State v. Markovich

492 P.3d 206

STATE of Washington, Respondent,

v.Ronald Charles MARKOVICH, Appellant.

No. 81423-1-I

C/w No. 82795-2-I

Court of Appeals of Washington, Division 1.

FILED: August 2, 2021

Scott Weymouth Lawrence, Seattle Law Hawks PLLC, 11036 8th Ave., Ne Unit 75053, Seattle, WA, 98175-7603, for Petitioner.

Nielsen Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Jennifer M Winkler, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant/Cross-Respondent.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave., M/s 504, Everett, WA, 98201, J Scott Halloran, Snohomish Co. Prosecuting Atty-Criminal, 3000 Rockefeller Ave., # Ms504, Everett, WA, 98201-4046, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Hazelrigg, J.

¶ 1 Ronald C. Markovich seeks reversal of his conviction for possession of methamphetamine and heroin with intent to deliver or manufacture, alleging that the trial court violated his right to present a defense by limiting the testimony of his expert witness and that the prosecutor committed misconduct during closing argument. In supplemental briefing, Markovich contends that he is entitled to resentencing after the Washington Supreme Court's decision in State v.Blake ¹ because the out-of-state convictions for simple drug possession that were included in the calculation of his offender score are no longer comparable to any valid Washington crime. We agree that Blake requires remand for resentencing but otherwise affirm.

FACTS

¶ 2 In the early morning hours of July 13, 2017, police officers broke down the door of an apartment in Everett while executing a search warrant. Ronald Markovich was sitting on a couch in the front room of the apartment. Officers noticed digital scales, loaded and unloaded syringes, baggies, burnt aluminum foil, and a small stack of cash near the couch. Markovich was handcuffed and led outside the apartment. He had a small "baggie" containing a white substance in his pocket. The substance was later determined to be less than a gram of methamphetamine. Ann Gjesvold and two other people were found in the bedroom of the apartment. In the bedroom, officers also discovered a black fabric bag containing a larger quality of methamphetamine, heroin, and related drug paraphernalia. Markovich was charged with possession of methamphetamine and heroin with intent to deliver or manufacture.

¶ 3 Before trial, Markovich moved to suppress statements he made to police on the night of his arrest. The defense called Dr. Jennifer Stankus as an expert witness at the CrR 3.5 hearing. Stankus had reviewed Markovich's medical records from the jail and his declaration. The records showed that he had ecstasy, heroin, alcohol, and methamphetamine in his system on the day of his arrest. Stankus also noted that his heart rate and blood pressure were elevated. She opined that these physical symptoms indicated that Markovich was under the influence of ecstasy at the time. When asked about Markovich's ability to make a knowing and voluntary waiver of his rights in this condition, she responded, "[I]n my experience dealing with people, particularly, on ecstasy, I have found that what people tell me at the time that they are intoxicated can be quite inconsistent with what they tell me when they are sober." After the hearing, the court found that Markovich's statements to police were knowingly, willingly, and voluntarily made, and noted that it was unpersuaded by Stankus’ opinions and conclusions. The court ruled that Markovich's statements were admissible and denied his motion to suppress.

¶ 4 The State moved to exclude Stankus as an expert witness at trial, and the court held a hearing on the motion. Stankus testified that she had interviewed Markovich since the CrR 3.5 hearing and had added an opinion to her expert report that, "had there been a closed-head injury, that could have exacerbated the encephalopathy." She defined "encephalopathy" as "just a generalized term that means the brain isn't functioning as it should." She also acknowledged that she could not diagnose hypertensive encephalopathy or a closed-head injury with certainty from her review of Markovich's records.

¶ 5 The court ruled that the defense would be allowed to present Stankus’ opinion that Markovich's statements were "unreliable, given the patient's encephalopathy due to polysubstance and alcohol intoxication, coupled with dangerously elevated blood pressure." However, the court excluded testimony regarding her opinion "that a closed-head injury concussion would magnify the other encephalopathy due to toxicologic ingestions and provide additional support for the opinion provided." The court explained that, because Stankus had not diagnosed Markovich with a concussion and had not "made [the opinion] applicable to this case," it was only "a general statement." The court also stated that allowing Stankus to testify to an opinion based on an interview with Markovich would amount to "backdooring hearsay."

