Opinion
No. 57858-8-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13613-6, Suzanne M. Barnett, J., entered February 17, 2006.
Affirmed by unpublished per curiam opinion.
Tony Penwell appeals his convictions of first degree assault, second degree rape, unlawful imprisonment, felony harassment and tampering with a witness. Penwell contends the trial court denied his right to counsel of choice, violated his right to conflict-free counsel, allowed improper opinion testimony, and abused its discretion by failing to resolve motions filed by his counsel. He also contends his trial counsel provided ineffective assistance for failing to object to certain testimony and raises additional issues in a pro se statement of additional grounds. We find no reversible error and accordingly affirm.
FACTS
Ke'ida Pratcher met Penwell in 2003. She was a teenage high school student and he was a Metro bus driver in his early forties. By November 2004, Pratcher was pregnant and the couple was married and living in a South King County home. Penwell's six-year-old and four-year-old daughters from another marriage, S.P. and C.P, frequently stayed with them.
On the evening of November 1, 2004, Pratcher called Penwell to ask for a ride home after spending the day with her sister. Penwell declined and Pratcher ended up spending the night at her friend Jamal Bomber's motel room. Pratcher returned home the following evening. S.P. and C.P. were at the house with Penwell. Penwell told Pratcher they needed to talk, and they went to the living room. Pratcher described Penwell as "so calm, it was scary." Report of Proceedings (RP) (Jan. 10, 2006) at 368.
Penwell accused Pratcher of cheating on him. Pratcher eventually confessed to one instance of infidelity. Penwell claimed there were more, knocked her down with his fist and pummeled her as she curled into a ball on the floor. Demanding that Pratcher identify all her lovers, Penwell began beating and kicking her. He hog-tied her with rope and duct tape and continued beating her with a fireplace poker, a fireplace shovel and a propane torch. Penwell also doused Pratcher with gasoline, ignited the propane torch near her, and demanded that she help deliver bombs to her lovers.
While Pratcher was restrained, Penwell tied the box that had held his wedding ring to her chest. He told her it contained a bomb triggered by a remote control, which he placed between her knees, suggesting she kill herself. Pratcher unsuccessfully tried to push the button, wishing to die rather than be set on fire or beaten further.
Penwell then took Pratcher outside, supposedly to deliver the bombs, but ultimately dragged her back into the house by her hair to resume beating her.
When the fireplace shovel broke, Penwell beat Pratcher with a full-size shovel, continuing to demand she confess infidelity. After Pratcher mentioned Bomber, Penwell placed her, still hog-tied, face down on the floor and pulled her pants down. Penwell repeatedly kicked her vaginal area and then "[w]ith all his power, and with all his strength" pushed the shovel handle into her anus "as far as it would go." RP (Jan. 10, 2006) at 410-11.
When Penwell finally tired of beating Pratcher, both of her eyes were swollen shut. Penwell told her to clean herself and clean up the blood. She fell down trying to wash herself in the bathroom, and Penwell kicked her in the face. Penwell then told her to lie down but not to get blood on the bed. He resisted Pratcher's pleas to take her to the hospital until he settled on the cover story that she was gang-raped and left in the driveway. He warned Pratcher that he would kill her whole family if she blamed him, and she promised to say it was not him. Penwell then drove Pratcher to Highline Hospital, with the girls in the car. Pratcher remembered nothing more from that night.
Police contacted Penwell shortly after he dropped Pratcher off. Penwell kept his hands covered until an officer asked to see them and observed that Penwell's right hand was extremely swollen, to the point that his knuckles could not be discerned. After a detective talked to the girls, police arrested Penwell despite his oral and written statements that Pratcher was already injured when she arrived at their house.
Pratcher's injuries were life-threatening. She was transported to the Harborview Trauma Center where she was resuscitated and lay in a coma for several days. Pratcher had extensive bruising and swelling all over her body, internal injuries, hypothermia, numerous fractures, scrapes and lacerations, loose teeth, a strained neck, and a traumatic brain injury. Ligature marks on her neck evidenced strangulation, and she suffered a miscarriage. A sexual assault examination showed numerous injuries to her genital area including two large lacerations on her anus and additional splits consistent with forcible insertion of a large object. One of the wounds near her vagina penetrated the skin into the muscle.
