Opinion
No. 34140-9-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-00671-1, James J. Stonier, J., entered November 23, 2005.
Counsel for Appellant(s), John A. Hays, Attorney at Law, Longview, WA.
Counsel for Respondent(s), Susan Irene Baur, Cowlitz Co. Prosecutor's Office, Kelso, WA.
Affirmed by unpublished opinion per Casey, J. Pro Tem., concurred in by Van Deren, A.C.J., and Penoyar, J.
Margaret Marie Colburn appeals her forgery conviction. She argues that (1) the trial court erred when it denied her motion to continue without first ordering a competency determination, (2) the trial court erred when it excluded a testifying witness's statement to the police as hearsay, and (3) her trial counsel was ineffective for failing to challenge certain testimony. We affirm.
FACTS Pretrial
On June 8, 2005, the State charged Colburn with one count of forgery. She pleaded not guilty and the case went to a jury trial.
On August 30, she waived her speedy trial rights and agreed to a new commencement date. The reason for this waiver is not in the record on appeal.
On November 7, Colburn filed a written motion for a continuance, claiming that she had been unable to locate a key witness, Dennis Martin. There is nothing in the record regarding whether the trial court granted this motion, but because the November 16 trial date did not change, it appears that the trial court denied this motion.
Finally, on November 15, one day before trial was to start, Colburn's counsel made an oral motion to continue the trial, claiming that Colburn was "having some severe difficulties with her medications" and would not be able to assist at trial. Report of Proceedings (RP) at 9. Her counsel also told the court that Colburn was "considering" checking herself into "St. Johns." RP at 9. Counsel stated they had attempted to make information regarding this appointment available to the prosecutor, but the hospital was unable to provide any information due to privacy laws.
The prosecutor confirmed that she was aware of Colburn's motion and that she had spoken to Colburn. Colburn told the prosecutor that she was having difficulty concentrating due to her medication and that her lack of concentration would make it difficult to participate in her defense. Colburn also told the prosecutor that she had refused to go to the emergency room the night before but that she had made an appointment for Thursday, November 17, the day after the trial was to start. The prosecutor stated that she had been unable to confirm Colburn's medical condition. Ultimately, the prosecutor asserted that the State was ready to go to trial and that it opposed any continuance.
The court ruled: "Well, here's the problem, the showing that's made, I'm not prepared to grant a continuance. The showing that's made is the Defendant comes in and says, essentially, I'm not ready to go to trial. That's all the information I have. That's not . . . enough. So I'm not continuing the matter." RP at 10.
The prosecutor then suggested that if Colburn believed she was unable to assist with her defense on the day of trial, she could raise the issue again and the trial court could interview her at that point. After defense counsel expressed her concern that Colburn could be taken to the hospital and fail to appear the next day, the court asked why, if her condition was so severe, Colburn refused to go to the emergency room the night before. Defense counsel stated Colburn had been worried that she would be admitted and this would prevent her from appearing in court and result in a warrant for her arrest. The court indicated that the trial court would be able to reconsider the issue if Colburn presented additional written information at the time of trial. The next day's trial was scheduled for 10:30 a.m., so if there was further information, there would be an opportunity to consider it before the jury assembled. On the day of trial, Colburn did not renew her motion to continue.
This hearing and the trial were before different judges.
Trial
The evidence presented at trial established that on June 4, 2005, Dennis Martin asked Colburn to cash a $1,600 credit card check for him. The check was drawn on a Providian National Bank account in Robert Farvour's name. Farvour was Martin's brother-in-law.
Colburn attempted to cash the check at a check cashing and payday loan store. When the store manager discovered that the telephone number on the check did not belong to Farvour and could not contact Farvour, she told Colburn to come back later. Colburn left with the check.
The manager eventually talked to Farvour. He told her that he had not written the check and that he did not want it cashed. The manager then contacted the police at his request.
Longview Police Officer Mark Langlois contacted Colburn regarding the check. Colburn gave Officer Langlois the check and admitted that she had tried to cash the check for Martin. But she also asserted that she did not know the check was forged. Colburn gave Officer Langlois the following written statement, which was introduced at trial:
Denny Martin came to my house [and] asked me to cash a check. He said he was purchasing a shed hot tub and needed the money to purchase it. He did not have a bank account. He gave me the check[.] When I asked whos [sic] check it was he said it was his uncles [sic] he gave it to him as long as he made the Visa payments up to [$]3000.00. He wrote my name on the check. He said for a fact it was all legal and assured me I would get in no trouble.
Ex. 2.
Officer Langlois also took a written statement from Martin. The prosecutor did not move to admit Martin's written statement. The defense theory at trial was that Colburn was unaware the check was not legitimate. The defense called Martin as a witness for the defense.
