State v. Francoise Rougeau

1

STATE OF WASHINGTON, Respondent, v. LANCE GENE FRANCOISE ROUGEAU, Appellant.

No. 83493-2-I

Court of Appeals of Washington, Division 1

May 31, 2022

UNPUBLISHED OPINION

VERELLEN, J.

Lance Rougeau challenges his convictions for first degree felony murder, first degree burglary, residential burglary, and theft of a motor vehicle. Rougeau focuses on limited evidence of his participation in the crimes to argue that the trial court erred in instructing the jury on accomplice liability. But where the evidence is sufficient to support the theory that the defendant acted as the principal, the evidence is also sufficient to support the alternative theory that the defendant's level of participation was adequate for accomplice liability. Because the evidence was sufficient to support the State's theory that Rougeau acted as the principal in committing the crimes and the alternative theory that he participated with others in committing the crimes the jury instruction on accomplice liability was appropriate.

Rougeau also fails to establish the trial court abused its discretion in admitting evidence regarding Linda Sweezer's granddaughter and in denying Rougeau's two motions for mistrial.

Rougeau contends that the prosecutor committed misconduct in opening statement and closing argument. Here, the prosecutor committed misconduct in closing argument by discussing evidence not admitted at trial and by making statements which served no purpose other than to encourage an emotional reaction from the jury. But taking the prosecutor's statements in the context of the evidence as a whole, Rougeau does not establish a substantial likelihood that the prosecutor's misconduct affected the jury's verdict.

Because the trial court erred in failing to conduct a same criminal conduct analysis on two of Rougeau's convictions from 2014, we accept the State's concession and remand for resentencing. And because the prosecutorial misconduct is the only trial error committed here, that error alone is insufficient to implicate the cumulative error doctrine.

Therefore we affirm the convictions and remand for resentencing.

FACTS

The issues require a detailed review of the evidence. On Monday October 23, 2017, Linda Sweezer did not show up to work. That evening, Sherria Dooling-Rodin was at the Emerald Queen Casino in Tacoma. Dooling-Rodin saw Lance Rougeau in a black vehicle in the parking lot of the casino and asked him for a ride to Forest Canyon Road in the Auburn/Bonney Lake area. After arriving, Dooling-Rodin decided to drive to Seattle with Rougeau because he told her "he could get [her] heroin."^[1] She drove to Seattle, where the two smoked crack cocaine. Dooling-Rodin drove them back to the Auburn/Bonney Lake area, where they arrived around 12:00 a.m Dooling-Rodin's friend, Chase Waters, picked her up with his friend Kyle Wason in the vehicle.

Dan Rouse, a resident who lived on 169th Avenue in Lakeland Hills, an Auburn neighborhood, testified that at approximately 1:30 a.m., his security cameras affixed to his house showed two vehicles stop near 166th, a flash of light, and the same two vehicles drive away. About 20 minutes later, Randall Jacks, a resident who lived near Rouse in Lakeland Hills, testified that his doorbell camera showed Rougeau wearing a Seahawks jersey walk onto his porch and then turn around.

At 2:00 a.m., Salvador Morales, who lived on 63rd Street in Lakeland Hills, was driving home when Rougeau, who was standing by a Nissan, waved him down. Rougeau told Morales that he needed gas. When Morales returned with gas, the Nissan still did not start. Rougeau used Morales's cell phone to call his mother and brother for help. Morales went home.

At 3:30 a.m., Jennifer Johnson was driving home from a friend's house when she saw the body of a woman lying in the road near 166th Avenue in Lakeland Hills. Johnson called 911. The woman was wearing a t-shirt and pajama pants and was partially covered by a blanket that had been lit on fire. The forensic investigators, working with the medical examiner, conducted a facial recognition identification examination and identified the body as Sweezer. The medical examiner testified that he was unable to estimate a time of death. He stated that Sweezer was stabbed at least 35 times, but that her cause of death was manual strangulation.

Joni Ly, another Lakeland Hills resident who lived about a mile and a half from where Sweezer's body was found, testified that at 4:35 a.m., his security camera affixed to his house showed a man wearing a hat and a reflective safety vest walk toward his neighbor, Dixie Reynolds' house.

At 5:00 a.m., Reynolds heard the sound of her garage door motor. Reynolds saw someone drive her car away and realized that someone had rummaged through her bag and stolen her daughter's backpack. And when Reynolds went in her garage, she noticed that the window was open and that someone had removed the screen and placed it on the ground.

