Opinion
No. 21861-9-III
Filed: May 19, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kittitas County. Docket No: 02-1-00034-6. Judgment or order under review. Date filed: 02/24/2003. Judge signing: Hon. Michael E Cooper.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Laura Candace Hooper, Kittitas Co Courthouse, 205 W 5th Ave Ste 213, Ellensburg, WA 98926-2887.
Claiming ineffective assistance of counsel, John Edward Johnson appeals his conviction of one count of second degree murder. We affirm. On February 8, 2002, Mr. Johnson and his wife Lela spent the evening with her friends. After going to several Ellensburg bars, the group went to a motel. While there, Mr. Johnson began to make insulting comments to his wife. He appeared to be angry with her. When he abruptly decided to leave, Ms. Johnson scrambled to get her shoes and ran after him. They then went home.
At home, Mr. Johnson and his wife went upstairs to their bedroom. Mr. Johnson's mother, Lavone, heard noises coming from the bedroom. Lavone opened the bedroom door and told them to go to bed. She then went downstairs, whereupon she heard a loud noise from the bedroom. She ran upstairs and saw Mr. Johnson lifting his wife from the floor. Ms. Johnson was not wearing a shirt and had a small wound on her chest. Ms. Johnson was transported to the hospital, where she died.
Ms. Johnson's jacket and shirt were found in the bedroom. Both the jacket and shirt were sliced. A nine or ten-inch Bowie knife was also found in a drawer of a gun cabinet in the bedroom. The knife was in a sheath; there was blood on the knife.
An autopsy established Ms. Johnson had died from a single stab wound to the chest that had penetrated her heart. She also suffered a wound near her eyebrow, two wounds on her left hand and bruising. Mr. Johnson was charged with one count of second degree murder, with a deadly weapon enhancement. At trial, Mr. Johnson insisted the death was an accident. He testified he had the knife in his right hand and the sheath in his left hand. As he turned, Ms. Johnson tackled him. After she grabbed him around his arms and upper body, they both fell to the floor.
The jury convicted Mr. Johnson of second degree murder. This appeal follows.
Mr. Johnson claims ineffective assistance of counsel. A defendant alleging ineffective assistance must show not only that counsel's representation was deficient, but also that the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Even if counsel's representation was deficient, the claim will fail absent a showing of prejudice. Hendrickson, 129 Wn.2d at 78.
Counsel's performance is deficient if it falls `below an objective standard of reasonableness' under prevailing professional norms. In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992); Strickland, 466 U.S. at 687. But there is a strong presumption that counsel's performance was reasonable, State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990), and counsel's tactical decisions do not provide a basis of ineffectiveness. State v. Brett, 126 Wn.2d 136, 198-99, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Moreover, counsel's failure to pursue a tactic substantially likely to fail is not evidence of ineffective representation. State v. Adams, 91 Wn.2d 86, 90-92, 586 P.2d 1168 (1978). We view counsel's performance against the entire record, requiring the defendant to demonstrate there was no sound tactical or strategic reason for counsel's actions. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Mr. Johnson first contends his trial counsel was ineffective for failing to request a change of venue because of pretrial publicity. During voir dire, 32 of the 78 potential jurors indicated that they had heard of Mr. Johnson's case. Of those 32, four eventually got on the jury. But because Mr. Johnson's counsel could have decided reasonably as a matter of trial strategy to conduct the trial in Kittitas County instead of requesting a venue change, Mr. Johnson cannot establish his counsel was ineffective. Moreover, a change of venue is not automatically granted when there is pretrial publicity. Any decision to change venue rests largely within the discretion of the trial court. State v. Clark, 143 Wn.2d 731, 756, 24 P.3d 1006, cert. denied, 534 U.S. 1000 (2001). `[A] defendant must show a probability of unfairness or prejudice from pretrial publicity.' State v. Hoffman, 116 Wn.2d 51, 71, 804 P.2d 577 (1991). `The fact that `the great majority of veniremen' remember a case, without more, is `essentially irrelevant. The relevant question is not whether the community remembered the case, but whether the jurors at [the] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.'' State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003) (quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984)). Here, the trial court questioned the jurors about the pretrial publicity. A number of jurors acknowledged they had heard about the case. Four of them became jurors. None of these jurors, however, indicated he or she could not be fair and impartial in judging the case. Furthermore, the trial court took effective steps to protect Mr. Johnson's rights. It strongly emphasized to the jurors not to listen to news broadcasts, read newspapers, or talk to anyone about the case. Thus, there was no ineffective assistance for failing to request a change of venue.
