Opinion
No. 48726-4-I, 48726-4-I
Filed: November 25, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County, No. 001011631, Hon. Kenneth Cowsert, June 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Jennifer K. Gilman, 1000 2nd Ave Ste 3500, Seattle, WA 98104.
David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Rebecca J. Quirk, Deputy Prosecuting Atty, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201.
Curtis Hansford shot Jeff Cannell after a heated argument. Hansford then fled the state and was eventually arrested in California. He was charged with attempted murder in the first degree and unlawful possession of a firearm in the second degree. Prior to trial the court denied Hansford's motion for substitution of counsel. He was subsequently found guilty of attempted murder in the second degree and unlawful possession of a firearm in the second degree. On appeal he argues that the trial court abused its discretion by not adequately inquiring into his dissatisfaction with appointed counsel, and that the error was not harmless because defense counsel rendered ineffective assistance of counsel.
Because ineffective assistance of counsel has not been shown, we affirm.
I
Jeff Cannell went to the home of a friend. Moments after Cannell arrived at the home, Hansford arrived with his friend Shawn McIntosh. Hansford was angry at Cannell for calling him a "snitch" and began arguing with Cannell. During the argument Cannell grabbed a baseball bat and hit Hansford.
Hansford and McIntosh left the scene but returned a few minutes later. While McIntosh waited in the car, Hansford approached Cannell and stated, "So I'm a snitch, huh, Jeff?" Cannell testified that Hansford then shot at him four or five times and fled. Other witnesses testified that they heard the shots but did not see the shooting.
Cannell was airlifted to Harborview Hospital and released the next day. At the hospital he refused to name the gunman. However, Cannell eventually provided a statement implicating Hansford.
Hansford fled to California and visited his sister, Constantine Price. Prior to his arrival, Hansford's father mailed Price newspaper articles that stated Hansford was responsible for the shooting, and described him as armed and dangerous. Hansford was arrested in California.
After several continuances, trial was set for March 12, 2001. On March 9, Hansford moved for substitution of counsel. He identified several items of discovery that he had unsuccessfully requested his attorney to obtain or share with him. His motion was denied. Hansford was found guilty and sentenced.
II.
We first consider whether the trial court abused its discretion in denying Hansford's motion for substitution of counsel. In criminal cases involving the substitution of court-appointed counsel, a court must inquire into the reasons for a defendant's request for a new attorney. Whether to grant a request for new counsel is within the court's discretion, but only after a "penetrating and comprehensive" examination of the reasons behind the defendant's dissatisfaction with current counsel. If the court is contemplating denying the request, it must adequately apprise itself of the reasons behind the requested substitution before it can make a reasoned decision. Factors to be considered in a decision to grant or deny a motion to substitute counsel are (1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings. At the readiness hearing conducted on the Friday before Monday trial, Hansford brought to the court's attention several problems he had with defense counsel. Hansford stated that despite requests of his counsel, he had not been able to review the crime scene photos and their negatives, recordings of his sister's interviews with police, McIntosh's interview, x-rays from the hospital, radio transmissions, and evidence regarding the bullet sizes. He also told the court that he had asked defense counsel to interview other witnesses who were at the scene. Hansford concluded by saying:
State v. Brittain, 38 Wn. App. 740, 742-43, 689 P.2d 1095 (1984).
State v. Dougherty, 33 Wn. App. 466, 471, 655 P.2d 1187 (1982).
State v. Lopez, 79 Wn. App. 755, 766-67, 904 P.2d 1179 (1995) (citing U.S. v. Morrison, 946 F.2d 484, 498-99 (7th Cir. 1991)).
State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987).
I also asked [defense counsel] to obtain the Everett Herald and a multiple of I've appeared in every paper, and we cannot come to we have irreconcilable differences.
I've already contacted other counsel. This is not a ploy or a plot. It's in the interest of justice and judicial economy. I want to get another lawyer, and I'm in no way ready to go to trial. I feel my United States federally-protected rights will be in violation if I go to trial now.
The court then asked defense counsel if he had any reason that he was not ready to go to trial, to which defense counsel responded, "No, other than what Mr. Hansford's desires are." The court then denied his motion. On the morning of trial, the trial judge addressed the issue again:
Court: On Friday, [defense counsel] indicated that, Mr. Hansford, you may be desiring to ask me to remove [defense counsel] from your case. Is that your position?
Hansford: It was, yes.
Court: It was; is it now?
Hansford: Well, I'd have to think about that. I didn't come in here prepared for that thought.
Court: This morning is your trial; so now is the time.
Hansford: I understand that there's a few issues that I am not in agreement with. For one, I don't want anybody this close behind me. For two, I don't I object to any photographs being blown up or left out, omitted, that the Defendant hasn't even had a chance to see. I feel I have a right to see all the State's evidence at sometime or another before trial so that I can discuss it with my attorney. There are two more subpoenas that need to be submitted or sent to two other individuals. I need to think about it.
Court: I guess what I'm trying to tell you, Mr. Hansford, is, now is the time for you to tell me if you want me to relieve [defense counsel] of any further involvement in the case.
Hansford: Would that render me, like, pro se? I am not trying to go pro se.
Court: Good move.
Hansford: That is not even all right.
It is far from clear that the colloquy on the morning of trial included a motion to have substitute counsel appointed. Assuming arguendo that the motion was renewed at that time, we would have concluded that the trial court's inquiry into the reasons for Hansford's dissatisfaction was not `penetrating and comprehensive.' The court summarily denied Hansford's request without informing itself of the facts on which to exercise its discretion. Further, it completely failed to address the other two factors to consider when a motion for substitution is made, the court's own evaluation of counsel, or the effect of any substitution upon the scheduled proceedings.
