Opinion
No. 53155-7-I, Consolidated with No. 53065-8-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-08524-1. Judgment or order under review. Date filed: 09/05/2003. Judge signing: Hon. Steven C Gonzalez.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Corey Marika Endo, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Dion Kirk Humphrey (Appearing Pro Se), Doc # 960513, Wash. St. Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Dion Humphrey appeals the sentence imposed following his conviction for assault in the second degree, violation of the Uniform Controlled Substances Act (possession of cocaine), and attempting to elude a pursuing police vehicle. Humphrey contends he received ineffective assistance of counsel for his counsel's failure to investigate his mental condition. He also appeals the trial court's decision to deny his request to substitute counsel. Additionally, Humphrey contends and the portion of his sentence requiring him to provide a biological sample for DNA identification violate his Fourth Amendment right against unreasonable searches. In a motion for new trial, which we treat as a personal restraint petition, consolidated with this appeal, Humphrey argues the ineffective assistance of counsel claim summarized above. We disagree with his claims, affirm the judgment and sentence, and dismiss the personal restraint petition.
We deny Humphrey's Motion to Revise the Commissioner's Ruling Granting the State's Motion to Join Direct Appeal with Personal Restraint Petition.
In the early morning hours of November 2, 2002, Seattle Police Officer Ben Hughey was in his patrol car, parked next to Officers Simon Edison and Jason Diamond in their patrol car in the parking lot of a Payless store on Rainier Avenue South in Seattle, Washington. The drivers' doors were facing each other so the officers could converse.
The officers saw a vehicle run a red light while it was traveling in excess of 70 miles per hour down Rainer Avenue South. The driver, Dion Humphrey, made an abrupt turn into the parking lot where the two patrol cars were parked. Humphrey's car then accelerated directly toward the patrol cars. The officers managed to move their patrol cars enough so that Humphrey's car narrowly missed them. Humphrey's car went just behind Officer Hughey's patrol car, jumped the curb of the Payless store, traveled through some shrubbery, and went over a sidewalk onto Rainier Avenue South, traveling across all five lanes. The officers pursued Humphrey in their marked patrol cars with lights flashing and sirens activated. Humphrey continued for several blocks, and did not stop for the officers until his vehicle got stuck on top of a curb.
Officer Hughey ordered Humphrey out of the car, but Humphrey refused to comply and resisted arrest. It took several officers to get Humphrey under control and arrest him. Officer Tanya Kinney, who had been called to the scene, saw Humphrey spit an object from his mouth. Forensic testing revealed the item was crack cocaine.
The State charged Humphrey with one count each of second degree assault, possession of cocaine, and attempting to elude a police vehicle. After the jury was selected, but before opening statements, Humphrey made a motion to substitute counsel. The trial court denied his request.
At trial, Humphrey testified that he felt depressed after viewing his deceased grandfather's body. Humphrey admitted to drinking alcohol, smoking marijuana, and smoking crack cocaine earlier that day and evening. He claimed that his passenger grabbed the steering wheel in the parking lot causing the car to point toward the officers as it accelerated. He also denied that he was attempting to elude the police officers and that he was in possession of crack cocaine at the time of his arrest.
A jury convicted Humphrey as charged. Prior to sentencing, Humphrey requested and received new counsel. New counsel requested and received a psychological evaluation for Humphrey. At sentencing, the new counsel reported no new evidence that would have constituted grounds for a new trial. The court sentenced Humphrey to 62 months.
Humphrey filed a direct appeal and a motion for new trial (personal restraint petition) which has been consolidated with his direct appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
Humphrey argues that his trial counsel's failure to investigate his mental condition and its effects violated his right to effective assistance of counsel. Specifically, Humphrey argues such an investigation would have allowed counsel to make an informed decision as to the necessity for psychiatric evaluation and possible expert testimony at trial. He further argues that this testimony would have bolstered a defense that he suffered from psychotic symptoms and post traumatic stress disorder that would have assisted the jury in considering whether he had the ability to form the intent necessary to commit assault and attempting to elude. We disagree. Both the state and federal constitutions guarantee the right to effective assistance of counsel in criminal proceedings. Strickland v. Washington established a two-part test for ineffective assistance of counsel. First, the defendant must show deficient performance. This court's scrutiny of counsel's performance is highly deferential and we will indulge in a strong presumption of reasonableness. If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim. Second, the defendant must show prejudice — "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." To meet the second prong, defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Strickland, 466 U.S. at 688-89.