Mr. Johnson next contends he was denied his right to effective assistance of counsel and an unbiased jury when his attorney failed to conduct a comprehensive jury voir dire. He argues that even though four jurors indicated they had heard of the case, his counsel failed to make appropriate inquiries of these jurors concerning their knowledge of it. But the record reflects the prospective jurors were extensively examined by the trial court, the prosecutor, and defense counsel. Before passing the jury panel for cause, defense counsel questioned several jurors. Although counsel did not individually question each juror about the effects of pretrial publicity, the voir dire was sufficient to permit the discovery of bias or prejudice held by any prospective juror. Mr. Johnson's counsel asked the jurors whether they were able to decide the case based on the evidence. He asked the jurors twice if any of them had difficulty in applying the concept of innocent until proven guilty. He asked the jurors whether they could keep their personal opinions about the evidence separate from the legal issues they would be deciding. In these circumstances, Mr. Johnson has failed to show that defense counsel's decisions regarding the extent of the voir dire were unreasonable and not strategic. He has not carried his burden of showing counsel's actions and inactions in conducting voir dire fell outside the `wide range of reasonable professional assistance.' Strickland, 466 U.S. at 689.
Mr. Johnson contends he was denied effective assistance of counsel when his attorney agreed to waive recording of the closing arguments. During trial, the prosecutor and defense counsel stipulated to waive the requirement that the court reporter transcribe closing arguments. Both counsel agreed closing arguments would be taped rather than transcribed because of the condition of the court reporter's hands. The quality of the recording, however, prevented transcription of the closing arguments. The trial judge accordingly submitted an affidavit stating he had observed and listened to closing arguments and no objections had been made by either counsel. `A criminal defendant is `constitutionally entitled to a `record of sufficient completeness' to permit effective appellate review of his or her claims.'' State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1983) (quoting Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)). "A `record of sufficient completeness' does not translate automatically into a complete verbatim transcript." Id. The absence of a portion of the record is not reversible error unless the defendant can demonstrate prejudice. State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123, review denied, 104 Wn.2d 1010 (1985). `The usual remedy for a defective record is to supplement the record with appropriate affidavits and have discrepancies resolved by the judge that heard the case.' Tilton, 149 Wn.2d at 783. But when the affidavits are unable to produce a record that satisfactorily recounts the events material to the issues on appeal, a new trial must be ordered. Id.
Here, the lack of closing argument in the record does not entitle Mr. Johnson to reversal of his conviction. The record was supplemented by the trial judge's affidavit, which stated that at no time during closing argument did either counsel make an objection. The absence of closing arguments in the record was thus not prejudicial.
In his statement of additional grounds for review, Mr. Johnson claims he was denied effective assistance of counsel when his lawyer stipulated to the admission of ER 404(b) evidence. Under ER 404(b), evidence of a defendant's other crimes or bad acts is not admissible to prove his character as a ground for suggesting that his conduct on a particular occasion was in conformity with it. But such evidence may be admissible to show `proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b).
