]
In State v. Modica,119 the supreme court held that the recording of a
Washington inmate's telephone conversations did not violate RCW 9.73.030.
There, the defendant challenged the admission of telephone conversations
recorded at the King County Jail, the same jail that is at issue in this case. The
court first determined the definition of privacy under RCW 9.73.030. A
"communication is private (1) when parties manifest a subjective intention that it
be private and (2) where that expectation is reasonable."12 It then went on to
hold that Modica's expectation of privacy was unreasonable and thus not
118 RCW 9.73.030.
119 164 Wn.2d 83, 186 P.3d 1062 (2008).
12 Id. at 88.
31
No. 64839-0-I/32
protected.121
First, we have already held that inmates have a reduced
expectation of privacy. Second, both Modica and his grandmother
knew they were being recorded . . . .
[B]ecause Modica was in jail, because of the need for jail security,
and because Modica's calls were not to his lawyer or otherwise
privileged, we conclude he had no reasonable expectation of
privacy.[122]
Modica controls here. Haq, like Modica, was an inmate in King County
Jail. Thus, he had a reduced expectation of privacy. He was also warned that
his calls would be recorded. Under Modica, Haq did not have a reasonable
expectation of privacy and thus his conversations are not protected by the
Washington Privacy Act.
Haq attempts to distinguish his case from Modica, arguing that the
dissemination of his conversations was requested by the prosecutor's office for
investigation, not because of safety concerns. It is true that the supreme court
noted that jail security was a consideration that diminished the expectation of
privacy in Modica.123 But, as can be seen from the language above, the security
rationale was only one of several reasons on which the court relied for its
holding. Haq presents no authority that safety is the only reason a prosecutor
can request and introduce jail telephone recordings. The recording of Haq's
phone calls and their admission into evidence at trial did not violate the
Washington Privacy Act.
121 Id.
122 Id. at 88-89.
123 Modica, 164 Wn.2d at 89.
32
No. 64839-0-I/33
EVIDENTIARY RULINGS: ADMISSION OF TELEPHONE RECORDINGS
Haq argues that the trial court abused its discretion in admitting the jail
phone records because they were more prejudicial than probative. The court
properly exercised its discretion by admitting these records.
Relevant evidence is admissible under Evidence Rule (ER) 401 where it
has any tendency to make the existence of a fact that is "of consequence to the
determination of the action" more or less probable.124 However, under ER 403,
evidence whose probative value is outweighed by its potential prejudice should
not be admitted. "'[U]nfair prejudice' is that which is more likely to arouse an
emotional response than a rational decision by the jury [and which creates] . . .
an undue tendency to suggest a decision on an improper basis . . . ."125 As this
court made clear in State v. Bernson,126
[i]n applying ER 403 . . . the linchpin word is 'unfair.' In almost any
instance, a defendant can complain that the admission of
potentially incriminating evidence is prejudicial in that it may
contribute to proving beyond a reasonable doubt he committed the
crime with which he is charged. Addition of the word 'unfair' to
prejudice obligates the court to weigh the evidence [seen] in the
context of the trial itself, bearing in mind fairness to both the State
and the defendant.[127]
A trial court's evidentiary rulings are generally reviewed for abuse of
discretion.128 A trial court abuses its discretion "if its decision is manifestly
124 State v. Hughes, 106 Wn.2d 176, 201, 721 P.2d 902 (1986).
125 State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (quoting
State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990) (citing State v.
Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983))).
126 40 Wn. App. 729, 700 P.2d 758 (1985).
127 Id. at 736.
128 Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555
(1997).
33
No. 64839-0-I/34
unreasonable or based on untenable grounds or untenable reasons."129
Here, the phone conversations between Haq and his family referenced
other acts of terrorism, jihadis, and hate mail that Haq received. The trial court
held that these conversations were reflective of "[w]hat was in Mr. Haq's mind at
the time of the shootings" and thus highly relevant.13 Haq does not dispute this
part of the court's evidentiary ruling.
Haq does argue that the admission of these statements was more
prejudicial than probative, given national fears regarding terrorism. But, as Haq
himself notes, "it was undisputed that neither the Seattle Police nor the FBI
found any links between Mr. Haq and any terrorist group."131 A stipulation to that
effect was read to the jury.132 Given this stipulation, and the relevance of Haq's
comments to his mental state and intent, the court properly exercised its
discretion by admitting the telephone recordings into evidence.
EVIDENTIARY RULINGS: POLICE AND EXPERT TESTIMONY
Haq also argues that testimony of four state witnesses was so unfairly
prejudicial that it invaded the province of the jury and thus deprived him of a fair
trial. We disagree.
