Opinion
No. 31103-8-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-03114-5. Judgment or order under review. Date filed: 10/17/2003. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Terrence Herndon appeals a felony conviction for violating a domestic violence no-contact order. He claims that the trial court omitted an element from the to-convict instruction on Count I; that the evidence is insufficient to support the verdict on Count I; that the trial court should have given a unanimity instruction; that his right to speedy trial was violated; that the trial court improperly admitted certain testimony; and that his trial counsel was ineffective. We affirm.
Herndon and Latasha Scott have a child, Tashawn. Scott spent a lot of time at her mother's apartment, since her mother often cared for Tashawn.
In early July 2003, Herndon was subject to three no-contact orders. The first order was issued by the Tacoma Municipal Court on September 4, 2001. It prohibited Herndon from contacting Scott for a two-year period ending September 4, 2003. It warned:
Violation of the provisions of this order with actual notice of its terms is a criminal offense under Chapter 8.105 of the Tacoma criminal code, Chapter 10.99 RCW and Chapter 26.50 RCW and will subject a violator to arrest. . . . Any assault or reckless endangerment that is a violation of this order is a felony.
Exhibit 9.
The second order was issued by the Pierce County Superior Court on November 15, 2001. Entered in cause number 01-1-05333-9, it prohibited Herndon from contacting Scott and was effective `until or until modified or terminated by the court.' Although it warned that `[v]iolation of this order is a criminal offense under chapter 10.99 RCW and 26.50 RCW and will subject a violator to arrest,' it did not warn that an assaultive violation could subject Herndon to prosecution for a felony.
Exhibit 7.
The third order was issued by the Pierce County Superior Court on July 26, 2002. Entered in cause number 02-1-02472-8, it barred Herndon from contacting Scott `until 7/26/2007' or until it was `modified or terminated by the court.' It contained essentially the same warnings as the November 2001 order.
Exhibit 6.
On July 6, 2003, Herndon entered the apartment where Scott's mother lived. Damien Scott, Scott's brother, and Kevin Williams, Scott's cousin, were watching television. Scott was in a downstairs bathroom. Herndon went upstairs at first. Soon however, he returned downstairs and knocked on the door of the bathroom where Scott was. When he asked her if he could come in, she replied `no,' but he went in anyway. Damien and Williams then heard Scott exclaiming, `Stop hitting me, stop hitting me,' asking, `Why did you bite me?' and demanding that Herndon exit the bathroom. Damien and Williams then heard a `big noise,' went into the bathroom themselves, and found Scott in the bathtub on top of the shower curtain. She was crying and her nose was bleeding. Williams wrestled Herndon out of the bathroom, and Damien called the police. Herndon left before Officers Garrison and Baker arrived, but Damien and Williams told Garrison what had occurred. Scott declined to make a statement.
Report of Proceedings (RP) at 74.
RP at 39.
RP at 40.
The next day, the State filed an information. As later amended, Count I alleged that Herndon had violated a no-contact order by assaulting Scott, and that Herndon had twice before been convicted of violating such orders. Count II alleged that Herndon had assaulted Williams, and Count III alleged that Herndon had assaulted Damien.
Trial started on September 29, 2003. The State's witnesses testified as already set forth. No one called Scott or Officer Baker. Near the end of the State's case, the prosecutor offered as evidence certified copies of the three current no-contact orders. Herndon objected to the two superior court orders, arguing that they were `cumulative' (`We already have one order that says it was on its face it was in effect at the time') and generated too much unfair prejudice. He did not argue that either order lacked a statutorily required warning, nor did he object to the municipal order on any ground.
RP at 137.
RP at 136.
After stipulating that he had two prior convictions for violating no-contact orders, Herndon testified on his own behalf. He said that he had seen Tashawn, age 3, riding his bicycle in the street without supervision. When he had gone to the apartment to ask why his son was out in the street, he and Williams had `scuffle[d]' at the front door and had somehow fallen into the hallway inside the apartment. He denied going upstairs, entering the bathroom where Scott was, or knowing anything about a cut on her nose. He had not known she was present, and he left when he learned that she was.
RP at 149.
At the end of the evidence, the court instructed the jury and submitted two special interrogatories. Instruction 5 stated:
A person commits the crime of violation of a domestic violence no-contact order when he or she willfully has contact with another when such contact was prohibited by a no-contact order and the person knew of the existence of the no-contact order.
Clerk's Papers (CP) at 50; see also 11 Washington Pattern Jury Instructions: Criminal 36.50, at 181 (2d ed. Supp. 1998) (WPIC).
