Opinion
No. 26207-3-III.
July 24, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-01297-7, Neal Q. Rielly, J., entered June 6, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
UNPUBLISHED OPINION
This appeal follows convictions for first degree burglary and attempted second degree assault. The defendant tore off a piece of a wooden rail, entered a house, and began swinging the board. He also wrestled and punched people in the house. The evidence easily supports the convictions here. And we are unable to conclude that his constitutional right to a speedy trial was violated. We also cannot conclude that he was ineffectively represented. We therefore affirm the convictions.
FACTS
Douglas Breitkreutz had been staying at a home in Spokane, Washington, during March of 2006. Mr. Breitkreutz and Roy Moroni had obtained an abandoned car and planned to sell it. Mr. Breitkreutz moved out. He later returned and asked about the car. Mr. Moroni told him that it had been sold. Mr. Breitkreutz demanded all of the money for the car. Mr. Moroni refused and told him he would receive a share of the money. This angered Mr. Breitkreutz. He tore a board from the railing of the house, entered the house, and began swinging the board. Mr. Moroni and Mr. Breitkreutz wrestled. Steven Silletti took the board from Mr. Breitkreutz. Mr. Breitkreutz got up and asked Mr. Silletti, "`Do you want to die?'" Clerk's Papers (CP) at 4. Mr. Silletti answered no and asked Mr. Breitkreutz to leave. Mr. Breitkreutz punched Mr. Silletti in the mouth and left.
The State charged Mr. Breitkreutz with first degree burglary and attempted second degree assault on April 18, 2006. There were a number of delays before the State brought Mr. Breitkreutz to trial. The delays resulted from two continuances, a misunderstanding between the State and defense counsel that a third continuance had been granted, a stay at Eastern State Hospital for a competency evaluation, and the recusal of his trial counsel. He did not move to dismiss, however, for violation of his speedy trial rights.
The jury found Mr. Breitkreutz guilty of first degree burglary and attempted second degree assault.
DISCUSSION
Sufficiency of the Evidence — Burglary
Mr. Breitkreutz contends that the State failed to prove the elements of first degree burglary. Specifically, he says the State did not produce substantial evidence (1) that Mr. Breitkreutz intended to commit a crime when he entered the house, (2) that he entered the house unlawfully, or (3) that he was armed with a dangerous weapon.
We review a challenge to the sufficiency of the evidence for substantial evidence. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992), abrogated on other grounds by State v. Trujillo, 75 Wn. App. 913, 883 P.2d 329 (1994).
Here, the State had to prove that Mr. Breitkreutz entered or remained in the house with the intent to commit a crime, and that he was armed with a deadly weapon or that he assaulted someone. RCW 9A.52.020(1). A deadly weapon is any weapon, device, or instrument which "under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6).
There was ample evidence here to support a conviction for first degree burglary. Mr. Silletti testified that Mr. Moroni told Mr. Breitkreutz that he had sold the car and that he would receive only half of the proceeds. Mr. Breitkreutz became very angry. He pulled a board from a railing. He entered the house now armed with the board. Mr. Breitkreutz started swinging the board. He threatened and backed people up in the house. Mr. Silletti told him to get out. Mr. Breitkreutz then swung the board, knocked things off the wall, hit the wall, and damaged the house. Mr. Breitkreutz introduced evidence that he was not angry and that he did not intend to commit a crime when he entered the house. That is not dispositive. We view the evidence in a light most favorable to the State. State v. Roth, 131 Wn. App. 556, 561, 128 P.3d 114 (2006).
Ample evidence supports the jury's conclusion that Mr. Breitkreutz entered the home with the intent to commit a crime with a deadly weapon that was readily capable of causing substantial bodily harm. RCW 9A.52.020(1); RCW 9A.04.110(6); State v. Faille, 53 Wn. App. 111, 113, 766 P.2d 478 (1988). Sufficiency of the Evidence — Attempted Second Degree Assault
Mr. Breitkreutz also argues that the evidence does not support the jury's verdict of attempted second degree assault.
