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Opinion Information Sheet

			

                                                                FILED

                                                            MAY 01, 2012

                                                     In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  29564-8-III
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )
WAYMOND SUVELL TURNER,                          )
                                                )         PUBLISHED OPINION
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  Waymond Turner appeals his convictions for second degree 

malicious mischief and third degree assault, challenging the sufficiency of the evidence 

and the performance of his counsel.  We conclude that the evidence was sufficient and 

that he has not established prejudicial error by his counsel.  The convictions are affirmed.

                                            FACTS

       Mr. Turner got into a violent argument and confrontation at his parents' home with 

his father.  Mr. Turner's mother called the police.  Corporal Beau Lamens and Deputy 

Keven Dobson from the Grant County Sheriff's Department responded.  Corporal  

No. 29564-8-III
State v. Turner

Lamens ordered Mr. Turner to get on his knees.  Mr. Turner got on his knees.  Corporal 

Lamens went behind Mr. Turner to handcuff him.  Mr. Turner "started resisting."  Report 

of Proceedings (RP) (Oct. 7, 2010) at 137. He "pulled his hands apart and turned around 

and lunged forward and grabbed [Corporal Lamens] across the waist." RP (Oct. 6, 2010) 

at 63. Corporal Lamens broke Mr. Turner away from his waist and the two wrestled.  

       The two deputies eventually handcuffed Mr. Turner and stood him up and walked 

him to the patrol car.  Mr. Turner refused to get in the car and his "torso was rigid."  Id.

at 70.  Corporal Lamens used a "light knee strike" to "disrupt" Mr. Turner's balance.  Id.  

The technique worked, but afterwards Mr. Turner straightened up.  He lunged and head

butted Corporal Lamens in the lip.  

       The deputies eventually got Mr. Turner into the car.  They left Mr. Turner in the 

car and returned to speak with his parents.  Mr. Turner kicked a passenger side window 

out of the patrol car.  The patrol car was out of commission for a day while the window 

was repaired.  

       The State charged Mr. Turner with second degree assault of his father, third degree 

assault of Corporal Lamens, and second degree malicious mischief.  

       The State's closing argument characterized Mr. Turner's "waist grab" as the third 

degree assault.  Mr. Turner objected:

       Your Honor, the Assault 3 has been and always has been about whether or 

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State v. Turner

       not my client headbutted [sic] this Corporal Lamens.  Now there's 
       something else about some reaction to -- it's now being detained and being 
       thrown down in the dirt like a dog, it is now being characterized as Assault 
       3. When, in fact, the only thing that was ever represented in all of our 
       discussions throughout the entire case was whether or not my client 
       headbutted [sic] him at the car.  

RP (Oct. 8, 2010) at 27.  The court overruled the objection.  The prosecutor then 

continued and referred to the assault as an "attack."  Id. at 28. Mr. Turner objected that 

"attack" mischaracterized the evidence and the court overruled the objection.  The 

prosecutor continued:  "He attacks the officer, Ladies and Gentlemen.  He doesn't sit 

down there and try to push him away.  He attacks -- the officer standing there.  He turns 

around and comes at the officer and attacks him."  Id. at 28-29.

       The prosecutor told the jury that Mr. Turner said, "'You want to die, Old Man,'"

to his father.  Id. at 34.  This was incorrect.  But there was no objection.  The prosecutor

also argued:

              Now, you may hear argument that "Oh, come on.  It's just a family 
       fight.  He really didn't mean to do it." Again, the State would argue that, 
       you know, it doesn't matter if he meant to do the harm there. . . . 
              Ladies and Gentlemen, domestic violence is one of the worst things 
       in our country right now.  People get harmed.  People get killed by that all 
       the time.

Id. at 36. The court sustained defense counsel's objection to the argument and told the 

jury to "disregard the last argument."  Id. at 36-37.

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State v. Turner

       The jury found Mr. Turner guilty of second degree malicious mischief and third 

degree assault.  The jury found him not guilty of second degree assault but guilty of the 

lesser included crime of unlawful display of a weapon.  

                                         ANALYSIS

Second Degree Malicious Mischief -- Conduct Interrupting Public Service

       Mr. Turner argues that the evidence was insufficient to prove the malicious 

mischief count.  His essential argument is that kicking out the police car window and 

putting the car out of service for a day is insufficient to satisfy the statutory requirement 

of "substantial risk of interruption or impairment of service rendered to the public"

required by RCW 9A.48.080(1)(b).  The question is one of statutory interpretation and 

therefore a question of law that we will review de novo.  State v. Jacobs, 154 Wn.2d 596, 

600, 115 P.3d 281 (2005).  

