Opinion
No. 53925-6-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10211-1. Judgment or order under review. Date filed: 02/27/2004. Judge signing: Hon. Gregory P. Canova.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
B Harris — informational only (Appearing Pro Se), 24911 112th Ave SE Bldg 19-4, Kent, WA 98031.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Bobby Harris was convicted of one count of third degree rape after having sex with a former girlfriend. He has failed to prove that alleged deficiencies in his trial counsel's performance prejudiced his case; therefore, his claim of ineffective assistance of counsel fails. Further, the trial court did not err in admitting the statement into evidence because Harris repeatedly said that his statement to a police detective was voluntary and with knowledge that he could leave at any time. Harris received a standard range sentence and the domestic violence designation did not enhance that sentence, therefore, it did not violate his rights to jury trial or due process. We affirm Harris' conviction.
FACTS
Bobby Harris and Kim Barabe dated for a few months while they were high school students. At that time, Kim was 15 years old and Bobby was two years older. The two had a sexual relationship during this time.
A few months after they stopped dating, Harris called Barabe. Later that evening as Barabe was talking on the telephone to her current boyfriend, Nathan Everybodytalksabout, Harris arrived at her house. Barabe told Everybodytalksabout she would call him right back and invited Harris into her room. When Barabe's mother came home, they went onto the back porch and eventually into the back yard of Barabe's home, taking a blanket with them. Barabe told Harris she would like to do the things they used to do, including having sex, but only if they got back together and had a relationship again. Harris just wanted to have sex, but Barabe said several times that she would not have sex without a relationship.
Barabe and Harris lay down on the blanket. Barabe testified that Harris tried to kiss her, but she would turn her head when he tried. Harris told her at one point that if she touched him again, they would have to have sex. When Barabe's knee accidentally touched him, Harris pulled her pants off while she tried to keep them on. Barabe said she told Harris she had a tampon in, said she didn't want to have sex, and tried to push Harris off her, but Harris went ahead, and entered her. Eventually Harris stopped and Barabe got up. Harris apologized for making her do something she didn't want to do.
Barabe then went to the home of Everybodytalksabout and told him she had been raped. About a month later, Everybodytalksabout accompanied her to a teen clinic where she told a counselor, Patricia Hikida, she had been raped. Although Barabe asked Hikida not to tell the police or her mother, Hikida was required by law to inform the police, and did so. A police officer called Barabe's mother, and her mother convinced her to talk to the police.
While Harris was at school, Police Detective Steven Kelly had a security officer bring Harris to a private room in the school building. Detective Kelly told Harris that he was investigating the alleged rape and wanted to ask Harris some questions. Detective Kelly told Harris numerous times that Harris could leave at any time. Harris stated several times that he wanted to talk, and gave both an oral statement and a taped statement.
Harris told Detective Kelly and testified at trial that when he asked Barabe about having just a sexual relationship, Barabe refused. He stated that, although Barabe said several times that she did not want to have sex that night, he was unsure whether she meant it because they were kissing and touching. Eventually he told Barabe that if she touched him three more times, they would have sex. After the third time, he positioned himself on top of her and started to enter her. As he entered her, Barabe pushed his chest and he knew definitely that she did not want sex. He got up, pulled up his pants, and walked Barabe part of the way to Everybodytalksabout's house.
At trial, the jury acquitted Harris of second degree rape and convicted him of third degree rape. After trial, the trial judge sua sponte recused himself, removed Harris' attorney, and ordered that new counsel be appointed for Harris. In addition, the judge extended the time for filing a new trial motion and suggested possible issues to be raised in such a motion.
At the hearing on the new trial motion based on a claim of ineffective assistance of counsel, the new judge stated that he had reviewed the trial testimony and arguments of counsel in great detail, in thoroughly evaluating trial counsel's performance. The judge noted that he could not appropriately consider the former trial judge's post-trial actions, as the reasons for those actions were unclear. Further, the judge stated that he could not consider several letters from jurors regarding the jurors' thought process, because that inhered in the verdict, but would consider those parts of the letters requesting leniency in sentencing for Harris at the appropriate time.
