Opinion
No. 21645-4-III
Filed: November 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Okanogan County. Docket No: 02-1-00037-0. Judgment or order under review. Date filed: 11/20/2002. Judge signing: Hon. Lesley Allingham Allan.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Krista Kay Bush, Attorney General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Gregory D. Weber, Attorney Generals Office, PO Box 2317, Tacoma, WA 98401.
This is an appeal of convictions for intimidating a witness and intimidating a judge. Richard Batson challenges the sufficiency of the evidence to identify a specific judicial ruling or decision that formed the basis of the intimidation. But we do not read the statute as requiring that level of specificity. Mr. Batson made threats to the district court judge presiding over his trial. The threats could only have related to that proceeding. The State was not, then, required to link the threats to a specific ruling or decision. We therefore conclude that the State's showing was sufficient. We also reject Mr. Batson's speedy trial challenge and therefore affirm his convictions.
FACTS
The State charged Richard Batson with a crime. The court set a trial before the Honorable Christopher Culp. Judge Culp made some pretrial rulings. Mr. Batson was dissatisfied with those rulings. Sheriff's Deputy Jeff Welton had arrested Mr. Batson and was scheduled to testify for the State.
Mr. Batson told friends that he would like to wire himself with explosives and blow up the courthouse along with the judge, Deputy Welton, and himself. He did this on several occasions. The threats were reported to Judge Culp, and he recused himself.
On February 8, 2002, the State charged Mr. Batson with intimidating a judge. He appeared on February 12. The court entered a plea of not guilty on his behalf on February 19. Mr. Batson refused to participate in the proceedings. The court set trial for April 2, well within the 60-day timely trial period. Presiding Judge Jack Burchard appointed counsel for Mr. Batson and then recused himself. Between February and the eventual November 20 trial, the court appointed seven consecutive Okanogan public defenders to represent Mr. Batson.
The first public defender, Dan Connolly, withdrew on March 4, citing conflict of interest. On March 13, Keith Howard replaced Mr. Connolly. On March 21, at Mr. Batson's request, the entire prosecutor's office was disqualified. The attorney general's office took over the prosecution. The attorney general could not make an April 2 trial, so the court added 30 days to the time for trial under former CrR 3.3(d)(6) (2002). On April 8, the information was amended to add one count each of intimidating a witness and threats to bomb or injure property. A second amended information was filed on April 17. Trial was set for April 17. Mr. Batson's written waiver extended the speedy trial period to April 29 to accommodate his own written motion for a two-week continuance. The court conducted an elaborate colloquy to ensure that this waiver of the trial time was voluntary and intelligent. Mr. Batson later tried, without success, to withdraw this waiver, contending that Mr. Howard had pressured him. This episode forms the basis for one of Mr. Batson's speedy trial issues.
The court permitted Mr. Howard to withdraw on April 24 over the State's objection. The court determined that the substitution of counsel meant that trial would have to be postponed for an indefinite period under former CrR 3.3(h)(2) (2002), over Mr. Batson's objection.
Former CrR 3.3(h)(2) provides that delays for the administration of justice are excluded.
A third public defender was appointed on April 24. On May 1, number three withdrew due to conflict of interest and number four (Ron Hammett) was appointed. Mr. Hammett asked for and received time to prepare. Mr. Batson moved pro se to dismiss for violation of CrR 3.3. Trial was reset for June 17. On May 30, the court denied a defense motion to dismiss for speedy trial violation. On June 11, Mr. Hammett withdrew and a fifth defender was appointed. On July 2, number five withdrew due to conflict of interest, and Smith Hagopian, number six, was appointed the same day. On July 10, Mr. Batson renewed his pro se motion to dismiss for speedy trial violation. The court granted Mr. Hagopian a continuance to prepare for trial. Trial was reset for August 26. On August 20 a defense motion for a further continuance was denied.
Mr. Hagopian moved to withdraw on August 22. The court denied the motion. But on August 26, the day of trial, the court granted Mr. Hagopian's motion to withdraw based on a complete breakdown of his relationship with Mr. Batson. The court cancelled the trial indefinitely pending appointment of new counsel.
On September 11, the seventh attorney, public defender Tim Liesenfelder, was appointed, and trial was scheduled for November 5. Trial was continued for the last time, on motion of the defense, until November 19.