The right to a jury trial is guaranteed by both the Washington and United
State Constitutions.133 A crucial aspect of this right is the right of a defendant to
129 In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362
(1997).
13 Report of Proceedings (Oct. 26, 2009) at 169.
131 Opening Brief of Appellant at 74.
132 Report of Proceedings (Nov. 24, 2009) at 78.
133 Wash. Const. art. I, § VI; U.S. Const. amend. VI.
34
No. 64839-0-I/35
have a jury decide factual questions at issue in his case.134 Thus, "witnesses
should not tell the jury what result to reach" as such testimony impinges on the
province of the jury.135 In determining whether a lower court abused its
discretion by admitting witness testimony that infringed the province of the jury,
"the court will consider the circumstances of the case, including the following
factors: (1) 'the type of witness involved,' (2) 'the specific nature of the
testimony,' (3) 'the nature of the charges,' (4) 'the type of defense, and' (5) 'the
other evidence before the trier of fact.'"136
Objections Preserved at Trial
Previously objected to testimony is reviewed for abuse of discretion.137 A
trial court abuses its discretion only when its decision is manifestly unreasonable
or based on untenable grounds.138
Here, Haq asserts that Detective Al Cruise's opinion testimony, to which
Haq objected at trial, invaded the province of the jury and deprived him of a fair
trial. Detective Cruise testified that "it was apparent to me that [Haq] wasn't
acutely insane."139 While Detective Cruise's statement did go to the ultimate
issue in the case, the court sustained Haq's objection and struck the testimony.14
134 See Goodman v. Goodman, 128 Wn.2d 366, 373, 907 P.2d 290
(1995); see also Edgar v. City of Tacoma, 129 Wn.2d 621, 631, 919 P.2d 1236
(1996).
135 State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (citing
Sofie v. Fibreboard Corp., 112 Wn.2d 636, 656, 77 P.2d 711 (1989)).
136 State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007) (quoting
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001)).
137 State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
138 State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
139 Report of Proceedings (Nov. 2, 2009) at 43.
14 Id.
35
No. 64839-0-I/36
Further, prior to deliberations, the jury was instructed that it was the sole judge
of the credibility of witnesses. Courts generally presume jurors follow
instructions to disregard improper evidence.141 Therefore, Detective Cruise's
statement does not require reversal.
Haq argues that Detective Cruise's statement was "the type of opinion
testimony likely to remain in the minds of the jury" and points out that
Washington's courts have noted that "police officers' testimony carries an 'aura
of reliability.'"142 But, where testimony more egregious than here has been
objected to and struck by the trial court, the defendant's constitutional rights
have not been abridged.143 Thus, Haq's argument fails.
Haq also contends that Dr. Victor Reus's testimony that Haq was
"shooting . . . with intent" was not cured by the court's instructions to the jury.
Dr. Reus described Haq's actions at the Jewish Federation, stating "he then
proceeds to shoot people pretty systematically going from office to office and
shooting. Going back and shooting several people twice. He's shooting, I think,
with intent at . . . ."144 The defense objected.145 The court then instructed the
jury that:
before you stepped out, I granted the defense objection and struck
the testimony as to whether or not Dr. Reus concluded that Mr.
141 State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied,
498 U.S. 1046 (1991).
142 Opening Brief of Appellant at 101. See also Montgomery, 163 Wn.2d
at 595.
143 See State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996)
(court upheld conviction where prosecutor asked a key defense witness "[y]ou
beat her black and blue and you burned her abdomen with a cigar, didn't you?").
144 Report of Proceedings (Dec. 2, 2009) at 30.
145 Id.
36
No. 64839-0-I/37
Haq acted with intent or not. I did that because witnesses, experts
or otherwise, are not allowed to testify as to whether Mr. Haq
actually premeditated or formed any specific mental state. That's a
question reserved solely for the jurors in this case. Instead an
expert's testimony is limited to whether a defendant has the
capacity or ability to form a specific mental state.
With that clarification, and having sustained the defense
objection, we'd return to the questioning.[146]
Though Dr. Reus's statement was improper, the court correctly dealt with the
error. It not only instructed the jury to disregard the statement but also explained
why it should do so. Because juries are presumed to follow the court's
instructions,147 Dr. Reus's testimony did not deprive Haq of his right to a jury trial.