       A person commits second degree malicious mischief if he or she knowingly and 

maliciously

       [c]reates a substantial risk of interruption or impairment of service rendered to the 
       public, by physically damaging or tampering with an emergency vehicle or 
       property of the state, a political subdivision thereof, or a public utility or mode of 
       public transportation, power, or communication.

RCW 9A.48.080(1)(b).  Mr. Turner argues that the statute requires that service be 

interrupted. However, the statute only requires that the defendant "[c]reates a substantial 

risk of interruption or impairment," not that 

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No. 29564-8-III
State v. Turner

the defendant actually did interrupt or impair law enforcement.  RCW 9A.48.080(1)(b) 

(emphasis added).  

       Mr. Turner also argues that the State failed to prove this element because it did not 

show that Deputy Dobson was unable to perform his duties without this particular patrol 

car or that police service in general was impaired or interrupted.  State v. Gardner, 104 

Wn. App. 541, 16 P.3d 699 (2001).  He relies on State v. Hernandez, 120 Wn. App. 389, 

85 P.3d 398 (2004), for the proposition that loss of this particular car for a day does not 

create a substantial risk of interruption or impairment of services.  Mr. Hernandez spit at 

least four times in the back of a police car.  Id. at 391.  An officer spent about 15 minutes 

cleaning up the mess.  Id. We concluded that this did not satisfy the statutory 

requirement of substantial risk or impairment:  "His actions simply did not rise to the 

level of knowing and malicious creation of a substantial risk of interruption or 

impairment of service to the public [because] [u]nlike the defendant in Gardner, Mr. 

Hernandez did not disrupt emergency services by physically manipulating a device 

crucial to those services."  Id. at 392. The police car was unavailable for only 15 

minutes.  Simply spitting creates little risk that services would be impaired or interrupted.  

Breaking a window, on the other hand, unlike spitting, does create the necessary 

substantial risk that services would be interrupted or impaired.  

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No. 29564-8-III
State v. Turner

       Police cannot use patrol cars with broken rear windows.  Breaking a rear window 

in a patrol car necessarily causes the patrol car to be unavailable for some period of time.  

Here, the car was unavailable for a day.  The jury here could then easily infer that not 

having the car available created a substantial risk of interrupting or impairing service to 

the public.  The Grant County Sheriff's Department had one less patrol car available to 

use and the jury was free to conclude that having less patrol cars available may impair 

service to the public.  There was substantial evidence that Mr. Turner's actions 

"[c]reate[d] a substantial risk of interruption or impairment of service rendered to the 

public."  RCW 9A.48.080(1)(b).

Ineffective Assistance of Counsel 

       Whether counsel was ineffective is a question of law that is reviewed de novo.  In 

re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).  

       A defendant alleging ineffective assistance of counsel must make two showings:

       (1) defense counsel's representation was deficient, i.e., it fell below an 
       objective standard of reasonableness based on consideration of all the 
       circumstances; and (2) defense counsel's deficient representation 
       prejudiced the defendant, i.e., there is a reasonable probability that, except 
       for counsel's unprofessional errors, the result of the proceeding would have 
       been different. 

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. 

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).  Mr. Turner contends that his 

lawyer did not effectively represent him at 

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No. 29564-8-III
State v. Turner

trial.  He complains specifically about a number of things.

Conceding Second Degree Malicious Mischief

       Mr. Turner argues that his lawyer should have argued that the State failed to prove 

the statutorily required "substantial risk of interrupting or impairing public service"

element rather than conceding that the State proved second degree malicious mischief.  

We disagree with his position on this issue and have already explained why.  There also 

certainly is no prejudice because ultimately he would not have prevailed no matter what 

his lawyer did or did not do on this question.  State v. Silva, 106 Wn. App. 586, 596, 24 

P.3d 477 (2001).  Moreover, the lawyer's concession on this point may well have 

bolstered the lawyer's credibility with the jury.  Id. (quoting Underwood v. Clark, 939 

F.2d 473, 474 (7th Cir. 1991)).  That is a good tactic.  Id.  

Failure to Request a Bill of Particulars

       Mr. Turner next argues that his lawyer failed to provide effective assistance 

because he did not file a request for a bill of particulars to require that the State specify

exactly which acts it would rely on to support the third degree assault charge -- the waist-

grab of the officer or the head butt of the officer.  

