Opinion
No. 57389-6-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-02580-0, Mary E. Roberts, J., entered December 7, 2005.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Kenny Lyons (info Only) (Appearing Pro Se), 220 2nd Ave Sw, Pacific, WA, 98047.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Michael Paul Mohandeson, King Co Pros Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2390.
Affirmed by unpublished per curiam opinion.
K.L. seeks reversal of his adjudication of guilt for third degree assault. He also seeks a bar to collection of a DNA sample from him, a condition of his disposition. The trial court did not infringe on his constitutional rights or otherwise abuse its discretion by denying his request for a continuance to obtain additional defense witnesses. Based on our recent case authority, we also reject his challenge to the collection of a sample of his DNA. We affirm.
On May 17, 2005, K.L. and his mother got into a discussion in their home that escalated to the point of concerning his mother. She called 911, apparently because she thought that K.L. would leave with her truck. Officers Brian Alldridge and David Newton responded to the call and were warned that there were weapons in the home, but they were not "in play." They arrived to find the mother visibly upset, waiting for the officers in front of the house. She explained the situation and invited them inside.
Once inside, the officers found K.L. standing in one bedroom and his sister with a friend in an adjacent bedroom. Officer Alldridge approached K.L., while Officer Newton attempted to secure the premises by asking the sister and her friend to come into the living room. The sister resisted and became verbally abusive. As Officer Newton tried to remove her from the room, K.L. lunged toward her to protect her, pushing past Officer Alldridge. A scuffle ensued, the details of which are disputed. The result was that the officers succeeded in placing both K.L. and his sister in custody by restraining them on the living room floor and placing them in handcuffs. In the meantime, Officer Alldridge sustained injuries to his face.
The trial court found K.L. guilty of third degree assault for intentionally punching and kicking Officer Alldridge. He specifically found Officer Alldridge's testimony credible, despite the fact that K.L. testified that he did not intentionally strike or kick the officer. K.L. now appeals.
CONTINUANCE
K.L. contends that the trial court violated his constitutional rights when it refused to grant a continuance so he could obtain additional defense witnesses. We disagree. The trial court did not infringe on K.L.'s constitutional rights or otherwise abuse its discretion in refusing to continue the trial to await testimony of two witnesses under the circumstances of this case.
By statute, a court "may," upon a proper showing of materiality and diligence, grant a continuance for a defendant to obtain additional evidence. Whether to grant a continuance is within the trial court's discretion, and we will not overturn such a decision unless the court abuses that discretion. A court abuses its discretion when it is manifestly unreasonable or rests its decision on untenable grounds. In exercising its discretion for a motion to continue to obtain witnesses, a court should consider factors such as diligence, due process, surprise, the need for orderly procedure, materiality, and redundancy.
State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Downing, 151 Wn.2d at 273.
The federal and state constitutions guarantee criminal defendants the right to present material witnesses in their defense, the right to compulsory process to obtain the presence of those witnesses, and the right to due process of law generally. If a defendant needs a continuance in order to present a witness, the refusal to grant a continuance may violate a defendant's constitutional rights. When a constitutional right is affected, the accused must show that the trial court's failure to grant a continuance was prejudicial or that the outcome of the trial would have been different. In examining whether the accused was prejudiced, the reviewing court must examine the totality of the circumstances in each case and pay particular attention to the reasons presented to the trial court at the time of the motion.
U.S. Const. amend. VI, XIV; Wash. Const. art. I, §§ 22.
Downing, 151 Wn.2d at 274-75.
State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982).
Id. at 114-15.
Here, the trial court did not abuse its discretion in denying K.L.'s request for a continuance. On October 18, the judge denied an "agreed motion" to continue the case to procure a prosecution witness who had been injured. At the motion hearing, the court noted that the trial had already been continued once for the same reason. At the hearing, the subject of the mother's and sister's case was raised, and K.L.'s counsel stated, "[I]t was our hope to resolve this one first and get this matter taken care of here in Juvenile Court." On October 25, the expected trial date, the court again entertained the State's motion to continue the case for approximately one month in order to obtain the injured officer's testimony. K.L.'s counsel responded,
[A]t the [Omnibus] hearing the court denied any continuances and said the trial would go forward today, and if the State was unable to produce its witnesses it would dismiss. Defense is ready, we have our witnesses lined up, and we're ready to proceed at this time.
Report of Proceedings (October 25, 2005) at 12.
Report of Proceedings (October 25, 2005) at 12.
In neither of these October hearings did K.L. mention the need for more time to procure the sister's or mother's presence. The court granted the motion for one month, although it noted, "We've been sitting on this case for a very, very long time."
Id. at 11.
Then on November 21, the trial date, K.L. for the first time made a pretrial motion for a continuance due to the mother's and sister's unavailability. K.L. represented that their cases would probably be resolved "sometime the first" of the following year, but obviously no one knew for certain how long they would be unavailable or covered by a Fifth Amendment privilege. The court felt strongly that the case had already been delayed too long. Also, K.L. did not act in a timely manner considering his silence on the issue during the first two motions hearings when he must have known about charges brought against his mother and sister, who were both placed into custody along with K.L. on May 17. Rather, K.L. said he was prepared for trial on November 21. The trial court did not abuse its discretion in denying the motion given these circumstances.
