Opinion
No. 26978-7-III.
September 22, 2009.
Appeal from the Superior Court, Spokane County, No. 07-1-03758-7, Kathleen M. O'Connor, J., entered February 25, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
This appeal follows convictions for first degree kidnapping and two counts of second degree assault. The essential assignment of error is that the defendant's lawyer was ineffective in representing the defendant at trial. We conclude that any deficiency, even if we were to assume deficiency, did not prejudice the defendant and we affirm the convictions.
FACTS
Karla Jones and Dewey Hudson Jr. went to Mr. Hudson's home at his suggestion to retrieve her dog. She reached the porch on Mr. Hudson's home. Anthony Allen then opened the door, grabbed Ms. Jones, and pulled her into the entryway. Mr. Allen and another man then started punching her in the face. Mr. Hudson tried to intervene. Mr. Allen knocked him down, slapped him in the face with a butcher knife, and hit him in the jaw with the butt of the butcher knife. Mr. Allen next used the butcher knife to cut off Ms. Jones's hair while a woman was kicking Ms. Jones in the side. Then Mr. Allen hit Ms. Jones in the back of the head with a pistol, and the three assailants left Mr. Hudson's house. Mr. Hudson pleaded with Ms. Jones not to call the police. But Ms. Jones got her dog, ran home, and called police.
Officer Eugene Baldwin arrived at Ms. Jones's house less than 10 minutes after she called 911. He noticed injuries to Ms. Jones's head and face. And Ms. Jones told him that she and Mr. Hudson had been assaulted by Mr. Allen and another man.
Officer Baldwin then went to Mr. Hudson's home. He found Mr. Hudson in the living room, apparently unconscious, and noticed that his face was swollen and bloody. Mr. Hudson first told the officer that nothing had happened but then later reported that he and Ms. Jones had been assaulted. He told Officer Baldwin that Mr. Allen hit him in the face and head with a handgun when he tried to stop Mr. Allen from assaulting Ms. Jones. Officer Baldwin recovered a butcher knife from the house.
The State charged Mr. Allen, in relevant part, with first degree kidnapping and two counts of second degree assault for allegedly kidnapping and assaulting Ms. Jones and for allegedly assaulting Mr. Hudson "with a deadly weapon, to-wit: a handgun." Clerk's Papers (CP) at 5-6.
Mr. Hudson testified at trial. He did not remember talking to Officer Baldwin and denied being assaulted by Mr. Allen. He said that his injuries resulted from trying to get Ms. Jones out of his house.
In response to the State's questions about what Mr. Hudson had told him, Officer Baldwin later testified:
I basically explained to [Mr. Hudson] how bad Karla had been beaten up, and that seemed to trigger in [Mr. Hudson's] own mind how important it was to tell the truth about what had happened, and so he began telling me mostly what had occurred at his house.
. . . .
He said that [Mr. Allen and another man] were beating up Karla real bad. He said that he tried to get in the middle of it and stop them . . . [and] that [Mr. Allen] had hit him with a small caliber frame, small framed handgun that he had, and he said he was hit several times, and he, also, lost consciousness.
Report of Proceedings (RP) (Dec. 18, 2007) at 202-04. Defense counsel did not object to the State's questions or Officer Baldwin's responses. And the State referred to this testimony during closing argument, again without objection.
The court instructed the jury that, to convict Mr. Allen of first degree kidnapping, it had to be convinced beyond a reasonable doubt that Mr. Allen intentionally abducted Ms. Jones with the intent to inflict bodily injury on her. It defined "abduct" as "restrain[ing] a person by using or threatening to use deadly force." CP at 21. And it defined "restraint" as "restrict[ing] another person's movements without consent and without legal authority in a manner that interferes substantially with that person's liberty." CP at 21. The court also instructed the jury that it had to find beyond a reasonable doubt that Mr. Allen assaulted Mr. Hudson with a deadly weapon to return a guilty verdict on the second degree assault charge. Defense counsel did not object to any of these instructions.
The jury found Mr. Allen guilty of first degree kidnapping and two counts of second degree assault. It found that Mr. Allen was armed with a deadly weapon, but not a firearm, when he committed each crime.
DISCUSSION
There were no objections at trial to properly preserve the errors now claimed here on appeal. So the assignments of error are all couched as being of constitutional import, like ineffective assistance of counsel.