       Mr. Turner had "a constitutional right to be informed of the nature and cause of 

the accusation against him" to enable him to prepare a defense.  State v. Bergeron, 105 

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No. 29564-8-III
State v. Turner

Wn.2d 1, 18, 711 P.2d 1000 (1985) (citing U.S. Const. amend. VI; Const. art. I, § 22 

(amend. 10)).  The purpose of a bill of particulars is to "amplify or clarify particular 

matters essential to the defense."  State v. Holt, 104 Wn.2d 315, 321, 704 P.2d 1189 

(1985). 

       The request for a bill of particulars should be granted if "'it is necessary that the 

defendant have the particulars sought in order to prepare his defense and in order that 

prejudicial surprise will be avoided.'"  State v. Noltie, 116 Wn.2d 831, 845, 809 P.2d 190 

(1991) (quoting 1 C. Wright, Federal Practice § 129, at 436-37 (2d ed. 1982)) .  No bill of 

particulars is required if the particulars are already in the charging document or "'if the 

government has provided the information called for in some other satisfactory form.'"  Id.  

Whether or not to grant a request for a bill of particulars is a matter left to the discretion 

of the trial court.  Id. at 844.  Discretion is abused when it is exercised on untenable 

grounds or for untenable reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 

P.2d 775 (1971). 

       The information here charged:  

       On or about the 16th day of June, 2010, in the County of Grant, State of 
       Washington, the above-named Defendant, did assault a law enforcement 
       officer or other employee of a law enforcement agency who was performing 
       his or her official duties at the time of the assault; contrary to the Revised 
       Code of Washington 9A.36.031(1)(g). 

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No. 29564-8-III
State v. Turner

Clerk's Papers (CP) at 2.

       Defense counsel told jurors that he had not anticipated that the prosecutor would 

rely upon the waist-grab evidence to prove the third degree assault.  RP (Oct. 8, 2010) at 

56.  He then went on to tell jurors that it could not have been an intentional act because it 

was an awkward and ineffective way to assault someone.  Id. at 57. 

       From these admissions, Mr. Turner argues on appeal that counsel's error was in 

failing to obtain a bill of particulars.  This claim fails on several grounds.  First, there is 

no guarantee that the trial court would have granted the request.  It is a discretionary 

decision to grant a bill of particulars, and it is unnecessary to do so when the necessary 

information has already been disclosed.  Noltie, 116 Wn.2d at 844-45.  It is clear that the 

information about the "waist-grab" was known to defense counsel from discovery; it was 

the legal significance of the information that appears to have eluded counsel.  The record 

does not reflect any reason why the trial court would have had to grant the request if it 

had been made.

       Second, Mr. Turner's argument rests on the express assumption that a bill of 

particulars would have limited the prosecutor to one factual theory of assault.  He cites no 

authority for that proposition, and we can find none.  There was a continuing course of 

assaultive behavior once the corporal attempted to take Mr. Turner into custody.  The 

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No. 29564-8-III
State v. Turner

prosecutor was not required to choose a specific act as "the assault" and there certainly is 

no indication that the prosecutor would have relied upon only one specific strike against 

the deputy to prove the count.  

       Mr. Turner's argument ultimately boils down to this: if counsel had requested a 

bill of particulars, the trial court might have exercised its discretion to direct that one be 

filed, and the bill of particulars might have been voluntarily limited to only one contested 

aspect of the evidence showing that an assault took place.  This string of conjecture does 

not establish error by counsel.

       An actual basis supported by the record for arguing ineffective assistance is one 

that the defense does not assert on appeal -- that defense counsel did not understand the 

significance of the evidence.  Defense counsel's admission in closing argument that he 

had not foreseen the prosecutor's use of the evidence would establish deficient 

representation by counsel.  The question then would have become whether Mr. Turner 

had established that he was actually prejudiced by counsel's error.  McFarland, 127 

Wn.2d at 335.  In this context, that would require him to show that he had evidence that 

would have provided a defense to that theory of assault, but counsel's failure prevented 

him from developing the evidence. Typically, where the record does not support an 

argument or there is evidence outside of the record, the remedy is to bring a personal 

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No. 29564-8-III
State v. Turner

restraint petition with evidence in support of the claim.  Id. at 338.  The absence of 

evidence in the record to support the claim is presumably the reason that the defense has 
not argued this theory on appeal.1

       There are many ways to defend a third degree assault charge involving a person 

known to be an officer performing his duties. RCW 9A.36.031(1)(g). One can deny that 

any assault took place; he can deny that he acted intentionally; he can also claim 

justification (i.e., self-defense).  It is not a defense, however, to focus a wrestling match 

on a single contested striking, ignore the balance of the assaultive behavior, and claim 

error because the one particular blow was not perceived to be of legal significance.  The 

totality of the behavior established a third degree assault.  The evidence amply supported 

the jury's verdict, and a localized "defense" (or perceived error) to one aspect of the 

brawl did not affect the overall picture.  For this reason, too, this argument does not 

establish prejudicial error.  