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Hendrickson, 129 Wn.2d at 78 (quoting Strickland, 466 U.S. at 687).
Thomas, 109 Wn.2d at 226 (quoting Strickland, 466 U.S. at 694).
Deficient performance is not shown by matters that go to trial strategy or tactics. The reasonableness of counsel's challenged conduct must be viewed in light of all of the circumstances, on the facts of the particular case as of the time of counsel's conduct.
Hendrickson, 129 Wn.2d at 77-78.
Strickland, 466 U.S. at 689-90.
In a diminished capacity defense, the defendant claims to have "a mental condition not amounting to insanity which prevents the defendant from possessing the requisite mental state necessary to commit the crime charged." To justify a diminished capacity defense, there must be evidence both that the defendant had been drinking or using drugs, and that the drinking or drug use had an effect on his ability to form the requisite mental state.
State v. Warden, 133 Wn.2d 559, 564, 947 P.2d 708 (1997).
State v. King, 24 Wn. App. 495, 501-02, 601 P.2d 982 (1979).
At trial, Humphrey admitted that he had been drinking and using drugs that day and night, but denied he committed the acts alleged. He testified that his passenger grabbed the wheel of the car, causing the car to speed toward the police officers. According to Humphrey, he did not intend to ram either one of the police cars, but rather his passenger's actions caused the car to accelerate toward the officers.
Humphrey next denied that he attempted to elude the police and claimed he was unaware they where pursuing him. Finally, Humphrey denied possessing and spitting out the rock cocaine that Officer Kinney saw expelled from his mouth and recovered at the scene.
Here, Humphrey asserted that he did not commit the charged acts. A diminished capacity defense admits that the accused committed the acts but claims he or she was unable to form the requisite mental state or intent to commit the crime. Thus, there was no basis for a diminished capacity defense — a defense that would have contradicted Humphrey's denial that he committed the charged acts. Defense counsel's performance was not deficient for choosing not to investigate a defense that Humphrey was unable to pursue.
Furthermore, even if Humphrey's defense attorney should have obtained a psychological evaluation, and should have pursued a diminished capacity defense, Humphrey fails to show he was prejudiced by the failure to do so. His new attorney at sentencing hired Dr. Robert Saari to perform a psychological evaluation. However, in light of Dr. Saari's evaluation, new defense counsel was unable to find grounds to argue for a new trial. The new counsel stated:
I appreciate the court giving us the opportunity to have Mr. Humphrey evaluated. I've reviewed the evaluation with Mr. Humphrey, and I don't believe that it supported our position that we thought we were going to be able to address this court on.
(Emphasis added.)
Humphrey's counsel at sentencing was able to use the information gained from the evaluation as mitigation to support a request for a sentence at the bottom of the standard sentencing range. But the evaluation did not support any further request for relief. There was no prejudice arising from trial counsel's performance.
Humphrey next argues that his counsel was ineffective because he should have requested WPIC 10.05 as an instruction at trial. That instruction includes a definition of the term "willfully" with respect to the attempt to elude charge. We disagree.
WPIC 10.05 states: A person acts willfully when he or she acts knowingly.
Here, defense counsel made a strategic or tactical decision not to request such an instruction. Defense counsel may have determined that WPIC 10.05 would not have been helpful to Humphrey and actually could have lowered the threshold level of volition required to support the charge of eluding police officers. Because knowledge requires a lesser mental state than intent, the jury could have concluded that the State had the burden to prove that Humphrey intentionally attempted to elude police officers, rather than merely knowingly attempted to do so. The decision not to request the instruction was a reasonable tactic in this situation and was not deficient performance.
Humphrey fails to establish that his counsel's performance was either deficient or prejudicial.
NEW COUNSEL
Humphrey next argues that the trial court abused its discretion when it declined to appoint new counsel during trial, immediately prior to opening arguments. We disagree.
A defendant does not have an absolute right under the Sixth Amendment to counsel of his or her choice. A criminal defendant who is dissatisfied with appointed counsel must show good cause to warrant a substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant. In ruling on a motion to substitute counsel, the trial court should consider: (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. With respect to the reasons given for the defendant's dissatisfaction, this court has stated, "[a] trial-delaying substitution is ordinarily justifiable only when counsel has not prepared a defense or has a conflict of interest, or there is a complete breakdown in communication between defendant and counsel such that defendant's right to a fair trial is threatened."