Ineffective Assistance of Counsel — Officer Baldwin's Testimony
Mr. Allen's first assignment of error centers on testimony by Officer Baldwin about what a witness told him after the assault and kidnapping. We are invited to review the assignment of error in the first instance because ineffective assistance of counsel is a constitutional question. State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000). And we do so.
We review de novo claims of ineffective assistance of counsel. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006). Mr. Allen must show that his defense counsel's conduct was deficient and that his cause was prejudiced by that deficiency. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). We strongly presume that counsel effectively represented Mr. Allen. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Only a clear showing of incompetence rebuts this presumption. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).
Mr. Allen contends that his counsel was ineffective because he did not object to Officer Baldwin's hearsay testimony. Failure to object to prejudicial hearsay testimony can amount to ineffective assistance of counsel. State v. Hendrickson, 138 Wn. App. 827, 831, 158 P.3d 1257 (2007), aff'd, 165 Wn.2d 474, 198 P.3d 1029 (2009). But this is not reversible error here for a couple of reasons. First, there may be a whole host of reasons why very good lawyers would choose not to object to certain testimony at trial. Admissible or not, an objection may have only served to highlight and emphasize Officer Baldwin's testimony, testimony that conveyed information that the jury would also get from other witnesses. And that reality also influences our take on the second prong of an ineffective assistance analysis, the requirement of prejudice. The State presented other testimony on Mr. Allen's conduct that easily supports the elements of the crimes of kidnapping and assault.
In Hendrickson, the court agreed that defense counsel rendered ineffective assistance by failing to object to testimony that "was crucial to the State's case because it was the only evidence" of the defendant's guilt. 138 Wn. App. at 833. The court reversed the defendant's conviction because "there is a reasonable probability that without this evidence Hendrickson would have been acquitted on this charge." Id.
But here Officer Baldwin's testimony was not the only evidence that Mr. Allen assaulted Mr. Hudson and Ms. Jones. Ms. Jones also testified that Mr. Allen assaulted her and Mr. Hudson. We, therefore, cannot say that there is a "reasonable probability" that Mr. Allen would have been acquitted of the two assault charges without Officer Baldwin's testimony.
Prosecutorial Misconduct
Mr. Allen next argues that the same testimony by Officer Baldwin supports a claim of prosecutorial misconduct because the prosecutor solicited the improper testimony and then argued based on it.
Mr. Allen did not object to the testimony at trial. So the conduct must be so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been remedied by a curative instruction. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
The absence of an objection here "strongly suggests . . . that the argument or event in question did not appear critically prejudicial to [him] in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Nor does it appear critically prejudicial to us on appeal.
Our earlier discussion of prejudice applies equally here. Other evidence shows clearly that Mr. Allen assaulted Mr. Hudson and Ms. Jones. And the prosecutor was certainly permitted to argue inferences from the evidence. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). The prosecutor here argued: "Mr. Dewey Hudson, on 8-19-07, said [Mr. Allen] did it." RP (Dec. 20, 2007) at 36. This is not an expression of a personal opinion; it is a reasonable inference from Officer Baldwin's testimony. We conclude, in any event, that the comments were neither flagrant nor willful in light of the prosecutor's entire argument and the evidence in the case. The comment was a brief portion of the State's entire closing argument, and Ms. Jones had also testified that Mr. Allen assaulted her and Mr. Hudson. Ineffective Assistance of Counsel — Instruction on "Incidental Restraint"
Mr. Allen next argues that his lawyer was ineffective because he failed to propose an instruction defining "incidental restraint." He argues that a conviction for a separately charged kidnapping is not supported by a showing that the victim was restrained only to complete another crime.
"Jury instructions must be considered in their entirety to determine if there is reversible error in a specific instruction." State v. Schulze, 116 Wn.2d 154, 167, 804 P.2d 566 (1991). There is no error if the instructions, when viewed as a whole, adequately explain the law and enable the parties to argue their theories of the case. Id. at 168.
Instruction 10 states:
A person commits the crime of kidnapping in the first degree when he or she intentionally abducts another person with intent to inflict bodily injury on the person.
CP at 19.
