Opinion
No. 53790-3-I
Filed: April 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-03280-6. Judgment or order under review. Date filed: 09/12/2003. Judge signing: Hon. Catherine D. Shaffer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Bo Burns — Informational only (Appearing Pro Se), 4822 SE 252 Pl Apt 306, Kent, WA 98032.
Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Brian Martin McDonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Bobby Joe Burns appeals, claiming that his trial counsel was ineffective. His claims are based on counsel's decision not to interview certain witnesses and not to pursue a self-defense or defense of others claim in response to the charges. Burns also argues that his attorney failed to impeach a State witness with a prior criminal conviction. He argues that counsel failed to object to alleged hearsay statements by witnesses and failed to make a Knapstad motion to dismiss fourth degree assault and third degree malicious mischief charges. Burns claims that counsel failed to object to the introduction into evidence of his prior aggressive acts. Burns fails to show prejudice for any of these alleged deficiencies.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
Burns also claims that the prosecutor committed reversible misconduct in failing to inform his defense counsel about a witness' prior misdemeanor conviction. The State properly concedes the failure was misconduct. But Burns fails to show that there is a reasonable probability that the outcome of the trial would have been different had the information been supplied. For these reasons, we affirm.
We deny Burns's Motion to Supplement the Appellate Record dated January 24, 2005.
In May 2002, Damian Solomon visited his sister Leaann Solomon and her boyfriend, Burns, at the motel where Leaann and Burns resided. During the visit, Damian, Leaann, and Burns drank beer and watched television. Damian noticed that Leaann had a black eye and became concerned for her safety. An argument between Leaann and Burns began. Damian asked Leaann and her children to leave the room with him. Damian and the children left and went to Damian's car. After waiting fifteen minutes, Damian and one of Leaann's sons returned to the room and asked Leaann if she wanted to leave. Burns became enraged and held a knife to Damian's throat. While Burns pushed Damian's head back with the blade, the two men yelled at each other. After a minute or two, Burns sliced Damian across the throat with the knife. Burns then made stabbing motions with the knife and yelled at Damian.
Damian and Leaann's son returned to the car and instructed one of the other children to call 911. Auburn police officers arrived and observed that Leaann had a badly blackened eye and a fresh cut on her face. The officers observed that Damian was intoxicated and had a two-to-three inch scratch on his neck. The room was torn apart, and broken dishes littered the floor. The officers arrested Burns. The police officers searched the room and motel parking lot, but failed to find the knife allegedly used to assault Damian.
The State charged Burns with second-degree assault with a deadly weapon allegation for assaulting Damian. The State also charged him with fourth-degree assault based on the allegation that he had assaulted Leaann, causing her black eye. It also charged Burns with third-degree malicious mischief for allegedly breaking dishes that Leaann allegedly owned. The case went to trial, and the court dismissed the fourth-degree assault and third-degree malicious mischief charges after a motion by the defense at the close of the State's case in chief. A jury convicted Burns of second-degree assault.
Months later, Burns moved for a new trial, claiming ineffective assistance of counsel and prosecutorial misconduct. The court heard testimony from Burns's trial counsel about his investigation and tactical decisions and denied the motion. Thereafter, the court imposed a sentence of 24 months. Burns appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Burns claims that his trial counsel was ineffective for several reasons. None is persuasive.
Strickland v. Washington established a two-part test for ineffective assistance of counsel. First, the defendant must show deficient performance. Deficient performance is not shown by matters that go to trial strategy or tactics.
Strickland, 466 U.S. at 688-89.
Strickland, 466 U.S. at 688-89.
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
Second, the defendant must show prejudice — `that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' To meet the second prong, a defendant must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. If an appellant fails to establish either element of the ineffective assistance of counsel claim, we need not address the other element.
Hendrickson, 129 Wn.2d at 78 (quoting Strickland, 466 U.S. at 687).
Hendrickson, 129 Wn.2d at 78.
Witness Interviews
Burns first argues that his counsel at trial was ineffective for failing to conduct pre-trial interviews of the arresting officers and of Leaann Solomon and her children. We disagree.
The duty to investigate `does not necessarily require that every conceivable witness be interviewed.' Rather, the duty is either to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary. In short, the decision not to interview certain witnesses can be a legitimate strategy for purposes of this constitutional claim.
