Opinion
No. 32065-7-II.
May 9, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-04246-5, Vicki L. Hogan, J., entered July 2, 2004.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 917 Pacific Ave Ste 406, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong, J.; Quinn-Brintnall, C.J., concurring in part.
Alfred Edward Dunn, Jr. appeals his conviction of second degree possession of stolen property for knowingly possessing a stolen access device. We affirm.
Lynn Shannon learned that someone had made unauthorized charges to her American Express card account, including a $250 charge from Comcast. Shannon's card had previously expired, and she had not received the replacement card American Express sent in the mail. Shannon contacted Comcast, and it informed her that Alfred Dunn had charged his bill to her American Express account. Dunn lived approximately two blocks away from Shannon. Shannon reported the alleged theft to the police.
Comcast is a telecommunications company that provides cable TV and internet service.
Deputy Allen Myron received Shannon's report. He testified that Dunn's address matched the address of a charity that he was investigating, Wheels of Hope. He obtained a court order to access Dunn's Comcast account information and verified that Shannon's card had been used to pay $250 on Dunn's account. Additionally, at trial, William Crews, a Comcast investigator, testified that Shannon's American Express card number had been used over the internet to pay Dunn's Comcast bill.
In September 2003, Dunn met with Deputy Myron at his office and ultimately confessed to using Shannon's card. The State charged Dunn with one count of second degree possession of stolen property for knowingly possessing a stolen access device.
A. First Trial
Prior to trial, the court held a CrR 3.5 hearing. Deputy Myron testified that Dunn had met him at his office to discuss the credit card fraud. Dunn denied any knowledge of the fraud; Deputy Myron then read Dunn his Miranda rights. Shortly thereafter, Dunn admitted using the card. Deputy Myron further testified that Dunn had stated, 'I didn't take it out of a mailbox.' Report of Proceedings (RP) (Jan. 20, 2004) at 16. Deputy Myron stated that Dunn's remark had been spontaneous and not in response to questioning. He then arrested Dunn.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Deputy Myron testified similarly on cross-examination but stated that he was unsure whether Dunn had commented on the mailbox before or after being handcuffed. On redirect, the prosecutor asked Deputy Myron whether Dunn had made any admissions '[p]rior to being Mirandized.' RP (Jan. 20, 2004) at 30. Deputy Myron responded, 'Again, from what I can recall, looking at my report here, the only statement that he made is that 'I didn't take it out of the mailbox." RP (Jan. 20, 2004) at 30.
The court concluded that Dunn had made the statement regarding the mailbox before his Miranda warnings and, consequently, the statement was inadmissible at trial. But, the court concluded that Dunn had made the bulk of his admissions after being read his rights, and those statements were admissible. The court did not enter written findings of fact and conclusions of law. The case proceeded to trial; the trial court declared a mistrial when the State presented evidence of Dunn's criminal history.
B. Second Trial
Prior to retrial, the trial court held a second CrR 3.5 hearing to determine the admissibility of Dunn's pretrial statements. At the hearing, Dunn argued that the CrR 3.5 issues that had been decided previously were binding in his second trial. The court rejected this claim, stating that because the preceding trial court's original ruling had not been reduced to writing and because there had been a mistrial, it was obligated to make a new CrR 3.5 ruling.
At the second CrR 3.5 hearing, Deputy Myron again testified that he had read Dunn his rights after Dunn denied any involvement in a credit card fraud. Deputy Myron testified that he then asked Dunn to answer his questions truthfully and Dunn spontaneously stated 'if I take it out of the mailbox, or out of a mailbox.' 1 RP (May 11, 2004) at 15. The court ruled that all of Dunn's pretrial statements, including the mailbox comment, had been made after his rights were read and were admissible.
Trial commenced on May 11, 2004. At trial, Deputy Myron testified that he began questioning Dunn about a credit card fraud and that Dunn stated that he 'did not steal [the card] from a mailbox.' 2 RP (May 12, 2004) at 60. At that point, Deputy Myron determined that he had probable cause to arrest Dunn because he had yet not mentioned that Shannon's American Express card had likely been stolen from her mailbox. Deputy Myron further testified that Dunn had told him 'a couple of different stories' regarding why he had Shannon's card. 2 RP at 60. Deputy Myron testified that Dunn had stated that he was 'walking his dog and found [the card] on the side of the road' and that Dunn stated that an individual who worked for his charity had 'pointed to some things in [sic] the ground and said, look, people keep dumping things here. There is a credit card.' 2 RP at 60-61.
