185 Wash. 2d 768 | Wash. | 2016
Lead Opinion
¶1 Robbery and theft are closely related crimes. While both offenses involve stealing money or property, theft is elevated to robbery where the defendant uses force or threatened force to take the property. The main question in this case is whether certain conduct constituted a “threat of force,” making the crime a robbery, not a theft. The legislature has broadly defined “threat” to specifically include “indirect [ ]” threats. RCW 9A.04-.110(28). We have established in our case law that a threat need not be explicit to qualify—a threat can be implied by words or conduct. As we recently held, where an ordinary person could reasonably infer a threat of harm from the defendant’s conduct, the defendant made an implied threat of force. State v. Witherspoon, 180 Wn.2d 875, 884, 329 P.3d 888 (2014). Today, we are asked to decide whether, under the circumstances here, respondent Charles Farnsworth’s handwritten note demanding money from a bank teller contained an implied threat of force.
¶2 Although the note did not convey an explicitly threatening message, we believe it was laden with inherent intimidation. When a person demands money at a bank, with no explanation or indication of lawful entitlement to
¶3 Additionally, Farnsworth asks us to find that cumulative trial court errors deprived him of a fair trial. We find that no errors accumulated to deprive Farnsworth of a fair trial. Consequently, we affirm Farnsworth’s conviction for first degree robbery.
FACTS
¶4 On October 15, 2009, Farnsworth and James McFarland were suffering heroin withdrawals and had no money to purchase more drugs. The pair made a plan to “rob” a bank. 13 Report of Proceedings (RP) at 1208. The plan was for McFarland to wait outside in the car while Farnsworth entered a bank, wearing a wig and sunglasses as a disguise, and retrieved money. Farnsworth would present the note to the teller, which read, “No die [sic] packs, no tracking devices, put the money in the bag.” Clerk’s Papers (CP) at 34.
¶5 Farnsworth was “hem and hawing” while driving around, and McFarland grew increasingly frustrated with him until he finally reached his breaking point. 13 RP at 1233. He grabbed the wig and note from Farnsworth’s hands and entered the bank to carry out their plan. While Farnsworth waited outside in the car, McFarland approached a teller’s counter, leaned through her window, and
¶6 Both Farnsworth and McFarland were charged with first degree robbery pursuant to RCW 9A.56.200(l)(b) (robbery committed in a financial institution). Farnsworth faced the possibility of a life sentence under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 if convicted of this robbery, as he was previously convicted of a 2004 robbery and a 1984 vehicular homicide in California. Ch. 9.94A RCW. The POAA requires a life sentence when a repeat offender commits a third felony that is classified as a “most serious offense” (often referred to as a “third strike”). RCW 9.94A.570, .030(33), (38).
¶7 Likewise, McFarland faced a life sentence under the POAA, as he also had prior convictions of crimes classified as most serious offenses. He agreed to a plea bargain for an 8- to 10-year sentence instead of a life sentence, whereby McFarland would testify against Farnsworth in Farns-worth’s jury trial for robbery. McFarland agreed to testify against Farnsworth after Farnsworth acted rudely toward McFarland while staying at Western State Hospital following arrest. 15 RP at 1430-31.
¶8 The jury was instructed on both first degree theft and first degree robbery; it unanimously convicted Farnsworth of first degree robbery, and, per the jury instructions, it did not consider the lesser-included crime of first degree theft. The trial court found that the conviction was his third strike under the POAA and sentenced him to life in prison without the possibility of release.
¶10 The State petitioned this court for review, arguing that the Court of Appeals erred in finding insufficient evidence of a threat and of Farnsworth’s accomplice liability. Farnsworth cross petitioned, again raising five of his claimed trial court errors and claiming his California conviction should not count as a strike for purposes of the POAA. We granted discretionary review of both the petition and cross petition. State v. Farnsworth, 183 Wn.2d 1001, 349 P.3d 856 (2015).
ISSUES
¶11 1. Was there sufficient evidence of a threat of force under these circumstances?
¶12 2. Does the evidence show that Farnsworth had the requisite knowledge to be liable as an accomplice to robbery?
¶13 3. Do Farnsworth’s claimed trial court errors warrant reversal of his conviction?
ANALYSIS
1. Sufficient Evidence Supports an Implied Threat of Force under These Circumstances
¶15 We are first asked to decide whether there was sufficient evidence of a threat of force during the crime. Specifically, the State asks us to reverse the Court of Appeals’ finding that the use of the demand note here was insufficient to show any implicit or explicit threat of force. For the reasons explained below, we hold that under these circumstances—including the use of a demand note with no claim of legal entitlement to the money, the note’s reference to dye packs, and the defendants’ awareness that banking personnel would treat the note as a threat—there was sufficient evidence of an implied threat of force.
