State v. Adams

STATE OF WASHINGTON, Respondent, v. NORMAN RUSSELL ADAMS, Appellant.

No. 32300-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

OCTOBER 14, 2014

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Norman Adams appeals his convictions for second degree assault, unlawful imprisonment, and second degree unlawful possession of a firearm. He contends the trial court committed instructional error and that insufficient evidence supports his conviction of unlawful possession of a firearm. He also contends that trial counsel was ineffective for failing to (1) call witnesses, (2) object to jury instructions, and (3) convey a plea offer. Finding no error, we affirm.

FACTS

Norman Adams and Larane Wuilliez were boyfriend and girl friend. Ms. Wuilliez leased a home on Sunset Lane, Bremerton, and Mr. Adams resided in the home. By November 2011, the two had dated for two and one-half years. According to Ms. Wuilliez, Mr. Adams assaulted her every couple of weeks.

An altercation occurred between the two at Ms. Wuilliez's home on November 12, 2011. Mr. Adams and Ms. Wuilliez disagree on what occurred. According to Ms. Wuilliez, on that day, she pressed Mr. Adams for rent money but Mr. Adams would not give her any money. The couple got into an argument. Mr. Adams punched Ms. Wuilliez in the face, knocked her to the ground, pinned his knees on her neck, and strangled her. Ms. Wuilliez began to pass out. Mr. Adams then dragged a fully clothed Ms. Wuilliez into the shower, and made her sit in the shower with him so he could keep an eye on her. Ms. Wuilliez told Mr. Adams that she wanted to leave but he would not let her. Ms. Wuilliez believed Mr. Adams would beat her if she tried to leave. After Mr. Adams finished showering, Ms. Wuilliez lay on the bed, and Mr. Adams gave her ice for her neck.

According to Ms. Wuilliez, Mr. Adams left the house, telling her that he was going to collect debts to get money to pay the rent. Ms. Wuilliez removed her wet clothes and took a sleeping pill. She was afraid to call police. She did not want law enforcement to arrest Mr. Adams, nor did she wish to testify against him at a trial.

According to Mr. Adams, Ms. Wuilliez and he argued about rent money. Ms. Wuilliez called him names and "push[ed] his buttons." Clerk's Papers (CP) at 8, Mr. Adams slapped and pushed Ms. Wuilliez when she refused to leave the shower.

Christina Boyd is a friend and co-worker of Ms. Wuilliez, and Clayton Young is the fiance of Ms. Boyd. On November 12, 2011, Ms. Boyd received text messages from Ms. Wuilliez. The text messages concerned Ms. Boyd, so she went to Ms. Wuilliez's residence to check on her friend. Ms. Boyd banged on the doors and called Ms. Wuilliez's telephone, but got no response. Ms. Boyd called law enforcement and asked for a welfare check on Ms. Wuilliez.

On November 12. 2011, Kitsap County Sheriff's Officer Sonya Matthews responded to the call and went to Ms. Wuilliez's home. Officer Matthews knocked on several of the house's doors, but got no response.

Ms. Boyd sent text messages to Ms. Wuilliez and when Ms. Boyd finally received a response, she and Mr. Young returned to Ms. Wuilliez's residence and met with her. Mr. Young and Ms. Boyd saw Ms. Wuilliez's bruised face and noticed she was in pain. Mr. Young observed two black eyes and marks on Ms. Wuilliez's arms. Ms. Boyd thought Ms. Wuilliez's nose might be broken. Mr. Young called police.

Officer Matthews returned to Ms. Wuilliez's house with another deputy sheriff. The deputies approached Ms. Wuilliez inside her residence and observed blood on her face, black and swollen eyes, a swollen nose, and bruising on her nose, chin, mouth, and neck. They also observed a bruise on Ms. Wuilliez's shoulder one-half the size of a fist.

Ms. Wuilliez hesitated to speak to the two county sheriff deputies. She told them that the red marks were from being assaulted, and related her account of the assault by Mr. Adams. She explained that she remained frightened.

After the officers left, Mr. Young asked Ms. Wuilliez if there were weapons that could be used to hurt those who assisted her. Mr. Young eventually asked Ms. Wuilliez if he could look in a locked shed in the backyard. Ms. Wuilliez handed Mr. Young three or four key rings, each with approximately 30 keys per ring. Mr. Young tried a majority of the keys, but was unable to open the lock. He then asked Ms. Wuilliez if he could cut the lock, and, after Ms. Wuilliez agreed, he removed the lock and entered the shed. Among tools and car parts in the shed, Mr. Young found a loaded firearm wrapped in cloth.

Later that day, Ms. Boyd called law enforcement and stated they discovered a revolver and ammunition. Deputies responded and confiscated the firearm. Testing showed the gun functioned. Its serial number had been removed.

