Opinion
No. 59195-9-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 97-1-00978-9, Michael J. Fox, J., entered November 6, 2006.
Affirmed by unpublished per curiam opinion.
Freddie Harris was convicted of first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment and bail jumping. His request for new counsel on the day of trial was properly denied and his counsel was not ineffective. We affirm.
Facts
Freddie Harris owned a janitorial company that cleaned the Red Robin restaurant in Seattle's Capitol Hill neighborhood. On the night of February 7, 1994, somebody robbed the restaurant while the manager prepared for closing, and Harris and his employee, Greg White, cleaned. Two men held the manager at gun-point, duct taped her ankles and taped her hands over her eyes so she could not see, and then put her in the walk-in refrigerator. She discovered Harris and White in the refrigerator, with their hands duct taped, as well. Harris and White managed to remove the tape from their hands, and then freed the manager who pressed the alarm button. The police quickly responded.
From the beginning of the investigation, the police suspected that the robbery was an inside job. In February 1997, Harris was charged with second degree robbery and kidnapping. Harris was living in Canada at the time the charges were brought against him. According to Harris, he did not learn of these the charges until 2003 when the background check, required for application for permanent residency in Canada, revealed criminal charges. Soon after this discovery, he turned himself in at the border. Harris was arraigned in March 2003, subsequently released and allowed to return to Canada.
At arraignment, he was represented by private counsel. But, by April of 2003 he could no longer afford a private attorney and received a public defender. Harris failed to appear for his case scheduling hearing on May 19, 2003. He claimed that he did not receive a scheduling date from his attorney until weeks after the hearing date had passed. Because Harris failed to appear, a bench warrant was issued for his arrest. Shortly after the warrant was issued, Harris' original public defender withdrew due to a conflict, and Harris was assigned another attorney.
When Harris learned of this warrant, he apparently went to the Canadian government and informed officials about the new warrant. The immigration board detained him for two weeks, conducted a hearing, and then released him while they awaited more information on the warrant and charges. He then reported to Canadian authorities every Friday, from November 2003 until March or April of 2004.
On April 27, 2004, Harris found transportation to the border crossing at the Peace Arch. He was detained at the border with 38 pounds of marijuana in the vehicle. Harris pled guilty to possession of marijuana with intent to deliver and served 90 days in jail in Whatcom County. He was then transferred to King County for the robbery-related charges.
The trial on the Red Robin robbery charges was set to begin on February 28, 2005. The day of trial, Harris requested substitution of counsel. The court engaged in a short colloquy with Harris and then refused the request. At trial, two witnesses directly implicated Harris. Gary Sean Brown, the accomplice who held the gun and had pled guilty and served time for the robbery, testified that Harris suggested and planned the robbery. The other key witness was Brown's ex-girlfriend, Sharon Couldry, who corroborated Brown's story and gave details about Harris' role before and after the robbery. A jury convicted Harris of first degree robbery and first degree kidnapping, both with deadly weapon enhancements, unlawful imprisonment and bail jumping. But, Harris absconded before the verdict. He was rearrested over a year later, in Canada. Harris obtained new counsel who brought a motion for a new trial. The motion was denied and Harris was finally sentenced to 96 months. He now appeals.
DISCUSSION
I. Denial of Substitution of Counsel and Motion for New Trial
Harris contends that his right to counsel was violated when the court refused to grant his motion to substitute counsel. He made his request the morning his trial was set to start. The State counters that the motion was untimely and the court acted within its discretion by denying substitution. "Whether an indigent defendant's dissatisfaction with his court-appointed counsel is meritorious and justifies the appointment of new counsel is a matter within the discretion of the trial court." State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). Where the request for change of counsel occurs on the eve of trial, the court may exercise its sound discretion and refuse to delay the trial and reject the request. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 732, 16 P.3d 1 (2001) (quoting United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979)).
The day of his trial, Harris had a brief colloquy with the court about his desire for new counsel.
