Opinion
No. 23888-1-III.
June 29, 2006.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 04-1-01815-4, Salvatore F. Cozza, J., entered February 25, 2005.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 608, Cathlamet, WA 98612-0608.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Brown and Kato, JJ.
Jerome Grimes was convicted of trafficking in stolen property and possession of methamphetamine. Claiming his speedy trial rights were violated, the prosecutor and defense counsel both mischaracterized the knowledge element, and his speedy sentencing rights were violated, Mr. Grimes appeals. He also filed additional grounds for review claiming the court erred in admitting inadmissible hearsay. We affirm.
In September 2003, Kevin Shines reported a burglary to law enforcement officers. Several tools had been stolen from a home he had been working on. Mr. Shines told law enforcement that the day before the burglary he had seen a woman at the home.
Detective James Speaks investigated the case and contacted Samantha Murphy. After interviewing her, he arrested her for burglary. Mr. Shines identified Ms. Murphy as the woman he saw at the home.
A sheriff's deputy received a pawn slip which listed the stolen property. The pawn slip indicated Mr. Grimes had pawned the stolen property. Mr. Grimes was arrested. At the time of his arrest, Mr. Grimes had been working on a car. Law enforcement officers looked in the car, and saw a black shaving case that was open, a spoon with a white powdery substance, and some needles.
The State charged Mr. Grimes with trafficking in stolen property and possession of methamphetamine. At trial Ms. Murphy testified that she was booked in jail and called Mr. Grimes to bail her out by paying $60. She said she asked him to pawn some items that were in her car. She did not specifically tell Mr. Grimes the tools were stolen, but she assumed he knew. Detective Speaks testified that Ms. Murphy had previously told him Mr. Grimes knew the tools were stolen.
Mr. Grimes testified that he did pawn the tools but he did not know they were stolen. He also testified he did not know anything about the drugs found in the car.
The jury convicted him on both charges. This appeal follows.
Mr. Grimes first claims his right to a speedy trial was violated. On July 22, 2004 Mr. Grimes was arraigned and trial was set for August 30. On August 27, the court continued the trial to September 13 for negotiations. On September 10, the court entered another continuance to September 27 because defense counsel was out of town and there was a judicial conference. The court noted there was no prejudice to Mr. Grimes and the continuance was necessary for the administration of justice.
On September 24, the court entered another continuance setting trial for October 25. This continuance was so that Mr. Grimes could file motions and because defense counsel was not ready for trial. Again, the continuance did not prejudice Mr. Grimes and was necessary for the administration of justice. This case went to trial on November 8.
'The trial court is responsible for assuring a speedy trial under CrR 3.3.' State v. Ralph G., 90 Wn. App. 16, 20, 950 P.2d 971 (1998) (citing State v. Carson, 128 Wn.2d 805, 912 P.2d 1016 (1996)). Because Mr. Grimes was incarcerated, he must be brought to trial within 60 days of the commencement date unless time is excluded or extended by law. CrR 3.3(b)(1)(i). The commencement date is the date of arraignment. CrR 3.3(c)(1).
Mr. Grimes was arraigned on July 22, 2004. Trial was originally scheduled for August 30. His case was continued three times. The last continuance set trial for October 25.
Motions to continue trial by the court or a party should be granted when 'required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense.' CrR 3.3(f)(2). The three continuances indicated the court was granting them in the administration of justice and Mr. Grimes was not prejudiced. Generally, qualifying continuances are excluded when computing the time for trial. CrR 3.3(e)(3); CrR 3.3(f). If any time period is excluded pursuant to a continuance, the 'allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.' CrR 3.3(b)(5).
The three continuances were excluded from the speedy trial computation under CrR 3.3(f)(2), which brought the timely trial date to October 25. Trial began on November 8, well within the 30-day period provided for under CrR 3.3(b)(5). Thus, Mr. Grimes was brought to trial within the speedy trial time prescribed by the rule.
Mr. Grimes, however, contends the court erred in granting the continuances, and thus these time periods should not be excluded from the timely trial computation. A court's decision to grant a continuance is reviewed for an abuse of discretion. State v. Williams, 104 Wn. App. 516, 520-21, 17 P.3d 648 (2001). An abuse of discretion occurs when the court relies on untenable grounds or reasons. State v. Teems, 89 Wn. App. 385, 388, 948 P.2d 1336 (1997).