Deputy Myron also testified that Dunn admitted that he had unsuccessfully attempted to use the card to make phone and light bill payments. Dunn initially denied having cable TV, but then confessed to Deputy Myron that he had used Shannon's card to pay his Comcast bill. Dunn told Deputy Myron that he had paid someone $20 to pay the bill online and then he had shredded the card. Deputy Myron testified that while Dunn was in a holding cell, he overheard Dunn tell his wife that he had been arrested for 'that credit card thing that you told me not to do.' 2 RP at 63.
Diane Wilkins testified that she was Dunn's payee and was responsible for paying Dunn's bills with his social security disability income. She stated that after paying Dunn's basic living expenses, there generally was not enough money left over to pay his cable TV bill. She further stated that Dunn had a computer and access to the internet.
Dunn's wife, Vicki Dunn, also testified. She stated that she had found Shannon's card and used it to pay their cable TV bill over the telephone. The jury found Dunn guilty as charged.
I. Collateral Estoppel
Dunn first contends that the doctrine of collateral estoppel barred the trial court from conducting a second CrR 3.5 hearing. He argues that the court's CrR 3.5 ruling in his first trial was a 'final judgment on the merits' on the admissibility of his pretrial statements and was binding during his second trial. Br. of Appellant at 14. In response, the State argues that the doctrine of collateral estoppel does not apply. The State is correct.
The doctrine of collateral estoppel bars relitigation between the same parties on an issue of ultimate fact that has been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). The doctrine applies to criminal and civil litigation. State v. Cleveland, 58 Wn. App. 634, 638-40, 794 P.2d 546, review denied, 115 Wn.2d 1029 (1990).
Collateral estoppel applies where: (1) the issues presented in both cases are identical; (2) there was a final judgment on the merits in the first action; (3) the party against whom the doctrine is asserted was a party to or in privity with a party to the prior action; and (4) application of the doctrine does not work an injustice against the party to whom it is applied. State v. Barnes, 85 Wn. App. 638, 650, 932 P.2d 669, review denied, 133 Wn.2d 1021 (1997). The burden of proof is on the party asserting collateral estoppel. Barnes, 85 Wn. App. at 650-51.
Dunn fails to establish the second prong of the test. A judgment is the 'final determination of the rights of the parties in the action and includes any decree and order from which an appeal lies.' CR 54(a)(1); see also State v. Harrison, 148 Wn.2d 550, 61 P.3d 1104 (2003). Here, Dunn's first trial resulted in a mistrial; thus, no final judgment and sentence was entered. Also, the first trial court did not enter findings of fact and conclusions of law; thus its oral decision had no binding or final effect. See State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324 (1966); Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963). Accordingly, the court did not err in conducting a new CrR 3.5 hearing.
II. Prosecutorial Misconduct
Dunn further asserts that the prosecutor committed prosecutorial misconduct by knowingly presenting false testimony by Deputy Myron during the second CrR 3.5 hearing. He argues that Deputy Myron 'changed' his testimony regarding whether the statements about the mailbox were made after he had read Dunn his rights and, consequently, the prosecutor had a duty to correct Deputy Myron's testimony. Br. of Appellant at 12.
In order to establish prosecutorial misconduct, Dunn must prove that the prosecutor's conduct was improper and prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only when "there is a substantial likelihood the instances of misconduct affected the jury's verdict." Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). Here, there is no evidence that Deputy Myron testified falsely. Deputy Myron testified consistently, on direct and cross-examination, at both CrR 3.5 hearings that he had given Miranda warnings to Dunn after Dunn had generally denied any knowledge of the credit card fraud and that Dunn had made the statement regarding the mailbox after his rights had been read. The only inconsistency in Deputy Myron's testimony came on redirect examination during the first CrR 3.5 hearing, when the prosecutor questioned, 'Prior to being Mirandized, did [Dunn] make any admissions at all, or was he still denying?' RP (Jan. 20, 2004) at 30. Deputy Myron responded, 'Again, from what I can recall, looking at my report here, the only statement that he made is that 'I didn't take it out of the mailbox." RP (Jan. 20, 2004) at 30.
