Opinion
No. 35216-8-II.
December 24, 2007.
Appeal from a judgment of the Superior Court for Mason County, No. 95-1-00021-5, Toni A. Sheldon, J., entered August 17, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Penoyar, JJ.
Kenneth L. Clark appeals nine jury-trial convictions and his exceptional sentence for indecent liberties. He argues that the trial court violated his right to a speedy trial by resetting his trial date after Clark discharged his court-appointed defense attorney and appointed stand-by counsel when Clark insisted on proceeding pro se.
In his Statement of Additional Grounds, Clark argues that (1) he received ineffective assistance of counsel, (2) the State introduced improperly seized evidence, (3) the prosecutor committed misconduct, (4) the trial court imposed an exceptional sentence in violation of Blakely, (5) the trial court erroneously failed to dismiss the charges against him as time barred, and (6) the trial court deprived him of his right to meaningful access to the courts by denying him access to a jail law library. We affirm.
Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Facts I. Indecent Liberties
On July 29, 1994, Lacey Police Department Detective Loreli Thompson interviewed 16-year-old BJC, who disclosed that her father, Kenneth Clark, had been touching her "inappropriately" since she was about seven; she said the abuse had stopped about two years ago.
With Clark's attorney present, Detective Chuck Davis of the Tumwater Police Department interviewed Clark. Clark admitted to having touched BJC "inappropriately." Although he could not recall a single, specific incident, he remembered generally "her making me feel good and me making her feel good." Report of Proceedings (RP) at 289-90.
Shortly after this 1994 interview with Detective Davis, Clark left the family home in Grapeview, Washington, and traveled to Juarez, Mexico. During this time, Clark wrote letters to both Detective Davis and his wife, Billie Clark.
Eventually, Clark returned to the United States. In 2005, authorities arrested him on an outstanding warrant and brought him to Mason County, Washington. The State charged Clark with one count of child rape in the first degree and nine counts of indecent liberties. Clark did not object that the statute of limitations barred filing these charges.
II. New Counsel and Continuance
On January 6, 2006, the trial court declared Clark indigent, assigned a public defender, Adrian Pimentel, to represent him, and set a trial date for February 21. One month later, on February 6, Clark's counsel requested a continuance because he needed more time to prepare, particularly because the case was 20 years old. Over Clark's objection, the trial court granted a 30-day continuance to March 28, after determining that Clark's case was "extremely serious . . . and require(d) good preparation." RP at 21. This new trial date triggered a new CrR 3.3 time-for-trial period ending on April 7.
Clark does not challenge this initial continuance.
On March 24, Clark asked the trial court to discharge his appointed attorney, who was planning to withdraw because Clark was pursing an objective that the attorney considered repugnant or imprudent. Finding a "total breakdown of communication with regard to the attorney/client working relationship," the trial court granted Clark's request and appointed James Gazori to replace Pimentel as Clark's attorney. The court also reset the trial date to allow Gazori time to prepare.
Clark protested that he was ready to go to trial, did not want to reset the trial date, and would represent himself in order to preserve the existing trial date. The court explained to Clark that the court rules allow resetting the trial date upon discharge of an attorney, regardless of whether the defendant continues pro se or accepts new counsel. Clark then agreed to Gazori's representation, and the court set his trial to begin on May 9, but no later than May 23. On April 28, the parties appeared in court for Clark to plead guilty to first degree child rape; the state was going to recommend four years of imprisonment. But Clark rejected the plea bargain and elected to proceed to trial.
III. Trial A. State's Case in Chief
At trial detectives Thompson and Davis testified about their respective interviews with BJC and Clark.
The State also called Clark's wife, Billie, who testified about the content of letters Clark had written to her from Mexico. Clark wrote:
We use the first names of some parties to avoid confusion. We intend no disrespect.
I did not do this by myself . . . as for [BJC], she truly enjoyed it many times before she said no. And that may be causing her some heartache. Please make sure that [BJC] knows it was your rejection that forced me to leave and not her reporting the incest.
RP at 311-12. Billie also read from another letter, in which Clark wrote:
You said in your letter that I had not accepted responsibility for my actions. But the heart knows the truth, and reminds me daily that I need to pray for forgiveness each and every day from God and from those I have wronged. But the law prevents me from putting it all down on paper.
RP at 313.
BJC testified about Clark's "inappropriate touching — and kissing." RP at 339. She described specific instances where Clark had rubbed her private parts, guided her hands under his clothes, and engaged her in a "grown-up style kiss." BJC estimated that Clark had touched her private parts the majority of times that he tucked her in at night, "maybe once or twice a week."