State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S. Ct. 1193, 140 L. Ed. 2d 323 (1998).
Stenson, 132 Wn.2d at 734 (citation omitted).
Stenson, 132 Wn.2d at 734 (citation omitted).
State v. Staten, 60 Wn. App. 163, 170, 802 P.2d 1384, review denied, 117 Wn.2d 1011 (1991) (citation omitted).
"`[W]here the request for change of counsel comes during the trial, or on the eve of trial, the Court may, in the exercise of its sound discretion, refuse to delay the trial to obtain new counsel and therefore may reject the request.'" Attorney-client conflicts justify the grant of a substitution motion only when counsel and defendant are so at odds as to prevent presentation of an adequate defense. The general loss of confidence or trust alone is not sufficient to substitute new counsel. We review for abuse of discretion.
Stenson, 142 Wn.2d at 732 (quoting United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979)).
E.g., State v. Lopez, 79 Wn. App. 755, 766, 904 P.2d 1179 (1995) (citing United States v. Morrison, 946 F.2d 484, 498 (7th Cir. 1991)); United States v. Hillsberg, 812 F.2d 328, 333 (7th Cir. 1987).
Stenson, 142 Wn.2d at 734 (citation omitted).
State v. Rosborough, 62 Wn. App. 341, 346, 814 P.2d 679, review denied, 118 Wn.2d 1003 (1991).
First, Humphrey made his motion for new counsel during trial. It is enough to conclude on the basis of the timing of the request alone that the trial court did not its abuse of discretion when it rejected the request. The effect of the substitution would have substantially delayed the trial — the court would have been forced to discharge the jury, new counsel would have to have been appointed, and a new trial date would have had to been selected.
Humphrey's reason for dissatisfaction with counsel is based on allegations that counsel made comments about the outcome of the trial based on Humphrey's race after the jury selection, but prior to opening statements. Humphrey alleged that his counsel pressured him to plead guilty. He alleged that his counsel "told me I was fucking stupid and that this is a white county and that I have no chance of winning in this county." Humphrey's attorney, however, stated to the trial judge that he "[did] not ignore the political realities of life in the U.S." He continued: I take into account race. However, I would never make the comments that Mr. Humphrey suggested that I made.I surely did not make any racial bashing bias. My comments were not in any way indicative of any racism that I perceived in others or myself. But again, in the context of a conversation, there surely was some reference.
Verbatim Report of Proceedings May 13, 2003 at 3.
Verbatim Report of Proceedings May 13, 2003 at 5.
Verbatim Report of Proceedings May 13, 2003 at 5-6.
While Humphrey's defense counsel's conversation referenced race as a factor to consider, the more important inquiry is whether the attorney-client relationship broke down to the point where Humphrey's right to a fair trial was threatened.
Here, Humphrey's counsel provided an adequate defense. He attempted to find the passenger of the car, and old medical records. And at trial, Counsel presented a competent opening argument, cross-examination of witnesses, direct examination of the defendant, and closing statement. There is no showing that defense counsel's performance was adversely affected by the breakdown of communication, if any, caused by the disagreement between attorney and client. There is no evidence on the record that a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant occurred. Accordingly, we conclude the trial court did not abuse its discretion in denying the motion to substitute counsel.
Humphrey cites Frazer v. United States, for the proposition that a pessimistic prognosis of a client's legal position cannot be based on race. However, the defendant in Frazer faced a much more acrimonious and adversarial relationship with his attorney. The attorney in Frazer threatened to provide substandard performance for his client if he chose to exercise his right to go to trial. The defense attorney directed inflammatory, explicitly racially prejudiced remarks at his client and threatened to compromise the client's rights. In Frazer the hostility and threats directed from the attorney to the client were tantamount to a total lack of communication that rendered counsel's assistance ineffective.
18 F.3d 778, 783 (9th Cir. 1994).
Frazer, 18 F.3d at 783.
Frazer, 18 F.3d at 783.
Here, Humphrey's attorney made no such inflammatory, racist remarks, there was no total breakdown in communication, and his performance at trial did not violate Humphrey's Sixth Amendment protections.
