Opinion
No. 57415-9-I.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06314-7, Michael J. Fox, J., entered November 21, 2005.
Affirmed by unpublished per curiam opinion.
Victor Gutama appeals his convictions of possession of heroin with intent to manufacture or deliver, possession of cocaine with intent to manufacture or deliver, unlawful use of a building for drug purposes, and two counts of tampering with a witness. Gutama contends that his attorney violated his right to conflict-free counsel by failing to move to withdraw when the trial court ruled admissible a redacted version of the attorney's sworn declaration regarding an uncontested fact about the State's endorsement of a witness. But introducing the statement of an attorney as a speaking agent of a defendant does not create a conflict of interest when the statement establishes only uncontested facts that the defendant has no interest in contradicting. We also reject Gutama's pro se claims of error and accordingly affirm.
FACTS
After conducting surveillance and purchases of controlled substances using an informant, police obtained and executed a search warrant on Gutama's rented house. Police recovered over $ 6,000 cash, large quantities of heroin, cocaine, packaging materials, weapons and ledgers consistent with drug sales in Gutama's handwriting. Gutama was charged with possession of heroin with intent to manufacture or deliver, possession of cocaine with intent to manufacture or deliver, unlawful possession of a firearm and unlawful use of a building for drug purposes.
The State eventually endorsed Gutama's former tenants Brandy Summers and Raymond Ball as witnesses in the case. In February 2005, Gutama's counsel Raul Mendez filed a motion to continue based in part upon the recent disclosure of Summers as a new witness. In his declaration in support of the motion, Mendez stated "On 2-3-05, at about 3:30 pm [the prosecutor] informed me that she will be calling a new witness, Ms. Brandy Summers, in her case in chief." At the subsequent hearing on the motion, the State did not object to the continuance, but notified the court and counsel that later on the afternoon of February 3, Gutama had gone to Summers' workplace and tried to persuade her not to cooperate with police, for which behavior the State intended to file additional charges of witness tampering. The State accordingly asked for permission to withhold Summers' home address from the defense. The court proposed that Mr. Mendez be directed not to share that information with his client, but Mr. Mendez said he was not comfortable with such a limitation. The court then authorized the State to withhold the information if it made Summers available for an interview. Gutama was eventually charged with two counts of witness tampering for conduct involving Summers and Ball.
Clerk's Papers at 265-66.
As trial approached, the State gave notice that it would move to admit the portion of Mr. Mendez's declaration regarding notice that Summers would be a witness as an adoptive admission under ER 801(d)(2)(ii) and (iii). Mr. Mendez objected, contending that admitting his declaration would violate Gutama's right to confrontation because he could not cross-examine himself. Mr. Mendez indicated he never stipulated to anything, and argued that admission of the statement would be an improper comment on the right to counsel. He also argued that the State did not need the evidence because it could otherwise prove Gutama had notice Summers would be a witness. The court concluded that actually calling Mr. Mendez to testify would require recusal, but merely admitting the statement would not. The court reasoned that under the case law and rules of professional conduct, absent any issue as to whether the statement was inaccurate, there was no conflict of interest. When Mr. Mendez would not stipulate, the court admitted the statement.
Clerk's Papers at 278-79.
Gutama failed to appear on the morning of the third day of trial. After recessing and conducting an inquiry on the record, the court determined Gutama had voluntarily absented himself and completed the trial in his absence. The jury acquitted Gutama of the firearms charge and found him guilty of the other offenses. Gutama was eventually apprehended and received a standard range sentence. He appeals.
DECISION
Gutama contends that once the trial court ruled that Mr. Mendez's declaration about Summers' endorsement as a witness was admissible, a conflict of interest was created that required Mr. Mendez to remove himself from the case. The Sixth Amendment right to effective assistance of counsel requires that a defendant have an attorney free of conflicting interests. State v. Myers, 86 Wn.2d 419, 424, 545 P.2d 538 (1976). To show a violation of the Sixth Amendment right to counsel, a defendant must demonstrate that his attorney had a conflict of interest that adversely affected the attorney's performance. State v. Dhaliwal, 150 Wn.2d 559, 570-71, 79 P.3d 432 (2003).
Gutama cites the Rules of Professional Conduct, which state, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests". RPC 1.7(b). Gutama contends Mr. Mendez's own interests created a conflict with his role as counsel. He cites Government of V. I. v. Zepp, 748 F.2d 125, 138 (3d Cir. 1984), arguing it provides persuasive authority that the trial court's ruling admitting the redacted declaration left Mr. Mendez with no choice but to withdraw from the case. We disagree.