Additionally, Haq contends that Dr. Reus's stricken testimony regarding
bipolar individuals denied him a fair trial. When asked whether he was familiar
with those with bipolar disorder, Dr. Reus responded that he was:
People might have remembered the movie of Jonathan Nash, a
guy who won a Nobel prize who had bipolar disorder or
schizophrenia. . . . I mean, I have had patients in my practice
who -- and do currently actually who are functioning as surgeons. I
have a person who's functioning as a judge who carries a bipolar
diagnosis. So -- and when I was in D.C., you know, several of my
mentors there were treating members of the U.S. congress [sic]
with bipolar disorder.[148]
The trial court sustained an objection to this testimony and instructed the jury to
disregard it. Given the presumption that the jury will follow the court's
instructions,149 Dr. Reus's statement was not a denial of Haq's right to a fair trial.
Objections Not Preserved at Trial
146 Id. at 35-36.
147 Swan, 114 Wn.2d at 661-62.
148 Report of Proceedings (Dec. 1, 2009) at 126.
149 Swan, 114 Wn.2d at 661-62.
37
No. 64839-0-I/38
Some of the statements to which Haq now objects were not challenged at
trial. We thus analyze these claimed errors under RAP 2.5(a)(3) and hold that
none are manifest errors that affect a constitutional right.15
For purposes of RAP 2.5(a)(3), "manifest error" requires a showing of
actual prejudice.151 To demonstrate actual prejudice, there must be a plausible
showing by the appellant that the asserted error had practical and identifiable
consequences in the trial of the case.152 To ensure that the actual prejudice
inquiry and the harmless error analysis are distinct, "the focus of the actual
prejudice must be on whether the error is so obvious on the record that the error
warrants appellate review."153 For witness opinion testimony, "'[a]dmission of
witness opinion testimony on an ultimate fact, without objection, is not
automatically reviewable as a 'manifest' constitutional error'. But, 'an explicit or
almost explicit' opinion on the defendant's guilt or a victim's credibility can
constitute manifest error."154
Haq now challenges statements made at trial by Officers William Collins
and Timothy Pasternak that he was an "active shooter" and was hunting for
people to execute.155 In his testimony, Officer Collins defined an "active shooter"
as a person who was "hunting for people and shooting people as he found
15 Lynn, 67 Wn. App. at 344-45.
151 State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting
Kirkman, 159 Wn.2d at 935).
152 Id.
153 Id. at 99-100.
154 State v. King, 167 Wn.2d 324, 332, 219 P.3d 642 (2009) (quoting
Kirkman, 159 Wn.2d at 936.).
155 Report of Proceedings (Oct. 26, 2009) at 53.
38
No. 64839-0-I/39
them."156 Additionally, Officer Collins referred to the woman Haq killed, Pamela
Waechter, as the person who "had been executed . . . . "157 This testimony, to
which Haq did not object below, was not an explicit or nearly explicit opinion on
Haq's guilt. Further, it was not so prejudicial, in the context of the entire trial, so
as to create practical and identifiable consequences. Thus, Haq has not met his
burden to show that these statements constitute manifest error in violation of his
right to a jury trial.
Haq also claims that Dr. Reus's testimony regarding whether his actions
prior to the event at the Jewish Federation "went to the heart" of intent requires
reversal. This argument is not persuasive.
In response to a question about how Haq's purchase of guns contributed
to his conclusions, Dr. Reus stated:
Well, I think they go to the heart of premeditation and intent. And,
you know, I think that there are aspects of the purchases that, you
know, I think are unusual. . . . The choices he makes about
ammunition I think are somewhat unusual in terms of his espoused
intent.[158]
While lay witnesses may not generally express an opinion on an ultimate fact of
a case:
it has long been recognized that a qualified expert is competent to
express an opinion on a proper subject, even though he thereby
expresses an opinion on the ultimate fact to be found by the trier of
fact. The mere fact that the opinion of an expert covers an issue
which the jury has to pass upon does not call for automatic
exclusion.[159]
156 Id.
157 Id. at 77.
158 Report of Proceedings (Dec. 2, 2009) at 18.
159 Kirkman, 159 Wn.2d at 929 (citing Gerberg v. Crosby, 52 Wn.2d 792,
795-96, 329 P.2d 184 (1958); State v. Ring, 54 Wn.2d 250, 255, 339 P.2d 461
39
No. 64839-0-I/40
Thus, in State v. Kirkman,16 one defendant argued that an expert's
testimony that a child's claim of sexual abuse appeared truthful was
impermissable.161 But, the court held that the expert did not invade the province
of the jury, as the expert's statement was not a clear comment on the child's
credibility.162 Similarly, in State v. Hayward,163 expert testimony whether the
victim suffered a temporary but substantial loss or impairment of a bodily
function was not an infringement of the jury trial right, though the jury instructions
included the same language.164 The court held that, because the expert did not
directly discuss Hayward's guilt, his testimony regarding an ultimate issue was
not unconstitutional.165
Here, as in Hayward and Kirkland, Dr. Reus's challenged statements,
while concerning an ultimate issue, were not constitutional violations.