At sentencing, the trial court imposed a sentence of six months in jail, the low end of the standard range. The court allowed the sentence to be served on work release. In addition, the court imposed a five year no-contact order for any contact with Barabe. Harris appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Harris contends he did not receive effective assistance of counsel because trial counsel failed to adequately investigate or introduce evidence that would have demonstrated the implausibility of Barabe's account, failed to object to evidence, and failed to impeach or effectively cross-examine witnesses.
To establish a claim of ineffective assistance of counsel, the defendant has the burden of proving both that trial counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995). In applying this test, this court considers the entire record. State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). We need not consider whether counsel's performance was deficient if we can say that the defendant was not prejudiced by the alleged deficiency. In re Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992). The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. State v. Brett, 126 Wn.2d 136, 199, 892 P.2d 29 (1995); see also State v. McFarland, 127 Wn.2d at 334-35.
Although Harris points to numerous alleged errors, in the context of the entire trial it is clear that he has failed to establish prejudice. Harris' statement to Detective Kelly and his trial testimony establish that he was with Barabe and that activity satisfying the requirements of third degree rape occurred. Harris admitted to penetration, though only for a moment, and also admitted that Barabe said repeatedly that she did not want to have sex. Given this state of affairs, none of the alleged failures by defense counsel would, if rectified, have created a reasonable probability that the outcome would have been different. Harris did not receive ineffective assistance of counsel.
Alternatively, Harris contends that the trial judge's recusal prior to his motion for new trial violated his right to due process by forcing a judge who had not heard the trial evidence to decide the motion. But he cites no authority for the proposition that a defendant has the right to have the trial judge consider a new trial motion. We conclude that the presence of a different judge after the trial judge's recusal did not violate Harris' right to due process, where the judge thoroughly considered the trial record and the only issue was ineffective assistance of counsel.
MOTION TO SUPPRESS
Harris challenges the trial court's denial of his motion to suppress his statements to Detective Kelly. He argues that he was in custody, and because he was not informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), his statements were not voluntary and should not have been admitted into evidence. The findings of fact made after a hearing pursuant to CrR 3.5 which are unchallenged are verities on appeal. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). In reviewing a claim that a statement was not voluntary, we consider whether, under the totality of the circumstances, the statement was coerced. Broadaway, 133 Wn.2d at 132.
Harris does not challenge any findings of fact. The trial court found that Harris `repeatedly indicated the voluntary nature of the interview and the statements that he chose to make to Detective Kelly regarding the charged incident.' In addition, the court found that Harris `was free to terminate the interview at his discretion and returned to class following the end of the interview.'
A review of the record shows that Detective Kelly informed Harris several times at different points in the interview and taped statement that he did not have to stay or talk to the detective, and Harris answered several times that `I'll give you a statement on that. I wanna get this cleared up;' `I agreed to speak to you;' `[y]ou're recording it with my total and utter permission;' `I gave it voluntarily, and I knew that it was bein' recorded;' `[n]o threats, no promises, just, you know, I just promised myself when I knew that, you know, that I'd do this and, you know, try to get this clear, you know? Try to explain this to you and make sure the Kent Police Department knows that, you know, I didn't do, didn't feel that I did anything wrong that night.' Harris' statement was voluntary, and the trial court did not err in admitting it.
DOMESTIC VIOLENCE DESIGNATION
Harris contends that under Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the requirements for a domestic violence designation should have been presented to the jury because such a designation resulted in the enhanced penalty of a no-contact order and reduced earned early release time.
Blakely provides that `any fact that increases the penalty for a crime beyond the proscribed statutory maximum must be submitted to a jury.' 124 S. Ct. at 2536. But in this case, Harris did not receive a sentence beyond the statutory maximum; rather, the trial court imposed the low end of the standard range. And the domestic violence designation did not increase the penalty because a no-contact order is not a penalty, but a measure designed to protect third parties. In re Arseneau, 98 Wn. App. 368, 380, 989 P.2d 1197 (1999). Further, the amount of earned early release time available to Harris was determined by the nature of the crime, not the domestic violence designation. RCW 9.94A.728(1)(b)(ii). Nor is domestic violence an element of the crime such that a jury would have to determine whether it was proved. State v. Goodman, 108 Wn. App. 355, 358-59, 30 P.3d 516 (2001).
CONCLUSION
Affirmed.
GROSSE, COLEMAN, and COX, JJ.