Opinion
No. 24983-2-III.
April 26, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 05-1-00239-2, Donald W Schacht, J., entered February 28, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
This is a prosecution for first degree assault. The defendant assigns error to a number of the court's rulings, including the failure of the court to properly instruct the jury on his claim of self-defense. The court gave conflicting jury instructions, including one that would have required the defendant to show a threat of "great bodily harm" in order to avail himself of the defense. We conclude that this was error. But given the facts of this case, it was harmless error. No reasonable juror could have concluded that the victim's alleged threat to stab the defendant with a knife could be anything less than a threat of "great bodily harm." The defendant raises a number of other errors that we find to be without merit. We therefore affirm his conviction.
FACTS
Kelly Irby slashed a man's throat with a razor blade. Both he and the victim were inmates at the Washington State Penitentiary.
The State charged Mr. Irby with first degree assault. He claimed self-defense. Stun Belt The trial court required Mr. Irby to wear a stun belt during the trial. The trial court conducted an appropriate Hartzog hearing before doing so. In the process, it made a number of pertinent observations:
State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981).
[T]here were incidents in Chelan County, and I think at Monroe, although I think most of them had to do with Chelan County. There were attempts and successful completion of removal of restraints . . . when you were being held during the murder trial of resistive behavior. And it didn't look like it was escape behavior. But certainly it was behavior that threaten[ed] the security of those around you and those that were charged with your security.
Report of Proceedings (RP) at 6-7.
The trial court referred to a letter Mr. Irby had recently written to his girl friend which said, "No courtroom outbursts so far, ha." RP at 7.
The court considered each of the Hartzog factors. The trial judge then concluded that: "The measures that I have described today, in my opinion, are the most available and adequate we have in this particular courtroom under these circumstances, and they are the least restrictive alternatives that we can use under the circumstances." RP at 18. Trial Testimony
Mr. Irby testified at trial. He said that he owed the victim money, and that the victim threatened to stab him in the penitentiary yard because he had not paid. Mr. Irby said that he could not avoid the victim and had to go to the yard. He fashioned a weapon out of a razor blade and brought it to protect himself. Mr. Irby said that the victim had a weapon. He testified that the victim said that he would stab Mr. Irby and then reached for his weapon. Mr. Irby then slashed the victim's throat.
Closed Hearing
The trial court closed the courtroom for an in camera hearing on the relevancy of some of Mr. Irby's evidence. The victim was afraid to disclose the name of his cellmate for fear of retribution. He was afraid that Mr. Irby or someone else might hurt his cellmate or that his cellmate would disclose the location of the victim's family to Mr. Irby. The trial court closed the courtroom for an in camera hearing to decide whether the victim should be forced to disclose the information, i.e., whether it was relevant. The public and Mr. Irby were excluded. The court concluded that the name of the cellmate was not relevant. Instructions
The court instructed the jury inconsistently on self-defense. Defense counsel did not object.
Instruction 12 says, "[t]he use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured and when the force is not more than is necessary." RP at 401 (emphasis added).
Instruction 13 states that: "A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm." RP at 402 (emphasis added).
A jury rejected Mr. Irby's defense and found him guilty of first degree assault.
DISCUSSION
Ineffective Assistance of Counsel — Self-Defense Instruction
Mr. Irby argues that his lawyer's efforts were constitutionally deficient because he did not object to the flawed self-defense instructions. He argues that the jury could have concluded that he reasonably believed that he was about to be injured (something short of great bodily harm) and yet still rejected his self-defense argument. Instruction 13 erroneously required fear of great bodily harm, not just fear of injury. He reminds us that an instruction that misstates the law of self-defense is an error of constitutional magnitude and requires reversal. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997).
The State concedes that the instructions were flawed but argues that any error was harmless given the factual scenario in this case. It argues that the only threat Mr. Irby complains of here (being stabbed) satisfies both "great bodily harm" and "great personal injury."
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003).
Mr. Irby must show: (1) that counsel's performance was so deficient and that counsel made errors so serious, that counsel did not function as the "counsel" guaranteed by the constitution; and (2) the defendant must show that the deficient performance prejudiced the defense, i.e., the errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Erroneous jury instructions are presumed to be prejudicial. State v. Marquez, 131 Wn. App. 566, 576, 127 P.3d 786 (2006). We therefore presume that the failure of a lawyer to object to an erroneous instruction is deficient unless there was no prejudice. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
The question before us, then, is whether the error so prejudiced Mr. Irby's defense that he is entitled to a retrial. Strickland, 466 U.S. at 693-94. Mr. Irby must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id.; Aho, 137 Wn.2d at 745.
The facts here do not support Mr. Irby's claim of prejudice. Mr. Irby's showing at trial was that the victim threatened several times to stab him. He knew that the victim had a knife. He saw the victim reach for his knife. The victim threatened to stab him in the yard just before Mr. Irby's assault. Mr. Irby slit the victim's throat before the victim could attack him. The instruction requiring great bodily harm could not have affected the outcome here. State v. Freeburg, 105 Wn. App. 492, 505, 20 P.3d 984 (2001).
