State v. SpandelState v. Spandel
Scott Spandel appeals his conviction and sentence for first degree robbery. He asserts prosecutorial misconduct in closing argument, sentencing error, and, in a pro se brief, ineffective assistance of counsel. Finding no error, we affirm.
According to the testimony of Ericka Raboteau and Aaron Foushee, on May 2, 1999, Spandel, Raboteau, and Chad Hess took drugs (LSD), a backpack, some CD’s (compact discs), and approximately $40 from Foushee by force. They testified that Hess displayed a knife over three inches in length during the robbery and that Spandel displayed a sawed-off shotgun and kicked Foushee in the face.
Foushee testified that the police promised they would not charge him with dealing or possessing drugs if he testified against Spandel. Raboteau testified that in exchange for her testimony, the prosecutor reduced the first degree robbery charge against her to first degree theft. Both Foushee and Raboteau testified that they had known each other for several years and had dated in the past.
On the second day of trial, the State called Hess, who testified that Spandel was not present during the robbery. But the State impeached Hess’ testimony by introducing his earlier statements to the police in which he told the police that Spandel had been present at the robbery and had brandished a fake gun. Hess testified that he initially implicated Spandel to avoid being arrested, but later, when he pleaded guilty to the robbery, he asserted that Spandel had not been at the crime scene.
Following Hess’ testimony, Spandel’s counsel notified the court that he could not locate two of Spandel’s three alibi witnesses. He also informed the court that the third witness, Daniel Laughlin, had been served with a subpoena but was not in court and that he had been unable to contact Laughlin at work.
Spandel’s counsel told the trial court that Laughlin was the only witness out of approximately a dozen potential witnesses he had interviewed who had an adequate recollection of May 2 and could corroborate Spandel’s alibi. He requested that the trial court allow him to call Laughlin as the first witness the next day. The trial court offered to secure Laughlin’s presence by arresting him and detaining
After the State rested, Spandel testified that he was at home caring for his invalid mother on May 2. He testified that he was his mother’s sole care provider from November 1998 until his arrest, that the State paid him for this service, and that no one else lived in their home during that time.
At the close of testimony that day, the trial court and the parties discussed the “witness situation” off the record. Laughlin did not testify the following day, nor did Spandel’s counsel raise the subject of alibi witnesses again.
On the third day of trial, the State called Tiffany Eckles to rebut Spandel’s testimony. Eckles testified that she was a paid care provider from Pierce County Human Services and shared the responsibility of caring for Mrs. Spandel with Spandel. She testified that she began caring for Mrs. Spandel in February or March 1999, that she had resided in the Spandel home since that time, and that the State had not paid Spandel to care for his mother since she became Mrs. Spandel’s caregiver earlier that year.
Eckles testified that she and Spandel alternated caring for Mrs. Spandel two days on and two days off. Eckles indicated that she was not at the residence on May 12 when the police arrested Spandel, but neither counsel asked her if she was there on May 2. She also said that Spandel had contacted her and told her that she did not have to testify unless she had received a subpoena.
The prosecutor made the following closing argument:
What is credible is that Scott Spandel went there with Chad Hess, with Ericka Raboteau. Scott Spandel had a shotgun. Chad Hess had a knife, and they, by force or threat of force, took property from Aaron Foushee, and that’s a robbery.
Let’s look finally at the testimony of the defendant. The defendant said, “I wasn’t there. I don’t know Ericka. I don’t*356 know Aaron. I know Chad a little bit. But I wasn’t there. I was busy at my State job taking care of my mother, of my disabled mother, cooking her breakfast, cooking her lunch and helping her 24-7 every day. I am her only care giver. I am completely responsible for her.”
That was his testimony, and I submit to you that that testimony is not credible.
And make no mistake about who bears the burden in this case. The State does. The defendant doesn’t have any obligation whatsoever to testify or present any evidence of any kind, no obligation. But once he does, once a defendant takes the stand, once the defendant puts on evidence for your consideration, once he decides to testify, you subject his testimony and his evidence to the same scrutiny as the State’s evidence. The defendant gets the same scrutiny as the State does when he presents evidence.
His testimony is not credible. He is not his mother’s paid care giver and he hasn’t been all year. And he wasn’t taking care of her on May 2nd. He wasn’t there fixing her breakfast and lunch and helping her to the bathroom on May 2nd. Her care giver, Tiffany Eckles, who’s an employee, who lives on the premises, was there.
Report of Proceedings (RP) at 229-30. Spandel’s counsel did not object to any portion of the State’s closing and did not argue Spandel’s alibi defense in his closing argument.
The jury found Spandel guilty of first degree robbery and second degree assault but the trial court vacated the assault charge. It then sentenced Spandel to 75 months and imposed consecutive 60-month firearm and 24-month nonfirearm deadly weapon enhancements, for a total sentence of 159 months.
WEAPON ENHANCEMENT STATUTE
Spandel argues that
Spandel argues that the following clauses are ambiguous when read together: (1) “[i]f the offender is being sentenced for more than one offense, the [firearm or deadly weapon] enhancement or enhancements must be added to the total period of confinement for all offenses,”
Spandel asserts that if the Legislature intended multiple enhancements on a single underlying offense to run consecutively, it had the opportunity to clarify this when it amended the statute in 1998 by omitting any reference to “multiple offenses” in
The State responds that
Statutory interpretation is a question of law which we review de novo. State v. Bright,
We interpret an ambiguous statute so as to favor the defendant. See State v. Roberts,
First, the clause from
Further, the plain language of
Spandel also suggests that the language of
Former
The Charles court concluded that under the rule of lenity, the enhancements were not “other sentencing provisions” and, thus, they did not run consecutively to other enhancements unless the underlying sentences ran consecutively to each other.
Unlike the statutory language at issue in Charles, the language of
Further, in contrast to Charles, there is no ambiguity as to whether to apply
We also note that imposing two consecutive weapon enhancements is particularly appropriate in this case.
Although
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder
Hunt, A.C.J., and Bridgewater, J., concur.
Review denied at
Notes
The Legislature amended
Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of
(Emphasis added.)
“The following additional times shall be added to the presumptive sentence ... if the offender or an accomplice was armed with a [firearm or deadly weapon.]”