Opinion
No. 26096-8-III.
April 17, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-1-00037-0, Donald W Schacht, J., entered April 16, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Korsmo, J., and Thompson, J. Pro Tem.
This is a prosecution for assault. The defendant assigns error to the trial judge's refusal to sustain his objection to questions by the State that, in his view, highlighted the defendant's exercise of his right to remain silent. We conclude that the State's questions were entirely appropriate given the defendant's inconsistent explanations for how the assault happened. The defendant also claims that the court sua sponte or his lawyer should have moved for a mental health evaluation given the showing of previous emotional or mental problems. But no one asked for such an evaluation, and on this record we are unable to conclude that one was necessary or even appropriate. We therefore affirm the conviction.
FACTS
Terry Moss assaulted Mario Franco in Mr. Franco's apartment. Mr. Moss put a knife to Mr. Franco's face. Mr. Moss hit Mr. Franco's face with his fists several times; the injury took eight stitches to close. Mr. Moss also poked Mr. Franco in the eye with a compass needle.
Mr. Moss remained in Mr. Franco's apartment. Mr. Moss fell asleep. Mr. Franco did not. He sat in his apartment in a state of shock and held a towel to his bleeding face. He then left his apartment after Mr. Moss fell asleep. Mr. Franco went to a neighbor's apartment and told the neighbor what happened. He then returned to his apartment.
The police knocked on Mr. Franco's door. Mr. Moss told Mr. Franco not to answer. Mr. Franco feared that if he answered the door Mr. Moss would assault him again. Mr. Franco finally got up and answered the door. Mr. Moss told the police that two men beat Mr. Franco. Mr. Franco told police that Mr. Moss beat him.
The State charged Mr. Moss with second degree assault and unlawful imprisonment.
The prosecutor and Mr. Moss had this exchange during the trial:
Q Somebody knocks on the door and [Mr. Franco] tells you not to answer it; is that right.
A Uh-huh.
Q Okay. For the same reason, he didn't want somebody to see his face?
A Well, what I — what I think is he had a dealing with somebody, a bad drug deal and he got hurt over something like that.
Q Oh, okay. Bad drug deal, that is what you told the police?
A That's what I think it was.
Q Okay. So then the police come and he still tells you not to answer the door because he doesn't want anybody to see his face; right?
A Well, we didn't know who it was. He just finally got up and answered the door.
Q So he must have changed his mind about somebody seeing his face?
A I guess. They kept knocking so he went up to the door.
Q Then the police come in and they arrest you?
A Yeah.
Q For assaulting Mario [Franco]?
A Right.
Q Right. That's when you said, "Mario, what's going on? I didn't do anything;" right?
A (Nodded head.)
Q You said that?
A Well, they just said just take him out.
Q You didn't ask Mario, "What's going on, these other guys beat you up?"
A Well, they had separated us. And then on my way out and he acknowledged that I did this.
Q And you denied it immediately; right?
A No, we were walking out.
Report of Proceedings (RP) at 116-17.
Defense counsel objected. He stated (outside the presence of the jury) that the prosecutor improperly brought attention to Mr. Moss's right to remain silent. The judge overruled the objection: "I thought there was a reference to the police. There was not. I'll overrule the objection." RP at 120.
The jury found Mr. Moss guilty of second degree assault and unlawful imprisonment.
Mr. Moss had been previously convicted of first degree arson and reckless endangerment in Oregon. And he had also been previously convicted of second degree assault in Walla Walla. So the court sentenced Mr. Moss to life imprisonment without the possibility of parole under the three strikes rule in Washington, RCW 9.94A.555.
DISCUSSION
Sufficiency of the Evidence — Unlawful Imprisonment Mr. Moss argues that the evidence does not support the conclusion that he "knowingly" restrained Mr. Franco. He argues that he fell asleep and Mr. Franco, in fact, left the apartment.