Stun Belt
Mr. Irby argues that the trial judge abused his discretion by requiring him to wear a stun belt during his trial. He argues that the device is cruel and inhuman, that it was unnecessary (or at least there was no showing of its necessity here), and that it prevented effective communication with his lawyer.
The State relies on State v. Monschke for the proposition that: "a trial court has inherent authority to determine what security measures are necessary to maintain decorum in the courtroom and to protect the safety of courtroom occupants." Monschke, 133 Wn. App at 336.
State v. Monschke, 133 Wn. App. 313, 135 P.3d 966 (2006), review denied, 2007 Wash. LEXIS 171 (Mar. 6, 2007).
We review the trial judge's decision to use restraints for abuse of discretion. Hartzog, 96 Wn.2d at 400. Mr. Irby did not object to the use of the stun belt at trial. Generally, he cannot assign error on appeal unless he first raised his objections in the trial court. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). He may, however, raise manifest errors affecting a constitutional right here for the first time. RAP 2.5(a)(3); McFarland, 127 Wn.2d at 333; State v. Scott, 110 Wn.2d 682, 757 P.2d 492 (1988); State v. Lynn, 67 Wn. App. 339, 342, 835 P.2d 251 (1992). But "[t]he defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error 'manifest', allowing appellate review." McFarland, 127 Wn.2d at 333; Scott, 110 Wn.2d at 688; Lynn, 67 Wn. App. at 346.
The problem here for Mr. Irby is twofold. First, the trial judge went through an exhaustive and specific process before imposing this restraint. Second, Mr. Irby does not show how he, specifically, was prejudiced in this case. "To overturn a jury's verdict, a defendant challenging the use of restraints must make a threshold showing that the restraints had a 'substantial or injurious effect or influence on the jury's verdict.'" Monschke, 133 Wn. App. at 336 (internal quotation marks omitted) (quoting In re Pers. Restraint of Davis, 152 Wn.2d 647, 694, 101 P.3d 1 (2004)). "This requires evidence that the jury saw the restraints or that the restraints substantially impaired the defendant's ability to assist in his trial defense." Id.
The court did not abuse its discretion in requiring Mr. Irby to wear a stun belt in the courtroom.
Closed Hearing
Mr. Irby next argues that the court denied him his right to a public hearing by closing the court to the general public. The State responds that the court did not close the trial to the public but simply conducted an in camera hearing in the courtroom. Again, Mr. Irby shows no prejudice.
"A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his or her presence would contribute to the fairness of the procedure." State v. Berrysmith, 87 Wn. App. 268, 273, 944 P.2d 397 (1997); Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987).
The right to confrontation is not implicated here. When the right to confrontation is not implicated, the court must address two questions when determining whether the hearing was a critical stage in the proceedings: (1) whether the subject of the hearing related to a purely legal matter, and (2) whether the absence of the defendant affected the opportunity to defend against the charge. Berrysmith, 87 Wn. App. at 273-74.
In Berrysmith, the in camera hearing in question resulted in Berrysmith's lawyer's withdrawal (on the day that the jury trial was supposed to begin) because counsel believed Berrysmith could not be dissuaded from his intention to commit perjury. Id. at 270-73. Berrysmith argued that the hearing was a critical stage of the criminal proceedings because factual assertions were at issue (whether Berrysmith intended to commit perjury) and because resolution of the issues affected Berrysmith's right to be represented by counsel at trial and his right to a speedy trial. Id. at 274. The court found that the issue was purely legal, and that the resolution of the legal issue bore "no substantial relation to the fullness of Berrysmith's ability to defend against the charge of delivery of cocaine." Id. at 276. Therefore, Berrysmith had no constitutional right to be present at the in camera hearing. Id. at 277. Relevancy of testimony is a legal issue within the discretion of the court. State v. Adams, 76 Wn.2d 650, 458 P.2d 558 (1969), rev'd on other grounds, 403 U.S. 947, 91 S. Ct. 2273, 29 L. Ed. 2d 855 (1971).
Here, the victim testified that he borrowed money from an old cellmate to pay Mr. Irby. The victim refused to follow Mr. Irby's instructions to beat up his current cellmate. Mr. Irby then demanded money. Mr. Irby's theory was that if this old cellmate could be found, he might tell a different story than that of the victim. Mr. Irby hoped that the victim had told his friend a different story — a story that would somehow support Mr. Irby's defense that it was Mr. Irby that owed the victim money, and not the other way around.
The court's refusal to force disclosure of the identity of the victim's old cellmate did not inhibit Mr. Irby's ability to present his theory of self-defense.
The trial court did not abuse its discretion when it held an in camera hearing to determine the relevancy of evidence. Adams, 76 Wn.2d 650.