"[T]testimony is not objectionable simply because it embraces an ultimate issue
the trier of fact must decide. 'The fact that an opinion encompassing ultimate
factual issues supports the conclusion that the defendant is guilty does not make
the testimony an improper opinion of guilt.'"166 Thus, Dr. Reus's testimony was
not an infringement of Haq's constitutional right. The claimed error is not
(1959)).
16 159 Wn.2d 918, 155 P.3d 125 (2007).
161 Id. at 929-30.
162 Id. at 930.
163 152 Wn. App. 632, 217 P.3d 354 (2009).
164 Id. at 650.
165 Id. at 650-51.
166 Hayward, 152 Wn. App at 649 (quoting City of Seattle v. Heatley, 70
Wn. App. 573, 579, 854 P.2d 658 (1993) (citing Demery, 144 Wn.2d at 759)).
40
No. 64839-0-I/41
manifest.
Finally, Haq argues that, except for some medical testimony, "Dr. Reus
primarily went through the state's evidence and gave his opinion that everything
from going on the Internet to memorizing the address of the Federation showed
intent and premeditation . . . ."167 He also contends that Dr. Reus's statement
complementing Dr. Wheeler's summary of his interview with Haq was improper.
Dr. Reus stated, in reference to Dr. Wheeler's case report, that he was "struck
really by its beauty in how outstanding a report I thought it was. . . . I thought it
remarkable in its detail and logic."168 But, Haq failed to object to all of this
testimony. Such testimony does not rise to the level of a manifest error of
constitutional magnitude, and it is not reviewable.
Expert Testimony Admitted
Haq argues that both Dr. Wheeler and Dr. Reus's testimony regarding the
definitions of intent, premeditation and insanity, invaded the province of the
judge by providing legal instructions. We reject this argument.
If the legal question in a case is in dispute, expert testimony that
expresses an opinion as to the definition of this question is improper.169 Here,
Dr. Reus showed PowerPoint slides during his testimony that defined "insanity",
"mental state," "premeditation," and "intent."17 Dr. Wheeler also referenced the
167 Opening Brief of Appellants at 102-03.
168 Report of Proceedings (Dec. 1, 2009) at 109-10.
169 See Wash. State Physicians Ins. Exch. and Ass'n v. Fisons Corp., 122
Wn.2d 299, 344, 858 P.2d 1054 (1993); Terrell C. v. State Dep't of Soc. and
Health Servs., 120 Wn. App. 20, 30-31, 84 P.3d 899 (2004).
17 Report of Proceedings (Dec. 1, 2009) at 129-33; Ex. 286.
41
No. 64839-0-I/42
legal definitions provided by the State.171 But, the legal definitions of intent,
premeditation, and insanity were not in dispute, nor did Dr. Reus's PowerPoint
presentation state an incorrect or inaccurate statement of these legal principles.
Indeed, the definitions of premeditation, intent, and insanity used by Dr. Reus
mirrored the definitions provided to the jury by the judge at the beginning of trial
and then again before their deliberations. The trial court did not abuse its
discretion by admitting this testimony.
Dr. Reus also testified that the question of insanity was a legal one and
that "from a legal standpoint, the question is at this particular point in time of this
event" was Haq able to perceive the nature and quality of his actions or tell right
from wrong.172 He also stated that premeditation had to be "sufficiently long that
you, as a jury, are convinced that there was thought -- that the act was thought
over ahead of time."173 Haq argues that these statements were unconstitutional
invasions of the province of the judge.
Assuming, without deciding, that these statements were inaccurate and
erroneous statements of the law, Haq failed to object to them.174 Thus, he must
demonstrate they constituted a manifest constitutional error under RAP
2.5(a)(3).
Here, the alleged error is not manifest. Dr. Reus's statements occurred
during a many-week trial, with many other expert witnesses. Though Haq
171 Report of Proceedings (Dec. 3, 2009) at 131-33.
172 Report of Proceedings (Dec. 1, 2009) at 130-31.
173 Id. at 132-33.
174 Id. at 131-33.
42
No. 64839-0-I/43
attempts to show prejudice by noting the hung jury in the first trial, in which Dr.
Reus did not testify, this is insufficient to show manifest error in the trial in which
the jury convicted Haq. This is because the differences in outcome could have
resulted from other differences between the two trials. In sum, Haq fails to show
that Dr. Reus's statements constitute manifest error.
Excluded Expert Testimony
Haq argues that the refusal of the lower court to allow his experts to
testify about anecdotal evidence regarding the connection between "manic flips"
and an anti-depressant he was prescribed was a constitutional violation. But,
the trial court did not abuse its discretion by excluding this evidence.