Instruction 6 stated:
To convict the defendant of the crime of violation of a no-contact order, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 6th day of July, 2003, the defendant willfully had contact with LaTasha Scott;
(2) That such contact was prohibited by a no-contact order;
(3) That the defendant knew of the existence of the no-contact order;
(4) That the acts occurred in the State of Washington.
CP at 51; see also WPIC 36.51, at 182.
One special interrogatory asked, `Was the conduct that constituted a violation of the no-contact order an assault?' The other special interrogatory asked, `Has the defendant twice been previously convicted for violating the provisions of a no-contact order?' Herndon did not object either to the instructions or the interrogatories.
CP at 65.
The jury found Herndon guilty on Counts I and II but acquitted him on Count III. It answered both special interrogatories affirmatively. The court imposed 20 months on Count I and 12 months on Count II, after which Herndon filed this appeal.
I.
Herndon asserts that `the validity of an underlying no-contact order' is `an implicit element of the crime of violating a no-contact order;' that Instructions 5 and 6 omitted that `implicit element;' and thus that his conviction on Count I must be reversed. RCW 26.50.110(1) provides that the elements of violating a no-contact order, exclusive of venue and enhancements, are (1) that a no-contact order was in effect at the time charged; (2) that the defendant knew that; and (3) that the defendant willfully contacted the protected person.
Br. of Appellant at 24.
Br. of Appellant at 31.
RCW 26.50.110; State v. Snapp, 119 Wn. App. 614, 625, 82 P.3d 252, review denied, 152 Wn.2d 1028 (2004); State v. Clowes, 104 Wn. App. 935, 943-44, 18 P.3d 596 (2001); cf. State v. Carmen, 118 Wn. App. 655, 659, 77 P.3d 368 (2003), review denied, 151 Wn.2d 1039 (2004); WPIC 36.51.
In general, a previously entered court order is effective merely because it presently exists. A defendant may object to its current use if, but only if, he bears the `initial burden of offering a colorable, fact-specific argument supporting the claim of constitutional error in the prior conviction.' Only if he bears that burden must the State then prove, at least to the judge, that the order `is constitutionally sound.' If he fails to bear that burden, the jury's only task is to decide whether the court order was in existence on the relevant date.
E.g., Mead Sch. Dist. No. 354 v. Mead Educ. Ass'n, 85 Wn.2d 278, 286, 534 P.2d 561 (1975); Snapp, 119 Wn. App. at 625; City of Tacoma v. Cornell, 116 Wn. App. 165, 169, 64 P.3d 674 (2003).
State v. Summers, 120 Wn.2d 801, 812, 846 P.2d 490 (1993); see also State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980); Snapp, 119 Wn. App. at 625; State v. Reed, 84 Wn. App. 379, 384, 928 P.2d 469 (1997).
State v. Miller, 123 Wn. App. 92, 97-98, 96 P.3d 1001 (2004) (validity of prior order is question for judge, not jury); compare Carmen, 118 Wn. App. at 667 (jury must find the `existence of the predicate convictions beyond a reasonable doubt'). We decide this case without addressing whether the trial judge, after ruling in the State's favor on an issue of validity raised by the defendant, must then submit that issue to the jury.
Summers, 120 Wn.2d at 812.
Cf. Snapp, 119 Wn. App. at 625 (absent `timely clear challenge to the viability of the order, the State is not required to presume invalidity'); Carmen, 118 Wn. App. at 667 (jury must find the `existence' of conviction or order beyond reasonable doubt).
In this case, Herndon did not point out to the trial court that any of the prior no-contact orders lacked a required statutory warning; rather, he claimed only that the orders were cumulative and unfairly prejudicial. He did not bear his initial burden, the only question for the jury was whether the orders existed, and the jury's instructions were proper.
In reaching this result, we do not quarrel with State v. Marking. The defendant in that case attacked a prior no-contact order because it lacked the required statutory warnings. He made his attack before the trial court, and he was correct; thus, we held that the judge had erred by not dismissing the charge. We were not dealing, as we are here, with the jury's function when a defendant does not attack a no-contact order in the trial court.
100 Wn. App. 506, 997 P.2d 461, review denied, 141 Wn.2d 1026 (2000).
II.
Herndon claims that the evidence is insufficient to support his conviction on Count I because neither of the two superior court orders contained the required statutory warnings. As just discussed, however, he did not bear his initial burden of showing the absence of such warnings to the trial court. Hence, the issue was not whether the two orders were valid, but whether they existed, and the evidence was sufficient to show that they existed.
III.
