State v. Sword

1

STATE OF WASHINGTON, Respondent, v. CURTIS MORGAN SWORD, Appellant.

No. 57320-2-II

Court of Appeals of Washington, Division 2

January 23, 2024

UNPUBLISHED OPINION

Glasgow, C.J.

Curtis Morgan Sword pointed a gun at two people who intervened when they believed he was trying to steal their neighbor's motorcycle. Police recovered the gun when they arrested him. Law enforcement testimony in Sword's trial primarily addressed the search for Sword based on witnesses' descriptions, his arrest, and the recovery of the gun from his person. A jury convicted Sword of two counts of second degree assault while armed with a firearm and one count of first degree unlawful possession of a firearm.

Sword appeals his convictions and sentence. He argues that the trial court erred by seating a biased juror who stated that she thought police officers were more likely to tell the truth than other people and that his counsel provided ineffective assistance when they failed to further question or challenge that juror. Sword asserts that the trial court abused its discretion by admitting evidence of multiple prior serious offense convictions. Sword also contends that defense counsel rendered ineffective assistance by failing to seek a revived self-defense instruction. And he argues that the prosecutor committed misconduct by misstating the State's burden of proof in closing argument and that cumulative errors denied him a fair trial. Sword also raises several issues related to legal financial obligations and alleged errors in his judgment and sentence.

Although the prosecutor made improper remarks about the State's burden of proof in closing argument, we conclude that Sword has failed to establish prejudice. We remand for the trial court to strike the filing fee, supervision fee, and crime victim penalty assessment from Sword's judgment and sentence and correct a scrivener's error. We otherwise affirm.

FACTS

After receiving a call about a man brandishing a gun, police arrested Sword and found a gun when they frisked him during the arrest. A witness reported that Sword was trying to steal a motorcycle, and when neighbors intervened, he pointed a gun at them. The State eventually charged Sword with two counts of second degree assault and one count of first degree unlawful possession of a firearm. The second degree assault charges each carried a firearm sentencing enhancement.

I. Preliminary Proceedings

A. Motions in Limine

A person commits first degree unlawful possession of a firearm if they possess a firearm after being convicted of a serious offense. Former RCW 9.41.040(1)(a) (2021). Any violent crime is a serious offense. Former RCW 9.41.010(26)(a) (2019). Sword had two prior convictions for second degree assault arising from the same incident and one prior conviction for residential burglary, which were all violent crimes and therefore serious offenses. Former RCW 9.41.010(4)(a). Sword did not stipulate that he had previously been convicted of a serious offense for the purposes of the unlawful possession of a firearm charge, requiring the State to prove this fact at trial.

During motions in limine, Sword sought to limit what the jury would learn about his criminal history. Sword moved to require the State to elect a single offense to use as evidence that he had previously been convicted of a serious offense for purposes of the unlawful possession of a firearm charge. The State responded that it was entitled to present evidence of multiple serious offenses because Sword had not stipulated to committing a prior serious offense. It also asserted that there was a risk after State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), that future court rulings might similarly invalidate one of the prior convictions.

The trial court denied the motion to limit the State to offering evidence of a single prior conviction. The trial court emphasized that Sword could have chosen to stipulate to having committed a serious offense. "While there will always be some prejudice when criminal history is used as evidence, in this case, the probative value is not substantially outweighed by unfair prejudice." Clerk's Papers (CP) at 83.

B. Jury Selection

During voir dire, the judge, the State, and defense counsel each asked questions of panels of 24 prospective jurors. Defense counsel queried the first panel about their opinions of law enforcement, asking, "Are police officers more likely to tell the truth than other people . . . on the stand?" Verbatim Rep. of Proc. (VRP) (Feb. 28, 2022) at 108. Juror 1 answered, "Yes," as did prospective jurors 6 and 8. Id. at 108-09. In response to other questions, prospective jurors 6 and 8 reported that they had close friends and family who worked in law enforcement. Juror 1 did not say that she or any of her close family or friends worked in law enforcement.