While Deputy Myron's statement appears inconsistent with the remainder of his testimony, there is no evidence that Deputy Myron testified falsely during the second CrR 3.5 hearing. Deputy Myron testified that he needed to reread his report to recall portions of the interview. At best, the record establishes that Deputy Myron did not have a perfect recollection of his interview with Dunn. Deputy Myron could have misstated the sequence of events surrounding the mailbox statement or could have simply misunderstood the prosecutor's question on redirect. The prosecutor did not commit misconduct in presenting his testimony.
III. Ineffective Assistance of Counsel
In addition, Dunn contends that he received ineffective assistance of counsel. He argues that counsel was defective in failing to present the trial court with a transcript of his first CrR 3.5 proceeding, which would have established the previous court's ruling barring his statement regarding the mailbox.
In determining whether a defendant received constitutionally sufficient representation, we apply the two-part Strickland test. State v. Tilton, 149 Wn.2d 775, 783-84, 72 P.3d 735 (2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, Dunn must show that trial counsel's performance was deficient based on the entire record. Tilton, 149 Wn.2d at 784. In making this determination, we presume that the defendant received effective representation. Tilton, 149 Wn.2d at 784. Representation is not deficient if trial counsel's conduct can be characterized as legitimate trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Second, Dunn must demonstrate that the deficient performance unduly prejudiced the defense. Tilton, 149, Wn.2d at 784. This showing is made when there is a reasonable probability that, but for trial counsel's errors, the result of the trial would have differed. Hendrickson, 129 Wn.2d at 78. To establish ineffective assistance of counsel, Dunn must meet both prongs of the test. Hendrickson, 129 Wn.2d at 78.
Here, Dunn's counsel argued that the trial court's initial CrR 3.5 ruling was binding in his second trial and that the preceding court had found Dunn's statement regarding the mailbox inadmissible. Because there was no final judgment on the merits in Dunn's first trial, counsel was not defective in failing to present a transcript of the initial CrR 3.5 proceeding. Even if counsel had provided the trial court with the transcript, the court was not bound by the previous oral ruling under Ferree, 62 Wn.2d 567; and it chose to conduct a new hearing. The court stated, 'I think that the Court has to make its own decision, since I have no order binding the Court to what may have happened with Judge McCarthy's ruling.' 1 RP at 8-9.
Dunn also argues that counsel was deficient in failing to present a transcript of the first CrR 3.5 hearing in order to impeach Deputy Myron and demonstrate that he was 'perjuring [himself].' Br. of Appellant at 10. This argument fails on two grounds.
First, as noted, the evidence does not show that Deputy Myron testified falsely or committed perjury. Second, even if counsel had offered Deputy Myron's seemingly inconsistent testimony regarding the timing of the mailbox statement for impeachment purposes under ER 613(a), the court could consider the inconsistent statement only to evaluate Deputy Myron's credibility, not as substantive evidence. State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985). In light of Deputy Myron's otherwise consistent and unambiguous testimony at the second CrR 3.5 hearing that Dunn had made the statement regarding the mailbox after his rights had been read, Dunn fails to establish that the trial court would have found that Deputy Myron was not a credible witness and suppressed the mailbox statement. Thus, even if counsel was deficient in failing to impeach Deputy Myron, Dunn fails to demonstrate resulting prejudice.
IV. Sufficiency of the Evidence
Dunn also asserts that sufficient evidence does not support the jury's finding that he committed second degree possession of stolen property, in violation of RCW 9A.56.140 and .160. He maintains that the evidence failed to establish either that he had possessed the card with knowledge that it had been stolen or that he had possessed a card belonging to a William Shannon. We disagree.
