Opinion
No. 57936-3-I.
January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10528-0, Michael S. Spearman, J., entered March 21, 2006.
Affirmed by unpublished per curiam opinion.
Harry Alexander appeals his conviction following a bench trial for second degree assault and his sentence as a persistent offender. He contends that 1) collection of his deoxyribonucleic acid (DNA) for identification violates his constitutional rights; 2) the trial court abused its discretion by allowing the State to introduce evidence discovered during the course of the trial and by denying the defense motion for a continuance; 3) his jury waiver was invalid; 4) the State failed to present sufficient evidence to support his conviction; and 5) he received ineffective assistance of counsel. Because Alexander fails to establish any error, we affirm.
FACTS
In September 2005, Jacquelyn Waller called 911 and reported that "Harry" stabbed her. When a police officer arrived, he observed cuts on Waller's face and blood running down her leg below the hemline of her dress. Waller told the officer that Harry stabbed her in the leg with his knife. The State charged Waller's boyfriend, Harry Alexander, with domestic violence second degree assault and felony harassment.
Alexander waived his right to a jury trial. At a bench trial, the State called Waller to testify. On direct examination, Waller claimed that she had accidentally stabbed herself in the leg and that Alexander had not stabbed her. For impeachment purposes, the State presented evidence of numerous contrary statements Waller had made at the time of the incident as well as recordings of telephone conversations between Alexander and Waller while Alexander was in jail pending trial.
At the close of testimony, the trial court granted the State's motion to dismiss the felony harassment charge. The trial court then found Alexander guilty of second degree assault and sentenced him as a persistent offender to life in prison without possibility of parole.
Alexander appeals.
ANALYSIS
Through counsel, Alexander claims that collection of his DNA pursuant to RCW 43.43.754 violates the Fourth Amendment to the federal constitution and article I, section 7 of the state constitution. But in State v. Surge, our Supreme Court held that the DNA collection statute "does not invade a recognized private affair under the state constitution, nor is it prohibited under the Fourth Amendment." We need not revisit this issue.
160 Wn.2d 65, 69, 156 P.3d 208 (2007).
Alexander presents his remaining issues in his statement of additional grounds for review. He first contends that his constitutional rights were violated when the trial court allowed the State to produce evidence that had not been identified in discovery prior to trial and failed to provide the defense with a sufficient continuance to respond. We review the trial court's decisions regarding discovery violations and requests for continuances for abuse of discretion, and will not disturb such rulings absent a showing of prejudice or a material affect on the outcome of the trial.
State v. Linden, 89 Wn. App. 184, 189-90, 947 P.2d 1284 (1997); State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982).
After the lunch break on the third day of trial, Thursday, February 23, 2006, the State indicated that it had just received recordings from the jail of telephone conversations between Alexander and others that it believed to be relevant for substantive evidence of guilt or for impeachment purposes. In order to allow defense counsel time to respond, the trial court recessed the trial until the following Monday. At brief hearings on February 27, 28, and March 1, the State identified two hours and ten minutes of recorded conversations it intended to introduce and defense counsel repeatedly asked for additional time to review all the recordings.
Based on the State's due diligence in discovering the recordings and its immediate disclosure to the defense, the trial court determined that the State did not violate discovery rules, but repeatedly granted the defense additional time. On March 1, the trial court directed defense counsel to review and be prepared to address, if necessary, the three hours of conversations allegedly involving Waller, who was being held in custody on a material witness warrant. On Thursday, March 2, Waller testified and the State introduced the recorded conversations to impeach her. Defense counsel did not cross-examine Waller.
Alexander complains that the trial court abused its discretion by reconvening the trial on March 1, after stating on February 28, "I'm prepared to continue the trial for a week or two." But a review of the record demonstrates that by the end of the hearing on February 28, after considering the parties' arguments and the fact that Waller was being held in jail pending her testimony, the trial court set a status conference for the following afternoon to revisit defense counsel's request for a further continuance. Alexander fails to identify any prejudice or material affect on the outcome of the trial resulting from this decision. The trial court did not abuse its discretion.
