Opinion
Nos. 34332-1-II; 35299-1-II.
September 25, 2007.
Appeals from a judgment of the Superior Court for Clallam County, No. 05-1-00162-2, George L. Wood, J., entered January 20, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Nicholas David Baxley appeals his conviction of one count of vehicular homicide, two counts of vehicular assault, and one count of driving with a suspended license. We affirm.
FACTS
On April 15, 2005, Baxley left work and went to a party at his friend Josh Hylton's house. Baxley was seen having a couple of beers. Although the exact time is unclear, Baxley left the party in the early morning hours of April 16 to go to a nearby convenience store. Three other people at the party, Stephanie Cox, Darcy Hylton, and Jason Tupuola, went with him.
Baxley initially drove his car from the house to the store, but somewhere along the way he switched seats with Tupuola, who then drove to the store. Upon leaving the store, however, Baxley resumed driving; Cox was in the front passenger seat, and Tupuola and Hylton were in the back seat. As they headed back to the party, the car ran off the road and came to rest in a field.
Timothy Bolding was delivering newspapers when he came across the accident. When Baxley approached Bolding, Bolding became frightened, left the scene, and called 911.
As Bolding left, Alan Watkins and Tom Butler stopped to offer help. When they first approached the car, Watkins saw a woman in the front seat who appeared to be dead and a man in the back seat who appeared to be Native American. Butler saw a woman lying over the center console, as well as another woman getting out of the car. Watkins remained at the scene while Butler drove to the store to call 911.
When Butler returned, Watkins told him that he believed that the woman in the front seat was dead. At that time, Butler went to the car and began administering cardiopulmonary resuscitation (CPR). While attempting to revive Cox, Butler also noticed a man in the back seat who appeared to be Native American.
Shortly thereafter, at 6:04 a.m., Deputies Hayden and Hollis of the Clallam County Sheriff's Office arrived. As Deputy Hayden helped Butler, he was startled upon seeing another man in the back seat.
Cox died at the scene of the accident. Meanwhile, Deputy Hollis observed two people standing outside of the car, later identified as Baxley and Hylton. He placed Baxley in the back of Deputy Hayden's car and placed Hylton in the back of his car. After medical personnel arrived and extracted Cox from the car, Tupuola was able to get out of the car.
At approximately 6:30 a.m., Deputy Ellefson arrived. He spoke with Baxley and examined the car, noticing that it was muddy around the car, but that there was no mud inside the car, thereby indicating that no one left the car and reentered it.
The police took Baxley to Olympic Medical Center for a blood draw. The blood test showed a blood-alcohol concentration of .14 grams per 100 milliliters.
Initially, Baxley was charged with one count of vehicular homicide and one count of vehicular assault. During negotiations, the State informed Baxley that his failure to plead guilty would result in an additional count of vehicular assault. Baxley entered a not guilty plea, and the State amended the information to include the second charge of vehicular assault. On the first day of trial, the State also added one count of second degree driving while license suspended.
The jury returned a guilty verdict on all four charges. The court sentenced Baxley, adding 48 months to his standard range sentence for having two prior driving while under the influence (DUI) convictions.
After trial, Baxley unsuccessfully filed a motion for a new trial based on a declaration from Hylton stating that her testimony at trial was incorrect and that she now remembers that Tupuola was driving on the night of the accident.
ANALYSIS I. Sufficiency of the Evidence
Baxley first contends that the State did not present evidence sufficient to support his conviction, arguing specifically that the State's failure to prove that the blood sample was obtained within two hours of the accident renders the evidence insufficient to sustain the vehicular homicide and vehicular assault convictions.
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a defendant's claim of insufficient evidence, we accept the State's evidence and draw all reasonable inferences from the evidence in the State's favor. Salinas, 119 Wn.2d at 201. When the State charges a defendant with committing vehicular homicide by alternate means, the jury need not be unanimous as to which alternative means the State proved, provided that the State produced sufficient evidence of each. State v. Randhawa, 133 Wn.2d 67, 73-74, 941 P.2d 661 (1997).