Harris: I just don't feel comfortable that he's going to be able to represent me in the right way, and I would like to have a paid attorney to be able to handle my case because I've been living in Canada, and this is a very serious matter for me as far as the outcome. If it's guilty, then it could be a serious matter for me living in the state of Washington, or living actually in Vancouver B.C. So I need someone who is going to be there for me.
Judge: Do you have anything else to say about it?
Harris: That's it.
Harris contends that the court should have engaged in a more probing inquiry about his reasons for wanting new counsel. Factors used to evaluate the decision to deny a motion to substitute counsel are the reasons for dissatisfaction, the court's own evaluation of counsel, and the effect of substitution upon the scheduled proceedings. Stenson, 132 Wn.2d at 734. Here, Harris merely complained of a lack of confidence in his attorney. "[G]eneral loss of confidence or trust alone is not sufficient to substitute new counsel." Id. Furthermore, the motion for new counsel made the day of trial would have postponed proceedings already substantially delayed. Given these factors, the trial court did not abuse its discretion by denying the motion to substitute counsel or deny a new trial.
II. Ineffective Assistance
Harris alleges ineffective assistance of counsel. An appellate court presumes a defendant received proper representation. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). Therefore, the defendant has a "heavy burden of showing that his attorneys `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Howland, 66 Wn. App. 586, 594 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). A finding of ineffective assistance requires both deficient performance and resulting prejudice. See Strickland, 466 U.S. 668; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Deficiency is shown when, given all the facts and circumstances, an attorney's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). But, "[d]eficient performance is not shown by matters that go to trial strategy or tactics." Hendrickson, 129 Wn.2d at 77-78. The deficient performance must result in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Id. at 78.
Harris contends his defense attorney was deficient by failing to impeach a key witness with evidence of a prior crime of dishonesty, and opening the door to evidence of Harris' conviction for possession of marijuana.
A. Failure To Impeach Couldry Was Not Deficient
Sharon Couldry was a key State witness. Her testimony bolstered the accomplice testimony of her ex-boyfriend, Gary Sean Brown, who had already been convicted of the robbery. On the stand, Couldry admitted that she lied to the police about her knowledge of the robbery. According to Couldry, she told the detective that she did not know who was involved in the robbery, and that Brown could not have been involved because he was with her at the time of the robbery. She made these statements to protect Brown, and she "didn't really care at that time" and "was just being stupid."
In addition to her admitted lies to the investigating detectives, Couldry had a 1999 conviction for making a false statement. Defense counsel declined to use this evidence for impeachment purposes, despite its admissibility as a crime of dishonesty under Evidence Rule 609(a)(2). A defense attorney has wide latitude in determinations of "whether to examine on a fact, whether and how much to cross-examine, whether to put some witnesses on the stand and leave others off." State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967). The extent of cross-examination is a matter of judgment and strategy. In re Pers. Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004). Here, defense counsel clearly decided not to impeach with the misdemeanor conviction. Couldry admitted, on the stand, that she had lied to the police during their investigation of the robbery. Given that Couldry undermined her own credibility with a contemporaneous event, we cannot say that the decision to forgo introduction of the conviction was not a legitimate exercise of professional discretion.
B. Counsel Did Not Open the Door To Inadmissible Evidence
Harris contends that his attorney asked questions that opened the door to admission of evidence about his drug conviction. During Harris' testimony, his attorney asked him about the arrangements he made to return to the United States from Canada upon learning about the bail jumping warrant.
Q. And as far as arranging to return to the United States, when did you make that arrangement?
A. April 27.
Q. Just briefly describe what you did.
A. I voluntarily went down to the Peace Arch and was — got a ride to the Peace Arch. They asked me to come into the office, and I was detained there at the Peace Arch. . . .
Q. You were taken into custody?
A. Yes.
Q. Where were you taken?
A. Whatcom County.
Q, All right. And you were held in Whatcom County for how long?