       Mr. Turner has not established that counsel erred in failing to request a bill of 

particulars.  He also has not established that he was actually harmed by the failure.  He 

also has not pursued an argument that counsel's error in recognizing the significance of 

the evidence actually harmed him at trial.  For all of these reasons, his claim of 

       1 Similarly, if the prosecutor somehow misled defense counsel concerning the 
evidence, that could be explained by an affidavit from defendant's trial counsel.  We will 
not presume egregious misbehavior without supporting evidence. 

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No. 29564-8-III
State v. Turner

ineffective assistance fails.  

Prosecutorial Misconduct

       A trial court's ruling on a claim of prosecutorial misconduct is reviewed for abuse 

of discretion.  State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).  

       The defendant must prove that there was misconduct and that the misconduct was 

prejudicial.  Id.  A new trial is required only if "there is a substantial likelihood that the 

improper argument affected the verdict."  Id. (citing State v. Finch, 137 Wn.2d 792, 839, 

975 P.2d 967 (1999)).  

       A prosecutor's closing argument is considered in the context of the total argument, 

the evidence addressed in the argument, the jury instructions, and the issues in the case.  

State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).  "The prosecutor has wide 

latitude in closing argument to draw reasonable inferences from the evidence and to 

express such inferences to the jury."  State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 

1239 (1997) (holding that it was proper to argue that a witness "'was struck by the 

defendant's lack of grief'" when the witness testified he was surprised that the defendant 

was the shooting victim's husband).  It is improper to argue facts not in evidence or to 

appeal to the jury's passions in a way that prejudices the defendant.  State v. Belgarde, 

110 Wn.2d 504, 507-08, 755 P.2d 174 (1988) (holding it was improper to refer to the 

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No. 29564-8-III
State v. Turner

defendant as a group of "madmen" and "butchers" and discussing Wounded Knee).  

       Appellate review is not as rigorous if counsel did not object in the trial court where

something could have been done about it.  See State v. Russell, 125 Wn.2d 24, 86, 882 

P.2d 747 (1994).  Failure to object to improper argument waives any claim of error on 

appeal "unless the remark is so flagrant and ill intentioned that it causes an enduring and 

resulting prejudice that could not have been neutralized by an admonition to the jury."  

Id. Mr. Turner contends that several of the prosecutor's comments during closing 

argument amounted to misconduct -- the use of the word "attack," the misquote of Mr. 

Turner's comments to his father, and the reference to domestic violence in society 

generally. 

       The evidence showed that Mr. Turner turned around from a kneeling position and 

grabbed Corporal Lemans' waistband "instantaneous[ly]." RP (Oct. 6, 2010) at 63.  

"Attack" is then a fair description of what happened and not misconduct. The court 

properly allowed the argument.  

       Misquoting Mr. Turner as saying, "'You want to die, Old Man,'" does not reach 

the level of prejudice that requires a new trial. RP (Oct. 8, 2010) at 34.   Significantly,

Mr. Turner did not object. Id. Moreover, the remark was neither flagrant nor ill 

intentioned.  The prosecutor went on to urge the jury to rely on their recollection.  Id.

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No. 29564-8-III
State v. Turner

       The prosecutor described domestic violence as a national problem and commented

that "people get killed."  Id. at 36.  The court, however, gave the jury the standard 

instructions on counsel's arguments:

       The lawyers' remarks, statements, and arguments are intended to help you 
       understand the evidence and apply the law.  It is important, however, for
       you to remember that the lawyer's statements are not evidence. . . . You 
       must disregard any remark, statement, or argument that is not supported by 
       the evidence or the law in my instructions.

CP at 60.  The jury was also instructed to "reach your decision based on the facts proved 

to you and on the law given to you, not on sympathy, prejudice, or personal preference."  

CP at 61.  In response to defense counsel's objection, the court told the jury to "disregard 

the last argument." RP (Oct. 8, 2010) at 36-37.  The comment, while not the best use of 

the State's argument time, was not prejudicial in light of the court's instructions, the 

State's overall argument, and the evidence and issues at trial.  See Dhaliwal, 150 Wn.2d 

at 578. We also note that both of the final two challenged arguments addressed the 

second degree assault count.  Since Mr. Turner was acquitted on that count, it is difficult 

to see how any error here was prejudicial.

       The convictions are affirmed.

                                                    _________________________________
                                                                  Korsmo, C.J.

I CONCUR:

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No. 29564-8-III
State v. Turner

______________________________
               Brown, J.

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