Under the Fifth, Sixth and Fourteenth Amendments, a defendant has the
right to appear, testify, and defend himself at trial.175
The right of an accused in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the
State's accusations. The rights to confront and cross-examine
witnesses and to call witnesses in one's own behalf have long
been recognized as essential to due process.[176]
Haq sought to introduce Dr. Robert Julien's stories, told to him by medical
professionals, regarding the odd or aggressive behavior triggered by Haq's
antidepressant, Effexor. The trial court did not abuse its discretion in excluding
this evidence. Here, Haq was able to present his own witnesses and other
evidence vital to his defense. Indeed, Haq's witnesses did present evidence as
175 See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed.
2d 1019 (1967); Chambers v. Miss., 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed.
2d 297 (1973).
176 Chambers, 410 U.S. at 294.
43
No. 64839-0-I/44
to the potential side-effects caused by his medication. Dr. Julien was asked
whether he thought Effexor was a wise choice for Haq, and he responded that,
based on a 2006 study that indicated Effexor was associated with the greatest
risk of mania, it was not.177 Later Dr. Julien described a study that attempted to
answer "the question of would antidepressants make your mental health worse if
given to bipolar patients to treat bipolar depression. And of all those looked at,
Effexor was by far the one most likely to cause a manic flip . . . ."178 Therefore,
the trial court did not abuse its discretion by excluding the anecdotal testimony
of Dr. Julien.
Haq relies largely on Washington v. Texas,179 but that case is
distinguishable. There, the defendant claimed that a Texas statute, which did
not allow testimony by an accomplice, violated his Sixth Amendment right to
compulsory process and to obtain witnesses in his favor.18 The court concluded
that:
[t]he right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense . . . . Just as an accused has the right to confront the
prosecution's witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense.[181]
The lack of testimony about anecdotal evidence on a subject that was discussed
at trial is distinguishable from Washington. The court's ruling was not an abuse
177 Report of Proceedings (Nov. 16, 2009) at 150.
178 Id. at 152.
179 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 1019 (1967).
18 Id. at 15-16.
181 Id. at 19.
44
No. 64839-0-I/45
of discretion.
COURT-ORDERED EXAMINATION BY A STATE EXPERT
Haq argues that the court abused its discretion when it granted the
State's motion for a compelled mental health examination, performed by a State
expert. Further, he claims that admission at trial of statements made during this
examination was improper. We disagree.
Generally, admission of evidence is reviewed on appeal for an abuse of
discretion by the lower court.182 But, where, as here, an issue is based on the
meaning of a statute, it is a question of law and reviewed de novo.183
RCW 10.77.060(1)(a) provides that
[w]henever a defendant has pleaded not guilty by reason of
insanity . . . the court on its own motion or on the motion of any
party shall either appoint or request the secretary to designate at
least two qualified experts or professional persons, one of whom
shall be approved by the prosecuting attorney, to examine and
report upon the mental condition of the defendant.
Further, CrR 4.7(g) requires the disclosure of any reports of mental examinations
and CrR 4.7(b)(2)(viii) allows a court to order the defendant to submit to a
reasonable mental health examination.
The supreme court has analyzed the question of court ordered mental
health examinations in Hutchinson I184 and Hutchinson II.185 In Hutchinson I, the
defendant argued that "the trial court improperly ordered him to submit to an
182 State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378 (2010) (citing
State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993)).
183 In re Det. of Aston, 161 Wn. App. 824, 842, 251 P.3d 917 (2011)
(citing Okeson v. City of Seattle, 150 Wn.2d 540, 548-49, 78 P.3d 1279 (2003)).
184 111 Wn.2d 872, 766 P.2d 447 (1989).
185 135 Wn.2d 863, 959 P.2d 1061 (1998).
45
No. 64839-0-I/46
examination by a psychiatrist selected by the prosecution."186 The court
rejected this argument and held that "[w]hen a defendant raises an insanity
defense and introduces supporting psychiatric testimony, a court may order the
defendant to submit to an examination by a state psychiatrist . . . ."187
Here, Haq pled not guilty by reason of insanity, and thus put his mental
health squarely at issue. Hutchinson I indicates that a defendant who pleads in
this way may be ordered to submit to an examination, not only by a mental
health expert appointed by the court but also by a state expert.188 Thus, the
court did not abuse its discretion when it required, over Haq's objection, that he
submit to such an examination.
Haq attempts to distinguish the two Hutchinson cases because they
involved a defendant alleging diminished capacity and court selected experts.