Here, the State sought to introduce ER 404(b) evidence through statements from six of Ms. Johnson's coworkers, her sister, and through her medical and work records. The stipulation prepared by defense counsel agreed to the admission of only portions of the statements initially proffered by the State. These statements were from three of Ms. Johnson's coworkers. According to the stipulation, the remainder of the State's proffered ER 404(b) evidence would not be introduced at the time of trial, `except for use in impeachment should contrariwise evidence be found, after hearing outside the presence of the jury, to have been introduced by the defense.' Clerk's Papers (CP) at 72. Because most, if not all, of the State's proffered evidence would likely have been admitted in order to rebut Mr. Johnson's defense that his wife's death was accidental, he cannot demonstrate that his counsel's stipulation for admission of only portions of the ER 404(b) evidence was anything but a tactical decision. Mr. Johnson was not denied effective assistance of counsel. Mr. Johnson next contends counsel was ineffective for failing to object to the following statement made by his wife's coworker, Betty Matthews:
[Prosecutor]: What did she say if you called the police?
[Ms. Matthews]: She begged me `don't call the police, John will kill me.' Has threatened when they have gotten in arguments if she tells anybody he would come after her. He didn't care.
Report of Proceedings (RP) (Feb. 5, 2003) at 95. Mr. Johnson asserts Ms. Matthews' statement was inadmissible hearsay. ``Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' ER 801(c). Hearsay is generally inadmissible. ER 802. But under ER 803(a)(3), hearsay evidence is admissible if the victim's state of mind is relevant to a material issue of fact before the jury. State v. Haack, 88 Wn. App. 423, 438-39, 958 P.2d 1001 (1997), review denied, 134 Wn.2d 1016 (1998). `[T]he state of mind exception of ER 803(a)(3) is generally only applicable in instances where the state of mind of the deceased is at issue, such as in cases where the defenses of accident or self-defense are interposed.' State v. Powell, 126 Wn.2d 244, 266, 893 P.2d 615 (1995). Ms. Johnson's state of mind was at issue here because he raised the defense of accident. The statement was admissible. Again, there was no ineffective assistance.
Mr. Johnson also claims counsel was deficient for failing to cross-examine Ms. Matthews. At trial, she testified, pursuant to the ER 404(b) stipulation, that the entire left side of Ms. Johnson's body was bruised. According to Ms. Matthews, the victim told her that Mr. Johnson had choked her and lifted her leg up over his shoulder, snapping her hamstring. Mr. Johnson argues he provided doctor and police reports to his counsel that were inconsistent with Ms. Matthews' testimony so counsel was deficient for failing to cross-examine her. But whether and how much to cross-examine a witness is generally considered a trial tactic and is not a basis for an ineffective assistance of counsel claim. State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968). Because the record is silent as to what was contained in the police reports, we have no way of knowing whether counsel had a legitimate reason for not cross-examining Ms. Matthews. Matters not reflected in the record cannot be considered on direct review and are more properly the subject of a personal restraint petition. State v. King, 24 Wn. App. 495, 500, 601 P.2d 982 (1979).
Mr. Johnson finally contends he was denied effective assistance of counsel when his attorney failed to conduct proper voir dire of one of the jurors. After a recess during trial, the judge stated he had spoken in chambers with two of the State's witnesses, who had been approached by a juror's husband. The juror's husband had asked the witnesses what the case was about. They responded by saying, `State versus Johnson' and that they could not talk to him. RP (Feb. 7, 2003) at 56. The trial judge instructed the jury in the jury room not to talk to anyone about the case, discuss the case, or allow it to be discussed in their presence. He stated that this instruction also applied to spouses and friends. The trial judge then stated, `I want to caution anybody here, spouse or otherwise, if you know anybody on the jury or a witness, and you're not connected to the case that you don't talk to that person, period. There is no exception.' RP (Feb. 7, 2003) at 56. Because this incident was not brought to light until after voir dire had been completed and the trial had commenced, defense counsel's failure to question the juror during voir dire regarding her husband's actions could not have constituted ineffective assistance.
Affirmed.
A majority of the panel has determined 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.
SCHULTHEIS, J. and KURTZ, J., Concur.