Opinion
No. 53759-8-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 03-1-02064-2. Judgment or order under review. Date filed: 01/29/2004. Judge signing: Hon. Charles S French.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sarah Mcneel Hrobsky, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Willie J. Russell (Appearing Pro Se), Doc # 257957, Washington Corr. Center, W. 2321 Dayton Airport Road, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Christopher John Dickinson, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Willie Russell was convicted of telephone harassment and two counts of intimidating a public servant after he made threatening telephone calls to two police officers. Finding no error, we affirm.
BACKGROUND
Willie Russell was required to register as a sex offender when he moved to Snohomish County in 1996. Russell frequently called officers in the sheriff's office, including Sergeant Bottin and Deputy Rozzano, to complain about the registration requirements and about actions he perceived as injustices against him by neighbors and other police officers due to his status as a sex offender.
In July, 2003, after his long-time partner died, Russell moved in with his friends Debbie and John Weed. During the time he stayed there, he made numerous comments about people he wanted to harm, including police officers and a judge. On August 25, Debbie Weed asked Russell about a missing video camera. Russell allegedly became enraged and threatened to kill Ms. Weed and her daughter, and Ms. Weed asked him to leave. Russell left the house that evening. On September 10, Ms. Weed gave a statement to police regarding the threats Russell had made against her and her daughter. A warrant was issued for Russell's arrest.
On September 18, Russell became aware of the warrant. At 9:20 a.m., extremely upset, he called Sergeant Bottin and blamed him for the warrant. He told Bottin that he would not allow police to arrest him, and said, "Come get me. I'll kill any cop that gets in my way." Report of Proceedings (RP) (Jan. 7, 2004) at 45. Bottin was concerned, and contacted the major crimes sergeant, the SWAT commander and the lieutenant in the precinct where Russell lived to advise them about Russell's threats. At 10:40 a.m., Russell called Deputy Rozzano. He threatened to kill Debbie and John Weed and any police officer who tried to arrest him. He claimed to have a 9-millimeter pistol and police body armor.
Officer Ross testified that Russell also called him twice that morning making the same threats. Russell was not charged with any crime as a result of those phone calls.
Officers posted notifications of Russell's threats throughout the courthouse. In the early afternoon, an employee of the prosecutor's office reported she had seen Russell in the vicinity of the courthouse that morning. Concerned by this information, Sergeant Bottin called Russell at 1:30 p.m. to ask him to calm down. Russell threatened to kill Bottin and Debbie Weed.
Two days later, Russell was arrested without incident. He was charged with two counts of intimidating a judge; one count of telephone harassment and one count of intimidating a public servant regarding the single phone call he made to Deputy Rozzano, and one count of intimidating a public servant for the conversations with Sergeant Bottin.
The jury acquitted Russell of intimidating a judge, but convicted him of the charges regarding Rozzano and Bottin. Russell appeals these convictions and the calculation of his offender score.
DISCUSSION
Unanimity Instruction. Russell first claims the court should have given a unanimity instruction requiring the jury to decide which of the two phone calls with Bottin were the basis for its conviction on the charge of intimidating a public servant. A defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (citing State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980)). When the prosecution presents evidence of several acts that could form the basis of one count, the State must elect which act to rely on or the court must instruct the jury it must agree on one specific act. Id. (citing State v. Petrich, 101 Wn.2d 556, 570, 572, 683 P.2d 173 (1984)).
This rule does not apply when the evidence presented constitutes a continuing course of conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (citing Petrich, 101 Wn.2d at 571)). In evaluating whether acts constitute a continuing course of conduct, considerations include the time frame, where the conduct occurred, whether the same criminal motive was involved, and whether there was more than one victim. In Handran, two assaults occurred in one place over a short period of time and involved the same victim. The court held the evidence showed a continuing course of conduct such that a unanimity instruction was not required. Id. at 17-18; see also State v. Marko, 107 Wn. App. 215, 231-32, 27 P.3d 228 (2001) (threats against victims over period of 90 minutes).
Here, Russell's two conversations with Bottin occurred about four hours apart, in the same place (i.e., the telephone), involved only one victim, involved essentially identical conduct, and one motive: to intimidate. Russell's acts were a continuing course of conduct, and no unanimity instruction was required.
We therefore do not address Russell's pro se argument that counsel was ineffective for failing to preserve the issue of the unanimity instruction for appeal.
Double Jeopardy. Russell argues that his convictions for telephone harassment and intimidation of a public servant violate the prohibition against double jeopardy. Washington uses the same evidence test to determine whether double jeopardy rights are violated by conviction of two offenses. In re Personal Restraint of Davis, 142 Wn.2d 165, 171-72, 12 P.3d 603 (2000). This test mirrors the federal same elements test first adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). To violate double jeopardy under the same evidence test, a defendant's two convictions must be identical both in fact and in law. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). If each offense includes an element not included in the other, a presumption arises that the legislature intended to allow cumulative punishment, and this presumption can only be overcome by clear evidence of contrary intent. Id. at 780.