However, Hutchinson I made clear that this distinction was unimportant. "The
defendant argues that requiring him to submit to a psychiatric examination would
deprive him of his right against self-incrimination as he is relying on the defense
of diminished capacity, but [t]he defenses of insanity and diminished capacity
both bring the defendant's mental capacity into question."189 Additionally, in both
Hutchinson cases, the expert was "of the State's choosing."19
Additionally, given the holding of Hutchinson II, we hold that the
admission at trial of the State's expert's testimony was not a violation of Haq's
186 Hutchinson I, 111 Wn.2d at 880.
187 Id. (emphasis added).
188 Id.
189 Hutchinson I, 111 Wn.2d at 880 (emphasis added).
19 Hutchinson II, 135 Wn.2d at 870.
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No. 64839-0-I/47
Fifth Amendment rights.
In Hutchinson II, the supreme court held that admission of a state mental
health expert's statements requires the court to perform a balancing test.191 It
should balance the preservation of both the defendant's Fifth Amendment rights
and the ability of the State to gather information to contravene a defendant's
claim of insanity.192 This test requires the court to weigh the incriminating nature
of the statement against its probative value. As the supreme court noted:
The trial court must . . . determine the scope of the expert's
testimony at trial, allowing opinions and observations which were
not gleaned from incriminating statements [made by the
defendant]. A statement should not be ruled incriminating merely
because it tends to show the defendant was capable of forming the
crime's requisite mental state. On the other hand, an expert should
not be allowed to testify to a defendant's incriminating statements,
e.g., confessions or admissions that he or she committed the crime
charged. As the Court of Appeals pointed out . . . the trial court
can meaningfully address these issues only after a defendant has
fully participated in the examination.
This distinction will not always be easy to apply, but it balances the
defendant's right to be free from self-incrimination with the State's
interest in disclosure -- "the only effective means it has of
controverting [a defendant's] proof on an issue that he interjected
into the case."[193]
The Hutchinson II court also explained how State v. Craney194 informed its
opinion in Hutchinson I. In Craney, the defendant was convicted of first-degree
murder.195 On appeal, he argued that the admission of expert testimony, which
191 Id. at 878-79.
192 Id.
193 Id. (quoting Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 68 L.
Ed. 2d 359 (1981)).
194 347 N.W.2d 668 (Iowa 1984).
195 Id. at 671.
47
No. 64839-0-I/48
included statements he had made, was improper.196 The court held it was not.197
The Hutchinson II court used Craney to explain its holding:
Under the Craney rule, an observation or statement is not
"incriminatory" merely because it tends to show the defendant is
sane. In the context of diminished capacity, then, an observation
or statement would not be incriminatory merely because it tended
to show the defendant's capacity to premeditate or act intentionally
was unimpaired. It is important to note Craney does not entitle a
defendant to refuse to answer incriminating questions; it limits the
State's subsequent use of a defendant's answers and expert
opinions based on them.[198]
Here, the court complied with the express requirements laid out by
Hutchinson II. During the first trial, the lower court applied a balancing test to
determine which of Haq's statements to Dr. Wheeler, the State's expert, should
be admitted.199 The court reasoned, after extensive argument by both parties,
that Washington law requires:
the State [to] have access to the defendant, because the defendant
is the best evidence. And any opinion coming from that in which
the expert would opine on the defendant's sanity or insanity,
mental state or ability to form a mental state is not incriminating,
even though it could be used to prove the defendant's guilt.
On the other hand, any factual confessional admissions
about the actual actus reus, the underlying facts . . . those are
incriminating. . . .
In this particular case, by way of an example, Mr. Haq's
statements to Dr. Wheeler about procuring the guns, how he
procured them, when he procured them, those are factually
incriminating admissions . . . .
Dr. Wheeler's observations and conclusions about the
defendant's procurement and how it sheds light on his mental state
196 Id. at 673-74.
197 Id.
198 Hutchinson II, 135 Wn.2d at 877.
199 Report of Proceedings (April 29, 2008) at 3.
48
No. 64839-0-I/49
would not be incriminating.[2]
Before the second trial, the court denied Haq's motion to prevent the
State's experts "from testifying to statements made by the defendant during his
forensic interviews with Dr. Wheeler."201 Thus, given the balancing engaged in
by the court before the first trial, and its consequent decision before the second,
the court engaged in the required balancing test, and its actions did not
constitute an abuse of discretion.
Haq also argues that the admission of audio recordings of his statements
to Dr. Wheeler were particularly prejudicial and violative of his Fifth Amendment
right. But, Haq did not object to the particular form of this evidence, instead
objecting to the admission of any testimony by Dr. Wheeler. Generally, an
appellate court will not consider issues raised for the first time on appeal unless
they involve a manifest error affecting a constitutional right.202 Here, Haq does
not attempt to demonstrate that the particular form in which the evidence was
introduced created a manifest error affecting a constitutional right. Thus, we do
not consider this new argument on appeal any further.
