Opinion
No. 36745-9-II.
November 12, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00212-4, Nelson E. Hunt, J., entered September 12, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION.
Daniel Duane Eastman appeals his conviction of second degree assault, arguing that the trial court's failure to give the jury a unanimity instruction deprived him of his right to a unanimous verdict and that the trial court's exclusion of several potential defense witnesses deprived him of his right to due process. In a pro se statement of additional grounds (SAG), Eastman also asserts that he received ineffective assistance of counsel and that the judge and prosecuting attorney were biased. Finding no error, we affirm.
RAP 10.10.
Facts
Joe Eastman was working in his shop with his stepson Daryl Doll and his friend Donald Clevenger when Daniel Eastman (Eastman) walked in and asked him to help move a "skidder," or logging vehicle. When Doll asked how they planned to move it, Eastman said he was going to use Doll's chainsaw winch, which Eastman had made operational. Doll became angry and told Eastman he did not have permission to use the winch. Doll and Eastman are cousins and grew up living next to each other.
After Doll told Eastman to stop glaring at him, Eastman left the shop, telling Doll to come outside. Doll ran after Eastman but could not catch him so he returned to the shop. When Doll heard Eastman's Bronco start up, however, he went outside and over to the vehicle, still asking about the chainsaw winch. Eastman drove the Bronco toward Doll and knocked him to the ground, causing a number of abrasions to his arm, torso, and legs. After hitting Doll, Eastman stopped the Bronco and got out with a piece of rebar in his hand. When Joe Eastman came out of the shop and told Eastman it was over, Eastman dropped the rebar and drove away. Doll called the sheriff's office.
After Eastman drove down the road a few miles, he called his sister, who lived nearby. She told him the deputies were already at the shop. Eastman then drove back to the property, and the deputies arrested him.
The State charged Eastman with one count of second degree assault, alleging that he assaulted another with a deadly weapon, "to-wit: Daryl Doll with a Ford Bronco." Clerk's Papers (CP) at 39. After the defense advised the court that there was no need for a CrR 3.5 hearing, the State began its opening argument by stating that "[o]n March 24th, 2007, Mr. Eastman hit his cousin, Daryl Doll, with a Ford Bronco in Chehalis." 1 Report of Proceedings (RP) at 1, 7-8. Doll testified that he and his cousin have had their disagreements over the years, and he described an incident several years earlier when the two wrestled and Eastman said he could not breathe. He added that when Eastman emerged from the Bronco, holding the piece of rebar, he told Doll he was going to kill him. Joe Eastman confirmed that there was a history of friction and fighting between Doll and Eastman.
Deputy Sheriff Jeremy Almond testified that after his arrest, Eastman said, "I should have killed him." 1 RP at 59. Deputy Daniel Riordan introduced several photographs of the injuries Doll sustained when the Bronco hit him.
When Eastman took the stand and his attorney asked what had happened between him and Doll, Eastman replied, "I ran over him with my Bronco." 1 RP at 73. Eastman claimed the collision was an accident and that he had intended to put the Bronco into reverse instead of drive. He also said that he told the deputy that he would be in less trouble if Doll had gotten killed. Eastman testified that he and Doll had a history of fighting.
The defense sought to introduce the testimony of four additional witnesses. Because the parties agreed that there were issues of relevancy and admissibility, Eastman's attorney made an offer of proof. Eastman's sister would testify that she received a call from her brother directly after the incident. Eastman's mother would testify about the history of physical struggle between Doll and her son, including the 13-year-old episode when Doll almost suffocated Eastman. Two former coworkers of Doll would testify that although they did not know Doll's reputation for violence, each could describe the same incident in which Doll lost his temper and raised a weapon.
The trial court refused to allow any of these witnesses to testify, ruling that the sister's testimony was cumulative, the mother's testimony was cumulative and too remote, and the coworkers' testimony was irrelevant to Eastman's defense that the incident was an accident.
On rebuttal, Deputy Almond testified that he clearly heard Eastman say that he should have killed Doll.