¶16 In a challenge to the sufficiency of the evidence, we must examine the record to determine whether any rational finder of fact could have found that the State proved each element beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion). When a defendant challenges the sufficiency of the evidence, he or she admits the truth of all of the State’s evidence. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). In such cases, appellate courts view the evidence in the light most favorable to the State, drawing reasonable inferences in the State’s favor. Id. Circumstantial and direct evidence are to be considered equally reliable. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
¶17 At issue in this case is whether there was sufficient evidence of a threat of force during the crime. That is because the distinguishing element between robbery and theft is the use or threatened use of force. Robbery is committed when a person unlawfully takes the property of another “by the use or threatened use of immediate force,
¶18 Washington’s criminal code defines “threat” as “to communicate, directly or indirectly [,] the intent” to take a certain action. RCW 9A.04.110(28) (emphasis added). In many robberies, the threat of force is explicit. For instance, a robber might directly communicate to a teller, “Hand over the money, or I will shoot you.” Other times, the threat is clearly implied by conduct, such as pointing a gun at a bank teller and simply stating, “Give me the money.” At issue in this case is whether, under the circumstances, the demand note given to the teller contained an indirect communication of implied threat of force.
¶19 We recently considered an implied threat in Wither-spoon and articulated an objective standard to determine if the defendant used intimidation to take property: we ask if “an ordinary person in the victim’s position could reasonably infer a threat of bodily harm from the defendant’s acts.” 180 Wn.2d at 884. There, the victim returned home to find an unknown car in her driveway and Witherspoon at the side of her home. Id. at 881. His left hand was behind his back. Id. The victim asked what he had behind his back, and he replied that he had a pistol. Id. He then drove away. Id. Applying the objective standard above to these facts, this court found that a rational jury could infer that Wither-spoon made an implied threat of force when he told her he had a pistol, despite the fact that he did not brandish a weapon. Id. at 885.
¶20 Unlike in Witherspoon, Farnsworth and McFarland did not state that they had a weapon. But some lower Washington courts have found that a demand note presented to a bank contains an implied threat based on the social and historical context of bank robberies. For instance, the Court of Appeals affirmed a trial court’s ruling that a
¶21 Division Two also found an implicit threat when a person handed a bank teller demand notes that contained statements such as “ This is a robbery,’” “Tut $3,000 in envelopes,’” and “T will be watching you.’” State v. Shcherenkov, 146 Wn. App. 619, 622-23, 191 P.3d 99 (2008). Twice, the defendant kept his hand in his pocket, but he never brandished a weapon or even spoke to the teller. Id. The bank tellers said they felt threatened and that they complied to avoid harm to others. Id. Division Two found that a rational jury could reasonably interpret an implied threat from his hand in his pocket and the text of the notes. Id. at 629.
¶22 We find the reasoning of these courts to be persuasive. Under Witherspoon’s objective test, the facts here support a finding that a reasonable person in the teller’s position could reasonably infer a threat of bodily harm. Just as Witherspoon knew that if he told the victim he had a gun she would let him leave with her belongings, Farnsworth and McFarland knew that a bank teller would comply with whatever they wrote in the note if they conveyed a threat. McFarland testified, “[W]henever you’re robbing a bank, bank tellers are supposed to do exactly what you told them. Because they want to get somebody out of there. They figure the danger or potential danger to the place.” 14 RP at 1254. They knew if the note conveyed a serious demand, it would imply a threat of force that would compel compliance. The dissenting judge on the Court of Appeals reasoned,
¶23 In fact, the teller did feel threatened. She said she “knew [she] was getting robbed” instantly upon reading the note and complied to avoid anyone getting hurt. 9 RP at 482, 486. An ordinary person in her position could likewise reasonably infer that McFarland threatened to use force, as McFarland made no attempt to feign lawful entitlement to the money and instead demonstrated an unlawful intent by ordering her not to include dye packs in the money.
¶24 The note read, “No die [sic] packs, no tracking devices, put the money in the bag.” CP at 34. While this note does not imply McFarland had a weapon, his words conveyed a threat. As the Court of Appeals in Collinsworth explained, demanding that a teller not include dye packs with the money “underscored] the seriousness of his intent.” 90 Wn. App. at 553.
¶25 Additionally, the evidence shows that Farnsworth and McFarland planned to commit a “robbery.” When their drug money ran out, McFarland testified that “[Farns-worth’s] talking about doing this robbery. And I said, well, I’ll go with you on it. And we’d go in and I’d drive. He was supposed to do the robbery and I was supposed to drive.” 13 RP at 1207. Although the Court of Appeals essentially dismissed the pair’s use of the term “robbery,” calling it a colloquialism “similar to people saying their house was robbed when they really meant it was burglarized,” Farnsworth, 184 Wn. App. at 310 n.5, their use of the term was significant because they acknowledged the differences between the terms. In his testimony, McFarland’s use of various terms was not accidental: he distinguished between robbery and “boosting,” which he likened to “shoplifting” or stealing. 13 RP at 1205; 14 RP at 1277. McFarland’s word choice illustrates his intent to commit a robbery in the bank, as opposed to the crime of theft.
¶27 Farnsworth contends that adopting this standard would create a strict liability crime and result in any demand for money inside a bank being automatically interpreted as a threat. This, he argues, would mean that any unlawful demand for money at a bank would constitute robbery. This concern is understandable but ultimately unfounded. In every such case, the circumstances will be unique and context-dependent, causing courts to determine whether the evidence supports an objective finding of a threat under our Witherspoon standard. For instance, a demand that arises out of confusion or mistake might not constitute a threat. Context matters.