At the close of the State's case in chief, the court granted Clark's motion to dismiss the first degree child rape charge for insufficient evidence.
B. Clark's Midtrial Motion to Represent Himself; Defense Case
Clark then asked the trial court to allow him to continue pro se, with appointed co-counsel. The trial court explained that although pro se Clark could not have co-counsel, he could have standby counsel. After a lengthy colloquy with Clark, the trial court appointed Gazori as standby counsel and Clark reluctantly accepted this arrangement. Clark briefly re-called BJC and Detective Davis.
Clark then took the stand himself, acting as both defense attorney and witness. During his self-questioning, Clark testified that he did kiss and touch BJC "sexually," but that he "[didn't] think that nine separate incidents occurred." RP at 482.
C. Conclusion
Before closing arguments and outside the presence of the jury, the State presented exhibits that Clark had been "unavailable" in the state of Washington from 1994 to 2005. The State explained that the sole purpose of this evidence was to have the record reflect that the charges against Clark were not time barred.
These exhibits were never submitted to the jury.
The jury found Clark guilty of all nine counts of indecent liberties. It also returned a special verdict that the crimes were part of an ongoing pattern of sexual abuse of the same victim under the age of 18, manifested by multiple incidents over a prolonged period of time. Based on these special verdict findings, the trial court imposed 89-month concurrent sentences for counts II through IV, and counts VIII through X, to be served consecutively to similar 89-month concurrent sentences for counts V through VII, for a total exceptional sentence of 178 months.
Clark appeals.
Analysis I. Speedy Trial
Clark argues that (1) the trial court denied his right to a speedy trial when the court reset his trial date beyond the times specified in CrR 3.3 even though he was willing to proceed pro se with the scheduled trial date; and (2) therefore, we must dismiss his convictions. This argument fails.
Both the federal and Washington Constitutions accord criminal defendants the right to a speedy trial. U.S. Const. amend. VI; Wash. Const. art. I, § 22. But neither constitution specifies the number of days or months within which a "speedy trial" should begin. State v. Cornwall, 21 Wn. App. 309, 312, 584 P.2d 988 (1978), review denied, 91 Wn.2d 1022 (1979).
Nor do CrR 3.3's time-for-trial provisions set constitutional standards; rather they merely establish "a framework for the disposition of criminal proceedings." State v. Wieman, 19 Wn. App. 641, 644-45, 577 P.2d 154 (1978). As we noted in State v. Falter, 6 Wn. App. 665, 495 P.2d 694 (1972),
[W]hen the Legislature enacted the '60-day' rule, it did not conceive nor contemplate that the limitation so established should become an inflexible yardstick by which the constitutional guarantees to a speedy trial . . . would be measured.Falter, 6 Wn. App. at 666 (citing State v. Brewer, 73 Wn.2d 58, 62, 436 P.2d 473, cert. denied, 393 U.S. 970 (1968)). Although Clark alleges that his speedy trial rights were violated, his argument is more aptly characterized as an allegation that the trial court diverged from CrR 3.3 time-for-trial guidelines.
A. Standard of Review
We review de novo a trial court's application of a court rule to a set of facts. State v. Carlyle, 84 Wn. App. 33, 35-36, 925 P.2d 635 (1996) (citing State v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123, review denied, 125 Wn.2d 1002, 886 P.2d 1134 (1994)).
A defendant seeking dismissal for non-compliance with CrR 3.3 must prove more than a misapplication of the court rules; he must show violation of a constitutional right. CrR 3.3(a)(4). In that instance, instead of using a strict 60-day rule standard, we determine whether or not a trial court deprived a defendant of his right to a speedy trial by weighing: (1) the length of the delay, (2) the prejudice to the defendant, (3) the reason for the delay, and (4) whether the defendant demanded a speedy trial below. United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773, 15 L. Ed. 2d 627 (1966); State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied 471 U.S. 1094 (1985). Delay alone is not prejudicial. State v. Christensen, 75 Wn.2d 678, 686-87, 453 P.2d 644 (1969). Instead, the prejudice must have been specific and it must have affected the defendant's ability to prepare his case. Id. at 687.
B. No CrR 3.3 Violation
CrR 3.3(b)(1)(i) provides that if a defendant is in custody, his trial must occur within 60 days of his arraignment. Nevertheless, the trial court may reset the trial date when certain events occur, including, as here, removal of defense counsel. CrR 3.3(c)(2)(vii). For example, in Falter, 6 Wn. App. 665, the defendant claimed his speedy trial rights were violated when the trial court diverged from the CrR 3.3 60-day timeline. Rejecting this argument, we held, "This delay was due in part, if not entirely, to the defendant's request for new counsel some [five] days prior to the original date." Falter, 6 Wn. App. at 667. Finding no prejudice, we affirmed.