Citing State v. Ortega-Martinez, Herndon argues that the jurors might not have agreed unanimously on which prior no contact order he violated, and thus that the trial court erred by not giving a unanimity instruction. Ortega-Martinez states:
124 Wn.2d 702, 707, 881 P.2d 231 (1994).
The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. If the evidence is sufficient to support each of the alternative means submitted to the jury, a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction because we infer that the jury rested its decision on a unanimous finding as to the means. On the other hand, if the evidence is insufficient to present a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury, the conviction will not be affirmed.
Ortega-Martinez, 124 Wn.2d at 707-08 (citations omitted).
In this case, where Herndon did not raise an issue concerning statutory warnings, the only issue for the jury was whether the prior no-contact orders existed. The evidence was plainly sufficient to show that each of them did, and thus a unanimity instruction was not required.
IV.
Herndon argues that he was denied his right to speedy trial under former CrR 3.3 (2001). He was arraigned on July 7, and his trial was initially set for August 20. On August 20, the court granted a continuance to August 27, finding that the prosecutor was in trial on another case. On August 27, the court granted a continuance to September 15, finding that the prosecutor was in trial on another case. On September 15, the court granted a continuance to September 17, finding that defense counsel was in trial on another case. On September 17, the court granted a continuance to September 18, finding that defense counsel was in trial on another case. On September 18, the court granted a continuance to September 25, finding on its own motion:
There are no judges and/or courtrooms available to try this case. No trials are being set 9-22 through 9-24 b/c the majority of Pierce County judges are attending the statewide judicial conference.
CP at 16.
On September 25, the court granted a continuance to September 29, finding on its own motion:
There are no judges or courtrooms available to hear this case. All departments are unavailable or have full calendars on 9-26-03.
CP at 17.
Herndon contends that former CrR 3.3 applies to this case. We assume but do not hold that is true. Former CrR 3.3 (2001) required trial within 60 days of arraignment but excluded any delay attributable to a properly granted continuance. A continuance was properly granted because counsel was in another trial, but not merely because the court was congested.
CrR 3.3(c) (2001).
CrR 3.3(g)(3), 3.3(h) (2001).
State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996); State v. Raper, 47 Wn. App. 530, 539, 736 P.2d 680, review denied, 108 Wn.2d 1023 (1987).
State v. Mack, 89 Wn.2d 788, 793-94, 576 P.2d 44 (1978).
Here, the time from arraignment to August 20 was 44 days. The delay from August 21 to September 18 was due to proper continuances and correctly excluded. The time from September 19 to September 29 was 10 days. As only 54 days elapsed between arraignment and trial, former CrR 3.3 was not violated.
V.
The next issue concerns Officer Garrison's testimony. At the very end of cross-examination, defense counsel asked:
Q Officer, in all those domestic incidents that you responded to, does it ever turn out somebody doesn't have any marks because something didn't occur?
A Yeah, I am sure it's happened a few times.
. . .
Q Do you ever have the impression when you respond to these domestic disputes in your history that sometimes you are getting lied to by people telling you what happened?
A There have been some incidences, yes.
RP at 134-35.
Immediately thereafter, the prosecutor inquired on redirect:
Q Did you have that feeling in this case?
A I was really not there as far as the statement goes, but given her — physically saw her from what would be her emotional level, I would say probably not.
RP at 135.
Herndon now claims that Officer Garrison improperly `vouched' for Scott's credibility. The State responds in part that the defense opened the door, thus waiving any objection. Agreeing with the State, we hold that the defense opened the door, that the State's response was both proportional and permissible, and that nothing in the quoted exchange warrants reversal.
Br. of Appellant at 36.
See State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (`It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it.').
VI.
Herndon argues that `[i]n the event any of defense counsel's omissions are deemed to have waived any issue on appeal,' he has been denied his right to effective assistance of counsel. To show ineffective assistance, he must show deficient performance and resulting prejudice. To show deficient performance, he must show more than tactics that did not succeed. To show prejudice, he must show `that the result of the proceeding would have been different but for counsel's deficient representation.'
Br. of Appellant at 39 (emphasis removed).
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).
McFarland, 127 Wn.2d at 337.
Herndon has not shown prejudice due to counsel's failure to claim that the two superior court no-contact orders lacked statutorily required warnings. Given that the municipal court order contained all required warnings, the outcome would have been the same even if both superior court orders had been excluded.
Nor has Herndon shown resulting prejudice with respect to defense counsel's asking whether Garrison had ever been lied to in a similar situation. Garrison's response was brief, the untainted evidence was overwhelming, and the outcome would not have been different.
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.
ARMSTRONG and HUNT, JJ., Concur.