The standard of review here is substantial evidence. State v. Stirgus, 21 Wn. App. 627, 630, 586 P.2d 532 (1978). We first view the evidence in a light most favorable to the State and then ask whether any rational trier of fact could have found the essential elements of a crime based on the evidence produced and inferences from that evidence. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)).
A person is guilty of unlawful imprisonment if "he knowingly restrains another person." RCW 9A.40.040(1). Restrain means to restrict a person's movements without consent and without legal authority in a way that interferes with that person's freedom. RCW 9A.40.010(1).
Knowingly was defined for the jury by an instruction, which was based upon RCW 9A.08.010(1)(b):
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Clerk's Papers (CP) at 35.
Here, the evidence looked at in a light most favorable to the State shows that Mr. Moss beat and threatened Mr. Franco and then ordered him not to answer the door when police knocked. This is an ample showing that Mr. Moss knew and intended to restrain Mr. Franco. The restraint was not simply in the mind of Mr. Franco as Mr. Moss suggests. It came from the violence, the threats, and the orders of Mr. Moss.
There is sufficient evidence for the conviction of unlawful imprisonment. RCW 9A.40.040; Joy, 121 Wn.2d at 339; State v. Myles, 127 Wn.2d 807, 816, 903 P.2d 979 (1995).
Prosecutor's Comments on the Right to Remain Silent
Mr. Moss next argues that the prosecutor impermissibly drew attention to his assertion of his constitutional right to remain silent by pointing out that he did not immediately deny beating Mr. Franco when given the opportunity to do so.
"We review this assignment of error de novo because the claim is one of manifest constitutional error." State v. Silva, 119 Wn. App. 422, 428, 81 P.3d 889 (2003). Mr. Moss has, of course, the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once a person waives the right to remain silent and makes a statement to police however, the State may use such a statement to impeach the defendant's inconsistent trial testimony. State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174 (1988); Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980); accord State v. Seeley, 43 Wn. App. 711, 719 P.2d 168 (1986); State v. Hatley, 41 Wn. App. 789, 801, 706 P.2d 1083 (1985); State v. Cosden, 18 Wn. App. 213, 568 P.2d 802 (1977). And that is what happened here.
Mr. Moss did not ask Mr. Franco why he was accusing him of assault. Mr. Moss did not strenuously deny Mr. Franco's accusation of assault. And that made Mr. Moss's claim that someone else assaulted Mr. Franco less credible. The State argues that such false information is admissible as impeachment. We agree.
Mr. Moss made unsolicited statements to the officers that someone else had assaulted Mr. Franco (when the police first arrived at the apartment). RP at 109-10. The State may highlight inconsistent assertions. Belgarde, 110 Wn.2d at 511. First, Mr. Moss testified that when he arrived at the apartment two men were leaving. RP at 115. He said those two men beat Mr. Franco following a "bad drug deal." RP at 116. And he said that Mr. Franco did not want to call the police or have anyone see his face. RP at 115-16.
Later Mr. Franco told police that Mr. Moss assaulted him. Mr. Moss did not object to the question. And so the partial silence "at the time of the initial statement is not insolubly ambiguous, but `strongly suggests a fabricated defense and the silence properly impeaches the . . . defense.'" Belgarde, 110 Wn.2d at 511 (emphasis added) (quoting Cosden, 18 Wn. App. at 221). "Such questioning does not violate due process." Id. at 512.
This case is also distinguishable from a recent Washington Supreme Court case, State v. Burke, No. 78528-7, 2008 WL 660097 (Wash. Mar. 13, 2008). In Burke, the defendant had intimate relations with a minor. Burke, 2008 WL 660097, at *1. The police charged Mr. Burke with rape of a child in the third degree. Burke, 2008 WL 660097, at *2.
Mr. Burke asserted that he reasonably believed the alleged victim to be 16 years old based upon her declarations. Burke, 2008 WL 660097, at *2. The State sought to undermine this defense based upon the idea that if she had told him she was 16, then he would have made such a comment to police at the first interview or when the victim's sister had called him the next day. Burke, 2008 WL 660097, at *2. He did not. The State argued this in its opening remarks, closing statements, and on both direct examination of the officers and in cross-examination of Mr. Burke. Burke, 2008 WL 660097, at *2.