In re Davis, 152 Wn.2d 647, 739, 101 P.3d 1 (2004) (citing Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001)).
Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
To assure the defendant of counsel's best efforts then, the law must afford the attorney a wide latitude and flexibility in his choice of trial psychology and tactics. If counsel is to be stultified at trial by a post trial scrutiny of the myriad choices he must make in the course of a trial: whether to examine on a fact, whether and how much to cross-examine, whether to put some witnesses on the stand and leave others off — indeed, in some instances, whether to interview some witnesses before trial or leave them alone — he will lose the very freedom of action so essential to a skillful representation of the accused.
State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967).
Here, none of the police officers that Burns asserts should have been interviewed either witnessed the assault or recovered any evidence. Trial counsel was aware of these shortcomings. Thus, the decision not to interview these particular witnesses appears reasonable, not deficient. More importantly, Burns fails to show how he was prejudiced by his attorney's decision not to conduct these interviews. Counsel conducted a competent cross-examination of the officers. He elicited testimony that emphasized the fact that no knife was ever found and that Damian was intoxicated at the time of the assault. There is no evidence that the officers' stories would have favored Burns had his attorney interviewed them prior to trial. There is no showing that interviewing the officers would have lead to a reasonable probability of a different outcome — there was no prejudice.
Defense counsel requested an interview with Leaann, but learned from the court appointed investigator that she and her children did not want to be interviewed. The children also said `they didn't remember anything about the incident,' when they spoke to the prosecutor and defense counsel. Counsel testified that Leaann's testimony could have been helpful to Burns's defense. Accordingly, he didn't want to `alienat[e] potential witness[es] who may decide to change their testimony or become more hostile.' The evidence at trial supported this tactical decision. Leaann's testimony was favorable to Burns. She testified that she did not see Burns with a knife or threaten Damian. Leaann claimed the dishes were broken when she was asleep. The decision not to interview Leaann before trial was a legitimate trial tactic and did not prejudice Burns.
A similar analysis applies to the decision not to interview the children. Counsel did not wish to alienate Leaann by doing so. Additionally, the children indicated that they could not remember the incident. There was no reasonable probability of a different outcome had counsel chosen to interview them — there was no prejudice.
See Mattheson v. King, 751 F.2d 1432, 1438-39 (5th Cir. 1985), cert. denied, 475 U.S. 1138, 106 S. Ct. 1798, 90 L. Ed. 2d 343 (1986).
Self Defense
Burns next argues that his trial counsel was ineffective for failing to argue self-defense. This argument is unpersuasive.
The decision whether to present a particular defense is strategic and generally will not support an ineffective assistance of counsel claim. A claim of self-defense is available only if the defendant first offers credible evidence tending to prove that theory or defense. Counsel's decision not to present a defense of self-defense is not ineffective assistance when there is no evidence of self-defense.
See State v. Johnson, 113 Wn. App. 482, 493, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1010 (2003) (counsel was not ineffective for failing to argue self-defense when Johnson denied involvement and the evidence showed that the victim suffered fatal wounds and Johnson suffered no injuries).
State v. Haydel, 122 Wn. App. 365, 370, 95 P.3d 760 (2004) (citing State v. Dyson, 90 Wn. App. 433, 438, 952 P.2d 1097 (1997)); State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993) (defendant bears the initial burden of producing some evidence).
See Johnson, 113 Wn. App. at 493 (counsel was not ineffective for failing to argue self-defense when Johnson denied involvement and the evidence showed that Ruff suffered fatal wounds and Johnson suffered no injuries); see also Haydel, 122 Wn. App. 365 (trial court not required to advise defendant with respect to self defense since there was no evidence to support such a defense, and defendant's counsel informed him of the State's burden of proof).
Here, although `denial/self-defense' is listed as the nature of Burns's defense in the omnibus order, there was no evidence to substantiate that allegation. Burns claimed that the pants he was wearing when he was booked had a tear in them from a wound he suffered after Damian had assaulted him. Then, after defense counsel was unable to locate the pair of pants, Burns and his defense counsel discussed whether to present a self-defense claim. Counsel chose not to pursue such a defense given the lack of evidence to corroborate the claim.