A person is under the influence of intoxicating liquor if the person has a blood alcohol concentration of 0.08 or higher within two hours after driving; the person is under the influence of or affected by intoxicating liquor or any drug; or the person is under the combined influence of, or affected by, intoxicating liquor and any drug. RCW 46.61.502(1). The State may use a blood sample obtained more than two hours after driving as evidence that the person had a blood alcohol concentration of 0.08 or more within two hours of driving or that the person was under the influence of or affected by alcohol. RCW 46.61.502(4).
The State had to prove that Baxley was operating a motor vehicle while under the influence of intoxicating liquor. Jury instruction 9 defined "while under the influence" as follows:
A person drives while under the influence of intoxicating liquor when he drives a motor vehicle while he is under the influence of or affected by intoxicating liquor, or while he has sufficient alcohol in his body to have an alcohol concentration of .08 or higher within two hours of driving.
See Suppl. CP at 36 (jury instruction 9) (emphasis added).
At trial, the State presented evidence that Baxley was operating while under the influence of liquor and that his blood alcohol concentration was higher than .08 within two hours of driving. Baxley's blood alcohol concentration was .14 per 100 milliliters. Baxley stipulated to its admissibility and the jury was allowed to take it into consideration. Moreover, during cross-examination, Baxley's friend, Josh Hylton, testified that he heard Levi Barclay offer to drive because he was sober and Baxley was not. Josh Hylton further testified that he personally observed Baxley drinking "a couple of beers." RP (Dec. 13, 2005) at 73. Additionally, Deputies Hayden and Hollis both spoke with Baxley when they arrived on the scene and both testified that they smelled alcohol on his breath. This was sufficient evidence for the jury to infer that Baxley was under the influence of intoxicating liquor at the time of the accident.
But Baxley now claims that, while he stipulated to the blood sample's admissibility, he did not stipulate to its validity because the State did not prove it was taken within two hours of the accident. Baxley did not raise this issue at trial. Unless the alleged claim is a manifest error affecting a constitutional right, the appellate courts will not consider issues raised for the first time on appeal. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). A constitutional right is not implicated; therefore, we do not consider it.
But assuming it was reviewable, the stipulation to the admissibility of the .14 blood sample was admissible as an element of the offense and constituted a waiver of the proof underlying that element. As Division One of this court stated in State v. Wolf, 134 Wn. App. 196, 139 P.3d 414 (2006), review denied, 160 Wn.2d 1015 (2007):
The premise of the waiver theory is that, upon entering into a stipulation on an element, a defendant waives his right to put the government to its proof of that element. `A stipulation is an express waiver . . . conceding for the purposes of the trial the truth of some alleged fact, with the effect that one party need offer no evidence to prove it and the other is not allowed to disprove it.'"
It is well settled in cases that have considered the issue that a defendant, by entering into a stipulation, waives his right to assert the government's duty to present evidence to the jury on the stipulated element.
Wolf, 134 Wn. App. at 199 (footnotes omitted).
Moreover, while it appears from the evidence that the blood sample was taken within two hours of the accident, the State was under no obligation to prove as much. RCW 46.61.502(4) allows the State to use blood samples obtained more than two hours after driving as evidence that the person was under the influence of alcohol. Baxley agreed to the admissibility of the blood sample and the State presented sufficient evidence to support Baxley's conviction.
Baxley also argues that the evidence was insufficient to convict him because the State did not present any evidence that the blood sample was taken in compliance with the methods approved by the State toxicologist. But Baxley's stipulation waived this argument.
The stipulation specifically provided that the State would not need to have the phlebotomist or toxicologist testify. The trial court asked Baxley if he understood the stipulation, what it entailed, and whether he was agreeable to it, to which he replied, "Yep." RP (Dec. 12, 2005) at 19. Unlike in Wolf, where the defendant challenged the admissibility of the evidence because the State failed to introduce the stipulation into evidence, here Baxley agreed to the admissibility of the blood sample and waived any need for expert testimony regarding the manner in which it was drawn. Because Baxley's stipulation was introduced into evidence and he waived any challenge at trial, he cannot now raise this issue for the first time on appeal.