"A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). Assault in the second degree is the act of intentionally assaulting another person and recklessly inflicting substantial bodily harm, or assaulting another with a deadly weapon, not amounting to assault in the first degree. RCW 9A.36.021(1). A deadly weapon is any weapon, device, or instrument which is used or attempted to be used and is "readily capable of causing death or substantial bodily harm." RCW 9A.04.110(6).
An attempt to commit a crime consists of intent, which may be inferred from all the facts and circumstances, and an overt act, i.e., a direct although ineffectual act done toward commission of the crime as opposed to mere preparation. State v. Nicholson, 77 Wn.2d 415, 420, 463 P.2d 633 (1969).
The same evidence that supports the conviction for burglary also supports the attempted assault here. Mr. Breitkreutz pulled a board off the railing of the home and began swinging it at anyone who was in his way. Mr. Silletti and Mr. Moroni began backing up into the kitchen and living room to avoid being hit. Mr. Breitkreutz was swinging away knocking things off the wall, hitting the wall, and causing damage in the home. He and Mr. Moroni then wrestled on the couch when Mr. Silletti grabbed the board.
The evidence supports the elements of attempted second degree assault. RCW 9A.28.020(1); RCW 9A.36.021; Nicholson, 77 Wn.2d at 420-21. Speedy Trial
Mr. Breitkreutz next argues that his constitutional right to a speedy trial was violated by the delays. He also suggests that the right to a speedy trial guaranteed by CrR 3.3 was also violated. But he does not argue the rule violation in his brief. Appellant's Br. at 29-30. And so we will not address his suggestion. State v. Olson, 126 Wn.2d 315, 320, 893 P.2d 629 (1995). The State responds that there is no showing of prejudice and he received a fair trial.
A person invoking his constitutional right to a speedy trial must show actual and inexcusable prejudice. State v. Valentine, 20 Wn. App. 511, 514, 580 P.2d 1119 (1978). Showing a mere lapse of time is not enough. Id. There must be some showing that the delay hampered, impaired, or interfered with the defense of the charges or the preparation for that defense. State v. Christensen, 75 Wn.2d 678, 686, 453 P.2d 644 (1969). The question is one of law and so our review is de novo. State v. Dearbone, 125 Wn.2d 173, 178, 883 P.2d 303 (1994).
The right to a speedy trial afforded by the Sixth Amendment attaches when a charge is filed or an arrest is made that holds one to answer a criminal charge, whichever occurs first. State v. Corrado, 94 Wn. App. 228, 232, 972 P.2d 515 (1999).
We consider the length of the delay, the reason for the delay, whether the defendant asserted the right, the prejudice to the defendant, and such other circumstances as may be relevant. State v. Whelchel, 97 Wn. App. 813, 823-24, 988 P.2d 20 (1999). The factors are not briefed or argued here.
The standards by which this fundamental right is measured are clear: "(1) a delay of such length alone as to amount to a denial of the right to a speedy trial; (2) prejudice to the defense arising from the delay; (3) a purposeful delay designed by the state to oppress the defendant; or (4) long and undue imprisonment in jail awaiting trial." Christensen, 75 Wn.2d at 686; State v. Brewer, 73 Wn.2d 58, 436 P.2d 473 (1968). Other than pointing out the length of time between arraignment and trial, these factors are not listed, briefed, or argued.
Mr. Breitkreutz's right attached when the charges were filed against him on April 18, 2006. Mr. Breitkreutz was arraigned on May 2. The matter was set for trial on June 26, with a pretrial of June 6, 2006. On June 6 the court granted a continuance over Mr. Breitkreutz's objection to allow defense counsel additional time to interview witnesses and prepare for trial. The court found good cause to grant the continuance for the administration of justice.
The trial was reset for July 17, 2006, with a pretrial for July 7. The trial judge signed an order of recusal at the request of the State on June 15, 2006. It is the State and defense counsel's recollection that the trial judge granted a defense request for another continuance to prepare for trial. The court file reflects no such order and the matter was stricken at the State's request from the July 17 trial calendar under the mistaken belief that an order of continuance had been granted. CP at 55.