Humphrey also argues that inquiry into the conflict was inadequate. In United States v. McClendon, the defendant's description of the problem and judge's observations provided a sufficient basis for reaching an informed decision. But, the "conflict" over trial strategy did not rise to the level of a "total lack of communication preventing an adequate defense," and granting the motion to substitute counsel would have resulted in considerable delay and inconvenience to the jury, witnesses, prosecution and the court. On balance, the factors demonstrate that the trial court did not abuse its discretion by denying Humphrey's motion to substitute counsel.
782 F.2d 785, 789 (9th Cir. 1986).
United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990).
PROSECUTORIAL MISCONDUCT
Humphrey argues that the prosecutor's closing argument was designed to invite the jury to decide this case on the basis of passion and prejudice, not the evidence. Specifically, he argues that the prosecutor's comments appealed to the emotions of the jury by comparing Humphrey to terrorists who attacked the United States.
Prosecutorial misconduct may violate a defendant's due process right to a fair trial. To prevail on an allegation of prosecutorial misconduct, a defendant must show both improper conduct and prejudicial effect. In closing argument, a prosecutor is afforded wide latitude in drawing and expressing reasonable inferences from the evidence. But a prosecutor may not appeal to the jury's passions or prejudice. Prejudice is established only if there is a substantial likelihood that the alleged misconduct affected the jury's verdict.
State v. Charlton, 90 Wn.2d 657, 664, 585 P.2d 142 (1978).
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).
State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995), review denied, 129 Wn.2d 1012 (1996).
State v. Claflin, 38 Wn. App. 847, 850-51, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985).
State v. Borg, 145 Wn.2d 329, 335, 36 P.3d 546 (2001).
A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so flagrant and ill intentioned that it caused enduring and resulting prejudice that a curative instruction could not have remedied. Prosecutorial misconduct does not require reversal if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in absence of the error.
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
State v. Fiallo-Lopez, 78 Wn. App. 717, 729, 899 P.2d 1294 (1995).
Here, the prosecutor in closing argument discussed the concept of transferred intent, using the example of Timothy McVeigh in the Oklahoma City bombing case. He explained:
I don't want to compare anything in our lives that we have experienced to Oklahoma City. But as an example, if you blow up a building because you want to send a message to someone, or let's say there is a federal agent inside that building that you really want to see dead, you have an intent to do an act to maybe harm one person or maybe send a message, whatever. Timothy [McVeigh] is fully responsible for all 168 deaths.
We focus on the act, its intention. It is the act that caused some harm. It's an attack, that's what you focus on. In this case, I don't have to prove that Dion Humphrey knew Officer Hughey and Edison and Officer Diamond were nearby. I don't have to prove he knew they were there or that he even knew there were three officers there. He did an intentional act with a deadly weapon.
Though we conclude that the prosecutor used poor judgment in picking such an analogy to illustrate transferred intent, he did not directly, as Humphrey alleges, compare Humphrey with McVeigh. Furthermore, any prejudice could have been remedied by a timely objection by the defense and a request for a proper instruction. Assuming without deciding these comments should have been objected to, the failure to object did not cause enduring prejudice that could not have been remedied with a curative instruction. In this case the jury could have relied on credible testimony of four police officer witnesses. Given the great weight of evidence, a reasonable jury would have found Humphrey guilty regardless of the comments made in closing argument.
The prosecutor's next example came during rebuttal of the defense's closing statement and referenced the 9/11 attacks. The prosecution stated: . . That vehicle became a missile like airplanes on 9/11. I am not trying to draw parallels to the severity of the act. Of course, a weapon is a weapon nonetheless. The car is weapon.
Report of Proceedings (May 14, 2003) at 36.
Again, the defense failed to object to this comment that could have been cured by an objection and an instruction to disregard. Additionally, the rebuttal responded to the characterization by Humphrey's attorney that Humphrey never intended to harm the officers with his vehicle. Although the prosecutor's choice to use the airplanes of 9/11 as an example of how a vehicle could be used as a weapon was extremely poor judgment, it was not so flagrant and ill-intentioned as to reach the level of prejudicial misconduct.
Report of Proceedings (May 14, 2003) at 26-27.
