State v. Smith

STATE OF WASHINGTON, Respondent, v. AHMIN R. SMITH, Appellant.

No. 31390-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

OCTOBER 16, 2014

UNPUBLISHED OPINION

FEARING, J. — New technology creates new ways to terrorize. Text messaging is one such technology.

A jury convicted Ahmin Smith of four counts of felony harassment with domestic violence enhancements for threatening to kill his wife, Crystal Miller-Smith, and the wife's father, mother, and stepmother. Smith asks this court to reverse his convictions and dismiss the charges, contending the evidence supporting his convictions is insufficient. In the alternative, he asks for a new trial arguing that impermissible testimony and inadmissible evidence improperly swayed the jury. Finally, Smith assigns error to the trial court expressing concern for his competency but failing to hold a competency hearing. We affirm Ahmin Smith's convictions.

FACTS

Ahmin Smith's convictions stem from a slew of text messages he sent his estranged wife, Crystal Miller-Smith, during the evening of August 12, 2012.

In late July 2012, Crystal Miller-Smith moved out of the home she shared with her husband, Ahmin Smith, because she feared for her and her child's safety. Over the next weeks, Smith attempted to reconcile with Miller-Smith, vacillating between seeking forgiveness and threatening to "beat her ass." Report of Proceedings (RP) at 381. As the weeks passed, Smith increasingly sent text messages to Miller-Smith's iPhone, so frequent that his messages filled her inbox. His textative behavior required her to delete messages to free space for new ones and led her to mute her phone's ringer when she retired to bed.

In the evening of August 12, Crystal Miller-Smith prepared, at her aunt's house, for a Native American naming ceremony. She quieted the ringer to her phone. When she checked her phone around 7:00 p.m., she discovered more than 20 new messages from Ahmin Smith. The messages shocked and upset her. A sample of the unedited text messages she received include:

• "If i dont c u I will kill your dad quick test it he dead fuck." Ex. 1.

• "Tst it I am going 2 kill your dad & mom n one night probably kill your grandma 2 hip her dont fuck with me" Ex. 3.

• "U have 24hrs then bodies will drop dad first I will kill him thn grandma well let deb live so she can tell." Ex. 7.

• "Fuck it on my way." Ex. 8.

• "Hours getting short aunty dwn street bout 2 murk your whole fam 4 one I will kill i need exaple I will." Ex. 10.

• "I kill literally." Ex. 17.

• "Bout 2 murk hin & wife Im going 2 kill dog & spread entern" Ex. 19.

• "Bye 10 am your whole family will b dead im leaving." Ex. 20.

• "I promise leaving now will enjoy cutting throat." Ex. 21.

• "Bout 2 hear momy & daddies last words they will suffer & beg me 2 end it lol." Ex. 22.

• "I am? Litrally going 2 tie him down & peel his face back & make deb watch." Ex. 24.

• "I will skin your mom n front of u will eat that bitch 2." Ex. 35.

• "lam going 2 kill your dad & mom your lkife's gone." Ex. 37.

• "Im leaviing please stop your husnand bout 2 wreck evey thibg." Ex. 38.

• "Going 2 'murk u for hurting me u brUoght.this" Ex. 44.

• "I love u butt will kill 2 get 2 u literally." Ex. 50. "Guaranteed =)" Ex. 53.

(Spelling and grammar errors in original.) Ahmin Smith used the word "murk" three times in his messages. According to the Urban Dictionary, "murk" means "to physically beat someone so severely, they end up dying from their injuries. To beat the living shit outta [sic] someone. To seriously whoop somebodys [sic] ass." Finesse, Murk, URBAN DICTIONARY (May 6,2004), http://www.urbandictionary.corn/define.php?term=murk.

Crystal Miller-Smith, being disturbed by the messages, called Ahmin Smith to discern his mental state. During the call, he yelled and threatened to beat her. AlthoughMiller-Smith testified that she recognized his voice, Smith contends he did not speak to her.

After the phone call, Crystal Miller-Smith showed the text messages to her father, Mark Miller. The messages shocked her father and caused him to fear for his safety. Crystal Miller-Smith also showed the messages to her mother, Deborah McDonald, and stepmother, Deb Miller. Both mothers were shocked, scared, and upset by the threats because they believed "it was very possible" Ahmin Smith could carry out the threats. RP at 363. Out of fear for his family's safety, Mark Miller turned on the exterior lights to his home and set out game cameras. Game cameras are remote cameras activated by heat sensing motion detectors. Crystal Miller-Smith called law enforcement. Okanogan County Sheriff Deputy Kevin Newport met Miller-Smith at her father's residence in Pateros, where he viewed some of the text messages from Ahmin Smith. Deputy Newport asked Miller-Smith to forward any additional messages she received. Miller-Smith sent Newport a total of 92 messages.