The first continuance was because the parties were negotiating. Mr. Grimes does not present any argument why this was an abuse of discretion. The second continuance was because defense counsel was out of state, and then there was a judicial conference. A scheduled vacation is a valid basis for granting a continuance. State v. Torres, 111 Wn. App. 323, 331, 44 P.3d 903 (2002). The court further found Mr. Grimes would not be prejudiced by this continuance. There was no abuse of discretion. The last continuance was because defense counsel needed more time to prepare. The court did not abuse its discretion in granting this continuance. See State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995).
Mr. Grimes argues the continuances are invalid because he did not sign them. Although timely trial waivers and written agreements to continue the case must be signed by a defendant (see CrR 3.3(c)(2)(i); CrR 3.3(f)(1)), an order granting a motion to continue a case made by the court or a party does not carry this requirement. See CrR 3.3(f)(2).
The court did not abuse its discretion in granting the State's continuance requests. The court correctly excluded the time periods from the timely trial computation under CrR 3.3(e)(3). Mr. Grimes was tried within the 30-day period allowed after the excluded periods under CrR 3.3(b)(5).
Mr. Grimes also claims it was error for the court to grant a continuance requested by defense counsel over the objection of the defendant. However, a trial court may grant a continuance at defense counsel's request, even over the express objections of a defendant. Luvene, 127 Wn.2d at 699.
Finally, Mr. Grimes claims the delay violated his constitutional right to a speedy trial. But the constitutional right to a speedy trial cannot be quantified into a specific number of days or months. Carson, 128 Wn.2d at 821. Rather, defendants must be brought to trial within a reasonable time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997).
Whether a criminal defendant's constitutional right to a speedy trial has been violated is reviewed using the following four major factors, together with other relevant circumstances: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted the right, and (4) prejudice to the defendant. State v. Whelchel, 97 Wn. App. 813, 824, 988 P.2d 20 (1999) (quoting State v. Fladebo, 113 Wn.2d 388, 393, 799 P.2d 707 (1989)).
Mr. Grimes has not shown that the State failed to prosecute the case with customary promptness. State v. Corrado, 94 Wn. App. 228, 233, 972 P.2d 515 (1999) (citing Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). Mr. Grimes was brought to trial within four months from his arraignment. The reasons for the delay, unavailability of counsel and the need to prepare for trial, were unavoidable. Although, on his own motion, Mr. Grimes objected, he did not show prejudice. Accordingly, his constitutional right to a speedy trial was not violated.
Next, Mr. Grimes claims the prosecutor committed misconduct. To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). A prosecutor's remarks 'must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Mr. Grimes contends the prosecutor misstated the law by arguing the following during his closing.
Knowledge is defined in the court's instructions to you. Among other things, it is a reasonable person standard. Would you, as reasonable people, know, if you were in Mr. Grimes' shoes, that the property was stolen when he went to pawn it? Well, yes, you would. How would you know that? Because Ms. Murphy told him that the tools had been stolen.
Report of Proceedings (Nov. 8, 2005) at 145-46. The prosecutor went on to argue that even if the jury did not believe the testimony that Ms. Murphy had told Mr. Grimes the tools were stolen, there was evidence from which it could infer his knowledge that the tools were stolen.
A charge of trafficking in stolen property requires the State to prove the defendant transferred the property knowing it was stolen. RCW 9A.82.050.010(19). A person knows of a fact by being aware of it or having information that would lead a reasonable person to conclude that the fact exists. RCW 9A.08.010(1)(b). The jury may infer, but not presume, knowledge. State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097 (1999). The prosecutor's argument followed the law on trafficking in stolen property. The prosecutor's argument does not suggest the State was trying to change the reasonable doubt standard to a reasonable person standard. The State was only arguing that a reasonable person would have known the property was stolen. Consequently, the jury could find Mr. Grimes guilty beyond a reasonable doubt. The prosecutor did not misstate the law, thus there was no misconduct.
Mr. Grimes also contends he was denied effective assistance of counsel because defense counsel did not object to the prosecutor's argument. To establish ineffective assistance, he must show his attorney's performance was deficient and he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The first element is met by showing counsel's performance was not reasonably effective under prevailing professional norms. Hendrickson, 129 Wn.2d at 77. The second test is met by showing a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Mr. Grimes cannot establish either prong. As indicated above, the legal standard for knowledge argued by both the State and the defense was the correct legal standard. Therefore there was no basis to object to the State's argument. It was also not deficient for defense counsel to argue the proper legal standard. Furthermore, because the law argued to the jury was correct, Mr. Grimes cannot show any prejudice. He cannot establish ineffective assistance of counsel.