¶28 In contrast, a theft does not rise to the level of a robbery because it involves no use or threat of force to effectuate the same outcome: taking another person’s property. For example, a theft would occur where an individual induced the bank teller to place money on the counter and then took it without having any entitlement to it. It would be a theft, not a robbery, because the hypothetical lacks even an implied threat of force. See, e.g., United States v. Wagstaff, 865 F.2d 626, 627, 629 (4th Cir. 1989) (finding insufficient evidence of robbery because the defendant did not take money “ ‘by intimidation’ ” where he removed money from a cash drawer without communicating with bank personnel). However, as the Collinsworth court observed, where a person demands the bank’s money, “unsupported by even the pretext of any lawful entitlement to the funds,” the demand can contain an implicit threat of force. Collinsworth, 90 Wn. App. at 553; see also United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983) (finding sufficient evidence of “intimidation” for robbery when a man presented the teller a note stating it was a robbery and demanding money).
2. Sufficient Evidence Supports Farnsworth’s Liability as an Accomplice to First Degree Robbery
¶30 Farnsworth asks us to find that there was insufficient evidence to support his conviction based on accomplice liability. However, we disagree because, as we concluded above, the crime committed was a robbery and Farnsworth planned the crime exactly as it occurred.
¶31 A person may be liable for the acts of another if he or she is an accomplice to the act. RCW 9A.08.020(1), (2)(c). One is an “accomplice” of another if the person aids or agrees to aid the other in planning or committing the crime, with the knowledge that it will promote or facilitate the commission of such crime. RCW 9A.08.020(3)(a)(ii). The Court of Appeals found insufficient evidence that Farns-worth knowingly aided a robbery, and instead held that he agreed to aid only a theft. Farnsworth, 184 Wn. App. at 313-14. A person is construed to have adequate knowledge when he or she acts with knowledge that his or her conduct will promote the specific crime charged. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). Thus, the question is whether Farnsworth agreed to aid in the commission of a robbery, including the use or threatened use of force or violence.
¶32 Since we find that the crime committed contained an implied threat, we also find that Farnsworth had the requisite knowledge because he helped plan the crime exactly as it was committed. There was no deviation from their plan other than which member of the pair would enter
3. Farnsworth Was Not Deprived of a Fair Trial Due to Cumulative Error
¶33 Farnsworth argued on appeal that the cumulative effect of six errors deprived him of a fair trial. In the unpublished portion of its opinion, the Court of Appeals found only one suspect error, which it deemed harmless, and thus found that Farnsworth was not deprived of a fair trial under the cumulative error doctrine. Farnsworth now raises five claims of error to this court. We find that the trial court did not err, and even if it had, any such errors were harmless. Thus, he was not deprived of a fair trial.
¶34 We review evidentiary rulings for an abuse of discretion by the trial court. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). An abuse of discretion occurs where a trial court’s decision is manifestly unreasonable or made for untenable reasons. Id.
A. Excluding McFarland’s Plea Agreement Was Not Error
¶35 Farnsworth claims that the trial court erred when it excluded McFarland’s plea agreement, preventing Farns-worth from the opportunity to meaningfully cross-examine and impeach McFarland. Generally, evidence of a plea agreement under these circumstances would be properly
¶36 At trial, McFarland testified that he pleaded guilty to first degree theft. Farnsworth sought to admit McFarland’s guilty plea agreement, which would show that he pleaded guilty to both first degree theft and first degree robbery; the latter charge would be removed if he testified. McFarland testified as to his plea agreement with the State on both direct examination and cross-examination. He told the jury he was facing “this bank robbery, and the third strike I would have had to fought [sic].... You get a third strike, it’s life [in prison] without [parole].” 14 RP at 1259. He told the jury that in exchange for complying with the State by testifying against Farnsworth, he would receive a shorter sentence. McFarland testified, “[T]hey usually drop your charges down to a lower crime and you get a little lesser sentence . . . .” Id. at 1348. On cross-examination, Farnsworth’s counsel inquired into the plea agreement and the benefit McFarland would receive for testifying: a possible eight-year sentence instead of life imprisonment. Thus, the jury was well informed of its contents through McFarland’s own testimony.
¶37 The trial court heard argument from the parties about admitting the plea agreement, and ultimately excluded the plea agreement as being confusing, misleading, and irrelevant under ER 401 and 403. 15 RP 1395-1400. In general, only relevant evidence is admissible. ER 402. Evidence is relevant if it has any tendency to make the
¶38 The colloquy between the trial court, prosecutor, and Farnsworth’s counsel shows that the document contained some extrinsic information that might have been misleading, confusing, or irrelevant. See 15 RP 1395-1400. As discussed, the jury heard McFarland testify about the contents of the plea agreement, thus learning about the potential motive McFarland had to testify against Farns-worth. The plea agreement would have added no new information that the jury did not already know from McFarland’s own testimony, and thus admitting it had the potential to confuse the jury. Consequently, we believe that the trial court properly excluded it and do not find it was error to do so.