Police searched Penwell's house and found a garden shovel in the living room, the handle stained with fecal matter. Police also found a broken fireplace shovel stained with Pratcher and Penwell's blood, and pieces of rope and duct tape. There were blood spatters in the living room on the wall, the floor and the couch, on a pillow in the master bedroom, and in the bathroom, the kitchen and the dining room. Clumps of Pratcher's hair were in the kitchen, the living room, and on a fireplace poker. Police also found a propane torch and can of gasoline.
While Pratcher was recovering and Penwell was in jail, Penwell sent her letters. In them, he professed his love, apologized and asked for forgiveness, and asked Pratcher to say he did not commit the crime. He wrote that it was really Satan who was responsible, and that he had found God since going to jail.
Penwell was charged with first degree rape, first degree assault, unlawful imprisonment, felony harassment, and tampering with a witness. Initially assigned a public defender, Penwell hired attorney Anthony Savage in January, 2005. Savage had previously represented Penwell in another matter.
Trial was scheduled for September 6, 2005. The court heard motions on the first day of trial. Penwell did not complain of Savage's performance in open court, but later that day, filed pro se written motions appearing to request that the court appoint new counsel or grant him a continuance to retain new counsel. The next day, the court addressed the written motions. Penwell asked the court to stay proceedings so another attorney could review his case. The court inquired into Penwell's dissatisfaction with Savage. Penwell complained about Savage's preparation and planned trial strategy. At Penwell's request, the court granted a recess for several hours so Penwell and Savage could confer. When proceedings resumed, Savage said he and Penwell had had a "lengthy heart to heart" talk and they had agreed to ask the court for a continuance until November to try to address Penwell's concerns. RP (Sept. 7, 2005) at 27. The court discussed the matter with counsel and Penwell and recessed the trial.
Before trial resumed, Penwell filed another pro se motion seeking to dismiss Savage. On November 4, the court again addressed Penwell's representation. Penwell complained that Savage did not believe in his innocence. Savage told the court that he and Penwell had a disagreement over tactics because Penwell wished him to take certain actions that in Savage's view would either be harmful to Penwell's defense or were contrary to rules of evidence and ethics. The court set November 28 as the day for the trial to resume and told Penwell it would allow new counsel if the attorney was prepared to proceed then. Penwell said he was trying to raise money for new counsel.
Penwell filed more pro se motions in November complaining about Savage. Due to other scheduling complications, trial did not resume until December 21. Penwell had not secured new counsel. The court indicated that Penwell could represent himself or have Savage represent him, but could not participate in the trial as a co-counsel as was suggested by some of his motions. Savage told the court that Penwell did not wish to go forward with his motions on that day, and trial was set over again until January 3.
When trial resumed on January 3, the court noted that Penwell had filed more pro se motions, but they did not specifically ask the court to replace Savage, and inquired into whether Penwell was still attempting to discharge Savage. Penwell shook his head negatively, and the court then stated it would not address Penwell's other pro se motions because he was represented. Penwell did not bring other motions or complaints regarding counsel.
At trial, Penwell testified that Pratcher had had a lover with her at the house while he was away. He had returned home to find her injured, but did not immediately realize the extent of her injuries. Penwell was convicted of the charged offenses with the exception of first degree rape, for which he was convicted of second degree rape as an included offense. Penwell received a standard range sentence. This appeal follows.
Counsel of Choice
Penwell first argues that the trial court abused its discretion and violated his right to counsel by failing to grant him more time to hire another attorney. One of the components of the constitutional right to counsel is a "`reasonable opportunity to select and be represented by chosen counsel.'" State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). However, "the essential aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, not to ensure that a defendant will inexorably be represented by his or her counsel of choice." State v. Price, 126 Wn. App. 617, 632 (citing Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)). The right to retained counsel of choice does not have the same force as other aspects of the right to counsel; a criminal defendant has no absolute, Sixth Amendment right to a particular advocate.
Roth, 75 Wn. App. at 824.