JURY INSTRUCTIONS
Haq argues that the court erred in submitting instructions to the jury that
did not require it to find he intended to commit burglary in order to convict him of
aggravated murder. We disagree.
A review of the sufficiency of the evidence requires this court to view the
2 Id. at 95-96.
201 Clerk's Papers at 8566.
202 Kirkman, 159 Wn.2d at 926.
49
No. 64839-0-I/50
evidence in the light most favorable to the State and determine if any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.203 But, where, as here, a challenge also imputes the meaning
of a statute, this court is presented with a question of law and consequently
engages in de novo review.204
A person is guilty of aggravated first degree murder under RCW
10.95.020 "if he or she commits first degree murder . . . and one or more of the
following aggravating circumstances exist: . . . (11) The murder was committed in
the course of, in furtherance of, or in immediate flight from one of the following
crimes: (a) Robbery in the first or second degree . . . ." Under RCW 9A.52.020,
first degree burglary occurs where "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 . . . (a) is armed with a deadly weapon . . . . "
Division II dealt with the question of aggravated murder instructions in
State v. Howland.205 There, the victim was stabbed to death in his apartment.206
Howland confessed to a police informant that he had killed the victim, and was
convicted of first degree felony murder with the aggravating circumstance of
second degree burglary.207 Division II held that no independent felonious
203 State v. Brown, 132 Wn.2d 529, 607, 940 P.2d 546 (1997).
204 State v. Hacheney, 160 Wn.2d 503, 512, 158 P.3d 1152 (2007). See
also Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006).
205 66 Wn. App. 586, 832 P.2d 1339 (1992), review denied, 121 Wn.2d
1006 (1993).
206 Id. at 588-89.
207 Id. at 589-90.
50
No. 64839-0-I/51
purpose was required for a conviction of aggravated murder:
a general look at the aggravating circumstances enumerated in
RCW 10.95.020 indicates that the Legislature did not contemplate
that the aggravating circumstances involve an additional or
independent criminal intent. . . . See e.g., RCW 10.95.020(1)
(victim was a law enforcement officer); RCW 10.95.020(2)
(perpetrator is an escaped prisoner . . . . None of the above
circumstances requires an intent that is independent of the
premeditated intent to cause death. Because these circumstances
do not involve independent criminal intent, there is no indication
that the Legislature contemplated requiring the 'burglary'
circumstance to involve a separate or independent criminal
intent.[208]
State v. Hacheney209 is the most recent Washington case to interpret
RCW 10.95.020. There, the supreme court held that murder committed "in the
course of" another felony required "a causal connection such that the death was
a probable consequence of the felony."21 In Hacheney, the defendant was
accused of suffocating his wife and then setting fire to the house.211 The jury
found him guilty of first degree murder and returned a special verdict for
aggravated murder, finding that Hacheney had committed the murder "in the
course of" first degree arson.212 The supreme court rejected this rationale,
holding that "[a] person is guilty of aggravated first degree murder if the murder
was committed 'in the course of' an enumerated felony, . . . not if the
enumerated felony is committed in the course of the murder. . . . [F]or a killing to
have occurred 'in the course of' [an enumerated crime], logic dictates that the
208 Id. at 593.
209 160 Wn.2d 503, 158 P.3d 1152 (2007).
21 Id. at 506 (citing State v. Golladay, 78 Wn.2d 121, 131, 470 P.2d 191
(1970)).
211 Id. at 505.
212 Id. at 506.
51
No. 64839-0-I/52
[crime] must have begun before the killing."213 Hacheney did not abrogate or
otherwise overturn the reasoning in Howland.
Here, Haq's actions mirror those of the defendant in Howland, and not
those of Hacheney. Haq forcibly entered the Jewish Federation, and then
murdered Pamela Waechter. The enumerated crime of burglary began before
the killing. Haq may not have had an independent felonious intent with regard to
burglary, but Howland makes it clear that none is needed.
Haq argues that Hacheney's reference to a California case, People v.
Green,214 indicates that the supreme court meant to adopt the entire reasoning of
that case. In Green, the defendant murdered his wife, and then took her purse
and the clothing she had worn. The California court held that the elevation to
"special circumstances" was not warranted as the robbery had been committed
only to conceal the murder itself. But the Howland court distinguished both the
facts of Green and the language of the California aggravated murder statute
from Washington's statute. The Howland court concluded:
First, Green is factually different. In that case, the
defendant killed his wife and then, 'to facilitate or conceal the
primary crime,' he took his wife's jewelry and her money and
therefore committed a robbery which was 'merely incidental to the
murder'.