Russell was charged as follows:
Count III. Telephone Harassment, committed as follows: That the defendant, on or about the 18th day of September, 2003, with an intent to harass, intimidate, torment and embarrass Deputy Rozzano, did make a telephone call to that person threatening to kill any person; proscribed by RCW 9.61.230(3)(b), a felony.
. . . .
Count V. Intimidating a Public Servant, committed as follows: That the defendant, on or about the 18th day of September, 2003, by use of a threat, did attempt to influence a vote, opinion, decision, and other official action of Deputy Rozzano as a public servant, proscribed by RCW 9A.76.180(1), a felony.
Clerk's Papers at 79.
Several differences in elements are immediately apparent. Telephone harassment requires the use of a telephone with intent to harass, intimidate, torment or embarrass; and applies to all classes of victims. Intimidating a public servant requires intent to influence the actions of a public servant, does not require use of a telephone, and applies only to a special class of victim. The two crimes are not the same in law, so the two convictions do not violate double jeopardy prohibitions.
Merger. Russell also contends his telephone harassment conviction should have merged into his conviction for intimidating a public servant, because the differences in proof between the two were incidental. But the merger doctrine applies where the legislature has clearly indicated that in order to prove a particular degree of crime (for example, first degree rape), the State must prove not only that the defendant committed that crime, but that the crime was accompanied by an act defined as a crime elsewhere in the criminal statutes (for example, assault or kidnapping). State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983); see also State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001) (merger doctrine relevant only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code), review denied, 146 Wn.2d 1009 (2002).
Neither telephone harassment nor intimidating a public servant is a crime separated into degrees, and neither requires proof of another crime. The merger doctrine has no application.
Russell also argues that his two crimes should merge under the analysis of State v. Potter, 31 Wn. App. 883, 888, 645 P.2d 60 (1982), holding reckless driving and reckless endangerment merged because proof of reckless endangerment through the use of an automobile will always establish reckless driving. But there is no similarity here to Potter. Potter does not support merger where there is no showing that legislative intent is violated by punishment for two crimes arising out of the same incident. See State v. Baldwin, 150 Wn.2d 448, 456-57, 78 P.3d 1005 (2003).
The legislative intent to permit separate punishment is amply illustrated by the differing purposes of the two statutes. The telephone harassment statute protects people from those who use the telephone with the intent to harass. State v. Dyson, 74 Wn. App. 237, 244, 872 P.2d 1115 (1994). The statute prohibiting intimidation of a public servant has a threefold purpose: to protect public servants from threats of harm for the discharge of their public duties; to protect the public's interest in a fair decision-making process; and to deter the intimidation and threats that lead to corrupt decision making. State v. Stephenson, 89 Wn. App. 794, 803-04, 950 P.2d 38 (1998). We are therefore not concerned, as was the court in Potter, that the two crimes charged may represent an impermissible overlap caused by the tremendous increase in statutory crimes. Potter, 31 Wn. App. at 888. The crimes of telephone harassment and intimidation of a public servant do not merge.
Insufficient Evidence. Russell contends the evidence was insufficient to prove each element of telephone harassment. Evidence is sufficient if, viewed in a light most favorable to the State, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A sufficiency challenge admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Relying on State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003), Russell contends the State had to prove that Deputy Rozzano reasonably feared he would carry out his threat to kill Debbie Weed. Russell's reliance on C.G is misplaced. There, the court considered the general harassment statute, which includes as an element that "the person threatened [is placed] in reasonable fear that the threat will be carried out." RCW 9A.46.020(1)(b). Russell was charged under the telephone harassment statute, which has no requirement that the person threatened be placed in fear.
RCW 9.61.230(3)(b). Nor is there any ambiguity in the statute that might prompt us to look elsewhere to discern its elements. The State was not required to prove the deputy thought Russell would kill him and Weed. Speedy Trial. Russell claims his CrR 3.3 right to speedy trial was violated because the speedy trial expiration date was originally November 21, 2003, but trial did not begin until January 5, 2004.
Russell was arraigned on September 25, 2003. The State calculated the speedy trial date to be November 21, 2003. On October, 30, 2003, defense counsel requested a one-week continuance in order to interview witnesses. On November 14, defense counsel requested a further two-week continuance, over Russell's objection, to interview additional witnesses. The court noted Russell's objection, but granted the motion, stating that the continuance was necessary to assure Russell of effective representation. On December 12, according to Russell, defense counsel moved for a further continuance, and for a trial date of January 2, 2004. Trial began on January 5, 2004.
Russell asserts in his pro se brief and in a motion filed with the court that on December 12, 2003, defense counsel moved to continue the trial to January 2, 2004. Our record does not include the December 12 hearing.
Under CrR 3.3(f)(2), delay resulting from defense motions to continue are excluded from the speedy trial period where the continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of the defense. The bringing of a motion to continue by or on behalf of a party waives the party's objection to the requested delay. CrR 3.3(f)(2). Waiver of the right to speedy trial may be implied from a defendant's request for a continuance or extension, see State v. Freeman, 54 Wn. App. 734, 736-37, 775 P.2d 993 (1989), and defense counsel may waive the right to trial within the framework of CrR 3.3 even over the defendant's objection. State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999).