It stated:
I had used my brother in laws [sic] name Robert Farvour and filled it out for a credit card, (Visa) so I could have one to use the [sic] I'd make the payments on it every month. I needed a check cashed and thought of [Colburn] so I went and asked her to cash it for me cause [sic] I couldn't find my wallet. At first she said no, but later she said OK. She had no idea I was lying. She's innocent. She was just helping. I never thought anyone would get hurt. I was the one who wrote the check out. She had nothing to do with this.
Ex. 5.
Martin testified that he opened the Providian account and obtained the check without Farvour's knowledge or permission and that he wrote and signed the check and asked Colburn to cash for him. But he denied telling Colburn that he had permission to use the check. Martin claimed that he had only assured Colburn it was a "good check" and that she would not get in trouble for cashing the check because he intended to make the payments on it. He also testified that Colburn watched him fill out and sign the check and that he offered her $500 to cash the check for him.
When defense counsel moved to admit Martin's written statement, the prosecutor objected, arguing that the written statement was hearsay. The trial court sustained the objection. Although there was at least one unrecorded side bar regarding the use of Martin's written statement, nothing in the record shows that defense counsel attempted to argue that Martin's written statement was admissible under any of the exceptions to the hearsay rule or that the statement itself was not hearsay.
Martin admitted that he wrote the statement, but asserted that he was not aware he was making the statement under penalty of perjury.
On cross-examination, the prosecutor gave Colburn's written statement to Martin and asked him to read it to himself. As soon as he finished reading the statement, Martin stated: "Okay. It's a lie, it's not true." RP at 80. The prosecutor responded: "No, no, no. I didn't ask you any questions." RP at 80. Interpreting this as an objection, the trial court immediately struck Martin's comment. The trial court then discussed the issue with counsel outside the presence of the jury.
During this discussion, the prosecutor asked the trial court to instruct Martin that he could not comment on "guilt or innocence." RP at 80. The prosecutor indicated that she had given Colburn's statement to Martin only so she could ask him whether he told Colburn that he had permission to use the account up to $3,000; she asserted that she had not anticipated him commenting directly on Colburn's written statement.
Back in the jury's presence, the trial court reiterated that it had stricken Martin's comment. The prosecutor then asked Martin whether he told Colburn he had permission from his uncle to use the account as long as he made payments; Martin denied making that statement.
The jury found Colburn guilty of forgery; she appeals.
Analysis Motion to Continue/Competency Determination
Colburn first contends that the trial court erred when it denied her motion to continue without first ordering a competency determination under RCW 10.77.060(1)(a). Even presuming Colburn properly preserved this issue, we disagree.
RCW 10.77.060(1)(a) provides in part:
Whenever a defendant has pleaded not guilty by reason of insanity, or there is reason to doubt his or her competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant.
(Emphasis added.)
We note that defense counsel never specifically requested a competency determination; she moved only to continue the trial. Furthermore, although the court hearing the motion invited Colburn to have the trial court reexamine the issue on the day of trial if her competency was still an issue, Colburn did not raise this issue again.
Although the procedures stated in RCW 10.77.060(1) are mandatory, before a competency determination is required under that statute, the court must make the threshold determination that there is reason to doubt the defendant's competency. State v. Woods, 143 Wn.2d 561, 604-05, 23 P.3d 1046 (2001); Seattle v. Gordon, 39 Wn. App. 437, 441-42, 639 P.2d 741 (1985). "The motion [for a competency determination] must be supported by a factual basis," and the court should "then inquire to verify the facts." Gordon, 39 Wn. App. at 441-42. Although the court has discretion in making this threshold determination, it "should give considerable weight to the attorney's opinion regarding a client's competency and ability to assist in the defense." Gordon, 39 Wn. App. at 442.
Colburn argues that she presented facts sufficient to require a competency determination, including: her counsel was concerned about her ability to participate in her defense, she asserted she was on medication that interfered with her ability to concentrate, and she had announced her plans to check herself into a hospital in two days. The court also heard that Colburn refused to go to the emergency room the previous night. Colburn presented no documentation to support her claims. Although defense counsel appeared to agree Colburn was having problems, neither Colburn's statements nor her counsel's beliefs were supported by any facts. See Gordon, 39 Wn. App. at 422.
Furthermore, more than five months had passed since the State charged Colburn and the scheduled trial date. Colburn had waived her speedy trial rights at least once before and had filed at least one other motion to continue. Colburn's final motion to continue was not made until the day before the trial. These facts suggest that the motion was "more of a trial tactic than an indication of real concern as to the defendant's competency." Gordon, 39 Wn. App. at 442.
The trial court did not err when it denied Colburn's motion to continue without first ordering a competency determination.
Martin's Written Statement
Colburn next contends that the trial court erred when it excluded Martin's written statement as hearsay. She argues that the statement was admissible under ER 801(d)(1), because it was a sworn statement and "[t]he defense sought the admission of this statement because it was directly contrary to the incriminating testimony that Mr. Martin gave at trial." Appellant's Br. at 19.