Deputy Kevin Newport decided to arrest Ahmin Smith for felony harassment. Deputy Newport drove to the Coulee Dam police station to retrieve an officer to assist him. When the officers arrived at Smith's home around 1:30 a.m., they parked a few houses down and walked to Smith's home. As they approached, Deputy Newport observed Smith outside the home, texting on a phone. Newport quietly walked up the driveway, when Smith stood. Newport yelled that he needed to speak to Smith. Smithturned and quickly moved toward the home's front door. Newport told him he was under arrest for felony harassment. Smith said, "I don't want to talk to you," went inside his residence, and closed the door. RP at 253. Deputy Newport opened the door, grabbed Smith's wrist, pulled him outside, and handcuffed him. Newport again advised Smith he was under arrest for felony harassment and uttered the Miranda warnings.

Shortly after arresting Ahmin Smith, Deputy Kevin Newport notified Crystal Miller-Smith of the arrest. Miller-Smith received no further text messages after Newport arrested Smith.

Deputy Kevin Newport placed Ahmin Smith in the former's patrol car. After having been read his rights, Smith yelled at Deputy Newport, claimed Newport violated his rights, stated he did not wish to speak with Newport, and directed Newport to take him to jail. Deputy Newport never asked Smith any questions. During the journey, Smith complained about Newport's driving, told Newport he slipped his handcuffs, threatened to assault Newport if he were outside the car, and repeatedly spoke of suing Newport and the Okanogan Sheriffs Department for false arrest.

PROCEDURE

On August 16, 2012, the State of Washington charged Ahmin Smith with three counts of harassment with threats to kill, with domestic violence enhancements, in violation of RCW 9A.46.020. The State alleged that Smith knowingly threatened to kill Mark Miller, Deborah McDonald, and Crystal Miller-Smith, that each victim was afamily member, and that each victim was reasonably fearful because of the threat. On January 3, 2013, the State amended its information to add another count of harassment with threats to kill, domestic violence, for his threats to Debra Miller. During the course of the prosecution, Ahmin Smith repeatedly and vociferously accused law enforcement, the prosecutor, the judge, and his attorneys with misconduct.

Ahmin Smith, on his own, brought motions to suppress evidence, to dismiss the charges, to remove his counsel, for full discovery, for the trial court to take notice of ineffective counsel, for a list of all equipment an Okanogan County sheriff deputy must carry, to compel transcription of hearings, and to direct the court to follow the constitution. The trial court denied the motions.

Ahmin Smith repeatedly reserved his right to a suppression hearing. Ahmin Smith's first defense counsel, Emma Paulsen, declined to seek a suppression hearing because, regardless of the means by which the sheriff deputies apprehended Smith, the deputies gathered no evidence as a result of the arrest. On October 24, 2012, the trial court removed Emma Paulsen as Smith's counsel, at Smith's request when communications between the two deteriorated.

Ahmin Smith's second defense attorney, Michael Lynch, also concluded Smith lacked grounds for a suppression hearing. Lynch declared a hearing was unnecessary because Smith did not answer any questions from law enforcement officers. Lynch stated:

MR. LYNCH: Your Honor, there were statements that were made to the effect of, "I'm going to sue the police." There were statements made attributed to Mr. Smith at the time of his detention saying that he closed the door, meaning the door to the police vehicle, he wanted his attorney. There's an allegation that on the trip over from Coulee Dam to—Okanogan, that Mr. Smith advised—"he had been able to slip his hands out of his handcuffs and was making comments that if I stopped the car to check he would assault me."

These are not statements attributed to Mr. Smith that were in response to any questions. And I don't know if they would be germane, relevant, to the trial or not. But—a 3.5 hearing requires the court to analyze whether the defendant was in custody, and if he was in custody was he advised of his rights. The police report indicates that he was advised of his rights upon his arrest. The statements are attributed to him on the trip over.

And finally the court has to determine if the statements attributed to the defendant were made in response to police questioning. My review of the discovery material indicates that there are no 3.5 issues under that analysis.

RP at 66-67.

On January 2, 2013, the day before trial, Ahmin Smith presented the court with a letter he asserted came from the Washington State Bar Association (WSBA). Smith asserted the letter vindicated his belief that police officers recorded their encounter with him and engaged in misconduct. Throughout the proceedings, Smith frequently insisted that law enforcement recorded his encounter and that the State hid the recordings from him. Contrary to Smith's belief, the...