As in Falter, Clark insisted on removing his appointed counsel days four days before the scheduled trial date. The trial court's granting Clark's request directly caused the delay. Clark argues the court deprived him of his right to a speedy trial because he was willing to represent himself in order to preserve the original trial date. But regardless of Clark's willingness to proceed to trial immediately without counsel, CrR 3.3(c)(2)(vii) reset the trial date when Clark sought and was granted discharge of court-appointed counsel.
Clark fails to show that the trial court's resetting his trial date resulted in any prejudice to him. The delay of 60 days was not an unreasonably lengthy time to give his new counsel time to prepare, particularly in light of the serious nature of the charges and that Clark's seeking new "co-counsel" mere days before trial. It was thus Clark's own actions that caused the delay in his trial start date.
We hold, therefore, that the trial court properly applied CrR 3.3, and there was no violation of Clark's constitutional right to a speedy trial.
II. Statute of Limitations
Clark next argues that the trial court erred by failing to dismiss the charges against him as time barred. He contends that "[t]he statute of limitations had passed for the first dates of the charged crimes before the laws were passed extending [the timeline]." Statement of Additional Grounds for Review (SAG) at 7. This argument, which he raises for the first time on appeal, also fails.
The statute of limitations for indecent liberties is "three years after the victim's eighteenth birthday or more than seven years after the rape's commission, whichever is later." RCW 9A.04.080; RCW 9A.44.100(1)(b). RCW 9A.04.080(2) provides that statutes of limitations "do not run . . . when the person charged is not usually and publicly resident within this state." Washington courts hold that a statute of limitations is "unambiguously" tolled for a crime while a defendant is absent from the state, regardless of whether the defendant concealed himself from authorities. State v. Israel, 113 Wn. App. 243, 293, 54 P.3d 1218 (2002).
Just before closing began, the State anticipated Clark's time-bar argument and made a showing outside the presence of the jury that Clark had been absent from the state of Washington from 1994, when he fled to Mexico, until he was apprehended in 2005 in Texas. Thus, the statute of limitations tolled in 1994 and did not begin to run again until 2005. The State filed charges against Clark in 1999, before BJC turned 21. Thus, the statute of limitations did not bar the indecent liberties charges against Clark, and the trial court did not err in denying Clark's motion to dismiss.
BJC was born on 5/30/1978.
III. Ineffective Assistance of Counsel
Clark also argues that his trial counsel rendered ineffective assistance. Clark describes numerous instances where he claims either he had "no assistance of counsel" or his attorney worked against his interests. This argument fails.
A. Standard of Review
To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). An attorney's representation is deficient when his performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). On appeal, we strongly presume effective assistance of counsel and will reverse on this ground only if the defendant shows there was no legitimate strategic or tactical rationale for his trial attorney's decisions. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1241 (1995). Clark fails to make this showing here.
B. Deficient Performance or Prejudice
Clark does not show that either of his two attorneys' performances were deficient or prejudiced him in any way. For example, Clark cites instances where he claims, "[B]oth of my court appointed [attorneys] did their best to prosecute me rather than defend me." SAG at 2. But the record shows that Clark's defense counsel was negotiating a plea bargain with the prosecutor at this point, culminating in a negotiated plea bargain whereby the State would recommend four years imprisonment for the statutory rape charge. Defense counsel's negotiation of this plea bargain does not show prejudice to Clark or deficient performance. Nor does Clark's ultimate rejection of the negotiated plea bargain establish ineffective assistance of counsel.
Clark cites additional instances where he claims his counsel's performance was deficient, but the record does not support these allegations. For example, although Clark claims that Gazori did not give him (Clark) his (Gazori's) trial notes when he (Clark) began self-representation, the record shows that Gazori gave Clark his trial notebook, explained its layout, and announced his intention to hand over all discovery materials to Clark in compliance with the court rules.
C. Court-Appointed Co-Counsel
Throughout trial, Clark insisted vehemently that he had a constitutional right to represent himself pro se with court-appointed counsel serving as co-counsel. On appeal, he argues that the trial court denied him this constitutional right. The record does not support this argument.
