Opinion
No. 21835-0-III.
Filed: April 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Stevens County. Docket No: 02-1-00155-1. Judgment or order under review. Date filed: 02/21/2003. Judge signing: Hon. Rebecca M Baker.
Counsel for Appellant(s), Zane Alan Caldwell (Appearing Pro Se) 815 N Main, Colville, WA 99114.
David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Michael Dwayne Smith Stevens Co Pros Office, PO Box 390, Colville, WA 99114-0390.
Zane Alan Caldwell was convicted of attempted coercion, felony harassment, fourth degree assault, and four counts of first degree unlawful possession of a firearm. On appeal, Mr. Caldwell contends the trial court abused its discretion by failing to sever the assault charge and by admitting evidence of a conversation taped by his wife. He also contends the court erred by failing to permit an instruction on his affirmative defense of estoppel and by excluding all evidence as to this defense. Additionally, Mr. Caldwell maintains the convictions for harassment and coercion constitute multiple punishments for the same offense. Pro se, Mr. Caldwell raises numerous other issues in his lengthy statement of additional grounds for review. After reviewing all of Mr. Caldwell's assignments of error, we affirm his convictions.
FACTS
Zane Alan Caldwell was convicted of attempted coercion, felony harassment, fourth degree assault, and four counts of first degree unlawful possession of a firearm.
The assault charge was based on an incident occurring on April 25, 2002, involving Mr. Caldwell's wife, Natalya. The couple separated as a result of this incident. Mr. Caldwell then initiated divorce proceedings and the couple became embroiled in a dispute over the custody of their son, Alexander. The coercion and harassment charges arose from statements Mr. Caldwell allegedly made in connection with the custody dispute. The information alleged that Mr. Caldwell threatened to kill Ms. Caldwell if she did not give up custody of her son and that Mr. Caldwell's threat to kill Ms. Caldwell put her in reasonable fear that the threat would be carried out. The firearm charges were alleged to have occurred between July 15 and August 1, 2002.
Prior to trial, Mr. Caldwell moved to sever the assault and firearm charges. The court severed the firearm counts, but refused to sever the assault charge. Mr. Caldwell renewed the motion to sever at the close of the State's case in chief and again before the case was submitted to the jury. Mr. Caldwell also moved to dismiss the harassment charge, alleging a violation of his rights against double jeopardy. The court denied these motions.
At the trial on the harassment and assault charges, Ms. Caldwell testified that she had secretly taped two conversations in which she was threatened by Mr. Caldwell. The court denied Mr. Caldwell's objections to the admission of this tape recording, the transcript of this tape recording, and the compact disc (CD) version of the tape recording. The first trial on the firearm charges ended in a mistrial. During this trial, Mr. Caldwell presented evidence of an estoppel defense, arguing that he relied on representations allegedly made by governmental officials indicating that his right to bear arms had been restored. Prior to the second trial on the firearms charges, the court determined that all evidence relating to Mr. Caldwell's estoppel defense should be excluded because the acts or statements of governmental officials relied upon by Mr. Caldwell were not affirmative, but only implied.
Mr. Caldwell was subsequently convicted of attempted coercion, felony harassment, fourth degree assault, and four counts of first degree unlawful possession of a firearm. He appeals.
ANALYSIS
Did the trial court abuse its discretion by failing to sever the assault charge?
CrR 4.3(a)(1) allows a trial court to join two or more offenses in one charge if the offenses are `of the same or similar character.' However, offenses properly joined under CrR 4.3(a) may be severed if `the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.' CrR 4.4(b). Although joinder of offenses is more efficient, joinder may prejudice a defendant in the following ways:
`(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.'
State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968) (quoting Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964)), vacated in part, 408 U.S. 934 (1972).
`In determining whether the potential for prejudice requires severance, a trial court must consider (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court's instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial.' State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). A defendant seeking severance has the burden of demonstrating that a trial involving multiple offenses would be so manifestly prejudicial as to outweigh the concern for judicial economy. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). A trial court's refusal to sever charges is reviewed for a manifest abuse of discretion. Russell, 125 Wn.2d at 63. In determining whether a trial court abused its discretion by denying severance, we must balance the prejudice against any `prejudice-mitigating' factors that are present. State v. Hernandez, 58 Wn. App. 793, 798, 794 P.2d 1327 (1990), disapproved of on other grounds by State v. Kjorsvik, 117 Wn.2d 93, 99 n. 5, 812 P.2d 86 (1991).
Mr. Caldwell contends the assault charge should have been severed from the harassment and coercion charges because the incident related to those charges occurred on July 21, 2002, and stemmed from the couple's custody dispute, while the incident relating to the assault charge occurred the previous April and was unrelated to the custody dispute. These arguments are unpersuasive. The evidence of the previous assault was admissible to prove the harassment requirement that the victim's fear was reasonable. See State v. Ragin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999) (jury entitled to know what victim knew when considering reasonableness element of felony harassment).
