[No. 63016-4-I. Division One. November 1, 2010.]
September 8, 2010, Oral Argument
Erick D. Jordan, pro se.
Susan F. Wilk and Gregory C. Link (of Washington Appellate Project), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Donna L. Wise, Deputy, for respondent.
Author: Anne Ellington, J.
We concur: Michael S. Spearman, J., Linda Lau, J.Anne Ellington
¶1 ELLINGTON, J. -- Comparability of out-of-state convictions depends on the elements of the crimes, not the available defenses. A difference in the laws of self-defense does not render a conviction incomparable, and Erick Jordan's Texas conviction for voluntary manslaughter was properly included in his offender score. Finding no merit in his remaining claims, we affirm his conviction and sentence.
BACKGROUND
¶2 A loud disturbance involving 10 to 15 people erupted outside a bar late at night, attracting the attention of several neighbors, two of whom called 911. Someone fired two shots, and the crowd dispersed. Several witnesses then saw Erick Jordan pointing a gun at Maurice Jackson. Jackson was silent, unarmed and unthreatening, with his arms at his sides, and was standing or backing away from Jordan. One witness heard Jordan say, "Do you want me to shoot you, motherfucker?" ¶3 The State charged Jordan with murder in the second degree with a firearm enhancement and unlawful possession of a firearm in the first degree. The State alleged murder by the alternative means of intentional murder or felony murder with a predicate of assault in the second degree. A jury found Jordan guilty as charged. ¶4 At sentencing, the court found Jordan's Texas conviction for voluntary manslaughter comparable to second degree murder in Washington and included the offense in his offender score. Based on a score of 8, the court imposed a standard range sentence of 417 months on the murder conviction, including the firearm enhancement, and 75 months on the firearm conviction. DISCUSSION Comparability of Texas Conviction [1] ¶5 Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, an out-of-state conviction is included in a defendant's criminal history if it is comparable to a Washington felony. ¶6 Jordan contends his Texas conviction is not comparable to any Washington felony because in Texas, the defense of justifiable homicide is available in narrower circumstances than in Washington. ¶7 When a defendant raises self-defense, the State bears the burden to disprove it. [2, 3] ¶8 Jordan argues there is no basis to differentiate between lack of self-defense and the statutory elements in the context of a comparability analysis. We disagree. Because self-defense negates an element of the crime, due process demands that the State disprove the defense as part of its burden to prove guilt beyond a reasonable doubt. ¶9 The second foundation for Jordan's argument is that the comparability of a foreign conviction depends in part on whether defenses available in Washington were available in the state of conviction. Jordan relies on In re Personal Restraint of Lavery ¶10 Similarly, in Carter, Division Two of this court held the California crime of assault on a peace officer with a firearm was not legally comparable to second degree assault in Washington because the former offense is a general intent crime, whereas assault in Washington requires specific intent to create apprehension of bodily harm or to cause bodily harm. [4] ¶11 Jordan's argument would require Washington sentencing courts to examine the jurisprudence of the state of conviction to ensure there were no defenses available here that were unavailable there. ¶12 Further, Jordan's approach conflates the two steps of the established analysis for determining comparability. As described above, the first step is to compare the elements of the two offenses. Only where the elements of the Washington crime and the foreign crime are not substantially similar does the sentencing court consider whether undisputed facts show the defendant's conduct would have violated a comparable Washington statute. ¶13 So long as an out-of-state conviction is for a crime with elements comparable to a Washington felony, it is properly counted in the offender score. ¶14 Affirmed. ¶15 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040. ¶16 Jordan argues his Texas conviction for voluntary manslaughter is not comparable to Washington's murder in the second degree because the intent elements are different. ¶17 At the time, Texas defined voluntary manslaughter as follows: A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause. Former section 19.02(a) provided that one commits murder if he or she: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. ¶18 Jordan contends the Texas statute is "substantially broader than any potentially comparable Washington statute" because it permits conviction if a person merely "knowingly" causes the death of another. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Washington defines "recklessness" as: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. ¶19 In Washington, a person is guilty of manslaughter in the first degree if he or she "recklessly causes the death of another person," i.e., if he causes another's death by acting in a way he knows engenders a substantial risk that the person will be killed. Competency ¶20 Shortly before trial, Jordan's counsel advised the court he had recently "had some problems communicating with my client. And there has been the issue raised of competency, although I'm not sure that's what it is, or what is going on." ¶21 The court asked Jordan whether he had met with counsel, understood the charges, and understood it was important to cooperate with his attorney. Jordan had met with counsel several times and understood that "whatever they say I'm charged with, I'm charged with." ¶22 The court asked counsel whether there was anything further. Jordan's counsel said no. Based on the colloquy, the court concluded, "[T]his is not a competency issue, but perhaps understandable frustration in the situation." ¶23 Jordan contends the court denied him due process by failing to order a competency evaluation. We disagree. ¶24 "The determination of whether a competency examination should be ordered rests generally within the discretion of the trial court." ¶25 