Humphrey cites State v. Belgarde for the proposition that remarks referencing terrorism are a "deliberate appeal to the jury's passion and prejudice" and constitute prosecutorial misconduct. In Belgarde, unobjected — to remarks made by prosecutor in closing argument saying that defendant was "strong in" the American Indian Movement and that its members were "a deadly group of madmen" and "butchers that kill indiscriminately," were highly prejudicial, introduced facts not in evidence, and had a substantial likelihood of affecting the verdict, mandating a retrial. Here, there is no evidence in the record that the prosecution stirred the jury to passion and prejudice based on Humphrey's associations or directly compared Humphrey to the "madmen" and "butchers" of terrorist groups in order to secure a conviction.
110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Belgarde, 110 Wn.2d at 507.
Humphrey also argues that the prosecutor during closing argument unconstitutionally shifted the burden of proving guilt beyond a reasonable doubt from the prosecution to the defense. We disagree.
During closing argument, the prosecution stated:
You haven't been given a reason to doubt [Mr. Humphrey] is guilty of assault in the second degree for trying to hit those officers, for attempting to elude or for possession of cocaine. He simply is guilty.
However, prior to this statement, the prosecutor set forth evidence that supported each element of the alleged crimes. At no time did the prosecutor tell the jury that the defendant had the burden of proving his innocence. These comments were merely a summary of the evidence presented that showed Humphrey committed each of the elements of the crimes charged. Furthermore, unlike the situation in State v. Case, where the prosecutor stated his personal opinion about the defendant's guilt, the prosecutor here relied on facts in evidence to support his closing argument. The prosecutor rendered no personal opinion regarding Humphrey's guilt. Humphrey next argues that the prosecutor's mention of 9/11 and Oklahoma City was arguing facts not in evidence. We disagree.
49 Wn.2d 66, 74, 298 P.2d 500 (1956).
The prosecution did not use these events as a factual basis to convince the jury to convict. The prosecution used the events in illustrations and analogies that are allowed in the wide latitude afforded the prosecution on closing argument.
Humphrey also claims that the prosecutor's statement in closing argument that he had seen the "SODDI (some other dude did it)" defense before, and his analogizing Humphrey's testimony to that of a drunken driver who only admits to having two beer was arguing facts not in evidence. We disagree. While a prosecutor should not base any argument on his prior experiences, this was a fair characterization of the defense presented by Humphrey. In fact, Humphrey testified that someone else grabbed the wheel of the car, causing it to head straight toward the parked officers. The beer analogy presented by the prosecutor is not an argument of a fact not in evidence. It is merely an analogy used to illustrate Humphrey's admission of at least some wrongdoing. This analogy was well within the wide latitude permitted prosecutors on closing argument.
Finally, Humphrey argues that his counsel was ineffective at closing argument for failing to object to the prosecution's statements. The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal.
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989).
Strickland, 466 U.S. 668; State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980).
The prosecutor's remarks in closing argument were not so flagrant or ill-intentioned that a curative instruction could have remedied any prejudice the defendant or his counsel may have perceived. Furthermore, the objections would not have come on testimony central to the State's case.
DNA CHALLENGE
Humphrey contends RCW 43.43.754 and the portion of his sentence requiring him to provide a biological sample for DNA identification violate both his Fourth Amendment right against unreasonable searches, and his privacy rights under Article I, section 7 of the Washington Constitution. He also contends that there is no authority for the collection of DNA samples via a cheek swab. We disagree.
These arguments were rejected in, and are controlled by, our decisions in State v. Surge and State v. S.S.
122 Wn. App. 448, 94 P.3d 345 (2004) (holding that State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993) is controlling on this issue and binding on this court).
State v. S.S., 122 Wn. App. 725, 94 P.3d 1002 (2004) (holding that cheek swabs are an authorized method of collecting biological samples).
PERSONAL RESTRAINT PETITION
Humphrey's personal restraint petition claims ineffective assistance of counsel on bases that parallel those made in his direct appeal. None is convincing.
Generally, to prevail on a personal restraint petition, a petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a complete miscarriage of justice. Because we conclude that counsel for Humphrey was not ineffective, we dismiss his personal restraint petition.
Hews v. Evans, 99 Wn.2d 80, 88, 660 P.2d 263 (1983); In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990); In re Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992).
We affirm the judgment and sentence and dismiss the personal restraint petition.
COX, C.J. COLEMAN, J. and SCHINDLER, J.