The trial date was set for September 25, 2006. On September 13, defense counsel requested a trial competency evaluation. The case was then placed on stay status. Defense counsel then erred in transmission of documents to Eastern State Hospital. Eastern State Hospital reports show 10 to 12 weeks for in-patient evaluation. A notice of change of counsel was filed on February 14, 2007. The matter was again placed on stay until March 9. A new trial date was set for April 16. The trial was again delayed. The court concluded that Mr. Breitkreutz was competent to stand trial on May 7. The jury trial began on May 7, 2007.
The State apparently searched the court file and found only two continuances (June 6, 2006 and July 25, 2006). Both noted that there was no prejudice to Mr. Breitkreutz caused by the continuances.
There is no showing here or in the trial record as to how any of these delays may have prejudiced Mr. Breitkreutz. The best that is offered is that "[t]hese delays caused his counsel to lose track of defense witnesses." Appellant's Br. at 32. That is not a sufficient showing to support violation of a constitutional right to a speedy trial. Mr. Breitkreutz makes no attempt to evaluate or argue the factors necessary to make out a case for violation of his right to a speedy trial. Christensen, 75 Wn.2d at 686.
We cannot then conclude, on this record, that Mr. Breitkreutz's constitutional right to a speedy trial was violated or, even if it was, that he was prejudiced by any delay in this trial. Ineffective Assistance of Counsel
Finally, Mr. Breitkreutz argues that his lawyers did not effectively represent him.
He bases this argument primarily on the delays (arguments we have already addressed) and the possibility that witnesses were lost or not interviewed.
We review a claim of ineffective assistance of counsel de novo. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001). We presume that counsel's representation was effective. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). To demonstrate ineffective assistance of counsel a defendant must make two showings. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). First, it must be shown that defense counsel's representation was deficient. Id. In other words, it fell below an objective standard of reasonableness. Id. Second, it must be shown that the client was prejudiced by any errors. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). The threshold is that "but for" the errors the outcome would have been different. McFarland, 127 Wn.2d at 334-35.
As to the witnesses, we do not know. It is just as likely, on this record, that the witnesses were interviewed and found to be unfavorable. Mr. Breitkreutz provides no information as to what these witnesses would have said, how it would have helped his defense, or even who they are. Nor do his lawyers. Everyone in the house that Mr. Breitkreutz entered testified at trial.
Mr. Breitkreutz also argues that both his former and present attorneys were ineffective because they did not issue material witness warrants. Again, they may well have decided not to call his witnesses. He claims that the witnesses cannot be found. But again he does not explain how these witnesses could be "found" if material witness warrants had been issued. There is also no explanation as to how these witnesses could be material to justify such warrants.
The referral to Eastern State Hospital was necessary to determine whether Mr. Breitkreutz could stand trial. He claims that his counsel overlooked the filing of paperwork for Eastern State Hospital. Again, there is no showing or explanation of how this was prejudicial to Mr. Breitkreutz.
He argues that his counsel did not present a defense. An attorney's decision to rest without presenting a defense is not an error if it is a tactical decision. State v. Varga, 151 Wn.2d 179, 198-99, 86 P.3d 139 (2004). His attorney cross-examined the State's witnesses. Mr. Breitkreutz urges us to presume prejudice. We will not. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Indeed, the standard requires us to presume he was adequately represented. Id.
Mr. Breitkreutz does not satisfy the two-prong test necessary to show ineffective assistance of counsel. McFarland, 127 Wn.2d at 334-35. Statement of Additional Grounds
Mr. Breitkreutz requested all the transcripts for all the hearings (both ex parte and in his presence) in connection with his first defense counsel. These transcripts have been partly denied to him. He argues that they are needed for his statement of additional grounds. He does not show exactly how all the transcripts would be helpful for his statement of additional grounds. His only other statement of additional grounds concerns the denial of his right to a speedy trial. And that issue has already been discussed and analyzed. There is no merit to his argument.
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, C.J., and BROWN, J., concur.