Trial courts are granted broad discretion in ruling on motions for continuances sought to obtain new counsel; only an "`unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay'" violates the defendant's right. Roth, 75 Wn. App. at 824 (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)). Generally, trial courts must balance the defendant's right to counsel of choice against the public's interest in prompt and efficient administration of justice. Roth, 75 Wn. App. at 824. The trial court should consider whether (1) the court has granted previous continuances, (2) the defendant has a legitimate cause for dissatisfaction with counsel, and (3) available counsel is prepared for trial. Roth, 75 Wn. App. at 825. We review this determination for abuse of discretion. Roth, 75 Wn. App. at 826.
As noted in the appellant's brief, preexisting case law recognized a fourth factor, whether denial of the motion is likely to result in prejudice to the defendant's case, but that factor appears to have been disapproved in the United States Supreme court's recent decision in United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S. Ct. 2257, 2563, 165 L.Ed. 2d 409 (2006).
Penwell contends that the trial court erred by failing to make express findings regarding these three factors, compounded its error by improperly pressuring Penwell to decline to exercise his right to counsel of choice and incorrectly created a conflict of interest by requiring "testimony" from Savage. Appellant's Br. at 17. We disagree.
Contrary to Penwell's contention, while the trial court did not expressly list the Roth/Price factors in ruling on Penwell's requests, the court's thoughtful consideration of those factors is plainly evident in the record. The court granted multiple recesses to address representation issues, effectively holding proceedings off for several months, during which time new counsel could have appeared. The court also appropriately investigated Penwell's dissatisfaction with Savage and reached the justifiable conclusion that his complaints were meritless. As for the availability of new counsel, at no time did it appear another attorney was actually ready to take the case, in contrast to the facts in United States v. Gonzalez-Lopez, ___ U.S. ___, 126 S. Ct. 2257, 2563, 165 L. Ed. 2d 409 (2006), cited by Penwell, in which a trial court erroneously denied an attorney request to appear pro hac vice.
Penwell cites excerpts from the court's comments to argue the court improperly pressured him to accept Savage as counsel, but he has not provided the relevant context. The record shows the court was addressing at least four possibilities suggested by Penwell's submissions; Savage would continue as counsel, Penwell would proceed pro se, the court would allow Penwell to proceed as co-counsel with Savage, or new private counsel might appear.
Penwell's reliance on United States v. Ellison, 798 F.2d 1102 (7th Cir. 1986) for his claim that Savage was actually conflicted is also misplaced. In Ellison, an actual conflict arose when a court-appointed attorney was forced to testify against his client at a plea withdrawal hearing in which attorney performance was in issue and the court did not appoint new counsel. These facts do not resemble Ellison. Rather, the court here did no more than appropriately explore the nature and validity of Penwell's reasons for dissatisfaction, an appropriate subject of inquiry under the circumstances. See Roth, 75 Wn. App. at 825. Inquiring of Savage and Penwell, while carefully guarding attorney-client confidentiality as the court did, was entirely proper and indeed necessary.
Finally, contrary to Penwell's characterization of the record, the proceedings on January 3 suggest that Penwell had changed his position and did not wish to replace Savage. Considering the record as a whole, the court did not abuse its discretion in resolving Penwell's complaints regarding counsel.
Improper Opinion Testimony
Penwell next contends that Steve Felton, Pratcher's discharge nurse, and Todd Underwood, the patrol officer he encountered at Highline Hospital, testified to improper opinions on his guilt. Penwell challenges Felton's testimony to his chart notes that "[t]he patient has good recall of most events, though she was knocked out during a period of the assault" and Underwood's comment on Penwell's calm demeanor at the hospital that "if my wife was in that type of situation, I think I would be showing some type of emotion." RP (Jan. 9, 2006) at 85; RP (Jan. 10, 2006) at 271.
Neither lay nor expert witnesses are permitted to opine as to the guilt of the defendant. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Penwell, however, did not object to either Felton or Underwood's testimony, and our Supreme Court has recently held that opinion testimony only indirectly related to credibility does not constitute manifest error that can be raised for the first time on appeal. State v. Kirkman, 159 Wn.2d 918, 922, 155 P.3d 125 (2007). Neither Felton's recitation of his chart notes nor Underwood's comment about his hypothetical reaction to such a situation constitutes the "nearly explicit" statement about credibility that is required to raise the objection for the first time on appeal. Kirkman, 159 Wn.2d at 936.
