State Of Washington v. Joseph Daniel Strange ( 2016 )

2016 AUK -1 An 9=29
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72953-5-1
Respondent,
DIVISION ONE
v.
JOSEPH D. STRANGE, UNPUBLISHED OPINION
Appellant. FILED: August 1.2016
Spearman, J. — Joseph Strange challenges imposition of the mandatory
deoxyribonucleic acid (DNA) collection fee under RCW 43.43.7541 as violating
substantive due process and equal protection. Because he makes this challenge
for the first time on appeal but fails to establish manifest constitutional error, we
reject his claims. In a statement of additional grounds, Strange also argues that
the trial court erred in excluding evidence, that the prosecutor committed
reversible misconduct, and that the trial court improperly imposed an exceptional
sentence. Finding no error, we affirm.
FACTS
Strange was driving a truck in Bothell one evening when he passed a
police car. The police officer ran a routine check of the license plate and
determined that the vehicle was stolen. After calling for backup, Officer Atterbury
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signaled Strange to stop. Strange did not stop but sped up and turned onto the
freeway. Atterbury followed with his lights and sirens activated. Another officer
joined Atterbury in the pursuit.
Police department policy only authorized vehicular pursuit in limited
situations, and Atterbury's sergeant gave the order to terminate the pursuit.
Atterbury turned off his lights and siren and slowed. When Strange exited the
freeway, Atterbury and the other officer followed. Atterbury observed Strange
turn into the parking lot of an AM/PM mini mart and strike a Ford Taurus. Strange
continued to flee and the officers resumed their pursuit. Strange eventually ran a
red light, collided with an oncoming car, and fatally injured the driver.
Strange was convicted of second degree felony murder and possession of
a stolen vehicle. The trial court calculated an offender score of 18 and 37,
respectively. On the murder charge, the court imposed a standard range
sentence of 397 months. On the stolen vehicle charge, the court determined an
exceptional sentence was warranted based on RCW 9.94A.535(2)(c).1 It
imposed a sentence of 75 months, exceeding the standard range of 43-57
months, and ordered the terms to run consecutively instead of concurrently. The
court imposed only mandatory fees, including the one hundred dollars DNA
collection fee required by RCW 43.43.7541. The court informed Strange of his
1 The statute establishes an aggravating circumstance as follows:
The defendant has committed multiple current offenses and the defendant's
high offender score results in some of the current offenses going
unpunished.
No. 72953-5-1/3
obligation to begin making payments on the fees within 60 days of his release
from confinement and to complete the payments within 60 months after release.
DISCUSSION
For the first time on appeal, Strange challenges the trial court's order
imposing the DNA collection fee as a condition of his sentence. He claims the
order violates substantive due process as applied to indigent defendants and
equal protection as applied to a repeat felony offender. We conclude that he is
not entitled to raise these claims for the first time on appeal because in neither
case can he show manifest constitutional error as required under RAP 2.5.
In State v. Shelton, No. 72848-2-1, 2016 WL 3461164 (Wash. Ct. App.
June 20, 2016) we held that a substantive due process challenge to the DNA fee
statute is not ripe for review until the State attempts to collect the fee. jd. at *6.
And in State v. Lewis, No. 72637-4-I, 2016 WL 3570550 (Wash. Ct. App. June
27, 2016), we rejected an equal protection challenge to imposition of the DNA
collection fee on defendants who had previously paid it, concluding there is a
rational basis to impose the DNA collection fee for every felony. In light of
Shelton and Lewis, Strange cannot show that the order imposing the DNA
collection fee implicates either of the asserted constitutional rights. Accordingly,
his claims may not be raised for the first time on appeal.
Statement of Additional Grounds
Strange asserts three further challenges in his statement of additional
grounds. First, he argues that the trial court erred in excluding evidence that
Officer Atterbury was sanctioned by the Bothell police department for engaging in
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No. 72953-5-1/4
a vehicular pursuit contrary to department policy. Statement of Additional
Grounds (SAG) 1. He asserts that excluding this evidence prevented him from
impeaching Atterbury and violated his due process right to a fair trial.
We review a trial court's evidentiary decisions for abuse of discretion. In re
Pers. Restraint of Duncan, 167 Wash. 2d 398, 402, 219 P.3d 666 (2009) (citing
State v. McDonald, 138 Wash. 2d 680, 693, 981 P.2d 443 (1999). The trial court
abuses its discretion if its decision is manifestly unreasonable or if it is based on
untenable grounds. Id.