Here, counsel was equivocal at best as to whether there was a competency issue. His concern was that Jordan alternated between being uncommunicative and being "focused on things outside of the issues that we had to deal with at trial." ¶26 The situation is in marked contrast to State v. Marshall, ¶27 The colloquy indicates confusion and frustration, but it does not indicate that Jordan lacked the ability to understand and assist with his defense, and counsel's apparent satisfaction with Jordan's competence supports the court's decision not to pursue the matter. On this record, the court did not abuse its discretion by failing to launch a formal inquiry into Jordan's competency. Self-Defense And Lesser Included Offense Instructions ¶28 Jordan next argues the court erred by refusing to instruct the jury on self-defense and lesser included offenses. He contends the court declined to give the instructions based on its belief that Jordan's attorney was ethically bound not to argue self-defense because of Jordan's unsworn statement to the prosecutor that he was not acting in self-defense. But although the court philosophized about counsel's ethical obligations, it declined the instructions because there was no evidentiary support for them in the record. ¶29 There was no abuse of discretion here. A defendant is entitled to an instruction on justifiable homicide when there is some credible evidence to establish that the killing occurred in circumstances that meet the requirements of RCW 9A.16.050. ¶30 Jordan contends he was entitled to the instruction because the evidence showed there were two shots fired before Jordan shot Jackson ¶31 This is plainly insufficient. None of this evidence shows Jordan had an actual and reasonable fear that Jackson was about to harm him. The evidence showed the earlier shots were fired a full minute before and that the crowd responsible for any "heat and chaos" had dispersed. Further, there is no evidence that Jordan heard the shots or was even present during the argument outside the bar. And while Jordan's statement to police suggests the two engaged in some type of physical altercation, it was one among several inconsistent statements, and the eyewitnesses observed no such thing immediately preceding the killing. ¶32 Further, the evidence that Jordan did not act in self-defense is overwhelming. Five people watched as Jordan shot Jackson. None testified that Jackson was threatening or that Jordan appeared frightened. Those who could see Jackson stated that he was unarmed, standing or backing away from Jordan, empty-handed, with his arms at his sides. One witness testified Jordan sounded angry, not frightened, when he said, "Do you want me to shoot you, motherfucker?" ¶33 There was no evidence suggesting Jordan actually and reasonably believed he was in imminent danger that Jackson or anyone else would commit a felony or do some great personal injury to Jordan. The court properly declined to give the self-defense instruction. Jordan's request for lesser included offense instructions depended on the theory that he used excessive force to protect himself. The court properly refused those instructions as well. Prosecutorial Misconduct ¶34 Jordan contends the prosecutor committed reversible misconduct by casting aspersions on defense counsel, giving a personal opinion about Jordan's veracity, and making arguments designed to appeal to the jury's passions and prejudices. ¶35 To prevail on a claim of prosecutorial misconduct, the defendant must show the prosecuting attorney's conduct was both improper and prejudicial. ¶36 Jordan first contends the prosecutor impugned defense counsel by stating he was "trying to imply" ¶37 The prosecutor also asked Officer Pendergrass whether she had "ever been around somebody who is not telling the truth and the story keeps changing." ¶38 Jordan also contends the prosecutor committed misconduct in his closing and rebuttal arguments. Allegedly improper statements should be reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given. ¶39 The prosecutor urged the jury to listen to the recording of Jordan's statement to police, arguing, "I think when you listen to it you will conclude that he is not telling us the truth about what happened in any way." ¶40 Jordan next argues the prosecutor improperly appealed to the passions and prejudices of the jury in her rebuttal argument by arguing: [T]he hardest thing about prosecuting a homicide or murder case is we all never get to meet the victim. For that I am sorry. We didn't get to know a lot about him. But the one thing I hope that you recall during your deliberations is he does matter. He matters the same that any of us matter. And he matters not only for what happened to him, but what matters about this case is for what is happening out in these neighborhoods, out on the city streets. People pulling out guns in public. You know why they do that? Because they are relying on the code of silence. You don't pull your gun out in public and shoot and kill somebody in a crowd, unless you think that nobody will tell on you. But the good news is that people are starting to tell. And we are thankful for that. Jordan asserts this argument was an impassioned plea to vindicate the victim's rights. There was no objection, however, and any possible prejudice would easily be obviated with a curative instruction. Indeed, the jury was instructed that argument of counsel is not evidence and that they must not decide the case based on sympathy or prejudice. ¶41 Jordan has demonstrated no improper conduct, and fails in any case to explain how any instance of alleged misconduct was likely to affect the jury. But even if he had, his failure to object is fatal because the prosecutor's remarks are in no way so flagrant and ill-intentioned that a curative instruction would not have obviated the prejudice. Double Jeopardy ¶42 Jordan argues that his convictions for murder in the second degree and unlawful possession of a firearm, together with the firearm enhancement, "punish him thrice for the same offense, namely, his use of a firearm to cause the death of Maurice Jackson." ¶43 First, it does not violate double jeopardy to impose a firearm enhancement when use of a weapon is an element of the underlying crime.