When Baxley stipulated to the admissibility of the blood test results and expressly waived the appearance of the toxicologist and phlebotomist, any challenge to the validity of the test was also waived, both as to compliance with the toxicology standards and the test administration within two hours.
II. Jury Instructions
Baxley next argues that because the jury instructions allowed the jury to find him guilty if he had an alcohol concentration of .08 or higher but did not require the State to establish that the blood was obtained and stored in compliance with the requirements of RCW 46.61.506, the jury instructions were defective. We disagree. Notwithstanding Baxley's stipulation to the blood sample's admissibility, RCW 46.61.506 simply outlines the procedures that must be followed in order to admit the evidence. The State adhered to the procedures that must be followed to admit the blood sample; it did not also have to prove to the jury beyond a reasonable doubt that it could be admitted.
III. Separation of Powers: Common Law Definition of "Proximate Result" and "Proximately Caused"
Baxley next argues that because the legislature has not defined the phrases "proximate result" and "proximately caused," the judiciary has been forced to undertake the task of defining the crime, which violates the separation of powers doctrine by encroaching on core legislative functions. Br. of Appellant at 19. We rejected this argument in State v. David, 134 Wn. App. 470, 480, 483, 141 P.3d 646 (2006), review denied, 160 Wn.2d 1012 (2007). Baxley offers no reason to deviate from this precedent. Accordingly, we adhere to our analysis in David that the legislature is presumed to know the long-standing common law, and Baxley's argument fails. State v. Carlson, 65 Wn. App. 153, 158, 828 P.2d 30, review denied, 119 Wn.2d 1022 (1992).
IV. Vindictive Prosecution
Baxley next argues that the prosecutor engaged in vindictive prosecution by adding an additional count of vehicular assault to the information. Br. of Appellant at 20-24. Again, we disagree.
A prosecutor may not vindictively file a more serious crime in intentional "retaliation for a defendant's lawful exercise of a procedural right." State v. Korum, 120 Wn. App. 686, 709, 86 P.3d 166 (2004) (citations omitted), aff'd in part, rev'd in part, 157 Wn.2d 614 (2006). But due process is not violated when the State carries out a threat made during plea negotiations to recharge the defendant with a more serious offense, on which defendant is plainly subject to prosecution, if he rejects an offer to plead guilty to an offense originally charged. Korum, 120 Wn. App. at 708-09 (citations omitted).
During negotiations, the State offered Baxley the opportunity to plead as charged or have another count of vehicular assault added. Baxley relies on Korum in arguing that the additional charges doubled the number of charges he was facing and therefore demonstrates vindictive prosecution. But his refusal to accept the State's offer, which resulted in additional charges is unlike Korum, where, if the defendant had not withdrawn his guilty plea, he would have received a 10-year sentencing recommendation instead of the amended 100-year sentencing recommendation. Korum, 120 Wn. App. at 714-15. Baxley does not show how the prosecutor's behavior was vindictive, other than claiming that the State carried out a threat made during plea negotiations, which did not violate his due process rights. See Korum, 120 Wn. App. at 719. Baxley was free to accept or reject the offer and we find that there was no prosecutorial vindictiveness.
V. Confrontation Clause
Baxley next asserts that the trial court violated his Sixth Amendment right to cross-examine Deputy Hayden regarding the reasons for his termination from the sheriff's office. We disagree.
Both the United States and Washington Constitutions guarantee an accused the right to confront prosecution witnesses. U.S. Const., amend. VI; Washington Const., art. I, § 22. The right to cross-examination, however, is not absolute; its scope is within the trial court's sound discretion and can be restricted to prevent harassment or annoyance to the witness, or to protect the witness's personal safety. Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 75 L. Ed. 624 (1931); see also Smith v. Illinois, 390 U.S. 129, 133-34, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968).
ER 608(b) provides that, for purposes of attacking a witness's credibility, specific instances of conduct may, in the court's discretion, be subject to cross-examination if probative of truthfulness or untruthfulness. ER 608(b); State v. Cochran, 102 Wn. App. 480, 486-87, 8 P.3d 313 (2000), review denied, 143 Wn.2d 1004 (2001). But the trial court retains the discretion to control the mode and manner of a witness's testimony to avoid needless consumption of time and to protect a witness from harassment or undue embarrassment. ER 611(a)(2)-(3).