Strange moved in limine to admit evidence that Atterbury had been
suspended for one day as a sanction for violating department policy concerning
pursuit of fleeing vehicles. Strange sought to introduce the sanction to attack the
credibility of Atterbury's statement concerning the pursuit. The trial court held that
evidence about the departmental policy, the department's investigation into
Atterbury's conduct, and the possibility of civil liability were admissible, but it
excluded evidence of the actual sanction imposed as irrelevant. Strange argues
that the exclusion of this evidence prevented him from exposing Atterbury's bias
to the jury. But at trial, Strange questioned Atterbury extensively concerning
department policy, whether his pursuit of Strange complied with that policy,
department investigation into the pursuit, and potential civil liability for violating
the policy. There was no abuse of discretion.
Strange next argues that the prosecutor committed reversible misconduct
by trying to elicit sympathy for the victim of an uncharged crime. To prevail on a
claim of prosecutorial misconduct, the defendant must establish that the
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No. 72953-5-1/5
prosecutor's conduct was "'both improper and prejudicial in the context of the
entire record and the circumstances at trial.'" State v. Thorqerson. 172 Wash. 2d
438, 442, 258 P.3d 43, 46 (2011) (quoting State v. Maqers. 164Wn.2d 174, 191,
189 P.3d 126 (2008)). When raised for the first time on appeal, the defendant
must show that the misconduct was flagrant and so prejudicial that it could not
have been cured by timely objection at trial. Id. at 443 (citing State v. Russell,
125 Wash. 2d 24, 86, 882 P.2d 747 (1994)). A prosecutor has wide latitude to argue
reasonable inferences from the evidence, jd. at 453. But a prosecutor must not
refer to evidence outside the record or encourage the jury to convict on improper
grounds. State v. Fisher. 165 Wash. 2d 727, 747, 202 P.3d 937 (2009) (citing State
v. Belqarde. 110 Wash. 2d 504, 507-08, 755 P.2d 174 (1988)).
In closing argument, Strange argued that he had driven negligently but not
recklessly. He asserted that the State had failed to show that he acted with
indifference to human life. In rebuttal, the prosecutor argued that the collision at
the AM/PM demonstrated Strange's lack of concern for the people he
endangered.2 The prosecutor argued:
What about this driver at the am/pm? What about that guy? How
concerned was the defendant about his welfare? He could have been
seriously injured in this collision. Did he stop and get out and see what
was going on? Not a bit of it. He's all about getting away from the police.
So he just left that guy back there. That's how much concern for people
the defendant had that particular night.
Verbatim Report of Proceedings (VRP) (11/19/14) at 36.
2Strange asserts that the prosecutor argued "'[t]he victim of the Taurus, where is their
justice?'" SAG 3. He provides no citation to the record. The quoted sentence does not appear to
be part of the prosecutor's closing argument.
No. 72953-5-1/6
The prosecutor's comments were reasonable inferences from the
evidence and did not encourage the jury to convict on improper grounds. There
was no misconduct.
Finally, Strange argues that the trial court erred in imposing an exceptional
sentence. SAG 2. He appears to argue that the State encouraged this error by
including a misleading statement in its sentencing memorandum.
The trial court found that because of Strange's offender score of 37, the
possession of stolen vehicle conviction would go unpunished unless an
exceptional sentence was imposed. The court concluded that it was appropriate
to impose an exceptional sentence of 75 months consecutive to the 397 months
for second degree murder.
Strange does not challenge the finding of fact or conclusion of law
supporting the exceptional sentence. Strange objects to a sentence in the State's
sentencing memorandum which states that the prosecutor "sought from the
beginning to punish Mr. Strange to the fullest extent of the law." SAG 2. Strange
argues that this statement is untrue. He alleges that the State had previously
offered to recommend the low end at sentencing if Strange pleaded guilty to first
degree murder. Neither the sentencing memorandum nor the plea offer are in our
record on review, but even if true, Strange's assertion is irrelevant to the court's
authority to impose an exceptional sentence on a ground undisputedly within its
statutory authority. The claim is without merit.
No. 72953-5-1/7
Affirmed.
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WE CONCUR:
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