The State began its closing argument by talking about the incident with the Bronco. The State then addressed the undisputed elements of the crime, noting that "[t]he fact this happened with a deadly weapon does not appear to be in dispute, either. The definition of deadly weapon includes a vehicle which when it is used is readily capable of causing death or substantial bodily injury. And we know when you get hit by a car that's the case." 2 RP at 4. The State argued that the only issue was whether Eastman intentionally hit Doll with the Bronco. The defense agreed with that assessment:
But you're bound to finally decide whether an intentional assault occurred. Should you believe [Doll's] version, it is an intentional assault, or whether it was a horrible accident, if you believe [Eastman's] version, that's what it was. Shifted into drive, I thought I was in reverse when I hit the gas pedal, that it was going back, so here we are. You have to as a group decide how are we going to weigh this. Who do we believe.
2 RP at 6. The State ended its rebuttal argument with this statement: "I am going to ask that you find him guilty of Assault in Second Degree because this is a situation that got out of hand and Mr. Eastman took it one large step too far by hitting his cousin with his truck, thank you." 2 RP at 13.
After the jury found Eastman guilty as charged, the trial court imposed a standard range sentence. Eastman appeals his conviction.
Analysis I. Jury Unanimity
Eastman argues initially that the trial court's failure to give the jury a unanimity instruction denied him his constitutional right to a unanimous verdict.
A fundamental protection accorded to a criminal defendant is that a jury of his peers must unanimously agree on guilt. State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007); U.S. Const. amend. VI; Washington Const. art. I, § 21. When the prosecutor presents evidence of several acts which could form the basis of one count, the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specified criminal act. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). In multiple act cases, when the State fails to elect which incident it relies on for the conviction or the trial court fails to instruct the jury that it must agree that the same underlying act has been proved beyond a reasonable doubt, the error is harmless only if no rational trier of fact could have entertained a reasonable doubt that each incident established the crime beyond a reasonable doubt. Crane, 116 Wn.2d at 325. Such error is of constitutional magnitude and may be raised for the first time on appeal. Crane, 116 Wn.2d at 325.
Eastman argues that two separate acts could have supported his second degree assault conviction. While acknowledging that the charging document stated that he committed the assault with the Bronco, he argues that the instructions defining a deadly weapon and assault, as well as the "to convict" instruction, could have led the jury to conclude that the crime charged occurred either when he ran into Doll with the Bronco or when he threatened him with the piece of rebar. He asserts that the court's failure to give the jury a unanimity instruction requiring it to base his conviction on one act or the other deprived him of his right to a unanimous verdict.
The court defined a deadly weapon as "any weapon, device, instrument, substance, or article including a vehicle, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm." CP at 23. The instruction defining assault provided as follows:
An assault is an intentional touching, or striking of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking is offensive, if the touching or striking would offend an ordinary person who is not unduly sensitive.
An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
CP at 20.
It is true that the court's instructions included weapons other than a vehicle within the definition of a deadly weapon and defined assault as both an intentional striking and a threat of injury. And the "to convict" instruction stated only that the jury had to find that Eastman assaulted Doll with a deadly weapon; it did not specify that the jury had to find that the deadly weapon was the vehicle. But Eastman highlights these instructions at the expense of other parts of the record showing that the State did elect which act would form the basis of the assault charge. In the amended information and its opening and closing arguments, the State made it apparent that the assault with the Bronco was the act at issue. Furthermore, the defense accepted that election. Eastman stated that in his own testimony that the action at issue was the incident with the Bronco, and his attorney reaffirmed that statement during his own closing argument.
In a multiple acts case, a unanimity instruction must be given when the State does not elect the criminal act. State v. Gitchel, 41 Wn. App. 820, 822, 706 P.2d 1091 (1985). We find that the State made its choice of the criminal act clear: Eastman's prosecution was based on his action in assaulting Doll with his vehicle. Moreover, we view this as less a multiple acts case than one involving a continuing course of conduct. The entire exchange between Eastman and Doll took approximately five minutes. As the State observed during closing, Eastman ran into Doll with his vehicle and then got out with the rebar to finish the job. Thus, even without the State's election, there was no need for a unanimity instruction. See State v. Craven, 69 Wn. App. 581, 587-88, 849 P.2d 681 (1993) (when evidence indicates a continuing course of conduct, no unanimity instruction is needed). The trial court did not err in failing to give the jury a unanimity instruction.
II. Defense Witnesses
Eastman argues next that the trial court denied him due process when it refused to allow several potential witnesses to testify in his defense.