We review a trial court's decision to admit evidence for abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
ER 801(d)(1) provides that a prior statement by a witness is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Even presuming defense counsel properly preserved this issue, we hold that the trial court did not err when it refused to admit Martin's statement. When defense counsel moved to admit Martin's written statement, Martin had not yet testified inconsistently with the statement. Defense counsel did not present an offer of proof demonstrating that she was seeking to admit the exhibit to as inconsistent with Martin's expected trial testimony. Because the trial court had nothing before it suggesting that ER 801(d)(1)(i) applied when it considered this issue, it did not abuse its discretion when it refused to admit the statement.
We note that defense counsel did not argue that ER 801(d)(1) applied at any time during the trial.
Colburn does not argue that the other two subsections of ER 801(d)(1), subsections (ii) and (iii), apply.
Ineffective Assistance of Counsel
Colburn next argues that her trial counsel was ineffective for failing to object to (1) Officer Langlois's testimony regarding his opinion of her guilt, and (2) Martin's testimony regarding her credibility. Again, we disagree.
Standard of Review
To establish ineffective assistance of counsel, Colburn must show that (1) her counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Officer Langlois's Testimony
"No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987); State v. Haga, 8 Wn. App. 481, 492, 507 P.2d 159 (1973). Such an opinion violates the defendant's right to a trial by an impartial jury and the right to have the jury make an independent evaluation of the facts. State v. Carlin, 40 Wn. App. 698, 701, 700 P.2d 323 (1985), overruled in part on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 583, 854 P.2d 658 (1993). But courts have "`expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt.'" State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001) (quoting Heatley, 70 Wn. App. at 579).
Colburn argues that the italicized portion of Officer Langlois's testimony impermissibly expressed his opinion of Colburn's guilt:
Q [Prosecutor]: All right. What happened after you went to her apartment?
A [Langlois]: Once she admitted to me that she was there at the Cash Go and she had tried to cash the check, I advised her that she was under arrest for forgery. I did not handcuff her, due to her cooperation. And I asked her to retrieve the check that she still had in her possession, which I was advised by Cash Go that she left with the check itself.
Q Okay. And did she obtain that check for you?
A Yes, she did.
Q Handing you State's Exhibit 1, do you recognize that?
A Yes, I do.
Q Do you recognize it from this case?
A Yes.
Q How do you recognize it?
A It's got her name on it and written for $1600, and Robert Farvour, all the — all the above-information that I was investigating.
Q Okay. And is that the check that Ms. Colburn gave you that day?
A Yes, it is.
Q Has it changed in any way?
A It doesn't appear so, no.
Q What happened after she gave you the check?
A I escorted her to my patrol vehicle, then we drove to the police department for an interview.
Q Did she say anything prior to putting her under arrest about the check?
A I believe she had told me that she had no idea it was a forged check and she had no knowledge of that. I wanted to give her the benefit of the doubt, but at that time, due to the evidence I had and statements given to me by the Cash Go, I advised her she was under arrest for forgery.
RP at 41-42.
This testimony did not express Officer Langlois's personal opinion as to Colburn's guilt or innocence. Officer Langlois testified about the information he had at the time and what he did. He stated that he believed he had probable cause to arrest Colburn, and he arrested her. Colburn's counsel had no reason to object to this testimony. Colburn fails to show ineffective assistance on this basis.
Martin's Testimony
Finally, Colburn challenges the following testimony:
Q [Prosecutor]: . . . I'm handing you what's already been admitted as Exhibit 2.
A [Martin]: Pardon me?
Q Exhibit 2.
A Okay.
Q And this is Margaret's statement.
A All right.
Q Would you read through that?
A Aloud or?
Q No, just to yourself.
A Okay. It's a lie, it's not true.
RP at 79-80. And,
Q [Prosecutor]: After reading this statement, did you ever tell Ms. Colburn that it was your uncle's checking account —
A [Martin]: No.
Q — yes or no?
A No.
Q Okay. Did you ever tell her that your uncle gave you this checking account so long as you made the VISA payments up to $3,000, yes or no?
A No.RP at 83.
Colburn argues that defense counsel should have objected to this line of questioning. Colburn argues that the prosecutor's goal was to allow Martin to testify that Colburn had lied in order to impugn her credibility. We disagree.
First, Martin's response after reading Colburn's police statement was clearly non-responsive. Not only was it not elicited by the prosecutor, Colburn's counsel did not have the opportunity to object to this testimony because the trial court acted immediately and struck this statement.
The jury instructions also told the jury that it was not to consider any testimony that the trial court had stricken. We presume the jury followed this instruction. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
Second, as to Martin's testimony that he did not tell Colburn that his uncle had given him permission to use the account, this was not testimony relating to his personal opinion of Colburn's truthfulness. He merely testified to a factual issue, whether he in fact told Colburn what she indicated in her statement.
Accordingly, Colburn does not show that her trial counsel erred by failing to challenge this testimony. The ineffective assistance of counsel claim has no merit.
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.
Van Deren, J., Penoyar, J., concur