Opinion
No. 28363-1-III.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Grant County, No. 07-1-00040-5, John M. Antosz, J., entered August 17, 2009.
Affirmed by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Siddoway, JJ.
Haley Ann Baublits appeals her adult conviction of first degree perjury for statements made in 2005 at a juvenile court hearing concerning a charge of minor in possession of alcohol (MIP). Ms. Baublits contends that she should not have been charged as an adult for an offense that occurred when she was a juvenile and that her trial was unfair in several different ways. We reject each of Ms. Baublits' contentions and affirm her conviction.
FACTS
The underlying MIP case arose on May 29, 2004, when Washington Department of Fish and Wildlife officers came across an underage male and female with beer in the sand dunes near Moses Lake. The officers approached and asked the two youths for identification. Neither youth had identification, so the officers asked for their names, birth dates, and addresses. The female gave the name, birth date, and address of Haley Ann Baublits of Eatonville. She spelled the name correctly and gave the answers without hesitation. Ms. Baublits was 16 at the time. The male was identified as Thomas Delong.
The officers filed a referral for both youths and the prosecutor separately charged each of them with MIP. Thomas Delong was convicted of the MIP charge. On May 4, 2005, Ms. Baublits appeared in juvenile court and denied having been at the sand dunes. She claimed to have been with a friend's family in Naches, Washington. The friend, Sara Painter, corroborated Ms. Baublits' testimony. The juvenile court acquitted Ms. Baublits. The court determined that it could not reasonably disbelieve either both officers or both Ms. Baublits and Ms. Painter. It ruled that the State had not proven its case beyond a reasonable doubt. Part of the court's reasoning was that Ms. Baublits and Ms. Painter were exposing themselves to perjury charges if they were lying.
On September 23, 2005, Ms. Baublits turned 18. On September 29, 2006, an Eatonville Police Officer, Steve Watton, signed an affidavit in which he stated that Ms. Baublits had asked him whether she should lie at the juvenile court hearing. The affidavit places the date of this conversation as occurring in the "first part of June, 2005." Officer Watton later testified that the conversation took place sometime between May 29, 2004 (the date of the MIP referral) and May 4, 2005 (the date of the juvenile court hearing).
On January 18, 2007, the State charged Ms. Baublits with first degree perjury. The trial court dismissed the case, but this court reversed the dismissal. Ms. Baublits was tried before a jury on July 29-31, 2009. At trial, an audio recording of a portion of Ms. Baublits' testimony at the juvenile hearing was played for the jury. Ms. Baublits also testified on her own behalf and affirmed her testimony from the juvenile hearing.
The Fish and Wildlife Officers and Sara Painter also repeated their testimony from the prior hearing. Thomas Delong testified that Ms. Baublits was not there with him at the dunes, but he did not remember the interactions with the Fish and Wildlife officers. Delong also testified that he had been contacted by Fish and Wildlife Officer Jewell and told that if Delong did not tell him what he wanted to hear, Delong would be "thrown in jail." Verbatim Report of Proceedings (VRP) (July 31, 2009) at 99.
The jury convicted Ms. Baublits. The trial court denied her motion for a new trial. This appeal timely followed.
ANALYSIS
Ms. Baublits contends that there was undue delay in charging her and that she was the victim of vindictive prosecution. She also alleges that her counsel was ineffective and that various errors tainted her trial. We will address each claim in turn.
Preaccusatorial Delay
To prevail on a claim that delay in prosecution which results in the loss of juvenile jurisdiction violates due process:
(1) the defendant must show prejudice resulting from the delay; (2) the court must consider the reasons for the delay; and (3) if the State can justify the delay, the court will engage in balancing the State's interest against the prejudice to the accused.
State v. Warner, 125 Wn.2d 876, 889, 889 P.2d 479 (1995) (citing State v. Dixon, 114 Wn.2d 857, 860, 792 P.2d 137 (1990)). There is no constitutional right to be tried as a juvenile. Warner, 125 Wn.2d at 889. But because a delay that results in loss of juvenile jurisdiction deprives a defendant of certain benefits, it satisfies that prejudice element of the above test. Id. at 889-890. Generally speaking, errors that are not objected to at trial are waived on appeal. See RAP 2.5(a). However, manifest errors affecting constitutional rights may be raised for the first time on appeal. RAP 2.5(a)(3). "If the record from the trial court is insufficient to determine the merits of the constitutional claim, then the claimed error is not manifest and review is not warranted." State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999).