Dunn argues that the evidence was insufficient to establish that Dunn possessed a credit card issued to a William Shannon because at trial, Lynn Shannon testified that unauthorized charges had been made to her American Express card. He points to the information, which charged Dunn with 'knowingly possess[ing] a stolen access device, to-wit: a credit card, No. [XXX], issued to William Shannon.' Clerk's Papers (CP) at 1. This claim is without merit. Dunn did not mention this issue below; and it is reasonable to infer, based on Shannon's testimony, that she was also authorized to use William Shannon's card.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Tilton, 149 Wn.2d at 786. 'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact regarding a witness's credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Under RCW 9A.56.160(1)(c), a person is guilty of possessing stolen property in the second degree if he or she possesses a stolen access device. 'Possessing stolen property' means 'knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner.' RCW 9A.56.140(1).
Under RCW 9A.56.010(1), the definition of access device includes any card, plate, code, or account number.
Dunn argues that his pretrial statements i.e., that he had found the credit card on the side of the road while walking his dog or that he had found the card on the ground while speaking with a friend did not establish that he knew Shannon's card was stolen when he found it. To the contrary, the fact that Dunn gave Deputy Myron conflicting stories as to how he had come into possession of the card supported an inference that he knew the card was stolen. Further, Dunn stated that he had shredded the card after using it. Additionally, Dunn stated that he 'did not steal [the card] from a mailbox' before Deputy Myron had discussed the details of the credit card fraud with him, and Deputy Myron overheard Dunn tell his wife that he had been arrested for 'that credit card thing that you told me not to do.' 2 RP at 60, 63. The State also presented evidence that Dunn lived near Shannon and that he had a motive to steal the card in order to pay his cable TV bill. Taken together, the evidence sufficiently supported a finding that Dunn knew that Shannon's card was stolen.
Furthermore, Dunn admitted that he had unsuccessfully attempted to use the card to make phone and light bill payments. Given that Dunn was charged with second degree possession of stolen property for knowingly possessing a stolen access device, this admission alone is enough evidence to sufficiently support the trial court's finding.
V. Community Placement Finding
Dunn argues that the trial court violated his Sixth Amendment right to a jury trial when it found without a jury that he was on community placement at the time he committed the crime. Because the finding increased his offender score by one point, he contends that it violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Dunn did not object to the inclusion of this additional point in his offender score. Nevertheless, a defendant may challenge an improper sentence for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). We review a trial court's calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
In Blakely, the Supreme Court stated, "Other 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 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). In Blakely, the Supreme Court held that allowing a judge to impose an exceptional sentence based on facts not found by a jury violated a defendant's Sixth Amendment right to trial by jury. Blakely, 542 U.S. 303-04. This is not an exceptional sentence; it is the imposition of supervision based upon a prior conviction.
In State v. Hunt, 128 Wn. App. 535, 116 P.3d 450 (2005), Division Three of this court held that the fact of community placement arises out of a prior conviction. We agree. Therefore, when a community placement finding is used to merely add one point to the defendant's offender score and thereby fix his standard range, it falls within the exception carved out in Blakely. Here, as in Hunt, the trial court sentenced Dunn within the standard range and a jury does not need to find the fact of community placement.
We note that Division One of this court reached a contrary holding in State v. Jones, 126 Wn. App. 136, 107 P.3d 755, review granted, 124 P.3d 659 (2005). We also note that another panel of this court reached a contrary holding in State v. Hochhalter, 131 Wn. App. 506, 128 P.3d 104 (2006). But we decline to follow Jones and Hochhalter. Finally, we note that our Supreme Court heard oral argument on Jones on February 7, 2006.
VI. SAG Issues
Finally, Dunn filed pro se a statement of additional grounds (SAG). Among other things, he first contends that the trial court denied him the right to hire counsel of his choice. SAG.
RAP 10.10(a).
The Sixth Amendment to the United States Constitution provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.' U.S. Const. amend. VI. Among the components of the constitutional right to counsel is "the right to a reasonable opportunity to select and be represented by chosen counsel." State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)), review denied, 126 Wn.2d 1016 (1995). But the essential aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, not to ensure that a defendant will inexorably be represented by his or her counsel of choice. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). The right to retained counsel of choice is a not a right of the same force as other aspects of the right to counsel; a criminal defendant does not have an absolute Sixth Amendment right to choose any particular advocate. Roth, 75 Wn. App. at 824. In particular, a defendant may not insist on representation by an attorney he cannot afford. State v. Roberts, 142 Wn.2d 471, 516, 14 P.3d 713 (2000).