Regarding the colloquy that occurred on the preceding Friday, the State asserted in oral argument that a much more penetrating colloquy was engaged in with the defendant a week earlier. But the record before us does not include any such prior proceeding. On this record, we conclude that a motion to substitute was then raised, and that the court's inquiry was clearly inadequate.
Any error by the trial court in failing to make sufficient inquiry into Hansford's request for substituted counsel is harmless unless defense counsel's performance actually violated Hansford's Sixth Amendment right to effective assistance of counsel. We turn to that issue.
Lopez, 79 Wn. App. at 767.
To show that counsel was ineffective, a defendant must demonstrate (1) that, considering all the circumstances, the attorney's performance was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the defendant was prejudiced, i.e., there is a reasonable probability that the result would have been different but for the attorney's deficient performance. Hansford argues that (1) trial counsel had no legitimate or tactical reason to introduce damaging media accounts about him; and (2) trial counsel had no legitimate strategic or tactical reason to request lesser included offense instructions.
Lopez, 79 Wn. App. at 767, 904 P.2d 1179 (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
At trial, defense counsel's theory of the case was that someone else shot Cannell. Hansford's sister Price, however, made statements to police that were in conflict with the defense theory. She testified that Hansford had come to her home and told her "he wasn't trying to kill anybody." He then looked away and made a gesture in his hand mimicking a gun, and "pointed down" saying, "I may have. I may have." The defense was therefore placed in a position of having to discredit Price, a sympathetic witness. Defense counsel introduced two newspaper articles during Price's cross-examination. The defense strategy was to show that Price had read the two articles prior to seeing Hansford, the articles made her worry about the safety of her brother, and she needed to fabricate a defense for Hansford to protect him. During cross-examination, defense counsel elicited that Price participated in a three-way call with the detective in order to help her brother, whom she was afraid might be hurt by police if he did not turn himself in. During closing argument defense counsel argued that Price became worried after reading the articles and fabricated the statements in an attempt to help her brother. This is a legitimate strategic reason to introduce the two media accounts and cannot be said to be deficient performance by counsel. Hansford next argues that his counsel was ineffective because he proposed a legally erroneous lesser-included second degree attempted murder instruction and instructions for first degree and second degree assault. While Hansford correctly notes that first degree and second degree assault are not lesser-included offenses of first degree attempted murder, legitimate decisions relating to trial strategy or tactics do not support a claim of ineffective assistance. Had Hansford been convicted of attempted murder in the first degree, he would face a sentence of no less than 20 years. On the other hand, assault in the second degree carries a maximum sentence of no more than 10 years. Defense counsel reasonably sought to avoid the risk of giving the jury a single choice between conviction for first degree attempted murder and acquittal. He sought to provide the jury with three other options, second degree attempted murder, first degree assault, and second degree assault. The request for the lesser-included instruction under these circumstances is a legitimate trial strategy. In fact, the jury returned a verdict for the lesser-included crime of second degree attempted murder. Hansford's counsel was effective. Hansford next argues that defense counsel rendered ineffective assistance of counsel by drawing attention to Hansford's nickname. Pursuant to an in limine order, Hansford's nickname "Fixer" was not to be used at trial. But defense witness Dustin Cannell, the victim's cousin, used this nickname during his direct examination when he stated that the victim had said, "I know Fixer didn't do it." Defense counsel then asked Cannell if "Fixer" was in reference to Hansford. Hansford contends that defense counsel should have objected and requested a curative instruction. Hansford has not demonstrated any prejudice due to this reference to his nickname "Fixer." Hansford next argues that defense counsel rendered ineffective assistance by not insisting upon a CrR 3.5 hearing. Again, we disagree. Prior to trial, the State told the court it intended to elicit testimony from the California officer who arrested Hansford. The testimony consisted of Hansford providing the officer with a false name when he was arrested.
In re the Personal Restraint of Pirtle, 136 Wn.2d 467, 488-89, 965 P.2d 593 (1998).
Hansford, who had an offender score of six, was sentenced to 221.25 months for the attempted murder plus a 60 month firearm enhancement and 29 months for unlawful possession of the firearm, to run concurrently.
When asked whether defense counsel objected to the reference of providing the false name he answered, "I can't think of one, your honor, that would carry the day." CrR 3.5 is a mandatory rule. Before introducing evidence of a statement of the defendant, the court must hold a hearing to determine if the statement was freely given. Failure to hold a CrR 3.5 hearing, however, does not render a statement inadmissible when a review of the record discloses that there is no issue concerning its voluntariness. Nothing in the record before us indicates that Hansford made the statements under duress, coercion, or inducement of any kind. The record does not reflect any interrogation whatsoever. Hansford apparently was not advised of his constitutional rights before providing the officer with the false name. However, voluntary, unsolicited statements of an accused made before interrogation are not rendered inadmissible by the absence of previous advisement of constitutional rights.
State v. Renfro, 28 Wn. App. 248, 253, 622 P.2d 1295 (1981), aff'd 96 Wn.2d 902, cert. denied, 459 U.S. 842 (1982).
State v. Kidd, 36 Wn. App. 503, 509, 674 P.2d 674 (1983).
Kidd, 36 Wn. App. at 509; State v. Eldred, 76 Wn.2d 443, 448, 457 P.2d 540 (1969).
AFFIRMED.
AGID and BECKER, concur. JJ., concur.