Mr. Grimes also claims the mutual error with respect to the legal standard would constitute cumulative error requiring reversal. But because there was no error, this argument lacks merit.
Mr. Grimes next claims his right to a speedy sentencing was violated. The jury found Mr. Grimes guilty on November 9, 2004. There are two grounds upon which a person may make a claim of a speedy sentencing violation. A party may claim a violation of the statutory right to speedy sentencing under RCW 9.94A.500 and CrR 7.1(a). In the alternative, a party may also claim that constitutional rights to a speedy sentencing have been violated.
Mr. Grimes concedes that there is no statutory violation.
Case law indicates the right to speedy sentencing is encompassed within the right to a speedy trial as guaranteed by the sixth amendment to the United States Constitution and article I, section 22 of the Washington State Constitution. See, e.g., State v. Ellis, 76 Wn. App. 391, 394, 884 P.2d 1360 (1994). In determining whether there has been a violation of the constitutional right to speedy sentencing, courts look to whether the delay was 'purposeful or oppressive.' Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957). This determination is based on the balancing of four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) the extent of prejudice to the defendant. State v. Modest, 106 Wn. App. 660, 663, 24 P.3d 1116 (2001) (citing State v. Rupe, 108 Wn.2d 734, 742, 743 P.2d 210 (1987)).
Mr. Grimes was sentenced on February 25, 2005, three months after he was convicted. His December 10, 2004, sentencing was moved to February 2005 with his consent. However, his claim is based on the fact that the court refused to sentence him before his other charges went to trial. Thus, he is claiming he faced five more years on the convictions in this case because he was not sentenced prior to the trial concluding in the other cases. Our analysis is limited to whether he had a constitutional right to be sentenced before these cases went to trial.
Mr. Grimes was convicted in this case on November 9, 2004. He asked to be sentenced before he went to trial on the other cases. The court indicated it was not available until December 10 for sentencing. The court noted the State was going to need some time to compile Mr. Grimes' criminal history and secure certified copies of out of state convictions. The reason for the delay was reasonable.
Mr. Grimes did attempt to assert his right and requested a sentencing hearing immediately. But his request was not feasible.
Furthermore, Mr. Grimes suffered minimal prejudice. He went to trial on November 9, November 15, and November 17 on the other cases. The last of these trials was one week after his conviction in this case. The court would not have been able to conduct a sentencing hearing prior to those trials being completed.
Under RCW 9.94A.525(1) any conviction not yet sentenced counts in the offender score. He cannot show he suffered any prejudice from the delay in sentencing.
In his additional grounds for review, Mr. Grimes claims the court erred by admitting hearsay. During trial, Ms. Murphy testified that she did not remember telling Detective Speaks that she had told Mr. Grimes the tools were stolen. The State was then permitted to recall the detective who testified, without objection, that Ms. Murphy did tell him she had told Mr. Grimes the tools were stolen. Because he did not object, we need not review this issue. RAP 2.5.
However, a prior inconsistent statement of a witness is admissible either under ER 607, ER 613, or ER 801(d)(1). When such a statement is used, "the witness should first be given an opportunity either to demonstrate his bias or to deny having uttered the prior inconsistent statement." State v. Spencer, 111 Wn. App. 401, 410, 45 P.3d 209 (2002) (quoting State v. Wilder, 4 Wn. App. 850, 855, 486 P.2d 319 (1971)). Ms. Murphy was given the opportunity to testify about this statement, and she did. She testified she did not remember making the statement. The statement was thus admissible to impeach her.
Mr. Grimes also claims counsel was ineffective for failing to object to this testimony. But because it was admissible, he cannot show prejudice. Mr. Grimes next contends the court was required to give a limiting instruction with respect to Ms. Murphy's prior inconsistent statement. Ms. Murphy's out of court statement was not admissible as substantive evidence, but for the limited purpose of impeachment only. When evidence is admissible for one purpose but not another, the court must give a limiting instruction on request by either party. ER 105; State v. Gallagher, 112 Wn. App. 601, 611, 51 P.3d 100 (2002). Here, neither party requested the instruction. A party's failure to request a limiting instruction constitutes a waiver of that party's right to such an instruction and fails to preserve the claimed error for appeal. State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999). Thus, Mr. Grimes waived his right to complain about this omission on appeal.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KATO, J., concur.