We grant broad discretion to trial courts on motions for continuances sought to preserve the right to counsel; only an "unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay'" violates the defendant's right. Roth, 75 Wn. App. at 824 (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)). In general, trial courts must balance the defendant's right to counsel of his or her choice against the public's interest in prompt and efficient administration of justice. Roth, 75 Wn. App. at 824.
Here, Dunn wrote a letter to the court one month before trial on April 10, 2004, requesting a 90-day continuance to discharge his public defender and hire an attorney. He stated, 'I have two lawyers that [sic] would take my case.' CP at 13. On the day of trial, Dunn argued that he '[didn't] feel comfortable' with his counsel and that counsel had informed him that he would be convicted, had arrived late to a meeting, and had 'lost some evidence.' 1 RP at 6. The court denied Dunn's request for a continuance, finding that Dunn received public assistance and had qualified for a public defender and that he had not made any effort to hire an attorney since his release from custody.
The trial court did not abuse its discretion. Dunn failed to show that he could afford to hire a new attorney and, although he had written a letter expressing his desire to hire an attorney one month before trial, he did not have other competent counsel prepared at the time of trial. See Roberts, 142 Wn.2d at 516. Dunn also failed to articulate a legitimate reason to hire a new attorney. Disputes over trial strategy or a general dissatisfaction with counsel's performance are generally not sufficient reasons to appoint new counsel. See State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004); State v. Cameron, 47 Wn. App. 878, 882-83, 737 P.2d 688 (1987). Furthermore, Dunn fails to show how, if at all, the court's ruling prejudiced his case.
Additionally, Dunn asserts that he was denied the right to 'pick [a] jury' because his counsel refused to remove a juror who had '[made] faces' at him and had 'given [him] the middle finger.' SAG. He further argues that the juror had '[made] the final word for guilty.' SAG. But this claim is based on evidence outside the record and is not reviewable by this court. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); In Re Pers. Restraint of Waggy, 111 Wn. App. 511, 518, 45 P.3d 1103 (2002) (appellate courts will not consider evidence outside the trial record on direct appeal). Rather, if Dunn wishes to raise post-conviction issues that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition or through post-conviction attack, CrR 7.8.
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.
ARMSTRONG, J. and QUINN-BRINTNALL, C.J., concur.
I concur without reservation in that portion of the majority opinion addressing issues related to Alfred Dunn's conviction for second degree possession of stolen property.
I write separately because I believe Dunn's challenge to his sentence is moot. The trial court calculated Dunn's offender score as a nine, including one point for committing the offense while being on community placement. Dunn's standard sentence range was 22 to 29 months. On July 2, 2004, the trial court sentenced Dunn to 22 months with credit for 59 days served. The court's warrant of commitment required that Dunn report to commence serving his sentence at 12 p.m. on July 7, 2004, or, if he posted $25,000 bail, he could report on July 28, 2004, at 9 a.m. The document does not require that he serve community placement or community custody on his release from confinement. Thus, even without good time, Dunn will necessarily have completed serving his sentence on this offense no later than March 28, 2006, and we can provide him no effective relief. Dunn's challenge to the trial court's calculation of his offender score is moot and I would not address it further. In re the Matter of Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983) (a case is moot when this court can no longer grant the appellant effective relief).
Our opinion is not final until the time for filing a motion for reconsideration, 20 days, has passed. RAP 12.4(b). And that date is later than March 28, 2006.
In addition, the record presented for our review is not sufficient to allow us to address Dunn's claim that the trial court miscalculated his offender score by including one point for being on community placement at the time of the offense. I note that the record does not contain a judgment and sentence for Dunn's 1999 forgery conviction. The judgment and sentence in the possessing stolen property charge at issue in this appeal reflects that Dunn committed the forgery on March 20, 1999, and that he was sentenced on April 21, 1999. But it does not reflect the terms and conditions of the forgery sentence. Nor does the record before us contain a separate, and often stipulated, statement of appellant's criminal history to assist our review.
In my opinion, we should refrain from addressing the propriety of the trial court's inclusion of a community placement point in Dunn's offender score on this record at this time.
I concur with the majority in affirming Dunn's conviction for second degree possession of stolen property. But I reserve ruling on Dunn's challenge to his sentence which appears to be moot and is not capable of review on this record.