Clallam County Sheriff's Office terminated Deputy Hayden for having an affair on county time and for using his county cell phone for personal use. Baxley sought to impeach Deputy Hayden with this information, but the trial court denied the request, holding that there did not seem to be an issue of credibility. In fact, defense counsel stated the he was not concerned with the trial court's ruling so long as the deputy stuck "to what he said in his reports." RP (Dec. 13, 2005) at 121. Because Baxley did not object to the trial court's ruling he cannot now raise this issue for the first time on appeal. McFarland, 127 Wn.2d at 332.
Notwithstanding Baxley's failure to properly preserve the issue for appeal, his argument nonetheless fails because evidence was sufficient for any reasonable person to reach the same verdict. With the exception of his interaction with Baxley, Deputy Hayden's testimony was corroborated by other witnesses at trial. Thus, any credibility issue was minimal at best. Trial courts must address all factors in deciding admissibility issues, including protecting witnesses from harassment or undue embarrassment. See ER 611(a)(3). Here, when all the factors are balanced, it is clear that the trial court did not abuse its discretion in not allowing cross-examination regarding Deputy Hayden's termination from the sheriff's office.
VI. Sentence Enhancement
Baxley next challenges the superior court's sentence enhancement based on two prior DUI convictions, which he contends violates Blakely. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Once again, we disagree.
In Blakely, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. at 301 (citation omitted). Under the vehicular homicide statute, a person found guilty while driving under the influence of alcohol is subject to a two-year sentencing enhancement for each of his prior alcohol violations. RCW 46.61.520(2); see also RCW 46.61.5055 (defining alcohol violations).
Basically, Baxley argues that the trial court violated his constitutional right to have a jury decide whether he previously drove while under the influence of alcohol.
He further challenges the United States Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), which underlies the "prior convictions" Blakely exception, claiming it was wrongly decided and that this court should require a jury finding to determine whether a criminal defendant had prior convictions. Br. of Appellant at 27-28. But this court has no authority to defy the United States Supreme Court, and the "prior conviction" exception in Blakely is still good law. See Blakely, 542 U.S. at 301. This argument fails.
VII. Newly Discovered Evidence
Baxley next argues that the trial court erroneously denied his motion for a new trial, which he based on newly discovered evidence. He contends that Darcy Hylton, one of the witnesses who previously claimed she could not remember who was driving, regained her memory and now remembers that Tupuola was driving on the night of the accident. The trial court treated Hylton's proposed testimony as a recantation and rejected it as unreliable. The record supports the trial court's ruling.
Except where questions of law are involved, we review a trial court's denial of a motion for a new trial for abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). "To obtain a new trial based upon newly discovered evidence, a defendant must prove that the evidence: (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996). All five factors must be present to justify a new trial. Macon, 128 Wn.2d at 800. In evaluating the trial court's decision, we consider only whether substantial evidence supports the findings of fact and, if so, whether they support the court's conclusions of law and judgment. Macon, 128 Wn.2d at 799.
Baxley argues that Hylton's proposed testimony was pivotal because Baxley's strategy was to raise reasonable doubt about whether he was the driver at the time of the crash. Baxley contends that Hylton's proposed testimony was newly discovered evidence and that the trial court should not have treated it as a recantation.
Before resting at trial, defense counsel stated that Hylton had told another client of his that Baxley had not been driving, but that for tactical reasons he decided not to call Hylton or Baxley. Moreover, Davanna Galyean, who sat next to Hylton during Jason Tupuola's testimony, later told defense counsel that Hylton whispered to her that Jason was driving at the time of the accident. Not only did defense counsel have evidence that Hylton regained her memory before the close of trial, but Davanna Galyean's testimony could have been discovered before trial by the exercise of due diligence. Therefore, we hold that the record supports the trial court's finding that Hylton's proposed testimony was a recantation and not newly discovered evidence.