A. I was held in Whatcom County for 90 days.
In response to this testimony, the State argued that Harris had opened the door to evidence of his conviction for possession of marijuana that arose from his arrest at the border. The State contended that Harris essentially argued that he "came back and made amends," when he was actually arrested for bringing 38 pounds of marijuana across the border and served 90 days in jail after pleading guilty. The court agreed. "The clear implication of his testimony was that he voluntarily appeared, surrendered himself to resolve that matter rather than he was apprehended and involved in some criminal act at the border." The court admitted evidence of the drug conviction but excluded the amount of marijuana imported. During questioning by the State, Harris admitted to the arrest but claimed he "wasn't bringing a lot of marijuana." The trial court then ruled that this testimony opened the door to admission of the large amount of marijuana imported. As a result, the jury learned details of the drug conviction.
Evidence of other convictions is inherently prejudicial when the defendant is the witness, since it shifts the jury's focus from the merits of the charge to general propensity for criminality. State v. Hardy, 133 Wn.2d 701, 710, 946 P.2d 1175 (1997). Therefore, admission of other crimes evidence is available for impeachment of a witness in limited circumstances. ER 609. A drug conviction is not probative of a witness' veracity, and is therefore not admissible as impeachment evidence under ER 609(a). Hardy, 133 Wn.2d at 709-10. Ordinarily, the State could not have introduced evidence of Harris' conviction for impeachment. If Harris' attorney opened the door to the conviction, then his performance fell below an objective standard of reasonableness because he invited inherently prejudicial, previously inadmissible evidence. State v. Saunders, 91 Wn. App. 575, 580, 958 P.2d 364 (1998) (counsel's performance fell below an objective standard of reasonableness when he elicited testimony about an otherwise inadmissible previous conviction during direct examination).
Harris' attorney believed that the testimony was consistent with the court's previously defined limits on admission of the conviction — that the defendant would acknowledge the arrest but not the underlying drug conviction. By asking about Harris' arrangements to come to the United States, counsel may have been attempting to refute the bail jumping charge.
It is an affirmative defense to a prosecution under this section that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist.
RCW 9A.76.170(2). If Harris voluntarily came to the border to surrender himself, he had a defense to bail jumping. This would also have bolstered Harris' testimony that he could not return to the United States immediately upon learning of the warrant because Canadian officials detained him.
In response to counsel's question, Harris merely needed to testify that he arranged a ride to the border and was arrested. A close look at Harris' testimony shows that his statements were within those parameters and factually correct. He did not state that he surrendered himself at the border. He merely testified that he voluntarily arranged a ride to the Peace Arch and was then detained. Harris also correctly testified that he spent 90 days detained in jail in Whatcom County.
The trial court having heard the manner in which the testimony was given concluded that Harris had implied that he went to the border to surrender and, therefore, opened the door to the truth of his arrival at the border. This decision was within the trial court's discretion. Counsel's question did not open the door to the evidence; Harris' answer opened the door. Counsel's performance was not deficient. Harris does not assign error to the court's ruling or admission of the conviction.
Any possible misunderstanding about the nature of Harris' return could have been resolved by asking a direct question on the point. The response would have either kicked the door wide open or left it closed. But, rather than this method of resolution, the court ruled the door was open and allowed the evidence for impeachment.
III. Statement of Additional Grounds
In his statement of additional grounds, Harris lodges several more complaints about his trial counsel. Unfortunately, the record provides no evidence to support his dissatisfaction other than Harris' own unsworn declarations. On the contrary, a sworn statement from counsel contends that they engaged in several discussions about the charges, possible plea, elements of the crime, and potential penalties. He claims they maintained effective communication throughout the trial. As a result, we cannot conclude that a complete breakdown of communications occurred, or that Harris' right to counsel was violated.
Harris' frustration with his representation is clear. But, the Sixth Amendment only guarantees an effective advocate, not a "meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1, 14, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983); Stenson, 142 Wn.2d at 725. From the record before us, we cannot conclude that
Harris' trial counsel was ineffective.
We affirm.