Penwell's objection to this testimony was waived.
Moreover, any error in either Felton or Underwood's testimony was clearly harmless beyond a reasonable doubt. Penwell claims he was prejudiced because Pratcher's credibility was in issue, but he overlooks the corroborative evidence. S.P., described by Penwell as a "daddy's girl," testified and corroborated Pratcher's version of events, not Penwell's. RP (Jan. 17, 2006) at 853. It is also likely that the jury viewed the letters Penwell wrote Pratcher from jail as a virtual confession. Moreover, the disparity between Penwell's police statement and his trial testimony defied reasonable reconciliation, and the physical and forensic evidence alone corroborated Pratcher's account. The evidence that Penwell was Pratcher's assailant was overwhelming.
Ineffective Assistance
Penwell next contends that Savage provided ineffective assistance by failing to object to the testimony discussed above. To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To eliminate the distorting effects of hindsight, the reviewing court strongly presumes competence of counsel. In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). "The decision of when or whether to object is a classic example of trial tactics." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Here, Penwell has not shown that Savage's performance fell outside the range of permissible tactics.
As for Felton's testimony, it came on redirect examination. Considering it in light of the cross-examination it followed shows it did not constitute even an indirect opinion on credibility or guilt.
And assuming that Underwood's comment was improper, Savage nonetheless could have reasonably regarded it as a minor overstatement he could decline to emphasize by objecting. Given that the officers arrested Penwell notwithstanding his denials, their view of Penwell's explanation for Pratcher's injuries was obvious regardless of Underwood's comment. In addition, another officer described Penwell's affect differently than Underwood, and Savage could have considered Underwood's comment as even helpful to suggest that the police were inconsistent or biased.
Finally, Penwell's claim of prejudice fails for the same reasons. Any error admitting the challenged testimony was harmless.
Unresolved Motions
Penwell next contends the court erred by failing to resolve all motions filed by the defense. But the record shows that the motions Penwell refers to were pro se motions Savage filed as a convenience to Penwell so they could be entered into the record to facilitate what Savage anticipated would be a future claim of ineffective assistance. Savage did not personally advance the motions because he did not find them advantageous, meritorious or ethical, and the court's comments indicate that it agreed. Because Penwell was not entitled to hybrid representation by serving as co-counsel with Savage, the trial court did not err in declining to further consider the motions. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1999).
Cumulative Error
Because the only potential error was Underwood's testimony and it was clearly harmless, Penwell's claim of cumulative error is unpersuasive. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
Pro Se Grounds
Penwell raises several arguments in a pro se statement of additional grounds for review. His contentions are without merit.
Penwell first complains that the trial court erred in failing to hold a suppression hearing. This claim is based on assertions outside the record, however, and our review is limited to issues in the record. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
Penwell next challenges the information. For the charge of felony harassment, he contends he was charged only with gross misdemeanor harassment and thus could not be convicted of a felony. The record contradicts this claim. See Clerk's Papers at 110 (alleging defendant "did threaten to cause bodily injury immediately or in the future to Ke'ida Pratcher, by threatening to kill Ke'ida Pratcher"); RCW 9A.46.020(2)(b) (crime elevated to felony if defendant harasses another by "threatening to kill the person"). Penwell also contends that the information insufficiently charged tampering with a witness by failing to include a required element of intent as defined in the criminal attempt statute, RCW 9A.28.020. But Penwell was not charged with a criminal attempt to commit another offense under RCW 9A.28.020. He was appropriately charged in the language of RCW 9A.72.120, which expressly specifies that the object of the attempt is to induce a witness to testify falsely, withhold testimony or absent herself from an official proceeding.