¶39 Moreover, we do not have a copy of the plea agreement to review on this appeal. Generally, we cannot speculate on facts that are not part of the record.
¶40 Even if excluding the plea agreement had been error, it would not be a ground for reversing Farnsworth’s conviction unless the error prejudiced the defendant. State v. Grenning, 169 Wn.2d 47, 57, 234 P.3d 169 (2010). Such an error is prejudicial where “ ‘had the error not occurred, the outcome of the trial would have been materially affected.’”
¶41 Here, the exclusion of McFarland’s plea agreement did not materially affect the outcome of the trial. As discussed above, the jury was well aware of the benefit McFarland received by testifying against Farnsworth. It would be different if the plea agreement was excluded and the jury did not otherwise learn of the plea deal. Under those circumstances, the jury would have not learned of McFarland’s potential bias and would have been unable to judge the veracity of McFarland’s testimony. However, that
B. The Trial Court Did Not Err by Admitting Evidence of Farnsworth’s Prior Acts
¶42 Farnsworth argues that the trial court erred by allowing the jury to hear information about his prior acts in two instances: (1) the prosecutor’s opening statement, which discussed Farnsworth’s two 2004 convictions for robbery while wearing a wig without eliciting evidence thereof during trial, and (2) testimony regarding Farns-worth’s rude conduct toward McFarland at Western State Hospital. As discussed below, we find that neither ruling was in error.
a. State’s Opening Statement
¶43 Before trial, the parties argued to the trial court about the admissibility of Farnsworth’s prior robbery convictions. The trial court decided to allow the evidence because the prior robberies went to prove Farnsworth’s knowledge as to the planning of the present robbery, as he carried them out in a similar manner (by wearing a wig and sunglasses). 4 RP at 161. Accordingly, during her opening statement, the prosecutor commented on Farnsworth’s prior robbery convictions committed while he was wearing a wig. However, she did not end up eliciting evidence thereof during trial. Farnsworth moved for a mistrial, which the trial court denied. 17 RP at 1675-77.
¶44 A prosecutor’s opening statement may outline the anticipated evidence that counsel has a good faith belief will be produced at trial. State v. Campbell, 103 Wn.2d 1,
¶45 Here, when the State mentioned the robberies in its opening statement, it intended to elicit evidence of the robberies, as evidenced by the arguments prior to trial about the admissibility thereof. Farnsworth does not claim the prosecutor acted in bad faith by noting his prior robbery convictions in its opening statement, nor does the record show bad faith. Instead, the record shows that the prosecution changed its strategy and opted to elicit such evidence in rebuttal. In response, the defense changed its strategy, and then the State decided not to elicit evidence regarding the prior robberies. Therefore, this claim of error fails because the State’s opening merely outlined anticipated evidence that would be produced at trial, as allowed by our case law.
b. Farnsworth’s Rude Conduct at Western State Hospital
¶46 At trial, the judge allowed McFarland to testify regarding Farnsworth’s rude conduct toward him when they were at a hospital together after the crime. Farnsworth claims that decision violated ER 404(b) because the evidence had no probative value and prejudiced the jury against him. Farnsworth is correct that ER 404(b) precludes evidence of conduct intended to show that the defendant acted in conformity therewith in the charged incident. However, such evidence may “be admissible for another purpose, such as proof of motive, plan, or identity.” State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
¶47 In this case, the State elicited testimony not to show that Farnsworth was dangerous or acting in conformity with his conduct, but rather to offer evidence of McFarland’s motive to testify against him. On the stand, McFarland explained that he considered “taking the beef for [Farnsworth],” but after Farnsworth acted rudely toward him while they
C. Allowing Detective’s Testimony regarding Statements Made by Farnsworth Was Not Error
¶48 Prior to trial, Farnsworth was ordered to provide a sample of his handwriting. He refused. At trial, the detective who attempted to obtain the handwriting sample relayed statements Farnsworth made to him when refusing to provide the handwriting sample. Specifically, the detective testified about Farnsworth’s anger and his reasons for not complying with the court order. Farnsworth did not object to this testimony at the time, but he now claims that this testimony violated his constitutional right to remain silent.
¶49 Normally, we do not review such errors raised for the first time on appeal, although RAP 2.5(a) allows an appellate court to review an error not raised at trial if it was a manifest error affecting a constitutional right. To show that an error was manifest, one must demonstrate that the claimed error had identifiable consequences to the outcome of the trial whereby the court must put itself in the trial court’s shoes to determine if the trial court could have corrected the error, given what the trial court knew at that time. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015).
¶50 Here, Farnsworth claims the error affected his constitutional right to remain silent. Accepting that, we must look to see if the error was “manifest.” We conclude that admitting the detective’s testimony was not manifest error.
I). Farnsworth’s Presumption of Innocence Was Not Violated
¶51 Farnsworth claims that his presumption of innocence was violated because he was marked with in-custody status as he sat in a “hard wooden chair,” instead of the “soft, padded, leather chairs” counsel sat in. Answer to Pet. for Review & Cross Pet. at 18. A criminal defendant’s presumption of innocence is violated where the defendant lacks the appearance of “a free and innocent man." State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999) (plurality opinion) (the defendant’s right to a fair trial was violated when he appeared before the jury in physical restraints). Finch pointed to prison garb and shackles or handcuffs as examples of physical markings of in-custody status. Id.