Mr. Caldwell also contends that the evidence of the assault was prejudicial and embarrassing, and invited the jury to cumulate evidence or infer a criminal disposition.
Here, the evidence of the assault is admissible to prove an element of the harassment charge. But even if evidence of one count would not be admissible in a separate trial on the other count, severance is not automatically required. Bythrow, 114 Wn.2d at 720. In determining the prejudice to the defendant in such circumstances, the Bythrow court focused on the jury's ability to compartmentalize the evidence of each offense and on the strength of the evidence. Id. at 721. A court should also look to the strength of the State's evidence on each count in determining the possible prejudice from joinder. Id. at 721-22.
Here, the evidence was strong as to each count and the jury was capable of compartmentalizing the evidence. The assault conviction was based on Ms. Caldwell's testimony, the testimony of her friends as to Ms. Caldwell's injuries, photographs of Ms. Caldwell's injuries, and by partial admissions made by Mr. Caldwell during his testimony. The defenses were also clear. Mr. Caldwell testified that he was set up by his wife; he also denied that the threats were serious and that the assault took place. Moreover, the jury was properly instructed and is presumed to have followed these instructions. Significantly, the Bythrow court concluded that a jury could reasonably be expected to compartmentalize evidence when the issues were relatively simple and the trial lasted only a few days. Id. at 721. Here, the jury was properly instructed and there is no reason to believe that the jury failed to follow the instruction.
Jury instruction number 3 read: `A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.' Clerk's Papers at 90.
Based on the record here, the trial court did not err by refusing to sever the assault count from the harassment and coercion counts. Did the trial court abuse its discretion by admitting evidence related to conversations taped by Ms. Caldwell, including the tape, the transcript of the tape, and the CD version of the tape?
To be admissible, physical evidence of a crime must be sufficiently identified and demonstrated to be in the same condition as when the crime was committed. State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). A trial court's decision to admit evidence is reviewed for abuse of discretion. Id. A court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 179, 817 P.2d 861 (1991).
Evidence may be identified by a witness with personal knowledge that the item is what it is claimed to be, but evidence that is not readily identifiable and is susceptible to alteration is usually identified by the testimony of each custodian in the chain of custody from the time the evidence was acquired. State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002) (citing 5 Karl B. Tegland, Washington Practice sec. 402.31 (1999)). The proponent must establish the chain of custody by demonstrating that it is improbable that the original item has been exchanged, contaminated, or altered. Roche, 114 Wn. App. at 436 (quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)). Factors to be considered in determining admissibility include: the nature of an object, the circumstances of its preservation, the chain of custody, and the possibility of tampering. Campbell, 103 Wn.2d at 21 (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)).
Although physical evidence must be satisfactorily identified and shown to be in the same condition as when the crime was committed, it need not be identified with absolute certainty and the proponent need not eliminate every possibility of alteration or substitution. Campbell, 103 Wn.2d at 21; see State v. Simpson, 22 Wn. App. 572, 573-74, 590 P.2d 1276 (1979). `[M]inor discrepancies or uncertainty on the part of the witness will affect only the weight of evidence, not its admissibility.' Campbell, 103 Wn.2d at 21. The jury is free to disregard evidence if it finds that the evidence was not properly identified or that there was a change in its character. Id.
Ms. Caldwell recorded conversations she had with her husband on July 20 and 21, 2002. At trial, she explained how she used the tape recorder and described the contents of the tape. Ms. Caldwell also explained that she called 911 right after making the tape and that she played the tape for the responding officer. Ms. Caldwell gave the tape to Detective Ron Maxey on July 22. Ms. Caldwell was cross-examined about the contents of a transcript made from the tape and identified this particular transcript as being the one concerning the conversation on July 21.
Detective Maxey testified that he had the tape transcribed by a member of his department and then placed the tape in evidence. The tape remained in evidence at the department until it was submitted for trial with one exception — when it was released for conversion to a CD format. At trial, the tape was admitted into evidence over the specific objection of inadequate chain of custody.
Lynette Rhodes, a secretary for the Colville Police Department, testified that she transcribed the tape and that the transcript was `word-for-word as best as the tape [would] allow me to.' Report of Proceedings (RP) (Dec. 17, 2002) at 184. The transcript was admitted over the specific objection that the transcript did not include the conversation taped the day before — July 20 — not the objection that the transcript had been altered or changed.