Here, however, the burglary . . . was not conduct merely
ancillary or incidental to the murder. It was a necessary precursor
to the murder. . . .
Secondly, California law differs markedly from the law in
Washington. For example, in California the 'merger' doctrine is
213 Id. at 518.
214 27 Cal.3d 1, 609 P.2d 468 (1980), overruled on other grounds by
People v. Martinez, 20 Cal. 4th 225, 973 P.2d 512 (1999).
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No. 64839-0-I/53
applied to prohibit a jury instruction on felony murder when the
underlying felony is an integral part of the homicide. To the
contrary, our State has specifically declined to apply the merger
doctrine to a charge of felony murder.[215]
Based on Howland, Haq's arguments are not persuasive.
SUFFICIENCY OF THE EVIDENCE -- MALICIOUS HARASSMENT
Haq argues that the State failed to produce evidence sufficient for the jury
to convict him of malicious harassment. We reject this contention.
Evidence is sufficient to support a conviction if, after viewing the evidence
in a light most favorable to the State, any rational trier of fact could have found
beyond a reasonable doubt the essential elements of the crime.216 But, the
crime of malicious harassment implicates First Amendment rights.217 Thus, the
appellate court must conduct a review of those facts that are "intermingled with
legal questions . . . in order to pass on the constitutional question"218 and assure
the conviction does not violate a defendant's First Amendment rights.219
To convict a defendant of malicious harassment under RCW 9A.36.080,
the State must prove beyond a reasonable doubt that:
(1) A person . . . maliciously and intentionally commits one of the
following acts because of his or her perception of the victim's race,
color, religion, ancestry, national origin, gender, sexual orientation, or
mental, physical, or sensory handicap: [and]
(a) Causes physical injury to the victim or another person . . . .
215 66 Wn. App. at 592-93.
216 State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980) (citing
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
217 State v. Kilburn, 151 Wn.2d 36, 51-52, 84 P.3d 1215 (2004).
218 Id.
219 Id. at 50.
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No. 64839-0-I/54
The supreme court has stated that "the statute is aimed at criminal conduct and
enhances punishment for that conduct where the defendant chooses his or her
victim because of their perceived membership in a protected category. The
statute punishes the selection of the victim, not the reasons for the
selection."22
Here, Haq intentionally targeted individuals of the Jewish faith, and his
malicious intent was demonstrated by both his conduct and the words
associated with it. He specifically referenced his frustration and anger with the
Jewish people when he was at the Jewish Federation and in telephone
conversations afterwards. After being taken into custody on the day of his attack
on the Jewish Federation offices, Haq told Detective Al Cruise that "[t]his is
about the Jews. . . . This is about the Jews are running the country."221 When
he was being held in King County Jail, he told his mother that he had "got the
Jews, you know . . . They were -- they were the enemy."222 A jury was entitled to
decide on the basis of these and other statements by Haq that he targeted
individuals because of their Jewish faith.
Haq argues that the State failed to produce sufficient evidence that his
actions were "caused by religious bigotry." He argues, instead, that all
indications were that he was motivated by political beliefs. But, in State v.
Pollard,223 this court rejected an argument that the defendant's hostile motivation
22 State v. Talley, 122 Wn.2d 192, 201, 858 P.2d 217 (1993) (emphasis
added).
221 Report of Proceedings (Nov. 2, 2009) at 18.
222 Pretrial Ex. 12 at 10-12.
223 80 Wn. App. 60, 906 P.2d 976 (1995).
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had to be a substantial factor to support a finding of malicious harassment.224
There, the defendant argued that his racial bias played "only a small role" in his
assault on the victim, and thus did not satisfy the requirements of the malicious
harassment statute.225 This court disagreed, explaining that it did not think it was
necessary to read a substantial factor requirement into RCW 9A.36.080.226
Here, though Haq argues that he was motivated only by political ideology, his
statements belie this argument and indicate that he was motivated by both
religious bigotry and political ideology. Thus, even if Haq was motivated in part
by a dislike of Israeli politics, there was sufficient evidence before the jury to
demonstrate that his motivations were also based on religious bigotry.
CUMULATIVE ERROR
Haq argues that cumulative error denied him a fair trial. We hold that
there were no errors below and thus there was no cumulative error.
Where several errors standing alone do not warrant reversal, the
cumulative error doctrine requires reversal when the combined effects of the
errors denied the defendant a fair trial.227
Here, there is no showing that Haq was denied a fair trial by cumulative
error because there were no errors.
We affirm the judgment and sentence.
224 Id. at 68-69.
225 Id. at 67-68.
226 Id. at 69.
227 State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
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WE CONCUR:
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