In Zepp, the defendant was charged with possession of controlled substances and destruction of evidence. Police who had surrounded the defendant's home heard a toilet flushing. After finding the defendant and her attorney the only occupants of the house, police recovered cocaine from the septic tank. The same attorney who had been in the house represented the defendant at trial. To avoid being called as a prosecution witness, defense counsel stipulated to the fact that he had not flushed the toilet. A panel from the third circuit of the federal court of appeals reversed, holding that the attorney's stipulation deprived the defendant of her constitutional right to counsel. Because only one of two people could have flushed the toilet, the Zepp majority concluded that counsel's stipulation placed him in the irreconcilable position of defending Zepp while simultaneously attempting to exculpate himself from criminal liability, resulting in "a total abandonment of the loyalty which counsel owes his client." Zepp, 748 F.2d at 138.
The present case does not resemble Zepp. As the trial court reasoned, the circumstances did not even potentially implicate Mr. Mendez in the charged offenses or any offense. Nor was there any risk that the jury would speculate to reach such a conclusion because, when Mr. Mendez objected to the State's reference to the evidence in closing argument, the court instructed the jury that it could not infer that Mr. Mendez was involved in any wrongdoing, an instruction we presume the jury followed. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Unlike in Zepp, the circumstances here did not leave Mr. Mendez with an interest in exculpating himself at odds with his duty of defending Gutama.
Consideration of the ethical rule regarding attorneys as witnesses is instructive. Rules of Professional Conduct 3.7 states the general rule that an attorney shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, but provides specific, limited exceptions. In particular, RPC 3.7(a) allows an attorney to remain as advocate when the "testimony relates to an issue that is either uncontested or a formality," and RPC 3.7(c) allows the attorney to remain if the "lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate". Both of these exceptions are applicable here.
Again citing Zepp, Gutama alternatively contends that the trial court failed in its duty to inquire into the situation, suggesting that the court should have questioned Gutama personally. But recent authority from the United States Supreme Court has clarified that automatic reversal is not constitutionally required when a trial court fails to inquire about a potential conflict of which it was or should have been aware. State v. Dhaliwal, 150 Wn.2d 559, 57079 P.3d 432, (2003), citing Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). "Rather, to show a violation of the Sixth Amendment right to counsel free from conflict, the defendant must always demonstrate that his or her attorney had a conflict of interest that adversely affected his or her performance." Dhaliwal, 150 Wn.2d at 570. "`An actual conflict of interest' [means] precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties." Dhaliwal, 150 Wn.2d at 570, quoting Mickens, 535 U.S. at 171.
Gutama has made no showing of any actual adverse effect on his counsel's performance, and none appears in the record. Not only was the fact that Summers had been disclosed as a witness uncontroverted, but as a tenant of Gutama's during the period of the investigation, it was clear that she was otherwise a "witness" for purposes of the witness tampering statute because she was a person Gutama had "reason to believe may have information relevant to a criminal investigation". See RCW 9A.72.120.
We emphasize that our holding is limited to the facts of this case and the argument before us. Gutama has not challenged the trial court's ruling that Mr. Mendez's statements were admissible as a "quasi-admissions," made "within the scope of the attorneys' employment and within the sphere of their management of the litigation." State v. Dault, 19 Wn. App. 709, 717-18, 578 P.2d 43 (1978). We repeat this court's prior admonition that this rule is to be applied cautiously in criminal cases because of the potential affect upon a defendant's right to counsel. State v. Williams, 79 Wn. App. 21, 28, 902 P.2d 1258 (1995). But the record before us discloses no actual conflict of interest. We accordingly reject Gutama's claim.
Gutama raises two additional claims in a pro se statement of supplemental grounds. He first complains that his rights to confront his accusers and to testify were violated because the court completed the trial in his absence. But the record shows that after noting Gutama's failure to appear on the third morning of trial, the trial court conducted the appropriate investigation before determining that Gutama had voluntarily absented himself. See State v. Garza, 150 Wn.2d 360, 365-66, 77 P.3d 347 (2003). The sentencing record further shows that Gutama had fled the state and was apprehended five months later in Arizona. Despite the opportunity to address the court, he did not explain his failure to remain for the trial. Under the circumstances, Gutama waived his right to be present for the balance of the trial. Garza, 150 Wn.2d at 367-69.
Gutama also complains that the court's instructions to the jury were incomplete. He fails, however to identify any instruction that should have been given and was not. Gutama's claim of instructional error accordingly fails.
Affirmed.