In Burke, the comments on his silence occurred after assertion of his right to counsel. Burke, 2008 WL 660097, at *1-2.
And the nature of "the silence" is different here than in Burke. Mr. Moss gave inconsistent answers regarding Mr. Franco's assault. And the State's statement was not a comment on Mr. Moss's exercise of his right to remain silent. Instead, it was an attempt to impeach him based upon his inconsistent comments. Further, unlike in Burke, this was not argued by the State as substantive evidence of Mr. Moss's guilt. Sanity Evaluation Mr. Moss argues that there was sufficient information before the judge to warrant the judge taking the initiative to order a sanity evaluation. He points to previous convictions for second degree assault (in Washington) and first degree arson and reckless endangerment (in Oregon) where the Department of Corrections saw fit to evaluate Mr. Moss's mental status. And in a previous second degree assault judgment and sentence, the judge wrote that Mr. Moss "should be given testing to determine if he suffers from a brain injury, or mental illness." CP at 68. The trial judge in the Oregon case also wrote that Mr. Moss should undergo a "mental evaluation for propensity to start fires." CP at 58. Mr. Moss also offered other evidence, including testimony from his family, that he had mental problems.
The State responds that this was a discretionary call by the trial judge and there was no showing during the trial that Mr. Moss did not understand the nature and consequences of his acts or that he could not assist in his own defense.
A trial judge has discretionary authority to order a competency examination. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001). And the courts have set out a number of factors the judge can consider when exercising discretion including: the "`defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel.'" Id. (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). Ultimately, the object is to decide whether the person has "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and to assist in his defense with `a rational as well as factual understanding of the proceedings against him.'" Id. at 861-62 (internal quotation marks omitted) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)). In other words, the defendant must "(1) understand the nature of the charges and (2) be capable of assisting in his defense." State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25 (1986); State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985). "No incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." RCW 10.77.050; Fleming, 142 Wn.2d at 862.
First of all, as Mr. Moss acknowledges, no one asked the trial judge to order a mental evaluation or even broached the subject of such an evaluation until after he was convicted. Next, we have thoroughly reviewed the record, and we find nothing in there that would have prompted the judge to order such an evaluation sua sponte based on Mr. Moss's conduct during the trial. On this record, he acted appropriately and appeared to assist in his own defense, including deciding to testify. He answered questions from the court and counsel appropriately. The fact that he told the court he was disabled or that his daughter and her mother expressed concerns about his emotional stability does not trump the trial judge's observations during the trial. Fleming, 142 Wn.2d at 861-63; see Hahn, 106 Wn.2d at 894.
We are unable to conclude on this record that the trial judge abused his discretion. Ineffective Assistance of Counsel — Mental Examination
Mr. Moss also argues that his lawyer did not effectively represent him because he failed to investigate and take steps to require a mental evaluation. We disagree for the same reasons already discussed. Mr. Moss appears to have understood the nature, extent, and potential consequences of the charges against him. He appeared to cooperate with and assist his lawyer. In short, there is nothing on this record that would have prompted either the court or counsel to request such a competency evaluation.
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We begin with a strong presumption that defense counsel's performance was effective. Id. A defendant has the burden to overcome that presumption. State v. McFarland, 127 Wn.2d 322, 335, 337, 899 P.2d 1251 (1995). At trial, Mr. Moss had a detailed recollection of the events, or at least his version of the events, and he appears on this record to understand the relationship between the facts and the charges against him.
Mr. Moss along with his lawyer chose to proceed with the defense that he did not assault Mr. Franco. And again, it was only after the adverse verdict that his focus shifted to his mental capacity. The strategy to deny the charges and take the stand to deny the charges may have been unsuccessful and therefore ill-advised but it does not show ineffective assistance of counsel as the law has defined it.
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.
KORSMO, J., THOMPSON, J. Pro Tem, concur.