¶52 We find that the trial court did not err by allowing Farnsworth to sit in the wooden chair because a wooden chair does not carry the same association as do the physical restraints that this court is typically concerned with. See, e.g., State v. Clark, 143 Wn.2d 731, 774, 24 P.3d 1006 (2001) (considering whether defendant’s shackling upon entering the jury auditorium was unconstitutional); State v. Jennings, 111 Wn. App. 54, 61, 44 P.3d 1 (2002) (considering whether a stun belt restraining defendant was unconstitutional shackling). Thus, we find that Farnsworth’s presumption of innocence was not violated and the trial court was not in error.
¶53 The trial judge did not err by excluding McFarland’s plea agreement, but even if it had been error, it was harmless because all of the relevant information from the plea agreement was already in front of the jury. As discussed above, Farnsworth’s other claims were also not error. Therefore, there can be no accumulation of error that would warrant reversal under the cumulative error doctrine. See State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006) (holding that the doctrine is inapplicable when “the errors are few and have little or no effect on the outcome of the trial”).
4. The Issue of Comparability Is Remanded to the Court of Appeals
¶54 Finally, Farnsworth asks us to find that his prior out-of-state conviction is not legally comparable to a strike in Washington for purposes of sentencing under the POAA. The Court of Appeals did not reach this issue because it reversed his robbery conviction on other grounds. Having affirmed his conviction, we now remand this comparability issue to the Court of Appeals to consider on its merits.
CONCLUSION
¶55 We hold that the evidence in this case was sufficient to establish an implied threat of force. In the banking context, a demand note for money under these circumstances objectively conveys an implied threat of force or violence, even though no explicit threat was made. None of Farnsworth’s other claims are meritorious, and thus we affirm his conviction. We remand the issue of the comparability of Farnsworth’s earlier out-of-state conviction to the Court of Appeals to decide on its merits.
Furthermore, it is questionable whether counsel did enough to preserve this issue for appellate review. See RAP 2.5(a). Counsel would have been well advised to make a clearer objection on the record.
The dissent contends that Farnsworth raised a constitutional error rather than an evidentiary error, and that thus the proper standard is whether the error is harmless beyond a reasonable doubt. Farnsworth’s briefs are not clear on this issue, as they do not discuss either standard, but we need not decide this issue because this error was harmless under either standard. The plea agreement was probative of one thing: McFarland’s potential motive in testifying against Farnsworth. As we have explained, the jury was made aware by McFarland that he would receive a lower sentence in exchange for testifying. Since they received the relevant information necessary to evaluate McFarland’s credibility, the exclusion of the plea agreement was harmless beyond a reasonable doubt.
While at a hospital together after their arrest, McFarland testified that Farnsworth called him a “ ‘fucking stool pigeon’ ” and also “flipped [McFarland] the bird,’’ pulled his pants down and “grabbed his private parts and says, ‘Suck on these you son of a bitch.’ ’’ 15 RP at 1430.
Dissenting Opinion
¶57 (dissenting in part) I agree with the lead opinion that the evidence was sufficient to convict Charles Farnsworth of first degree robbery. But I disagree with its conclusion that the trial court properly excluded key state witness James McFarland’s written plea agreement, leaving the jury with McFarland’s slanted characterization of its details instead. With a cooperating code-fendant witness’s plea agreement, the devil is in the details: they establish the extent of the benefit that the witness stands to gain, what will trigger the benefit, and why the witness might testify falsely to gain that benefit. Excluding the plea agreement with all its details therefore violated Farnsworth’s right to confront and cross-examine witnesses. U.S. Const. amend. VI; Wash. Const. art. I, § 22. For that reason, I respectfully dissent from the portion of the lead opinion rejecting that claim.
ANALYSIS
I. THE TRIAL COURT COMPLETELY EXCLUDED MCFARLAND’S ACTUAL PLEA AGREEMENT BUT ADMITTED HIS SLANTED CHARACTERIZATION OF IT INSTEAD
¶58 McFarland was a key witness for the State. He testified for three days; no other witness testified for anywhere near that amount of time. He was the one who entered the bank to rob it; Farnsworth did not. He was the
¶59 While there was independent evidence corroborating the fact that McFarland entered the bank, wore a disguise, handed the demand note to the teller, got $333, and then left, there was no evidence corroborating McFarland’s claims about what he and Farnsworth agreed about or disagreed about in the truck right before McFarland entered the bank. Specifically, there was no evidence to corroborate McFarland’s trial claim that Farns-worth manipulated McFarland into entering the bank—as opposed to McFarland’s earlier statements that Farnsworth instead completely “backed out” of the robbery before it ever happened.
¶60 That made McFarland’s credibility critical for the State and attacking McFarland’s credibility critical for the defense.
¶61 The State realized this; it preemptively moved to exclude McFarland’s plea agreement so that the defense could not cross-examine McFarland about its details. The deputy prosecutor argued that the written plea agreement was entirely inadmissible despite its impeachment value: “I do not know the basis [ ] or how he would be able to give an entire plea form to the jury.” 15 RP at 1395.