The tape was converted to a CD so that it could be played to the jury. Kevin Lambright testified that he provided computer support for the county and that he had converted the tape to a CD format. He explained that there was no change in the content of the tape as a result of the conversion but that the CD's sound quality was better than the sound quality on the tape.
Mr. Caldwell contends that the tape was not identified by Ms. Caldwell and that the tape, the contents of the tape, the transcript, and the CD were inadmissible because the chain of custody was broken. Stated differently, Mr. Caldwell argues that there is no evidence that the tape transcribed and copied by the police was the same tape made by Ms. Caldwell.
However, at trial, Mr. Caldwell objected to the admission of the tape based on the specific objection of inadequate chain of custody. But the chain of custody of the tape is clear; the tape went from Ms. Caldwell to Detective Maxey, to the evidence custodian, to Mr. Lambright, to the evidence custodian, to trial. The tape was in a sealed envelope once it was transcribed, except for when it was converted to a CD format.
Because the record shows the evidence was appropriately handled and the likelihood of tampering was slight, the trial court correctly ruled that Mr. Caldwell's objections went to the weight — not the admissibility — of the evidence.
Did Mr. Caldwell's convictions for coercion and harassment constitute multiple punishments for the same offense?
The Fifth Amendment and article I, section 9 of the Washington Constitution protect a defendant from multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Under the `same evidence' test, double jeopardy rights are violated if the defendant is convicted of offenses that are identical in fact and in law. Id. at 777. If there is an element in each offense that is not included in the other offense, and proof of one offense would not necessarily prove the other offense, the offenses are not the same and the double jeopardy clause does not prevent multiple convictions. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
Mr. Caldwell was convicted of attempted coercion. `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). The coercion statute, RCW 9A.36.070, provides in part:
(1) A person is guilty of coercion if by use of a threat he compels or induces a person to engage in conduct which the latter has a legal right to abstain from, or to abstain from conduct which he has a legal right to engage in.
Mr. Caldwell was also convicted of felony harassment. A defendant is guilty of harassment under RCW 9A.46.020(1)(a)(i) when the defendant, without legal authority, knowingly threatens to `cause bodily injury immediately or in the future to the person threatened or to any other person' under circumstances where the defendant `by words or conduct places the person threatened in reasonable fear that the threat will be carried out.' RCW 9A.46.020(1)(b). A person commits felony harassment under RCW 9A.46.020(1)(a)(i), `by threatening to kill the person threatened or any other person.' RCW 9A.46.020(2)(b). To convict a defendant of felony harassment based on a threat to kill, the State must prove that the person threatened was placed in reasonable fear that the threat to kill would be carried out. State v. C.G., 150 Wn.2d 604, 612, 80 P.3d 594 (2003). Mr. Caldwell contends the offenses are the same because any of the threats described in the harassment statute would satisfy the `threat' element of the coercion statute. But this comparison is incomplete. The harassment statute also requires that the threat compel or induce a person to (1) engage in conduct which that person has a legal right to abstain from, or (2) abstain from conduct that the person has a legal right to engage in. In contrast, a conviction for harassment requires a threat of bodily injury that places the person threatened in reasonable fear that the threat is real; and, a conviction for felony harassment under RCW 9A.46.020(1)(a)(i) carries the additional requirement that the defendant make a threat to kill someone.
Simply stated, the elements of attempted coercion and felony harassment are not the same and proof of one does not necessarily prove the other offense. Felony harassment requires a threat to kill a person and a showing that the person threatened believed the threat. Attempted coercion requires a threat made to compel or induce conduct on the part of the person threatened. The evidence needed to prove attempted coercion is not the same as the evidence needed to prove felony harassment.
Even if two offenses do not satisfy the `same evidence' test, they will be considered the same if the legislature has otherwise clearly indicated the intent that the same conduct or transaction will not be punished under both statutes. Calle, 125 Wn.2d at 778-79. The two offenses at issue here are found in different chapters and address different conduct — threatening a person to induce conduct and threatening to kill someone. Mr. Caldwell presents no argument or legislative history demonstrating a legislative intent to authorize only one punishment for these offenses.
Did the court err by excluding all evidence relating to Mr. Caldwell's estoppel defense?
The State moved in limine to exclude all evidence of `passive behavior by government agents to show tacit approval of [Mr. Caldwell's] use or possession of firearms.' RP (Feb. 7, 2003) at 20. The trial court granted this motion.