Sword has tattoos on his neck. When defense counsel asked the panel, juror 1 did not express a negative reaction to face or neck tattoos, though other prospective jurors did so. She did not have "any strong feelings about crimes against people" or about people charged with assault. Id. at 46. She did not report knowing anyone who had been assaulted. Juror 1 did not raise any concerns about the allegation that Sword had previously been convicted of a serious offense. And she did not report any strong feelings about homeless people.

Defense counsel did not ask the second panel of jurors their opinion about law enforcement honesty. But defense counsel challenged two prospective jurors from the second panel for cause based on counsel's view that they had expressed a bias in favor of police in their answers to other questions. The trial court granted the motion to dismiss one prospective juror for bias but denied the other.

The State and defense counsel each received six peremptory challenges. Defense counsel exercised peremptory challenges to remove prospective jurors 6 and 8 from the panel. Counsel also exercised peremptory challenges against four other prospective jurors, exhausting their six challenges. Juror 1 was seated on Sword's jury.

II. Trial

A. Evidence Presented

1. The incident

At trial, Melissa Miller and Nicholas Ketchum explained that they were siblings who lived together in a first-floor apartment. One of their neighbors parked his motorcycle outside Miller's bedroom window on the backside of the apartment.

The night of the incident, Miller saw a man who was not the owner "messing with" the motorcycle outside her bedroom window. VRP (Mar. 1, 2022) at 392. Miller and Ketchum had seen the same man around the apartment complex and around the motorcycle before. They later identified the man as Sword. The motorcycle's owner testified that he never gave anyone permission to borrow his motorcycle. And he did not recognize Sword.

Miller testified that she began yelling at Sword through the window to leave the motorcycle alone, and she alerted her brother to what was going on. Ketchum testified that he confronted Sword outside near the motorcycle. Sword claimed to own the motorcycle, which Ketchum knew was not true. Ketchum explained that Sword began to fumble with his waistband and said something about a gun, so Ketchum returned to the apartment to grab a hammer.

A neighbor who watched part of the incident from her doorway never heard Ketchum physically threaten Sword while they were near the motorcycle. She heard Ketchum and Miller say that they were going to call the police but did not hear Sword say the same.

Miller testified that when she told Sword she was going to call police, he threatened to shoot her, so she began recording him on her phone through her bedroom window. She did not see any gun when Sword made the threat. Sword then began walking around the side of Miller and Ketchum's apartment in the direction of their front door.

The trial court admitted cell phone videos taken by Miller and the neighbor. The videos showed Sword walking away from the motorcycle and around the side of the apartment while Miller filmed him. In one of the videos, Miller yelled at Sword for threatening her with a gun, while Ketchum asked where his hammer was in the background audio.

Ketchum testified that Sword followed him away from the motorcycle and was standing near the front door when Ketchum returned outside with the hammer. When Sword saw the hammer, he pulled out a gun and pointed it at Ketchum. Miller testified that she followed Ketchum outside because he had "a very assertive voice" and Miller believed that if she "let [Ketchum] handle" the situation then "it would have escalated even further." Id. at 406. "[M]y brother has a very dominant, assertive voice, his voice can come across very aggressive, and I didn't want just his tone of voice or actions to escalate the situation." Id. at 407. Miller stated that Ketchum opened the front door to Sword "standing there with his gun pointed at us." Id. at 396. The neighbor also reported that she saw Sword pull out a gun when he neared the front door, at which point the neighbor stopped filming to retreat indoors.

Miller, who was unfamiliar with firearms, did not know the brand of the gun or what color it was but testified that it was a handgun, not a rifle, and was a pistol instead of a revolver. Ketchum testified that the gun was a silver 9-millimeter handgun and was a pistol instead of a revolver. The neighbor also recalled a silver handgun.

When she saw the gun, Miller shoved Ketchum back inside the house and yelled at Sword to leave. She testified, "I told [Sword] that if he didn't leave and I got my hands on his gun I was going to shoot him." Id. at 398. Sword began backing away while still pointing the gun at Miller. The siblings agreed that Sword did not ever venture past a line of...