At 6:45 a.m., Jacks noticed that there was a Nissan parked oddly and abandoned near his house. Jacks contacted the Auburn Police Department. The responding officers ran the license plate of the black Nissan and discovered that Sweezer was the registered owner. Officers located Sweezer's Nissan about two and a half miles from where her body was found near 166th Avenue in Lakeland Hills.

The officers searched Sweezer's Nissan. Inside the vehicle, they found a phone belonging to Randy Mullins.^[2] Cell phone data recovered from the device revealed that at 1:36 a.m. on October 24, the phone was close to where Sweezer's body was found, and at 1:51 a.m., the phone was close to where Sweezer's Nissan was found.

That evening, around 6:00 p.m., law enforcement arrested Rougeau at his mother's apartment in Kent where he and his brother, Jason Jordan, had been living. At the time of his arrest, Rougeau had scratches on his forearm, hand, and leg and was carrying a backpack with a "GoNavy.com" lanyard. Inside his mother's apartment, officers found car keys to Sweezer's and Reynolds' vehicles and Reynolds' daughter's backpack. After Rougeau's arrest, Sweezer's credit card was used multiple times.

On October 25, 2017, at approximately 10:00 a.m., officers searched Sweezer's house in Kent. The officers noted that someone had removed a screen from the front window of her residence and placed it on the ground. The officers found blood stains and blood spatter on the kitchen floor, blood stains in the garage, a bloody knife on the kitchen counter, a "GoNavy.com" lanyard with blood on it, and blood stains on the carpet closest to the kitchen. Officers also found a broken piece of jewelry on the kitchen floor and noticed that the door to the lockbox was open. And the officers found Sweezer's severely dehydrated five-month-old granddaughter alive, lying on the bed upstairs. Dr. Joan Roberts, an attending physician at Seattle Children's Hospital, estimated that Sweezer's granddaughter was left alone for "between 36 and 60 hours."^[3]

Forensic investigators testified that they found the DNA^[4] of multiple individuals inside Sweezer's vehicle, that Rougeau's DNA was on the outside and inside of her vehicle, and that Sweezer's blood was in the trunk of her vehicle. Investigators also found Sweezer's blood on the knife, Sweezer's blood and Rougeau's DNA on the "GoNavy.com" lanyard in her kitchen, DNA from at least three individuals on the handle of the lockbox, Rougeau's DNA on the carpet closest to the kitchen, and blood on one of Rougeau's socks which contained the DNA of at least four individuals.

The State charged Rougeau with one count of first degree felony murder based upon first degree burglary, one count of first degree burglary, one count of residential burglary at Reynolds' house, and one count of theft of Reynolds' motor vehicle.

Before trial, Rougeau moved to exclude evidence of Sweezer's granddaughter as not relevant and overly prejudicial. The court denied Rougeau's motion in limine and admitted the evidence for the limited purpose of establishing a timeline of events. In opening statement, the prosecutor made several references to Sweezer's granddaughter. The trial court denied Rougeau's motion for mistrial.

During trial, Rougeau renewed his motion for mistrial when an officer testified about the state of Sweezer's granddaughter when they found her and moved for another mistrial on different grounds. The trial court denied the motions. In closing argument, the prosecutor again made various references to Sweezer's granddaughter. The trial court overruled Rougeau's objections.

Before jury deliberations, the prosecutor requested an accomplice liability instruction. The prosecutor argued that on cross-examination of the State's witnesses, Rougeau's counsel repeatedly alluded to the fact that others were present and participated with Rougeau in the charged crimes. Rougeau's counsel objected to the instruction, arguing that the evidence did not establish that others were present and participated with Rougeau in the charged crimes but rather that Rougeau did not commit the crimes. The court overruled the objection and provided instructions on accomplice liability.

During deliberations, the jury submitted an inquiry asking for clarification on the accomplice liability instruction. In response, the court directed the jury to "reread your instructions and continue to deliberate."^[5] The jury found Rougeau guilty as charged. Rougeau's counsel moved for a new trial. The trial court denied the motion.

At sentencing, the court applied the burglary antimerger statute to two of Rougeau's prior residential burglary convictions from 2014 and did not conduct a same criminal conduct analysis. The trial court sentenced Rougeau to 548 months...