Even though ignorance of the law is no defense, there is a narrowly defined class of cases — generally resting on principles of due process and estoppel — where misleading governmental activity provides an affirmative defense to a criminal charge. State v. Locati, 111 Wn. App. 222, 227, 43 P.3d 1288 (2002) (citing United States v. Lansing, 424 F.2d 225, 226 (9th Cir. 1970)). The defense of estoppel by entrapment may be raised only `where a government official or agent has actively assured the defendant that certain conduct is reasonable, and the defendant reasonably relies on that advice and continues or initiates the conduct.' State v. Krzeszowski, 106 Wn. App. 638, 646, 24 P.3d 485 (2001). Consequently, the doctrine has been applied in cases where the defendant `relied upon an express, active representation by a government agent that the proscribed activity was in fact legal.' Id. The defense does not apply where there is no express representation by the government agent. Id.
Mr. Caldwell contends he relied on representations by Trooper David McMillan of the Washington State Patrol. At the first trial, testimony indicated that Trooper McMillan attended the same church as Mr. Caldwell and had observed Mr. Caldwell handle firearms when he instructed a firearm safety course as part of a church-affiliated youth group. At this trial, Trooper McMillan also indicated that he was aware of Mr. Caldwell's serious offense in California. But there was no testimony indicating that Trooper McMillan ever told Mr. Caldwell that he could possess firearms in spite of his conviction in California.
At the second trial, Mr. Caldwell's assertion of the doctrine of estoppel rested on an offer of proof describing this implied conduct by Trooper McMillan. The doctrine of estoppel does not apply here as there was no express representation by a governmental agent.
Mr. Caldwell maintains that even if his evidence falls short of establishing an express representation by a governmental agent, the remedy was to deny the estoppel instruction, not to exclude all testimony. Stated differently, Mr. Caldwell contends he is entitled to present evidence of his theory of the case even if he is not entitled to a jury instruction. This view is mistaken. A defendant is entitled to have his or her theory of the case submitted to the jury when the theory is supported by substantial evidence. State v. Finley, 97 Wn. App. 129, 134, 982 P.2d 681 (1999). Here, there was no evidence of an express representation by a governmental agent.
The trial court did not err by excluding all evidence relating to Mr. Caldwell's affirmative defense of estoppel.
Statement of Additional Grounds for Review.
Pro se, Mr. Caldwell raises numerous issues in his statement of additional grounds for review. He first contends that the court erred by allowing the State to charge him with first degree assault when the charge was not filed until some three months after the assault occurred. This argument is without merit.
Mr. Caldwell also contends that the court erred by permitting the prosecutor to prejudice the jury by mentioning that he had killed a policeman in California. This issue was addressed by the court as part of the decision on the motion to sever. As the trial court correctly determined, Ms. Caldwell's knowledge of Mr. Caldwell's prior problems with law enforcement in California was admissible under ER 404(b) to prove an element of the crime of felony harassment — the reasonableness of her fear that his threats would be carried out. Mr. Caldwell's motion in limine was granted in the firearms trial as his stipulation to the commission of a serious felony was sufficient to prove the elements of that crime and the jury did not need to know the precise nature of the underlying crime.
Mr. Caldwell complains that he was placed in leg restraints and that his attorney did not object. It is impossible to evaluate this issue based on the record here. At Mr. Caldwell's request, the trial court entered an order prior to the February 19, 2003 trial stating that Mr. Caldwell would not be required to wear leg chains or handcuffs and allowing him to wear a knee brace under his pants.
Mr. Caldwell contends the prosecutor told the judge how to rule on each motion. There is no evidence of this in the record.
Mr. Caldwell complains that the attorney-client conference room was monitored with both video and audio equipment and that he was instructed that he should whisper in his attorney's ear when revealing confidential information. He does not reveal how he was prejudiced by this or what, if any, confidential information was overheard.
Mr. Caldwell contends the court erred by denying his motion for a new trial based on ineffective assistance of counsel. In his words, he states he was railroaded to prison. There is no evidence of this in the record.
Mr. Caldwell contends the court erred by prosecuting him for four counts of unlawful possession of a firearm when he had sold four firearms to the same person. This argument is without merit.
Mr. Caldwell contends the court erred by failing to allow into evidence a written statement he prepared for the trial court. According to Mr. Caldwell, the court ruled the statement was inadmissible hearsay. The record contains several letters and statements written by Mr. Caldwell. None of these are helpful and it is difficult to see how any of these would have been admissible.
Mr. Caldwell contends the court erred by forcing him to become his own attorney. Mr. Caldwell apparently objected to the court's decision to disallow evidence related to his estoppel defense. The court apparently told him that he had to become his own attorney if he wanted to speak to the court. We will not address this issue. The trial court properly granted Mr. Caldwell's request to represent himself.
Mr. Caldwell contends the court erred in sentencing him to 34 months when he refused a plea bargain for 27 months. He maintains that he received 7 extra months for exercising his right to trial. Mr. Caldwell misunderstands the plea bargaining process. Affirmed.
The 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.
KATO, C.J. and SCHULTHEIS, J., concur.