Here, the court determined the continuances were required and were in Russell's best interests, and Russell has made no showing that he was prejudiced by the delay. Russell was not deprived of his right to speedy trial.
Ineffective Assistance of Counsel. Russell makes multiple claims of ineffective assistance of counsel. When a defendant claims he has been deprived of the Sixth Amendment right to effective assistance of counsel, we begin with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984)). The test for ineffective assistance of counsel is whether defense counsel's performance fell below an objective standard of reasonableness, and this deficiency prejudiced the defendant. State v. Oseguera-Acevedo, 137 Wn.2d 179, 198, 970 P.2d 299 (1999); Strickland, 466 U.S. at 687.
Same Criminal Conduct. Russell argues that counsel was ineffective for failing to argue at the sentencing hearing that the convictions for telephone harassment and intimidation of Rozzano encompassed the same criminal conduct. Where the current offenses encompass the same criminal conduct, those offenses are counted as one crime for purposes of calculating the offender score. RCW 9.94A.589(1)(a). Same criminal conduct means "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." Id. Where one crime has a specific statutory intent element and the other does not, the two crimes cannot constitute the same criminal conduct. State v. Hernandez, 95 Wn. App. 480, 485, 976 P.2d 165 (1999). Courts narrowly construe the statute to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000). The question is whether Russell's crimes require the same intent. As previously discussed, they do not. His crimes therefore do not constitute same criminal conduct. Accordingly, counsel was not ineffective. Pro Se Arguments. Arguing pro se, Russell makes numerous claims of ineffective assistance of counsel. The court exhibited a commendable degree of patience in dealing with Russell's concerns over the course of the trial, when many of these claims were first made.
Change of Venue. Russell argues counsel was ineffective for failing to file a more complete affidavit and proof of claim to support his motion for change of venue. Russell's attorney moved for change of venue on October 15, 2003, and attached an affidavit detailing Russell's claims that he believed he could not receive a fair trial. The court denied the motion. Russell contends counsel should have included more facts in the affidavit, and asserts that he could have proved he would not receive a fair trial. But he provides no evidence to support these contentions, and we may not review them.
Suppression of Evidence. Russell argues counsel was ineffective for failing to move to suppress his statements to various police officers. A defendant is not prejudiced by counsel's failure to raise an issue if the issue would not have been decided favorably to him. State v. McFarland, 127 Wn.2d 322, 337 n. 4, 899 P.2d 1251 (1995). Russell's argument fails because there were no grounds for suppression. Miranda warnings are required only when a person is in custody. Miranda v. Arizona, 384 U.S. 436, 461, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Russell's statements were made while talking on his cell phone, mostly during calls placed by him. The police did not know his whereabouts. A motion to suppress the statements on Miranda grounds would have been denied.
Status as Sex Offender. Russell argues counsel should have sought to exclude evidence regarding his status as a registered sex offender on grounds of relevancy and undue prejudice. Prior to trial, defense counsel successfully moved to limit any reference to Russell's prior convictions to the fact that he was required to register as a sex offender, and to exclude any evidence regarding the number or character of his offenses. Counsel explained to the court that reference to Russell's sex offender status was necessary because Russell's feeling of mistreatment over his offender status provided an explanation for his behavior. Russell's counsel focused on this explanation for Russell's conduct throughout trial and in closing argument. If counsel's conduct can be characterized as legitimate trial strategy or tactics, counsel was not ineffective. State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407 (1986). Counsel's decision was legitimate trial strategy. Counsel was therefore not ineffective.
Failure to Object to Testimony. Russell argues his counsel should have objected to Detective Beard's testimony because it was not relevant. Detective Beard was the case officer, and testified regarding Russell's sex offender status; Russell's attitude towards, and his record of, offender registration with the sheriff's office; the threats made by Russell against the Weeds; and Beard's contact with witnesses. This evidence was relevant to all the charges against Russell. An objection to Beard's testimony on the grounds of relevance would not have been sustained. Counsel was not ineffective.
Introduction of Evidence and Witnesses. Russell argues his counsel should have presented certain testimony and introduced various items of evidence, including phone records, a videotape, and a sheriff's bulletin. But this evidence is not in the trial record, and while it may be the basis for a personal restraint petition, it cannot be considered on direct appeal. RAP 16.4(3).
Russell has supplied affidavits from two witnesses whose statements describe their own harassment by detectives and their lack of contact with Russell's counsel, but do not contain information relevant to the charges against Russell. Russell's brief outlines expected testimony from other witnesses: one allegedly would have refuted police descriptions of Russell's demeanor at the time of the phone calls; one apparently would have testified that Debbie Weed planted evidence against Russell in the theft matter; another (an Everett Herald reporter) allegedly would have testified she was worried that if she repeated Deputy Rozzano's remark that Russell was a victim of a conspiracy by the sheriff's office, she would lose her job; another would have testified that at the time of the alleged threatening calls, she had possession of Russell's cell phone.
Affirmed.
ELLINGTON, A.C.J., COLEMAN, J. and SCHINDLER, J.