At trial the judge and the deputy testified that they received unspecified indirect threats from Mr. Batson. Three witnesses to the threatening statements testified at trial. One said that Mr. Batson threatened to kill Judge Culp and Deputy Welton by blowing up the courthouse. Alarmed by the threat, the witness had warned Deputy Welton's father who passed the information along to Deputy Welton and to the sheriff's office. Deputy Welton's father corroborated this testimony. Deputy Welton testified that he learned of the threats from his father, who had been warned of Mr. Batson's statements by this witness. Two other witnesses testified to specific threats on at least three different occasions when Mr. Batson had said he would like to wire himself up and blow up the courthouse and as many people as possible including the judge. Mr. Batson reportedly said he did not care because he was going to hell anyway.
The jury found Mr. Batson guilty of intimidating a judge, intimidating a witness, and threatening to bomb the Okanogan County courthouse.
DISCUSSION
Mr. Batson challenges the sufficiency of the evidence and the timeliness of his trial.
Sufficiency of the Evidence — Intimidating a Witness
Mr. Batson argues that the State presented no evidence he intended his remarks as a threat, rather than simply blowing off steam. And, Mr. Batson contends, even granting a threat of injury to person or property, the State did not prove that he intended his threats to be communicated. Evidence is sufficient to support a jury verdict if a reasonable jury could have found the essential elements of the offense beyond a reasonable doubt, based on the evidence viewed in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). The jury may infer criminal intent from conduct from which it is `plainly indicated as a matter of logical probability.' State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980); State v. Gill, 103 Wn. App. 435, 443, 13 P.3d 646 (2000).
A person commits intimidation of a witness by attempting to influence a current witness's testimony by the `use of a threat against' the witness. RCW 9A.72.110(1)(a). Mr. Batson notes that the statutory definition of `threat' includes the general definition given in RCW 9A.04.110(25). That is the direct or indirect communication of an intent to physically harm, in the future, the person threatened or anyone else, or to damage property. RCW 9A.04.110(25)(a), (b). Mr. Batson does not deny that the State proved the existence of a `threat' under this definition.
Mr. Batson offers no authority for the unwritten elements of intimidation that he contends the State must prove. The statute does not require direct communication. Neither does it require the intent that an indirect communication be communicated. RCW 9A.72.110(1)(a); State v. Anderson, 111 Wn. App. 317, 322, 44 P.3d 857 (2002). The trial record here, then, establishes the essential elements of the offense.
Sufficiency of the Evidence — Intimidating a Judge
`A person is guilty of intimidating a judge if [he] directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, [the] person attempts to influence a ruling or decision of the judge in any official proceeding.' RCW 9A.72.160(1). The threat need not reach the judge. State v. Hansen, 122 Wn.2d 712, 719, 862 P.2d 117 (1993). The defendant need not actually intend to carry out the threat. State v. Kepiro, 61 Wn. App. 116, 121, 810 P.2d 19 (1991).
Mr. Batson contends that the State failed to prove any specific ruling by Judge Culp, past or future, that Mr. Batson was supposedly trying to influence by his threats to blow up the courthouse, the judge, and the witnesses. But the State showed: Mr. Batson was a defendant in a district court criminal proceeding; the judge had made rulings; Mr. Batson did not like those rulings; and he threatened the judge. That is enough and, even if it were not, these threats could only relate to the judicial proceeding being conducted by Judge Culp. The facts and logical inferences amply establish the elements of this crime.
The `specific ruling' argument is also the substance of Mr. Batson's complaint that the court abused its discretion in denying his repeated motions for a bill of particulars on this point. And, for the same reason, we affirm that discretionary ruling.
Speedy Trial
Mr. Batson waived speedy trial pursuant to former CrR 3.3(j) (2002) until April 29, 2002. He contends that the delay from April 29 until May 6, when he again waived speedy trial for the benefit of his new counsel, violated CrR 3.3.
A trial court's grant of a CrR 3.3 continuance or extension is reviewed for manifest abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996). Discretion is abused only where it is exercised on untenable grounds or for untenable reasons. State v. Warren, 96 Wn. App. 306, 309, 979 P.2d 915, 989 P.2d 587 (1999). It is not a manifest abuse of discretion to grant a continuance under former CrR 3.3(h)(2) to allow defense counsel more time to prepare for trial to ensure effective representation and a fair trial. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984). The court did not abuse its discretion in continuing the proceedings under former CrR 3.3(h)(2).