A witness's recantation may be considered newly discovered evidence. Macon, 128 Wn.2d at 799-800. But it is inherently questionable and "does not necessarily, or as a matter of law, entitle the defendant to a new trial." Macon, 128 Wn.2d at 801 (quoting State v. Wynn, 178 Wash. 287, 288, 34 P.2d 900 (1934)). Thus, the trial court must initially make a threshold determination regarding the recantation's reliability. Macon, 128 Wn.2d at 804 (citing State v. Rolax, 84 Wn.2d 836, 529 P.2d 1078 (1974), overruled on other grounds by Wright v. Morris, 85 Wn.2d 899, 540 P.2d 893 (1975)).
During the motion for new trial, Baxley was unable to produce Hylton as a witness to testify. So, based on defense counsel's request, the trial court decided the motion based solely on the pleadings, including Hylton's declaration. The trial court found that Hylton's proposed recantation was unreliable and denied Baxley's motion for a new trial. Baxley contends that the trial court's ruling was made in error because it should have considered the five Macon factors.
But, in making this threshold determination, the trial court was allowed to consider the circumstances surrounding the case, including Hylton's possible reason for recanting, the circumstances under which she made the recantation, the time between the testimony and the recantation, and the credibility of the witnesses testifying about the recantation. Macon, 128 Wn.2d at 802-03. It is the court, not a jury, who is responsible for determining the recanting witness's credibility. See State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997) (trial court makes own credibility determinations without regard to whether a jury might find the witness credible), review denied, 134 Wn.2d 1014 (1998); State v. Smith, 80 Wn. App. 462, 471, 909 P.2d 1335 (1996) (trial court's credibility determination is based on the persuasive value to a reasonable juror), rev'd on other grounds, 131 Wn.2d 258. 930 P.2d 917 (1997).
Here, the trial court reviewed Hylton's declaration and ruled that it provided nothing new to the jury "with regard to the circumstances surrounding the accident and where Mr. Baxley may have been or wasn't." RP (Aug. 10, 2006) at 5. The trial court stated that this was "not a case where we have the sole eye witness or the sole complaining party recanting their testimony. . . . The jury considered other evidence, and based their verdict upon the other evidence, not Ms. Hylton." RP (Aug. 10, 2006) at 5. Indeed, several other witnesses testified that Tupuola was in the back seat of the vehicle and could only emerge once the deceased front passenger was extracted.
The trial court addressed Hylton's previous testimony and found that there was nothing that would have alerted the court that she was being untruthful. The trial court also stated that Hylton's failure to provide testimony in person at the motion for new trial created questions about the reliability of her declaration. The trial court rejected Hylton's proposed recantation testimony and we will not lightly set its action aside. See Macon, 128 Wn.2d at 804.
VIII. Ineffective Assistance of Counsel
Baxley's final argument is that his counsel was ineffective because he failed to request a material witness warrant for Hylton at the motion hearing.
To succeed on his claim, Baxley must show that (1) his counsel's representation "fell below an objective standard of reasonableness based on consideration of all the circumstances" and (2) the errors resulted in prejudice, i.e., there is a reasonable probability that but for counsel's errors the trial outcome would have differed. McFarland, 127 Wn.2d at 334-35; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
In reviewing this claim, we examine the entire record; Baxley must overcome a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335; State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105 Wn.2d 1013 (1986). He may do so by showing that there was no legitimate tactical reason for his counsel's prejudicial acts and omissions. McFarland, 127 Wn.2d at 336-37.
Here, it is clear that defense counsel's decision not to request a material witness warrant was purely strategic. When Hylton failed to appear the first time, defense counsel stated that for strategic reasons, he did not want to be the one who requested the warrant. We agree with the State that requesting a material witness warrant would have resulted in Hylton's arrest and would have potentially resulted in her being angry and uncooperative. Deciding not to request a material witness warrant was, as defense counsel stated, purely strategic.
Finally, the State is also correct in asserting that having the trial court decide the issue based on the declaration alone, avoided the State's cross-examination of Hylton. Baxley cannot fault his attorney's legitimate defense tactics. Moreover, a recanting witness who had to be arrested in order to testify would not have bolstered her appearance of reliability, and therefore we agree with the State that the outcome of the proceeding would not have differed.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
HUNT, J.
QUINN-BRINTNALL, J.