¶62 Defense counsel also realized this, so he opposed the State’s motion to exclude McFarland’s guilty plea. He argued that the guilty plea exposed inaccuracies in McFarland’s testimony and thus allowed Farnsworth to challenge McFarland’s credibility. Specifically, he explained that when McFarland testified in the State’s case in chief, he left the impression that he had already gained the main benefit of his plea bargain even before he testified at trial by claiming that under the plea agreement, he had pleaded guilty to only
¶63 Defense counsel was correct about these factual inaccuracies in McFarland’s testimony. Indeed, the lead opinion acknowledges that McFarland’s testimony created the misimpression that he had already gained the benefit of his plea bargain. Lead opinion at 781. It was a misim-pression because in reality, McFarland had actually pleaded guilty to both first degree theft and first degree robbery before he testified. His only hope of escaping the life-without-parole consequence of that first degree robbery, third-strike plea was for the State to move to dismiss the robbery after it heard McFarland’s testimony against Farns-worth. The State agreed that that was the true meaning of the plea agreement and that McFarland’s testimony to the contrary was incorrect; the prosecutor told the trial court, “Well, here is where the confusion is going to come in. Because he is a three-striker, I can’t amend the document. I can’t amend his charges up front because then, obviously, the benefit of the bargain has been given before any perfor-
¶64 So the prosecutor knew that in reality, McFarland had already pleaded guilty to both theft and first degree robbery and that he had no hope of avoiding its third strike, life-without-parole consequence unless the State moved to dismiss after McFarland testified. The defense also knew that. So did the judge. But the trial court ruled that the jury couldn’t hear that.
¶65 Instead, the jury heard only McFarland’s characterization of the benefit he expected to receive from testifying, and that it was not that much.
II. EXCLUDING THE ACTUAL PLEA AGREEMENT AND LEAVING THE JURY WITH ONLY MCFARLAND’S MISLEADING CHARACTERIZATION OF IT VIOLATED THE RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES
¶66 The trial court excluded the actual plea agreement as irrelevant because McFarland had already admitted to some but not all of the agreement’s terms. Id. at 1399 (“His motivation is 8 to 10 years versus life in prison; that’s what he’s already testified to.”). It also excluded the plea agreement as too confusing, because McFarland’s testimony about its terms differed from its actual terms. Id. at 1399-
¶67 But the fact that the State’s key witness claimed confusion (rather than deceit) about the plea agreement’s details is not a reason to exclude the real plea agreement as too “confusing” for the jury under Rules of Evidence (ER) 403. And the fact that the State’s key witness admitted to some but not all of the incentives the plea agreement provided does not make the details of the omitted incentives “irrelevant” to the jury’s assessment of witness credibility under ER 401.
¶68 Instead, those factors make details about the plea agreement’s actual terms more relevant and admissible— because the contradiction between the real plea bargain terms and McFarland’s slanted characterization of them could show that the witness still had a motive to curry favor with the State, and that he was trying to hide that. The United States Supreme Court has clearly held that evidence of a plea bargain between the State and a testifying witness is admissible on cross-examination for just this reason. In Delaware v. Van Arsdall, for example, the Supreme Court reviewed a trial court’s decision to deny cross-examination regarding the prosecutor’s agreement to dismiss the witness’s criminal charges. 475 U.S. 673, 676, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). The Court ruled that barring all such inquiry violated Van Arsdall’s rights under the confrontation clause and that “a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” Id. at 680 (alteration in original) (quoting
¶69 Washington courts, of course, follow this authority. They also hold that the right to confront and cross-examine includes the right to expose a cooperating witness’s plea agreement’s details—its “specific reasons”—suggesting bias: “ ‘The right of cross-examination allows more than the asking of general questions concerning bias; it guarantees an opportunity to show specific reasons why a [codefendant] witness [testifying pursuant to a plea bargain] might be biased in a particular case.’” State v. Portnoy, 43 Wn. App. 455, 461, 718 P.2d 805 (1986) (some emphasis added) (first alteration in original) (quoting State v. Brooks, 25 Wn. App. 550, 551-52, 611 P.2d 1274 (1980)). “Such cross examination is the price the State must pay for admission of a codefen-dant’s testimony to that plea. The jury needs to have full information about the witness’s guilty plea in order to intelligently evaluate his testimony about the crimes allegedly committed with the defendant.” Id.; see Brooks, 25 Wn. App. at 551-52 (“Great latitude must be allowed in cross-examining a key prosecution witness, particularly an accomplice who has turned State’s witness, to show motive for his testimony. The right of cross-examination allows more than the asking of general questions concerning bias; it guarantees an opportunity to show specific reasons why a witness might be biased in a particular case. Here, the dropping of the deadly weapon allegation pursuant to the plea bargain agreement obviated a mandatory 5-year minimum term for Macklin if he were sentenced to prison. The jury was entitled to consider that evidence in weighing Macklin’s credibility.” (emphasis added) (citations omit
¶70 The lead opinion certainly recognizes that the right to confront and cross-examine witnesses is a right of constitutional magnitude. Lead opinion at 781-82. The lead opinion rejects the confrontation clause claim, though, because it concludes—as did the State and the trial court— that McFarland’s testimony was close enough to the truth that the real truth did not matter. 15 RP at 1399 (prosecutor argues, “Mr. McFarland’s understanding is correct. He doesn’t have the mechanics exactly correct. And ... as he sits here today he still is charged as a three-striker. But his consideration in exchange for his cooperation is that I vacate it afterwards; so the substance is accurate”; court agrees); lead opinion at 783 (“The jury was well informed of the deal McFarland was receiving . . . .”).