Here, defense counsel argued that preaccusatorial delay occurred but never sought to dismiss based on this theory. Rather, counsel characterized the delay as part of a malicious prosecution. Because delayed charging may violate a defendant's due process rights, the alleged error is constitutional in nature. Wash. Const. art. I, § 3. But Ms. Baublits provided no evidence beyond mere speculation as to why the prosecutor did not prosecute her before her 18th birthday. Thus, she has failed to supply a sufficient record to evaluate her claim. The alleged error is not manifest and cannot be reviewed.
Even if the issue had been preserved, we would hold that it is without merit in this case. A preaccusatorial delay violates due process in only two instances: (1) a deliberate delay by the State to circumvent the juvenile justice system" or (2) "a negligent delay in filing." Dixon, 114 Wn.2d at 865. Again, Ms. Baublits points to no evidence, beyond mere speculation, of deliberate delay on the part of the State. While she argues that the delay in investigation was negligent, there is no right to speedy investigation simply because a defendant will soon age out of the juvenile system. See id. The State charged Ms. Baublits as soon as it obtained the information that she had discussed lying with Officer Watton. There was no constitutional violation on the record before us.
Ms. Baublits also argues that her counsel was ineffective by not establishing harmful preaccusatorial delay. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Effectiveness of counsel is judged by the two prong standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). That test is whether or not (1) counsel's performance failed to meet a standard of reasonableness, and (2) actual prejudice resulted from counsel's failures. Id. at 690-692. In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions and there is a strong presumption that counsel performed adequately. A strategic or tactical decision is not a basis for finding error. Id. at 689-691. When a claim can be disposed of on one ground, a reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
This claim founders on the first Strickland prong. Because the record does not establish there was any violation, Ms. Baublits' counsel was not ineffective in failing to directly raise the issue before the trial court. See State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995).
Vindictive Prosecution
Ms. Baublits also contends that she was the victim of a vindictive prosecution. A vindictive prosecution occurs when "'the government acts against a defendant in response to the defendant's prior exercise of constitutional or statutory rights.'" State v. Korum, 157 Wn.2d 614, 627, 141 P.3d 13 (2006) (quoting United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987)). Such a prosecution violates a defendant's due process rights. See Korum, 157 Wn.2d at 627.
Ms. Baublits has failed to demonstrate any prior constitutional or statutory right which she asserted that the present prosecution is punishing her for. She appears to be arguing that the prosecution is punishment for her prior acquittal. Even if that were true, it does not amount to vindictive prosecution. The acquittal was not the result of Ms. Baublits asserting her rights; it was an act of the juvenile court.
While Ms. Baublits makes many accusations of improper pressure from the prosecutor's office and the Fish and Wildlife officers on witnesses, she provided little in the way of direct proof. Mr. Delong's testimony that Fish and Wildlife Officer Jewell threatened him was the only direct evidence offered. The alleged statements by Ms. Baublits and Ms. Painter to Ms. Baublits' counsel were not offered by them at trial and were, in any case, hearsay. Ms. Baublits has not demonstrated a vindictive prosecution.
Lesser Offenses
Ms. Baublits contends that her counsel also was ineffective by failing to request instructions on two alleged lesser included offenses: second degree perjury and false swearing. A criminal defendant is entitled to lesser included offense instruction if (1) "each of the elements of the lesser offense [is] a necessary element of the offense charged" and (2) "the evidence . . . support[s] an inference that the lesser crime was committed." State v. Workman, 90 Wn.2d 443, 447-448, 584 P.2d 382 (1978).
Ms. Baublits was charged with and the jury was properly instructed on first degree perjury. Ms. Baublits' counsel did not request jury instructions for second degree perjury or false swearing.
First degree perjury is defined in RCW 9A.72.020:
(1) A person is guilty of perjury in the first degree if in any official proceeding he makes a materially false statement which he knows to be false under an oath required or authorized by law.
(2) Knowledge of the materiality of the statement is not an element of this crime, and the actor's mistaken belief that his statement was not material is not a defense to a prosecution under this section.