¶ 6 At trial, Officer Anatoliy Kravchun testified that he was part of the team that executed the search warrant and that he had spoken with Markovich while other officers were searching the apartment. He related their conversation to the jury:

I asked him if drugs were being sold at the house. He told me that drugs were being—drugs were coming out of the house. I asked him specifically what kind of drugs. He told me meth and heroin. I asked him if he sold drugs. He told me he didn't. I asked him about a small baggie I had found in his pocket. He told me it was for personal use. I asked him—well, he also told me that even though he didn't sell drugs that he would sometimes get drugs for the people that came to the house.

Kravchun testified that the conversation was "normal" and that Markovich seemed to understand and be able to answer his questions.

¶ 7 Markovich took the stand and testified that he had been sitting on the couch when the officers breached the apartment door. He did not recall the officers saying anything to him but stated that an officer had grabbed him off the couch and threw him on the floor. He remembered an officer kneeling on his rib cage and stated that his "head got slammed on the floor a few times."

¶ 8 Stankus then testified that she had reviewed Markovich's records and interviewed Markovich. She again testified to the substances in his system and his elevated heart rate and blood pressure. She opined that Markovich was suffering from encephalopathy , or poor brain functioning, at the time of his arrest due to substance use and hypertension. Defense counsel asked whether head trauma could cause encephalopathy, but the court sustained the State's objection to this question and instructed the jury to disregard it.

¶ 9 During closing argument, the prosecutor argued that, even if Markovich was not dealing drugs, he was acting as an accomplice by "going out, ... finding people[,]" and "telling them about the address." The defense objection that these facts were not in evidence was overruled, and the court reminded the jury that "the lawyers’ remarks, statements, and arguments are not the evidence." The prosecutor then argued that Markovich "was finding people to come to the house to get drugs" and was acting as the "doorman" at the apartment:

He found the people, and then when a knock came at the door, he would open it. He would see that they were the people he had found and had told about the drugs inside, and then he would get them the drugs that he told them he would get them.

Defense counsel did not object to this argument.

¶ 10 In closing, defense counsel addressed this portion of the State's argument:

[T]his case is about overreaching, and a great example of this is the State just got up and argued somehow that Mr. Markovich is wandering the streets looking for customers. Why would the State make an argument like that if the evidence that was here actually supported the case? They're reaching.

The prosecutor then stated in rebuttal, "You know that Mr. Markovich was, in fact, walking around trying to find people; because he said so. The actual words that he said to Anatoliy Kravchun, again, were, he gets drugs for people who come to the house." Defense counsel did not object to this argument.

¶ 11 The jury was instructed on accomplice liability, possession with intent to deliver, and the lesser included offense of simple possession. Markovich was convicted as charged.

¶ 12 The court imposed a high-end standard range sentence of 108 months in prison followed by 12 months of community custody. The court explicitly addressed legal financial obligations (LFOs) at sentencing:

As far as the financials, there's—in looking at all of these convictions, he owes financials on all of them. He's never made any, that I know of, any willing payments on any of his cases.

I'm going to find extraordinary circumstances that he doesn't have the ability nor likelihood nor ever have a likelihood of paying anything on these. I'm waiving the victims compensation fund fine. I'm waiving the DNA [collection fee] because that's already been had. I'm not imposing any other fines, fees, costs, or assessments, for a grand total judgment of 0 in this case.

The judgment and sentence reflected the court's finding of exceptional circumstances and stated that Markovich owed $0.00 in LFOs. However, it included a preprinted condition of community custody stating that Markovich shall "pay supervision fees as determined by [the Department of Corrections]." Markovich appealed his judgment and sentence.

¶ 13 While this appeal was pending, the Washington Supreme Court decided State v. Blake, holding that Washington's strict liability drug possession statute, RCW 69.50.4013(1), violated the due process clauses of the state and federal constitutions and was void. 197 Wash.2d at 186, 481 P.3d 521. Markovich filed a motion for resentencing in superior court, arguing that he was entitled to resentencing in...