Further, K.L. has not shown that he was prejudiced. In State v. Tatum, this court held that the defendant was not prejudiced by the trial court's denial of a continuance because the outcome would likely have been the same with the additional witness. The court concluded that there was ample evidence to support the finding of guilt. At best, the potential witness' testimony "would have been merely corroborative" of the defendant's testimony, which the jury rejected.
74 Wn. App. 81, 87, 871 P.2d 1123 (1994).
Id.; see also State v. Eller, 84 Wn.2d 90, 96, 524 P.2d 242 (1974) (trial court did not abuse its discretion in denying a continuance when it was speculative when the potential witness would be available and what she would say).
Here, too, the outcome would have been the same with the additional defense witnesses. The trial court believed Officer Alldridge's testimony that, among other things, K.L. made eye contact with him, cocked his leg, and then kicked him squarely in the face. It is true that the sister and mother may have had better views of the alleged assault than Tess Coil and Robert Bogue, two other testifying witnesses.
But as in Tatum, their testimony still would have been "merely corroborative" of K.L.'s own testimony that he did not punch or kick Officer Alldridge. Thus, the evidence would have been cumulative. Added to the fact that the substance of their testimony and their availability to testify are unknown, this suggests that the outcome of the trial would not have been different if the court had granted a continuance.
See Tatum, 74 Wn. App. at 87.
In contrast, the court in State v. Edwards reversed the trial court's denial of the defendant's motion for a short recess in order to contact witnesses who had unexpectedly failed to appear, as well as compulsory process to obtain their presence. The supreme court noted that defendant's counsel had acted in good faith and was legitimately surprised when the witnesses failed to show. It held that such a short continuance, less than one hour, could not have significantly disrupted the court's orderly procedure. These facts stand in stark contrast to those in the instant case, in which K.L. seeks an unknown amount of time to obtain additional witnesses after earlier insisting that he was ready for trial.
68 Wn.2d 246, 258-59, 412 P.2d 747 (1966).
Id. at 257-58.
K.L. cites two out-of-state cases in support of his argument that his mother's and sister's pending criminal proceedings justified a continuance. Those cases are distinguishable. In State v. Williams, the co-defendant/witness had previously stated that he did not have an accomplice (allegedly the defendant) in committing the crime, and the court specifically noted that the potential witness' testimony "would hardly have been cumulative." And in Tucker v. United States, the court similarly held that only the testimony of the alleged accomplice would reveal whether the defendant participated in the crime as accused. Without the witness, the defendant in closing argument was left to "hypothesize" about what occurred during the criminal transaction, because the defendant relied upon the defense of mistaken identity and thus claimed not to have been at the scene of the crime. Furthermore, apparently only two weeks were needed to obtain the witness' presence.
Appellant's Brief at 14-15 (citing State v. Williams, 200 Conn. 310, 511 A.2d 1000 (1986); Tucker v. United States, 571 A.2d 797 (D.C. 1990)).
Williams, 200 Conn. at 320.
Tucker, 571 A.2d at 800.
Id. at 799.
Id. at 798.
In contrast here, no one was in a better position to view the interaction between Officer Alldridge and K.L. than those two individuals. Both of them testified, and the trial court found Officer Alldridge's testimony more credible. Unlike in Williams and Tucker, the testimony of the mother and sister would have, at best, added testimony identical to that of K.L. They were certainly in no better a position than he to see the alleged assault and could add no new information or change the outcome of the case. And unlike in Tucker, the time until the conclusion of the mother and sister's proceedings, when they could no longer claim a Fifth Amendment privilege, was unknown and could have been several months.
For these reasons, the trial court properly exercised its discretion in denying the motion for a continuance.
DNA COLLECTION
K.L. argues that the State violated his rights under the federal and state constitutions in collecting his DNA pursuant to RCW 43.43.754. This court has recently rejected his Fourth Amendment arguments in State v. Surge. K.L. gives us no persuasive reason to depart from that ruling.
122 Wn. App. 448, 452, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008, 111 P.3d 1190 (2005).
He has also failed to provide an analysis under State v. Gunwall to support his arguments under article I, section 7 of the Washington state constitution. This failure is fatal to his argument.
106 Wn.2d 54, 720 P.2d 808 (1986).
See State v. Nguyen, 134 Wn. App. 863, 871, 142 P.3d 1117 (2006)
In short, there is no basis to bar the collection of a DNA sample as his disposition orders.
We affirm the adjudication and disposition. (refusing to consider an identical DNA issue in the absence of briefing on the Gunwall factors); State v. Reichenbach, 153 Wn.2d 126, 131 n. 1, 101 P.3d 80 (2004).
ELLINGTON and BECKER, JJ., concur.