The right to present witnesses in one's defense is a fundamental element of due process of law. State v. Ellis, 136 Wn.2d 498, 527, 963 P.2d 843 (1998). Washington defines the right to present witnesses as a right to present material and relevant testimony. State v. Roberts, 80 Wn. App. 342, 350-51, 908 P.2d 892 (1996). The defense bears the burden of proving materiality, relevance, and admissibility. Roberts, 80 Wn. App. at 351. The admissibility of evidence is within the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of that discretion. Ellis, 136 Wn.2d at 504. An abuse of discretion occurs only when no reasonable person would take the trial court's view. Ellis, 136 Wn.2d at 504.
Eastman asserts on appeal that the four excluded witnesses had personal knowledge of the history of violence between him and Doll and his resulting fear of Doll, but the record does not entirely support this assertion. In its offer of proof, the defense contended that it wanted Eastman's sister to testify so that she could describe the phone call she received from her brother directly after the incident. The defense admitted that this testimony was already in the record. The trial court ruled that this evidence had come in during Eastman's own testimony and would be cumulative. The defense also wanted Eastman's mother to testify about the history of conflict between her son and Doll and about the 13-year-old incident when Doll almost suffocated Eastman. The court ruled that this testimony would again be cumulative and that evidence of the specific incident would be too remote. Finally, the defense wanted to introduce two of Doll's former coworkers who would testify about one incident when he lost his temper. The court found this specific conduct inadmissible because Eastman was not alleging that he acted in self defense.
We see no abuse of discretion. The proposed testimony of Eastman's sister and mother was clearly cumulative and thus properly excluded under ER 403. See State v. Dixon, 159 Wn.2d 65, 76, 147 P.3d 991 (2006) (court may exclude needless presentation of cumulative evidence under ER 403). The testimony from Doll's coworkers was not admissible because they did not know his reputation for violence and because his character was not relevant to Eastman's defense. See ER 405; State v. Hutchison, 135 Wn.2d 863, 886-87, 959 P.2d 1061 (1998); State v. Alexander, 52 Wn. App. 897, 901, 765 P.2d 321 (1988). Moreover, there was no evidence that Eastman knew of the violent episode the coworkers would describe, and thus no evidence showing that this testimony was relevant to his alleged fear of Doll. See ER 401, 402. The trial court did not abuse its discretion in refusing to allow Eastman's proposed witnesses to testify.
III. SAG Issues
Eastman first contends in his pro se statement that he received ineffective assistance of counsel when his attorney did not argue against the admissibility of his post-arrest statement during a CrR 3.5 hearing.
To prove ineffective assistance of counsel, a defendant must show both deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). We give great deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
CrR 3.5 is a mandatory rule. Before introducing evidence of a statement of the defendant, the trial court must hold a hearing to determine if the statement was freely given. State v. Renfro, 28 Wn. App. 248, 253, 622 P.2d 1295 (1981). The failure to hold a CrR 3.5 hearing, however, does not render a statement inadmissible when the record discloses that there is no issue concerning its voluntariness. State v. Kidd, 36 Wn. App. 503, 509, 674 P.2d 674 (1983).
Nothing in the record shows that Eastman made his statement to Deputy Almond under duress, coercion, or inducement of any kind. Nor does the record show any interrogation on the deputy's part. Although Eastman apparently was advised of his constitutional rights after he made his statement, voluntary statements of an accused made before interrogation are not rendered inadmissible by the absence of a previous advisement of constitutional rights. Kidd, 36 Wn. App. at 509 (citing State v. Eldred, 76 Wn.2d 443, 448, 457 P.2d 540 (1969)).
Consequently, defense counsel did not render deficient performance when he informed the trial court that a CrR 3.5 hearing was not necessary because Eastman's statements were admissible, and Eastman did not receive ineffective assistance of counsel.
Eastman also argues in his pro se statement that he was prejudiced because the trial judge and the prosecuting attorney participated in his 2005 conviction for third degree assault. Eastman adds that the prosecuting attorney does not like him.
We find no evidence of judicial bias in this record. Bias or prejudice on the judge's part is never presumed and must be affirmatively shown by the party asserting it. Rich v. Starczewski, 29 Wn. App. 244, 246, 628 P.2d 831 (1981). Casual and unspecific allegations of judicial bias provide no basis for appellate review, even when a pro se litigant makes the allegations. Rich, 29 Wn. App. at 246. Nor does Eastman's claim that the prosecuting attorney did not like him establish bias or prejudice. We decline to examine this issue further.
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.
HOUGHTON, P.J. and HUNT, J., Concur.