Penwell next challenges his convictions as violative of the constitutional prohibitions against double jeopardy. He contends that the jury should have been instructed that if it convicted him of first degree rape, it should not consider any other charges. But Penwell has not addressed any of the statutory elements of the crimes he was convicted of to show how his actual conviction of second degree rape is "identical both in fact and in law" to any of those convictions so as to constitute a violation of double jeopardy. See State v. Womac, 160 Wn.2d 643, 652, 160 P.3d 40 (2007) (quoting State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)). Penwell's additional citation to State v. Leming, 133 Wn. App. 875, 138 P.3d 1095 (2006), does not support his claim. Unlike in Leming, Penwell's assault conviction was not raised to a higher degree of the crime because the State proved intent to commit harassment or another crime. Penwell's conviction constituted first degree assault because the State proved the element of great bodily harm to the victim.
Penwell's related sentencing claim of an offender score error under RCW 9.94A.589(b) also fails. That statute only applies when a defendant is convicted of multiple serious violent offenses, and Penwell was convicted of only one such offense, first degree assault. See RCW 9.94A.030(41) (listing serious violent offenses). And his claim that his crimes were the same criminal conduct was not raised at the sentencing hearing, at which his counsel affirmatively agreed with the State's calculation of the applicable standard range, which precludes review here. See State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000); In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002) (approving Nitsch).
Penwell next claims the trial judge displayed bias by impermissibly commenting on the evidence of the letters he wrote to Pratcher. But a statement by the court only constitutes an impermissible comment on the evidence when it directly or inferentially conveys the court's attitude regarding a disputed issue to the jury. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). The proceedings Penwell refers to involved discovery issues the court addressed out of the jury's presence. Penwell's additional generalized claims of judicial bias are not sufficiently developed to merit further discussion. And while he also argues that the letters were not sufficiently authenticated to be admitted into evidence, the court did not abuse its discretion in finding Pratcher's identification of his handwriting provided a sufficient foundation. See ER 901(b)(2) (authentication may be provided by "[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation").
Penwell also contends that the prosecutor tampered with evidence with respect to the testimony of Jennifer Gauthier, a forensic scientist in the Washington State Patrol Crime Laboratory. The record, however, shows no impropriety, reflecting only that the prosecutor consulted with Gauthier before trial and that Savage later effectively cross-examined her regarding her lack of a medical degree. Contrary to Penwell's additional claim, the record does not show that Gauthier's testimony was outside the bounds of permissible expert opinion.
In a related claim, Penwell contends the prosecutor committed misconduct in closing argument by his characterization of Gauthier's testimony and his further characterization of Penwell's letters as an attempt to keep Pratcher from coming to court. The challenged, comments, however, were well within the wide latitude counsel is given to draw and express reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 95, 804 P.2d 577 (1991).
Next, Penwell contends that evidence was lost, missing or not tested. He refers to the cross-examination of police officers during which Savage suggested that additional forensic evidence could have been gathered and more tests could have been performed on the evidence that was collected. But none of the evidence or testing that Penwell refers to constituted "material exculpatory evidence" requiring the dismissal of charges. See State State v. Wittenbarger, 124 Wn.2d 467, 474, 880 P.2d 517 (1994). At best, the evidence might have been "potentially useful" to the defense, and contrary to Penwell's claim, the record does not establish police bad faith, without a showing of which there is no denial of due process. Wittenbarger, 124 Wn.2d at 477.
Finally, Penwell raises several additional claims of ineffective assistance, but fails to make the necessary showing of deficient performance and resulting prejudice. He contends that Savage should have obtained credit card receipts or store videotapes to further impeach Pratcher, but makes no showing that receipts would have proved he was away from the house at a particular time, and offers only speculation that stores he visited would have had surveillance video cameras that could have provided additional impeachment. Similarly, he has not shown from the record that any motion to suppress would have been granted or that Savage failed to conduct necessary witness interviews. Penwell also contends Savage should have requested a voluntary intoxication instruction and argued a form of diminished capacity. But even assuming the evidence could have supported such instructions and arguments, Savage could reasonably have considered such a theory as dangerous, likely to be viewed by the jury as inconsistent with the primary defense of identity, which Penwell chose to present in his own testimony. Penwell's pro se claims of ineffective assistance fail.
Affirmed.