Additionally, Burns failed to present any evidence in the record before us that he had a viable self-defense or defense of others claim. There is no evidence that Damian was the aggressor. Furthermore, Leaann's testimony only supported Burns's defense of denial as she testified that no threats were made and no confrontation took place. Accordingly, there was no reasonable probability of a different outcome had counsel approached the case as Burns now argues there was no prejudice.
Torn Pants and Photograph of Wound
Burns also argues that his counsel was ineffective for failing to retrieve exculpatory evidence. He claims a torn pair of pants and photograph of a wound he allegedly suffered would have shown evidence of an attack by Damian should have been obtained. We disagree.
At minimum, a defendant seeking relief under a "failure to investigate" theory must show a reasonable likelihood that the investigation would have produced useful information not already known to defendant's trial counsel. And even if a defendant can show that exculpatory evidence unknown to trial counsel would have been uncovered by further investigation or interview, the court must still consider whether counsel's deficient performance prejudiced the defendant. In evaluating prejudice, "ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case."
Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001), amended by 253 F.3d 1150 (2001) (When the record clearly shows that the lawyer was well-informed, and the defendant fails to state what additional information would be gained by the discovery she or he now claims was necessary, an ineffective assistance claim fails.).
Bragg, 242 F.3d at 1088 (quoting Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)).
In his brief, Burns speculates that the pants he was wearing at the time of the incident `were torn, or possibly bloodstained consistent with Damian assaulting Burns with the knife.' Defense counsel acted quickly in attempting to retrieve the pants after Burns indicated they might be useful in his defense. However, the pants were never found. The failure to obtain exculpatory evidence that cannot be found is not ineffective assistance of counsel.
Also, the decision not to take photographs of the alleged wound was strategic. Burns's attorney believed that a photograph of an old, small scar would not help corroborate a defense of self-defense and might undermine Burns's credibility and defense of denial. No testimony pointed to Damian as the aggressor. Because there was no testimony, and no corroborating evidence of self-defense, it was not prejudicial for failing to take pictures of Burns's alleged wound.
Failure to Object
Burns also contends that his counsel was ineffective for failing to make objections to alleged hearsay testimony. We disagree.
The failure to make objections at trial is a matter of trial strategy and tactics. When claiming prejudice from counsel's failure to make objections, the defendant has to show the trial court would have sustained the objection. `Hearsay' is an out of court statement offered to prove the truth of the matter asserted.
State v. Stockman, 70 Wn.2d 941, 944, 425 P.2d 898 (1967).
See e.g., State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
ER 801(c).
Here, Burns claims his attorney should have objected when the prosecutor asked an officer whether he spoke to the children about Leaann's black eye. Burns claims that because the children did not testify at trial, this was a way for the prosecution to introduce hearsay testimony. However, the officer did not testify as to what the children said, but rather only that they `spoke up' when they heard the officer asking Leaann about her injury. This testimony did not indicate what either of the children said — it was not inadmissible hearsay. Thus, there was no deficient performance in this respect.
Limiting Instruction
Burns argues for the first time on appeal that his attorney's performance was deficient for failing to request a limiting instruction concerning the evidence of the broken dishes and Leaann's black eye. We disagree.
Here, the trial court informed the jury that the counts relating to this evidence had been dismissed. To request a limiting instruction would have brought the black eye and broken dishes back to the attention of the jury, possibly reminding them of Burns's violent behavior that evening. It was a strategic choice to not highlight this potentially damaging testimony. Furthermore, there is simply no showing that there is a reasonable probability that the result would have been different had such an instruction been requested and given.
Motion to Dismiss Fourth Degree Assault and Third-Degree Malicious Mischief Charge
For the first time on appeal, Burns argues that his counsel's failure to bring a Knapstad motion was ineffective. We disagree.
Under State v. Knapstad, a trial court may entertain a pre-trial motion to dismiss if there are no material disputed facts and the undisputed facts are insufficient to support a finding of guilt. The court may consider the State's affidavit of probable cause when considering a Knapstad motion. Under Knapstad, the court must consider the evidence and the reasonable inferences in the light most favorable to the State when determining whether to grant a motion for dismissal.
See State v. Freigang, 115 Wn. App. 496, 502, 61 P.3d 343 (2002), review denied, 149 Wn.2d 1028 (2003).