¶71 But it really was not that close. The jury did not get to hear that McFarland had already pleaded guilty to the three-strikes charge and that he therefore had a greater incentive to testify favorably for the State than he admitted. The jury did not get to hear that he was unable to describe things in the plea agreement accurately, despite having read and initialed those specific provisions. The jury heard defense counsel’s questions on these points, but McFarland never admitted the truth and the court prevented defense counsel from proving it up.
III. THE STATE HAS NOT PROVED THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT
¶72 The State made no argument that the confrontation clause error was harmless. The lead opinion addresses this issue anyway.
¶73 To address the issue properly, we must acknowledge that violating the confrontation clause is an error of constitutional magnitude because it infringes on the defendant’s Sixth Amendment and article I, section 22 rights to confront witnesses against him. Van Arsdall, 475 U.S. at 673; Davis, 415 U.S. at 318. It therefore requires reversal unless the State shows that it is harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 680; Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized,” we can nevertheless say that the error was “harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684. I therefore address the importance of McFarland’s testimony in context and then the importance of the excluded evidence.
B. McFarland Alone Provided the Critical Testimony That Farnsworth Planned and Executed the Robbery with Him
¶74 McFarland’s testimony was important. It covered three days and spans three volumes of transcript. See 13-15 RP (Oct. 20, 24 and 25, 2011). He entered the bank— Farnsworth did not; he was caught on camera inside the bank—Farnsworth was not; he gave the note to the teller— Farnsworth did not; and he took the money and left the bank—Farnsworth did not.
¶75 To be sure, all of McFarland’s testimony about his entering the bank, robbing the teller, and leaving with the money was corroborated by statements from other neutral witnesses and cameras. But there was a critical piece of evidence that McFarland alone provided: his testimony that Farnsworth helped plan, and then followed through by helping to execute, this specific heist. The State knew that that testimony from McFarland on this point was critical; its closing argument acknowledged that the jury could not
¶76 It necessarily follows that attacking McFarland’s credibility was critical for the defense because it formed the basis for their theory that at the last minute, McFarland went off on his own after Farnsworth backed out. E.g., 17 RP at 1639 (defense counsel’s closing argument that “[McFarland] needs to give the State what they want in his testimony”), 1640-50, 1653 (Defense’s closing: “[T]here’s only two significant issues in the case: Can you believe Mr. McFarland, and was [the bank teller] scared . . . .”).
¶77 It is, of course, true that there was sufficient other evidence to connect Farnsworth with McFarland’s robbery. That other evidence included Farnsworth’s statement that McFarland was wearing the wig and sunglass disguise when he left the truck and headed for the bank. Clerk’s Papers at 2-3; 12 RP at 1051. It included testimony from other witnesses that Farnsworth drove the truck that brought McFarland to the bank. 11 RP at 766-67, 810-11. It also included testimony that McFarland met that truck shortly after he left the bank and found Farnsworth still driving, and that officers then stopped the truck and found the wig, sunglasses, and cash from the bank inside. 10 RP at 616; 11 RP at 752; 13 RP at 1061. It further included testimony that Farnsworth denied knowing that McFarland was heading inside to rob the bank, but when arrested afterward and told by the detectives that they were facing first degree robbery charges, he responded, “ ‘We didn’t
¶78 But the evidence that Farnsworth was the “brains” of the operation and that he followed through on any prior statements about wanting to rob this bank was thin and contradictory. Critically, there was McFarland’s testimony that Farnsworth had actually “backed out” of any prior agreement to rob a bank and that McFarland at the last minute dashed off on his own without Farnsworth’s help, assistance, or approval. E.g., 13 RP at 1208 (McFarland testifies Farnsworth “backed out two or three times -- three times as a matter of fact.”), 1219 (McFarland treats backing out as a sign of weakness, testifying that his “dope lady” accused him of backing out, and McFarland defends his honor by explaining, “[Farnsworth’s] the one that backed out, not me.”), 1231 (right before this robbery, “[Farnsworth] would just make up excuses for not going ahead and going through with this”), 1232 (same), 1233 (“[Farnsworth] was just—you know, I wasn’t really—I just seen that he wasn’t going to do it and I got mad. I got mad. I reached over and snatched the wig out of his hand and said, ‘Give me that son of a bitch.’ I said, “Yon ain’t going to do nothing.’ I snatched the wig, put it on. I says, ‘Wait right here. I’ll be back in two minutes.’ ”), 1238 (same), 1239 (“It’s been five to six hours and this kind of thing. [Farnsworth h]as been backing out and backing out and backing out. So I grabbed the wig out of his hand. I said, ‘Give me that son of a bitch. I’m going up there.’ ”); 14 RP at 1306 (same); 15 RP at 1380 (same).