(3) Perjury in the first degree is a class B felony.
Second degree perjury is defined in RCW 9A.72.030:
(1) A person is guilty of perjury in the second degree if, in an examination under oath under the terms of a contract of insurance, or with intent to mislead a public servant in the performance of his or her duty, he or she makes a materially false statement, which he or she knows to be false under an oath required or authorized by law.
(2) Perjury in the second degree is a class C felony.
False swearing is defined in RCW 9A.72.040:
(1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law.
(2) False swearing is a gross misdemeanor.
Second degree perjury is not a lesser included offense of first degree perjury because it requires fact specific circumstances of lying about an insurance contract or with intent to mislead a public servant. See RCW 9A.72.030; see also State v. Wilson, 83 Wash. 419, 425, 145 P. 455 (1915) (second degree perjury under former statute not lesser included offense of first degree perjury). However, it is an inferior degree offense by statute. RCW 10.61.003. In order to instruct on an inferior degree offense, there must be a factual basis for believing that only the inferior crime was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000). Here, there is no factual basis for finding second degree perjury. There was no insurance contract at issue, so that prong of the statute is not applicable. The other prong of the statute, requiring proof that a false statement was knowingly made to a public servant, differs from first degree perjury only in that there is no need to show that the false statement was made in an "official proceeding." Compare RCW 9A.72.020 with RCW 9A.72.030. There is no factual dispute that the juvenile court proceedings were not an "official proceeding." Thus, there was no basis for finding that second degree perjury rather than first degree perjury applied to this case. It is not an inferior degree offense under the facts of this case.
False swearing meets the legal prong of the Workman test for being a lesser included offense for first degree perjury. All of its elements are also requirements for first degree perjury. In other words, if a person commits first degree perjury, she has also committed false swearing. However, Ms. Baublits was not entitled to a false swearing instruction because she produced no facts to suggest that she committed only false swearing instead of first degree perjury. The distinctions between the two crimes are whether (1) the alleged false statement was a "material" one and (2) whether it occurred in an "official proceeding." Compare RCW 9A.72.020 with RCW 9A.72.040.
Here, there was no question that the identity of the underage drinker was a material question in the juvenile proceeding. As discussed in the second degree perjury context, there also is no question that the juvenile court hearing was not an official proceeding. Accordingly, there is no factual basis for finding that only false swearing was committed instead of first degree perjury.
Ms. Baublits argues the jury should have been able to choose between the crimes, and the "all or nothing" defense unduly prejudiced her. Even if this is a valid argument, it still requires that Ms. Baublits be entitled to the instructions. Lesser crimes are not to be included for the purpose of securing a "compromise verdict." Wilson, 83 Wash. at 425. There must be some evidence that suggests the lesser crime, rather than the greater crime was committed. Fernandez-Medina, 141 Wn.2d at 455. Because Ms. Baublits produced no such evidence, she was not entitled to these instructions, and her counsel was not ineffective in failing to request them. McFarland, 127 Wn.2d at 334-335.
Prosecutorial Error
Appellant also claims that the prosecutor committed prejudicial error at trial. "To prevail on a claim of prosecutorial misconduct, a defendant must show," (1) "the prosecutor's comments were improper," and (2) "the comments were prejudicial." State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008), cert. denied, 129 S. Ct. 2007 (2009). It is improper for a prosecutor to suggest that a criminal defendant needs to produce evidence to demonstrate his or her innocence. See State v. Traweek, 43 Wn. App. 99, 107, 715 P.2d 1148 (1986), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). In analyzing prejudice, the comments are not examined in isolation; rather, the entire context of the trial is considered, including the evidence and instructions to the jury. Warren, 165 Wn.2d at 28.
In the present case, Ms. Baublits objected to two statements at trial that she claims tended to shift the burden of proof to her. The first was the playing of her testimony at the juvenile hearing where the prosecutor in that case asked, "Is there a reason why you didn't ask Ms. Miller to come and testify here today?" Clerk's Papers (CP) at 38. Ms. Miller was the godparent whom Ms. Baublits claimed to be visiting in Naches at the time of MIP referral. There was no objection to this question, and Ms. Baublits responded that it was a long drive and Ms. Miller had small children. Id. Ms. Baublits made an objection prior to this statement being offered at her perjury trial. Ms. Baublits requested an instruction be given that the defendant has no burden to produce witnesses. The court declined to give this instruction, finding that the question was not an improper burden shift. The jury at the perjury trial heard the juvenile hearing testimony.