State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).
Here, the certificate of probable cause shows that Leaann's son informed the police that Burns was violent that night, grabbing Leaann by the hair and breaking dishes. Testimony of Burns's violent behavior that night and Damian's expressed concern for his sister and her children also supported a reasonable inference that Burns assaulted Leaann and broke the dishes. There was a prima facie case that Burns was guilty of the charged crimes. The fact that these charges were dismissed at the close of the State's case in chief does nothing to support the claim that a pre-trial Knapstad motion would have been granted.
(Emphasis added.)
Witness's Criminal History
Burns also argues that counsel was ineffective for failing to obtain Damian's prior criminal history to impeach his testimony. We disagree. Crimes of dishonesty may be used to impeach witness testimony. ER 609(a)(2) states, `For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted only if the crime (2) involved dishonesty or false statement, regardless of the punishment.'
See ER 609.
During cross examination, Burns's counsel led Damian to contradict his testimony regarding the timing of the events of that night, admit to driving without a license, admit that he had five or six beers, and that his memory of the incident was not good. Also during cross examination, Damian admitted he may have argued with Burns about whether he should drive the children after drinking. Damian also testified that he had seen the knife a week after the incident, but did not tell anyone about it. On re-direct examination Damian also revealed that he was incarcerated when he spoke to the defense investigator. Defense counsel did not elicit the nature of the crime for which Damian was incarcerated, leaving the jury to speculate about the severity of the crime. Further impeachment with evidence of Damian's third-degree theft conviction would not have led to a reasonable probability of a different result. ER 404(b)
Burns argues that his counsel was ineffective because he failed to object to the introduction of evidence of Burns's allegedly aggressive character. Specifically, he argues his counsel should have objected when the State elicited testimony about the broken dishes and Leaann's black eye. We disagree.
ER 404(b) states that `[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.' Even if we were willing to assume deficient performance, this record does not show resulting prejudice. To determine whether an evidentiary error probably affected the outcome of a trial, we must exclude the improperly admitted evidence and examine the evidence that remains. If the excluded evidence is of minor significance when compared to the evidence that remains, the error is harmless.
State v. Myers, 49 Wn. App. 243, 249-50, 742 P.2d 180 (1987) (citing State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Assuming that the evidence of the broken dishes and black eye was excluded, Damian's testimony was sufficient for the jury to convict Burns of second degree assault. The trial court commented in its oral ruling denying a new trial that, despite Damian's unwillingness to cooperate with the prosecution and his dislike of the courtroom and his ongoing friendship with Burns, he could not forget having a knife held to his throat. Damian's credible testimony in the record indicated that Burns assaulted him, notwithstanding the other evidence presented in the case.
PROSECUTORIAL MISCONDUCT Witness's Prior Misdemeanor Conviction
Burns next argues that the prosecutor committed misconduct that unfairly prejudiced him when the prosecutor withheld Damian's prior theft conviction. We disagree.
It is prosecutorial misconduct to fail to disclose prior criminal convictions. However, prosecutorial misconduct requires a new trial only if there is a substantial likelihood that the misconduct affected the jury's verdict.
CrR 4.7(a)(1)(vi).
State v. Copeland, 89 Wn. App. 492, 498, 949 P.2d 458 (1998).
Here, the State properly concedes that it was misconduct to fail to disclose Damian's prior conviction. The question is whether or not there was prejudice sufficient to reverse. As the trial court observed, the record establishes that `[Burns's counsel] thoroughly discredited Mr. Solomon.' Moreover, we agree that a misdemeanor theft conviction — a crime of dishonesty — would not have created any reasonable probability of a different outcome to the second degree assault charge at issue here.
STATEMENT OF ADDITIONAL GROUNDS
In Burns's Statement of Additional Grounds for Relief, he claims that his conviction should be reversed because he did not assault Damian, but was defending the children from abduction. We disagree.
Damian testified that he asked Leaann if he could take his nephews to the safety of his car. All of the evidence presented at trial indicates that Damian did not harm, or intend to harm, the children. Burns's defense of others claim fails.
We affirm the judgment and sentence.
ELLINGTON and SCHINDLER, JJ., Concur.