Prosecutorial Misconduct
Police investigator Jim Hartford testified that he and several other officers had to remove Mr. Irby from his cell at the penitentiary and move him to segregation. The State asked how Mr. Irby responded. Mr. Hartford answered:
He was defiant to me. He stated that — He asked — he said, "what evidence," and I said positive video identification of you as being the assailant. And again he was defiant and saying, "You have no such evidence. There's nothing that you can do that will keep me from departing institution in 2007." And then he finished off by saying he wanted an attorney.
RP at 220.
Later in the trial, the State cross-examined Mr. Irby:
Q All right. After this occurred, when was it that you told Investigator Hartford that you did this in self-defense, he was about to cut you; when was that?
[Defense Counsel]: Your Honor —
A Never did.
[Defense Counsel]: Your Honor, I'm going to object to that. If I need to indicate the nature, I would like to have the jury excused.
THE COURT: Are you objecting to the form of the question? He's already answered the question.
RP at 313.
Mr. Irby argues that the State's questions amounted to a comment on his silence.
The State may not comment on a defendant's silence. Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). This rule has been extended to instances where the State elicits testimony on defendant's postarrest silence during its case in chief and refers to such silence in its closing argument. State v. Evans, 96 Wn.2d 1, 3-4, 633 P.2d 83 (1981); State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979). But that is not what happened here.
First, no one commented on Mr. Irby's silence. Mr. Irby was not silent. He does not cite to anything in the record to support the notion that someone did comment on his silence. RAP 10.3(a)(6). The essence of his assignment of error is that it was misconduct for the State to ask a question intended to solicit an answer that would draw the jury's attention to Mr. Irby's failure to explain self-defense to Investigator Hartford.
We review a claim of prosecutorial misconduct for abuse of discretion. State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). A defendant claiming prosecutorial misconduct bears the burden of demonstrating that the conduct was improper, and that it prejudiced the defense. State v. Harvey, 34 Wn. App. 737, 740, 664 P.2d 1281 (1983). We review allegedly improper comments in the context of the prosecutor's entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998).
Decisions made by the trial court as to the relevancy and admissibility of evidence are reviewed for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
"[T]he State may question a defendant's failure to incorporate the events related at trial into the statement given police or it may challenge inconsistent assertions." State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174 (1988). This is particularly true when the defendant does not remain silent, but rather asserts a denial in one form and then on trial asserts a different one. Belgarde, 110 Wn.2d at 511; State v. Cosden, 18 Wn. App. 213, 220-21, 568 P.2d 802 (1977). "This 'partial silence' at the time of the initial statement is not insolubly ambiguous, but 'strongly suggests a fabricated defense and the silence properly impeaches the later defense.'" Belgarde, 110 Wn.2d at 511-12 (quoting Cosden, 18 Wn. App. at 221). Such a statement does not violate due process because the defendant waived the right to remain silent concerning the subject matter of his statement. Id. at 512; Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980). It is important, however, to note that the focus is to be made on prior inconsistent statements, not the failure to make a statement at all. Belgarde, 110 Wn. 2d at 512.
Mr. Irby made comments to Investigator Hartford. Mr. Hartford related those comments to the jury. Those comments did not reflect Mr. Irby's theory of self-defense. Rather, they reflect the notion that he did not assault the victim or that he had gotten away with assaulting the victim. The State questioned Mr. Irby as to the comments made, specifically whether they were consistent with Mr. Irby's current testimony ("when was it that you told Investigator Hartford that you did this in self-defense," RP at 313). This is not inappropriate questioning. Belgarde, 110 Wn.2d at 511.
A mere reference to silence does not warrant reversal absent a showing of prejudice. State v. Sweet, 138 Wn.2d 466, 481, 980 P.2d 1223 (1999). The prosecutor did not interpret or draw conclusions from Mr. Irby's answer in any way that could have prejudiced him in the eyes of the jury. Mr. Irby made no argument that there was any prejudice. Even if the prosecutor's comment was an inappropriate comment on silence, such error is subject to the harmless error analysis. State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996).
Here, the worst that can be said is that the prosecutor brought the attention of the jury to the fact that Mr. Irby had not previously presented his actions as self-defense. The prosecutor said nothing beyond that. The jury may infer any number of things from such information, but the prosecutor did not offer a suggestion. Further, Mr. Hartford had previously testified to Mr. Irby's comments, and a claim of self-defense was not present among them. By asking Mr. Irby whether his current testimony was consistent with prior comments, the prosecutor did not illicit information that the jury had not already heard. The prosecutor did not commit misconduct by asking Mr. Irby about his prior comment to Investigator Hartford, nor did the court err by failing to sustain an objection to this question.
There was no objection to Mr. Hartford's comments at trial, and the only objection presented on appeal is presumed to be that Mr. Irby believes them to be a comment on silence.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Brown, J., Kulik, J.