Clark bases many allegations of ineffective assistance of counsel on such alleged deficiencies as Gazori's refusal to "submit [Clark's] motions or allow [Clark] to address the court." SAG at 6. As our Supreme Court has expressly held, there is no "Sixth Amendment right to 'hybrid representation' through which defendants may serve as cocounsel with their attorneys." State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991).
Clark also argues that the trial court erred by not reading his pro se motions and affidavits into the official court record, which Clark filed personally while still represented by Gazori, his second counsel. Without reading them, the trial court properly sealed these documents as ex parte communications under the Washington Code of Judicial Conduct, Canon 3(A)(4) ("Judges should . . . neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding").
D. Stand-By Counsel
Clark further argues that the trial court erred by assigning Gazori as his standby counsel "without [his — Clark's] consent." SAG at 5. This argument also fails.
In Faretta v. California, the U.S. Supreme Court recognized the validity of stand-by counsel for pro se litigants over the defendant's objection. 422 U.S. 806, 835 n. 46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), See also State v. Watkins, 71 Wn. App. 164, 174, 857 P.2d 300 (1993). Our Washington Supreme Court has held, however, that where a trial court knows, or should know, of a conflict between a defendant and his standby counsel, it "must conduct an inquiry into the nature and extent of the conflict." State v. McDonald, 143 Wn.2d 506, 513, 22 P.3d 791 (2001). McDonald had once sued his standby counsel in civil court; accordingly, a "true conflict" existed and the trial court's failure to conduct an inquiry was reversible error. McDonald, 143 Wn.2d at 514.
In contrast, such is not the case here. The record shows that although Clark mildly protested at Gazori's initial appointment, Clark ultimately consented to Gazori's serving as standby counsel during his trial. Clark's initial and ultimately abandoned minor objection did not rise to the level of conflict requiring a court inquiry under McDonald.
E. Invited Error
Clark argues that he received ineffective assistance of counsel because (1) his attorney failed to object to irrelevant testimony, (2) "there were problems" with the jury instructions, SAG at 9, and (3) his counsel only "met [with him] twice between verdict and sentencing." SAG at 5. The invited error doctrine prohibits a party from setting up an error in the trial court and then complaining of it on appeal. In re Tortorelli, 149 Wn.2d 82, 94, 66 P.3d 606, cert. denied, 540 U.S. 875 (2003). Here, at his own insistence, Clark represented himself for the remainder of the trial after the State completed its case in chief. During a colloquy with Clark, the trial court expressly told him he would "not be able to obtain a . . . retrial based on the ground that you received incompetent representation from yourself . . . [you're] making an informed decision . . . right?" Clark responded, "Yes sir." RP at 439-40.
Clark may not claim he received ineffective assistance of counsel after he waived his right to counsel and proceeded to represent himself midtrial. Thus, his allegation of subsequent deficient performance after he chose to proceed pro se was invited error; he cannot use such claimed error as a basis for reversal on appeal.
F. Access to a Law Library
Clark also contends that the jail improperly denied him access to the law library. This argument does not constitute create grounds for reversal.
The right of meaningful access to the judicial system requires a court to provide a pro se defendant with "reasonable access to legal materials, paper, writing materials, and the like." State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987). But in a case where, as here, a pro se defendant claimed a jail with no law library deprived him of meaningful access, our Supreme Court held that "another acceptable method of providing this access is by appointing standby counsel, even over objection of the accused." Bebb, 108 Wn.2d at 524-25; State v. Dougherty, 33 Wn. App. 466, 470, 655 P.2d 1187 (1982) (citing Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977)), review denied, 99 Wn.2d 1023 (1983).
Here, the court provided Clark with counsel to represent him for the majority of the proceedings; and when Clark later waived his right to counsel, the trial court appointed standby counsel. As a matter of law, this access to counsel satisfied Clark's right to meaningful access to the courts.
IV. Other SAG Arguments
Clark makes several other arguments in his SAG, none of which merit reversal.
A. Illegal Seizure
Clark maintains that the State illegally obtained his Letters to his wife and read them at trial. For the first time on appeal, he argues that (1) the seizure took place following an inaccurate claim that he had violated a no-contact order, (2) there was no such violation because the court had conditioned the no-contact order to begin upon his "release" and he was never actually released from custody, and (3) therefore, the evidence should have been suppressed. We disagree.
A court must suppress illegally obtained evidence; but evidence obtained from a lawful, independent source is admissible at trial. State v. Allen, 138 Wn. App. 463, 469-70, 157 P.3d 893 (2007). The State did not seize Clark's letters as a result of a violation of a court order because the court never deemed his contact with his wife Billie to be a "violation." Instead, it was Billie who contacted the prosecutor about the letters and voluntarily turned them over.