A trial court must establish that an actual conflict exists before granting a motion to withdraw and substituting counsel. In re Pers. Restraint of Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983). This determination is reviewed de novo as a question of law. State v. Vicuna, 119 Wn. App. 26, 30, 79 P.3d 1 (2003).
Mr. Batson waived speedy trial until April 29. On April 23 and April 24, the court denied Mr. Batson's motion to withdraw his speedy trial waiver. Mr. Howard moved to withdraw because part of the reason Mr. Batson wished to withdraw his waiver was his belief that Mr. Howard had falsely induced him to believe that it was in his best interests that defense counsel have more time to interview witnesses, and that Mr. Howard had unduly pressured him to waive. Mr. Howard argued that an evidentiary hearing was required on the speedy trial waiver issue at which Mr. Batson would have to testify. The State objected, arguing that there was no conflict of interest and that trial was set to start in a few days. Mr. Howard argued that the trial should be delayed to accommodate an evidentiary hearing on the voluntariness of the previous waiver.
Mr. Howard argued that, if Mr. Batson moved to withdraw his speedy trial waiver based on alleged misconduct or negligence by Mr. Howard, Mr. Howard would be required to testify at the evidentiary hearing and the interests of lawyer and client would, therefore, be in conflict. Mr. Howard argued that, once it becomes clear that a lawyer will be a witness, new counsel must be appointed. The court accepted this and granted Mr. Howard's motion to withdraw. The court then postponed the trial under CrR 3.3(h)(2) in the administration of justice to secure substitute counsel. Mr. Batson strenuously objected to the delay. It was the court's understanding that a motion was before it to dismiss on the grounds of involuntary speedy trial waiver and that a hearing was pending.
An evidentiary hearing was in fact held on May 30. After three witnesses and Mr. Batson testified on his medical condition, Mr. Batson testified that Mr. Howard had told him that, without more time to interview the State's witnesses, Mr. Howard could not proceed with the defense. Mr. Howard was not called to testify. The court recorded extensive oral findings and denied the motion to withdraw the speedy trial waiver. The trial court, then, made an adequate record of the necessity to permit Mr. Howard to withdraw. The fact that Mr. Batson did not call Mr. Howard to testify at the subsequent motion hearing has no bearing on the court's exercise of its discretion at the time of the motion to withdraw.
The court may grant a substitution motion when counsel and defendant are `so at odds as to prevent presentation of an adequate defense.' State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). On August 26, with all parties present and a jury venire on hand, defense counsel was forced to withdraw after a complete breakdown in the lawyer-client relationship as evidenced by transcripts of two voice messages from Mr. Batson threatening counsel with disbarment for incompetence, dishonesty, and conspiring with the court against Mr. Batson's interests.
Mr. Batson does not contend that the court abused its discretion in continuing the proceedings for substitution of counsel. He cites to no authority for the proposition that the absence of a citation to the rule on the record by the court constitutes grounds for reversal.
ADDITIONAL GROUNDS FOR REVIEW
Finally, Mr. Batson contends that the court lacked jurisdiction because he never received a copy of the information and did not receive personal service.
A person who commits a crime in this state is subject to the State's criminal jurisdiction and is liable to punishment. RCW 9A.04.030(1). Thus, the only jurisdictional element the State has to prove is that the crimes happened in Washington. Mr. Batson does not contend that the State neglected to allege and prove this point.
The record shows that the court arraigned Mr. Batson on the amended charges, explaining the charges, discussing with him at great length his trial rights, and taking his plea of not guilty. It is clear from the record that the defense was in possession of a copy of the charges. In a related assignment of error, Mr. Batson contends that there was no probable cause for the prosecutor's office to issue an information for intimidating a judge or a witness. It is difficult to discern Mr. Batson's point here. The usual preliminary proceedings were conducted. The State placed the charges before the court, the court was satisfied that the prosecution should proceed, and a jury unanimously found that the charges were proved beyond a reasonable doubt.
We affirm the convictions.
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.
SCHULTHEIS, J. and KURTZ, J., Concur.