Instruction 11 provides:
To convict the defendant of the crime of kidnapping in the first degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about 19th day of August, 2007, the defendant, as an actor and/or accomplice, intentionally abducted KARLA COCHRAN JONES;
(2) That the defendant, as an actor and/or accomplice, abducted that person with intent to inflict bodily injury on the person.
CP at 20.
Instruction 12 defines "abduct" and "restrain" as follows:
Abduct means to restrain a person by using or threatening to use deadly force.
Restraint or restrain means to restrict another person's movements without consent and without legal authority in a manner that interferes substantially with that person's liberty.
CP at 21. These instructions properly lay out the elements of first degree kidnapping. See RCW 9A.40.010(1), (2) (defining "restrain" and "abduct"); see also RCW 9A.40.020 (defining first degree kidnapping).
And the instructions allowed Mr. Allen to argue his theory of the case. He generally denied kidnapping or assaulting Ms. Jones. And, of course, he made no claim that any restraint of Ms. Jones's movements was merely incidental to his assault upon her. Incidental restraint, then, was not an issue at trial and it did not need to be defined for the jury. Defense counsel, then, did not err by failing to propose such an instruction.
Sufficiency of the Evidence — First Degree Kidnapping
Along the same lines of argument, Mr. Allen contends that the State failed to produce substantial evidence of lack of incidental restraint. "Incidental restraint, however, is not an element of kidnapping." Brett, 126 Wn.2d at 174. And the State must prove an otherwise unnecessary element of an offense only when the element is included without objection in the "to convict" instruction. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Here, the State did not allege and the court did not instruct on "incidental restraint" as an element of the offense. And no one at trial suggested that the court should so instruct. The State then had to show that Mr. Allen abducted Ms. Jones with intent to inflict bodily injury upon her. And the State showed just that.
And, of course, Mr. Allen made no showing that abducting Ms. Jones was merely incidental to the assault on her. An abduction is independently significant if it significantly lessens the risk of detection, is not necessary to accomplish the other offense, or requires use of extra force. 13A Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law § 1609 (2d ed. 1998); State v. Stirgus, 21 Wn. App. 627, 632, 586 P.2d 532 (1978).
Ms. Jones testified that, as she walked up to Mr. Hudson's front door, Mr. Allen grabbed her and pulled her inside the house against her will:
Q: Okay. What do you recall happening when you arrived at Mr. Hudson's home?
A: I walked up on the porch. [Mr. Hudson] had gone in. [Mr. Allen] opened the door and grabbed me and pulled me in and threw me in the house and started punching me.
Q: Did you give Mr. Allen permission to forcibly take you in that house?
A: Certainly not. I didn't know he was even there.
RP at 152-53. This grabbing and pulling was force in addition to the punches Ms. Jones received once she was in the entryway. It decreased the likelihood that someone would witness the assault. And it was not necessary to accomplish the assault — the assault could have taken place on Mr. Hudson's front porch. Ms. Jones's testimony, then, is sufficient to show that the abduction had a purpose independent of the assault upon her.
Ineffective Assistance of Counsel — Second Degree Assault Instruction
Mr. Allen next argues that his lawyer should have objected to the court's second degree assault instruction because the State charged him with assault with a "deadly weapon, to-wit: a handgun," but the court's instruction only required proof of a deadly weapon.
Jury Instruction 21 properly stated the essential elements of second degree assault as charged. "`To convict' instructions must contain all the elements of a crime." State v. Prado, 144 Wn. App. 227, 246, 181 P.3d 901 (2008). "Elements" are the facts that the State must prove beyond a reasonable doubt to establish that the defendant committed the charged crime. State v. Johnstone, 96 Wn. App. 839, 844, 982 P.2d 119 (1999). The elements of second degree assault as charged here are (1) an assault and (2) use of a deadly weapon. RCW 9A.36.021(1)(c). A deadly weapon includes but need not be a firearm (or a handgun). See RCW 9A.04.110(6) (defining "deadly weapon"); see also CP at 29 (jury instruction defining "deadly weapon" as " any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or substantial bodily harm"). A firearm, then, is not a necessary element of second degree assault. And the elements instruction here did not have to specifically mention it, although it was implied by the instruction's use of the term "deadly weapon." Defense counsel's failure to object to Jury Instruction 21 was not ineffective assistance of counsel because the instruction was proper.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.