The second incident occurred toward the end of the perjury trial when the prosecutor asked, "Don't you think that would be important to bring?" RP (July 31, 2009) at 138. This was in response to Ms. Baublits indicating that she had pictures of her activity in Naches. Ms. Baublits' counsel objected. The objection was sustained, but after consulting with Ms. Baublits, her counsel ultimately requested that she be permitted to answer the question. Id. at 140. Ms. Baublits indicated that the pictures were taken around a campfire and were not especially helpful to show she was in Naches. The prosecutor did not mention either of these statements in his closing remarks and made no argument based on a lack of production of evidence. Ms. Baublits' counsel's closing argument referenced the burden of proof and made the point that Ms. Baublits was under no obligation to present photographs or additional witnesses. The trial court issued a standard burden of proof instruction.
When a defendant testifies at trial, he or she is subject to having his or her credibility explored, just like any other witness. See State v. Scott, 58 Wn. App. 50, 791 P.2d 559 (1990); State v. Day, 51 Wn. App. 544, 551, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988). The prosecutor's follow-up questions to Ms. Baublits were not burden shifting in nature. Rather, they were designed to explore the credibility of her previous answers.
Ms. Baublits presented evidence from her counsel's conversations with jurors after the verdict to support her contentions that improper conduct influenced the jury. Counsel stated that the jurors had improperly relied on the absence of the photographs or additional witnesses and erroneously interpreted Ms. Painter's crying at trial as evidence that she was lying rather than grief over her dead godfather. The trial court properly rejected this evidence as hearsay and invading the deliberations of the jury. See State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989). There was no demonstrated prosecutorial misconduct in this case.
Sufficiency of Evidence
"To determine whether the evidence is sufficient to sustain a conviction, [appellate courts] view the evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). Circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Here, there was ample evidence on each of the elements of the perjury charge to sustain a conviction. Ms. Baublits' statements were made in juvenile court under threat of perjury. The Fish and Wildlife officers testified that the person they referred for MIP charges gave accurate information and generally matched the description of Ms. Baublits on her driver's license. Officer Watton's testimony concerning the conversation he had with Ms. Baublits about lying in juvenile court was also evidence suggesting guilt.
The testimony was material, false and was given in an official proceeding. The evidence established first degree perjury.
Motion for New Trial
Finally, Ms. Baublits also argues that the trial court erred in denying her motion for a new trial. There was no abuse of discretion.
Ms. Baublits also presented a cumulative error argument. However, because we find no errors by the trial court, that doctrine does not apply in this case.
CrR 7.5 provides that a defendant may move for a new trial under a variety of circumstances. Rulings on motions for a new trial are reviewed for abuse of discretion. State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). The only issue in Ms. Baublits' motion that has not been previously discussed concerns the use of an obituary at trial. Ms. Baublits contends that failure to disclose this obituary was a discovery violation. The State suggests that its duty to disclose information is limited to exculpatory information. See State v. Lord, 161 Wn.2d 276, 291-292, 165 P.3d 1251 (2007). There was no allegation that the obituary was somehow exculpatory for Ms. Baublits. However, CrR 4.7(a)(1)(v) requires that a prosecutor disclose "any books, papers, documents, photographs, or intangible objects," which the prosecuting attorney intends to use at trial. Some of our courts have held that this rule encompasses evidence used for impeachment. See State v. Linden, 89 Wn. App. 184, 192, 947 P.2d 1284 (1997), review denied, 136 Wn.2d 1018 (1998).
In the present case, there was no reason for the State to believe that it would use the obituary at trial until Ms. Painter appeared to testify that both her godparents were in Naches. Thus, the State was under no obligation to disclose the obituary because it could not reasonably anticipate needing to use the information at trial. There was no discovery violation. The trial court did not abuse its discretion in denying a new trial.
Affirmed.
A majority of the panel has determined 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.
SWEENEY, J. and SIDDOWAY, J., concur.