Alexander next challenges the validity of his jury waiver. We review the waiver of the important constitutional right to a jury trial de novo, considering the general facts and circumstances, the existence of a written waiver, the defense attorney's representation, as well as any colloquy between the defendant and the trial judge. The record must demonstrate that Alexander's waiver was knowingly, voluntarily, and intelligently made.
State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002); State v. Donahue, 76 Wn. App. 695, 697, 887 P.2d 485 (1995); State v. Downs, 36 Wn. App. 143, 144-146, 672 P.2d 416 (1983).
CrR 6.1(a); State v. Wicke, 91 Wn.2d 638, 646, 591 P.2d 452 (1979); Downs, 36 Wn. App. at 144.
Alexander complains that his jury waiver was invalid because he did not expect the State to produce recordings of telephone conversations he believed to be confidential to impeach Waller. But Alexander filed a written jury waiver. His defense counsel stated on the record that he had discussed the issue extensively with Alexander and believed his decision was knowingly, voluntarily, and intelligently made. The trial judge engaged in a lengthy colloquy with Alexander on the record. Alexander stated repeatedly and unequivocally on the record that he did not want a jury trial and explained his reasons. He admitted that he had waived his jury right in the past and stated that he preferred a bench trial. The trial court properly accepted Alexander's waiver of his jury trial right.
Alexander next contends that the State failed to present sufficient evidence that the assault occurred in the state of Washington. But Officer McFadden testified that he met Waller at a particular address in the central district of Seattle, where she reported that the stabbing occurred. This evidence is sufficient to support the conviction.
Finally, Alexander claims he received ineffective assistance of counsel when his attorney 1) failed to thoroughly investigate and cross-examine key witnesses; 2) failed to obtain a medical expert to review Waller's mental health records; 3) failed to move for a mistrial based on the large amounts of late discovery; 4) failed to advise him to request a jury trial or accept a plea bargain based on the late discovery; 5) failed to investigate the prosecutor's veracity regarding the circumstances surrounding the late production of evidence; 6) proceeded to trial unprepared; and 7) failed to lay the proper foundation to introduce Waller's recanting affidavit.
To establish ineffective assistance, Alexander must show that counsel's performance was deficient and that prejudice resulted from the deficiency. Because we strongly presume that defense counsel's conduct constituted sound trial strategy, Alexander must demonstrate, in light of the entire record, that no legitimate strategic or tactical reasons support the challenged conduct. Prejudice is established where "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." If Alexander wishes a reviewing court to consider matters outside the record, a personal restraint petition is the appropriate means to raise such issues.
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000).
McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 338.
Nothing in the record indicates that defense counsel failed to investigate or cross-examine witnesses. Rather, the record reveals that defense counsel thoroughly cross-examined the State's witnesses. Counsel's decision to forego cross-examination of Waller, who testified favorably to Alexander, was a legitimate strategy. Any strategic decisions regarding investigation of Waller's mental health involve matters outside the record.
Similarly, counsel's actions in response to the State's late production of evidence constitute legitimate strategy and nothing in the record indicates that counsel was unprepared to finish the trial. Instead, the record demonstrates that counsel repeatedly asked for, and was granted, more time to evaluate the evidence the State intended to introduce. The trial court questioned the State closely regarding the circumstances surrounding the late disclosure and determined that it did not violate discovery rules. Nothing in the record indicates that defense counsel failed to properly respond to the State's actions or failed to provide proper advice to Alexander.
Lastly, Alexander fails to demonstrate any prejudice resulting from counsel's failure to introduce into evidence Waller's affidavit recanting her statements attributing guilt to Alexander, because the inadmissible hearsay document was merely cumulative of Waller's testimony at trial. Alexander fails to establish ineffective assistance.
Affirmed.