At 4:00 a.m. the following morning, Ms. Wuilliez called 911 and reported that she saw Mr. Adams at her house. Deputies arrived at the home within minutes and saw Mr. Adams in a car outside the residence. Deputies arrested and advised Mr. Adams of his constitutional rights. Mr. Adams waived his rights and spoke with police.

Mr. Adams related his version of the altercation to sheriff deputies. Mr. Adams said that he knew Ms. Wuilliez would have injuries on her face and suggested that Ms. Wuilliez fell against a washing machine. When asked if he forced Ms. Wuilliez into the shower, Mr. Adams answered: "'I don't know.'" Report of Proceedings (RP) at 138. Eventually, Mr. Adams requested an attorney and police transported him to jail.

On December 21, 2011, the State charged Mr. Adams with one count of assault in the second degree and one count of unlawful imprisonment, both with domestic violence aggravating factors. Clayton Longacre represented Mr. Adams at trial. Different counsel initially represented Mr. Adams. Before Mr. Longacre's appearance, the State made a plea offer to Mr. Adams. The offer included a standard sentence range recommendation of 63 to 84 months.

Mr. Longacre and Mr. Adams disagree as to plea negotiations that occurred once Mr. Longacre appeared. According to Mr. Longacre, once he represented Mr. Adams, he occasionally spoke with the prosecutor about resolving the case with a misdemeanor charge. The prosecutor would not agree to this resolution and refused to reduce the amount of prison time recommended in the initial plea offer, which was 8 to 10 years.

According to Mr. Longacre, several days before trial, the prosecutor offered to amend the charge to assault in the third degree, and offered to recommend an exceptionalsentence downward. At the time of his testimony at a posttrial hearing, Mr. Longacre could not remember the number of months that the prosecutor offered to recommend, but he believed the offer was approximately 30 months. Mr. Longacre discussed the matter with the prosecutor during a pretrial hearing and relayed the exact offer to Mr. Adams in the courtroom.

Kelly Montgomery, the prosecutor, testified about settlement negotiations. She stated that she never extended a formal plea offer to Mr. Adams through Mr. Longacre, but that she and Mr. Longacre engaged in a series of e-mail communications discussing potential modifications to the charges, culminating in an offer from the State to reduce charges to assault in the third degree with an exceptional sentence downward. Ms. Montgomery and Mr. Longacre had numerous discussions regarding the potential length of Mr. Adams's sentence should he accept the offer. According to Ms. Montgomery, these conversations culminated in her offering, during a March 20 pretrial hearing, a 24-month sentence. Immediately after she made this offer, she saw Mr. Longacre speak with Mr. Adams in the jury box. She did not hear the conversation, but, according to Ms. Montgomery, Mr. Longacre returned to Ms. Montgomery and said, "'[g]ross misdemeanor or trial,'" which Ms. Montgomery understood as Mr. Longacre having communicated her offer to Mr. Adams, but Mr. Adams rejecting the offer. Report ofProceedings (RP) (Dec. 17, 2012) at 39.

On April 17, 2012, the State amended the charges to one count of second degree assault with a domestic violence aggravating factor, two counts of unlawful imprisonment with a domestic violence aggravating factor, and one count of unlawful possession of a firearm in the second degree. On April 17, the trial court also addressed the State's request to present evidence of prior assaults upon Ms. Wuilliez by Mr. Adams, to establish Ms. Wuilliez's credibility and her reluctance to report Mr. Adams. The trial court ruled that evidence relating to three prior incidents could be introduced, but evidence relating to three other altercations could not be introduced. On April 18, Mr. Adams stipulated that his statements to police were admissible.

On the day that jury selection began, Ms. Wuilliez appeared in the courtroom. Mr. Adams had not expected Ms. Wuilliez to testify against him. Consequently, according to Mr. Longacre, he and the prosecutor discussed resolution in the hallway outside the courtroom, and Mr. Longacre asked the prosecutor whether the State's most recent offer remained open. The prosecutor advised that a plea offer with the same recommendation for prison time remained available, but that the charges would be "tweaked" since a jury had already been called. RP (Dec. 17, 2012) at 15. Mr. Longacre relayed this offer to Mr. Adams. Mr. Longacre testified that, after discussing the offer with Mr. Adams, hereturned to the prosecutor to clarify the specifics regarding the charges that would comprise the plea offer. After conferring with the prosecutor, Mr. Longacre revisited Mr. Adams in the courtroom and discussed the offer further. According to Mr. Longacre, Mr. Adams vacillated between accepting and declining the offer, but ultimately decided to proceed to trial because he thought Ms. Wuilliez "would not slam him in the trial." RP (Dec. 17, 2012) at 16.

According to the prosecutor, she and Mr. Longacre further...