Because Billie was a lawful independent source who volunteered the letters, the State did not illegally seize the evidence from Clark's residence. Id. Therefore, the trial court did not err in failing to suppress the letters or in allowing them to be read to the jury.
B. Prosecutorial Misconduct
Clark contends the prosecutor committed misconduct when she (1) referred to convictions for child rape in Mexico; and (2) said that if he did not plea bargain, she would add counts of rape and molestation, but failed to tell him she would charge indecent liberties. This argument fails.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing Stenson, 132 Wn.2d at 718), review denied, 151 Wn.2d 1039 (2004). Prosecutorial misconduct is grounds for reversible error only if there is a substantial likelihood that the misconduct affected the verdict. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). If there is no proper objection at trial, then the error is not reversible unless the misconduct was "so flagrant and ill-intentioned" that no curative instruction could have prevented the resulting prejudice. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990).
Clark's argument fails because he misstates the facts. While the parties referenced Clark's convictions in Mexico in court, the prosecutor confined mention of the convictions to pretrial proceedings, and she limited the convictions' use to prove Clark's absence from the state of Washington for statute of limitations purposes. Also, the record shows Clark was well aware that the prosecutor intended to charge him with indecent liberties. When he turned down a pretrial plea bargain at the last minute in court, Clark said, "[J]ust looking at it logically, I would be better off signing for four years as Statutory Rape than taking it to trial and being convicted of Indecent Liberties . . . [I] may end up spending more time for Indecent Liberties than I would if I accepted this plea bargain." RP at 109-10. Clark has not shown prosecutorial misconduct.
C. Blakely
Clark next argues that the trial court erred by imposing an exceptional sentence "not in accordance with . . . Blakely." SAG at 7. In Blakley, the U.S. Supreme Court held that the trial court must submit to the jury any fact that could increase the penalty for a crime beyond the standard range for the jury to determine whether the State had proved the fact beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Again, Clark misinterprets the facts.
Here, the jury returned special verdict forms finding, beyond a reasonable doubt, that the State had proved "the crimes [charged] were part of an ongoing pattern of sexual abuse of the same victim under the age of 18 years, manifested by multiple incidents over a prolonged period of time." RP at 569. Because the jury made this finding and thereby complied with Blakely, the trial court did not err in imposing an exceptional sentence based on this jury finding.
D. Matters Outside the Record
Clark asserts that (1) his detention in Texas before his trial in Washington was illegal, and (2) the local jail created a "hostile (e)nvironment for [him] as a pro-se defendant." SAG at 10. These allegations concern matters outside the trial record on this direct appeal. Therefore, we cannot address them. McFarland, 127 Wn.2d at 338.
E. Insufficient Grounds for Review
Clark also argues that (1) the trial court erred by failing to excuse Juror 6 for cause because she works at the Department of Social and Health Services, and she and her husband were foster parents; (2) the trial court's failure to establish whether Detective Davis was an ordained priest prejudiced him; (3) the "court room tapes" of the proceedings differ from the transcript; (4) the trial court appeared to be "trying [Clark] in the Court of Appeals," SAG at 8; (5) his defense attorney conducted a mental health evaluation at the jail instead of at a hospital, and "interrupt[ed] the interview and inject[ed] statements that were detrimental to his 'client,'" SAG at 8; (6) the trial court erred by denying Clark the "mandatory '60 days' of preparation when [he] became pro-se," SAG at 6; (7) the "legislature, courts, and prosecutors are all making decisions based on popularity . . . and [his] whole trial was a mixture of laws from the time of the crime and the time of the trial depending on who was speaking," SAG at 11; (8) the prosecutor "object[ed] several times about questions being cumulative yet . . . ask[ed] the same questions several times," SAG at 9; and (9) the prosecutor "was vindictive or at the very least she violated her position of public trust due to her own experiences with sex crimes." SAG at 10.
The record of proceedings does not include a transcript of the jury voir dire.
Clark's SAG is likely referring to the fact that during pretrial proceedings, the prosecution decided to amend Clark's information to reflect the modern day equivalents to the charges that existed at the time the State originally charged the crime in 1995.
Although a defendant is not required to cite to the record or to specific legal authority in his SAG, he must nevertheless "inform the court of the nature and occurrence of [the] alleged errors." RAP 10.10(c). When he fails to do so, we are not required to search the record to find support for his claims. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). Clark having failed to inform us sufficiently of the nature of his claims, we cannot consider his arguments. 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.
BRIDGEWATER, P.J. and PENOYAR, J., concur.