¶79 As the State itself summarized, “At trial, McFarland explained how the defendant obtained the wig that he wore into the bank and that it was the defendant who was actually supposed to do the robbery. The defendant continually backed out, and McFarland was quite drunk from trying to drown the effects of going without heroin, that he really couldn’t drive. [15 RP at] 1380; [14 RP at] 1301.
¶80 The State had to deal with that wrinkle in its case in closing, and it did so by arguing that Farnsworth was faking backing out and really using “manipulative behavior ... for the purpose that Mr. McFarland suggested, which is that he just wanted to wear McFarland down to get him to take the bigger risk.” 17 RP at 1622 (emphasis added). Thus, the critical issue for the jury was whether or not to believe McFarland’s “suggestion” about Farnsworth’s major role in planning and then manipulating McFarland into doing the robbery himself. If McFarland’s testimony on these points were not believable, then probably all the State could have proved was rendering criminal assistance afterward. RCW 9A.76.050(3). That is not a third strike.
¶81 In context, McFarland’s testimony and credibility were critical to Farnsworth’s conviction of first degree robbery, which is a third-strike offense.
C. McFarland’s Plea Agreement Would Have Enabled the Defense To Cast Doubt on McFarland’s Claims of Honesty, Impartiality, and Lack of Bias
¶82 Given this context, the excluded evidence was very important. Exclusion allowed McFarland to avoid tough questions about whether he misperceived the plea agreement (which could have bolstered an argument that he also misperceived Farnsworth’s supposed acquiescence in the robbery), misremembered the plea agreement (which could have bolstered an argument that he also misremembered Farnsworth’s supposed role in the robbery), or lied about the agreement (which could have bolstered an argument that he lied about Farnsworth’s role in the robbery). McFar
¶83 To be sure, as the State argued, Farnsworth was able to show that McFarland “was a long-time heroin addict, an alcoholic, had failed rehabilitation, had made a routine of stealing to support himself, was homeless with no means of support, had contemplated stealing a car on the day of the robbery, and in fact stole some merchandise that day. He further demonstrated that the witness was very familiar with the Department of Corrections, had a high offender score, and spent a large portion of his adult life incarcerated. It’s difficult to imagine being able to paint a more dreary or unfavorable image of witness than was allowed.” Br. of Resp’t at 12; see also 13 RP at 1200 (McFarland testifies he was so sick from withdrawal the day of the robbery, he was hallucinating). But evidence that McFarland was “dreary or unfavorable” is not the same as evidence that he had a strong incentive to slant his testimony to curry favor with the State.
CONCLUSION
¶84 I agree with the lead opinion that the evidence of Farnsworth’s involvement with McFarland in a prior plan to rob something was sufficient. But the evidence of Farns-worth’s assistance with this particular robbery was not strong. Some testimony even made this particular robbery sound like it was McFarland’s own personal, individual moment of drunken frustration after Farnsworth had “backed out.” McFarland’s credibility about Farnsworth’s planning and execution of this particular robbery was therefore critical.
¶85 Given that context, I cannot say that the constitutional error of excluding the plea agreement that could have impeached McFarland is harmless beyond a reasonable
Reconsideration denied August 9, 2016.
McFarland claimed that he had already avoided the robbery with its third-strike consequence: “I was facing — I was facing this bank robbery, and the third strike I would have had to fought [sic].” 14 RP at 1259.
According to the prosecutor, “On Page 4 of 6 under ‘Prosecutor’s obligations’ it indicates that ‘If Mr. McFarland completely fulfills all his obligations as listed above, the state will move the court to vacate his conviction to Count I, Robbery in the First Degree; Count II, Theft in the First Degree shall remain and the defendant will be sentenced as to that count.’ ’’ 15 RP at 1397.
McFarland’s testimony also left the impression that he accurately understood and related what his plea agreement contained. But he did not. As Farnsworth’s counsel explained, “And he’s indicated that he doesn’t know what the standard range sentence for Theft I is, and it’s contained in this [plea agreement]. And he’s initialed various parts of this [plea agreement]. He signed at the very end of it.’’ Id. at 1398.
Accord Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (“‘exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination’” (quoting Davis, 415 U.S. at 316-17 and citing Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959)).
See also United States v. Schoneberg, 396 F.3d 1036, 1041-44 (9th Cir. 2004) (summarizing reasons for this rule).
“Sitting on your behind and not necessarily interfering or preventing it, not what we’re talking about. We’re talking about somebody who is willing to take some kind of role in allowing or making this crime happen.’’ 17 RP at 1617.
Concurrence Opinion
¶56 (concurring) I agree with the lead opinion that there was sufficient evidence to find an implied threat of force and to support Charles Farnsworth’s conviction based on accomplice liability. I write separately because I agree with the dissent’s conclusion that the plea agreement should have been admitted into evidence and failure to do so amounted to constitutional error. However, because I would hold that the error was harmless beyond a reasonable doubt, I concur in the lead opinion.