Opinion
Nos. 22217-9-III, 23708-7-III
Filed: March 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-03111-1. Judgment or order under review. Date filed: 07/03/2003. Judge signing: Hon. Salvatore F. Cozza.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Jordan Knippling was convicted of first degree animal cruelty and two counts of second degree assault. Claiming the court erred by (1) allowing him to represent himself without standby counsel, (2) admitting his statements into evidence, and (3) imposing an exceptional sentence, Mr. Knippling appeals. He also raises prosecutorial misconduct, violations of his right to speedy trial, and the erroneous admission of witness testimony as additional grounds for review. We affirm the conviction, but remand for resentencing.
On November 11, 2002, Timi Knippling and two of her children, Angel and Elijah, came home to find Elijah's dog, Baby, badly beaten. Timi and Angel went downstairs to confront Mr. Knippling, who pulled out a knife and threatened them.
The police responded to the Knippling house. An officer contacted Mr. Knippling, who said his mom and sister had attacked him and he grabbed the knife to defend himself. The officer arrested him and read him his rights. On the way to jail, Mr. Knippling told the officer that 'no matter how long we locked him up, he would kill his mother.' Report of Proceedings (RP) at 76.
The State charged Mr. Knippling with first degree animal cruelty and two counts of second degree assault. He wanted to proceed pro se. The court conducted a colloquy and permitted him to represent himself.
Mr. Knippling testified he was acting in self-defense. He was sleeping when he heard someone coming down the stairs fast. He automatically grabbed the knife. The lights were off, but the TV was on and he saw his mother with her fists balled up. His mother then left his room and the next thing he knew the police were there. He denied injuring the dog. The jury convicted Mr. Knippling as charged whereupon the court imposed an exceptional sentence. This appeal follows.
Prior to trial, Mr. Knippling filed a request to proceed pro se. He acknowledged he had not studied law and he was facing jail time upon conviction. He understood he was undertaking a big challenge, but he wanted to represent himself. The court found Mr. Knippling knowingly and voluntarily waived his right to counsel.
The court offered him the availability of standby counsel, but he declined. Mr. Knippling now contests the court's failure to appoint standby counsel. The State counters that Mr. Knippling invited this error by declining the court's offer of standby counsel. The invited error doctrine prevents a party from challenging an error invited by that party. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999). The invited error doctrine applies to constitutional claims. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). Thus, any error was invited by Mr. Knippling and he cannot now complain of it on appeal.
He next asserts the court erred by admitting his statements to the arresting officer. During the CrR 3.5 hearing, however, Mr. Knippling told the court the statements at issue were freely made. The purpose of a CrR 3.5 hearing is to determine if the statements were voluntary. See State v. Williams, 137 Wn.2d 746, 752, 975 P.2d 963 (1999). When there is no issue as to the voluntariness of the statement, a hearing is not even required. State v. Summers, 52 Wn. App. 767, 774 n. 7, 764 P.2d 250 (1988), review denied, 112 Wn.2d 1006 (1989). By admitting the statements were voluntary, Mr. Knippling again invited error. In any event, there is none under the circumstances.
Mr. Knippling next challenges the imposition of an exceptional sentence. In Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 2533, 159 L. Ed. 2d 403 (2004), the U.S. Supreme Court held that a defendant has a constitutional right to have a jury determine whether the factors permitting an exceptional sentence have been proven beyond a reasonable doubt. The State's failure to submit the factual questions to the jury is not subject to a harmless error analysis. State v. Fero, ___ Wn. App. ___, 104 P.3d 49, 58 (2005). The court imposed the exceptional sentence here. We therefore remand for resentencing consistent with Blakely.
In his additional grounds for review, Mr. Knippling claims his right to a speedy trial was violated. A defendant who is first charged by complaint in district court and is detained, as was Mr. Knippling, must be brought to trial no later than 60 days after the date of arraignment less 'time elapsed in district court.' Former CrR 3.3(c)(2)(i) (2003). '[T]ime elapsed in district court' commences on the date of the first appearance in district court following the filing of the complaint. Former CrR 3.3(c)(2)(ii) (2003).
Mr. Knippling appeared in district court on November 13, 2002. The court indicated his speedy trial date was January 13, 2003. Trial was initially scheduled for January 6.
Thereafter, Mr. Knippling sought to dismiss his counsel and represent himself. On December 31, 2002, the court granted his motion to dismiss counsel and specifically indicated good cause existed to continue the trial date for seven days until January 13. The court noted there was a breakdown of communication between Mr. Knippling and his appointed counsel. The order specifically provided good cause existed to exclude those seven days from the speedy trial period. The State then had to bring Mr. Knippling to trial by January 20 to comply with CrR 3.3.
A court's decision to grant a motion for a CrR 3.3 continuance or extension will not be disturbed absent a showing of a manifest abuse of discretion. State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993). Mr. Knippling wanted his counsel dismissed, but the court did not think he should proceed pro se and new counsel needed to be appointed. In order to have time to appoint new counsel, good cause existed to exclude seven days from the speedy trial period. There was no abuse of discretion.
On January 10, 2003, the court granted another one-week continuance. Trial was now set for January 21. The court granted this continuance because the prosecutor was in trial on another case and the newly appointed defense counsel received the case on January 9. This order specifically excluded eight days from the speedy trial time. Good cause existed for this continuance as well and the State now had until January 28, to bring Mr. Knippling to trial.
On January 17, 2003, the court granted an order appointing a sanity commission and staying the proceedings to determine if Mr. Knippling was competent to stand trial. Once this competency proceeding was set in motion, the court rules tolled the speedy trial period until the court was satisfied he was competent. State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004) (citing former CrR 3.3(g)(1) (2003)). On May 15, 2003, the court entered an order finding Mr. Knippling competent to stand trial. On May 19, trial began.
The date the court appointed the sanity commission was the 51st day for speedy trial purposes given the 15 days specifically excluded by the court. With the speedy trial period tolled pending a determination on competency, Mr. Knippling was brought to trial on May 19, the 56th day of his speedy trial time. There was no speedy trial violation.
Mr. Knippling next contends the prosecutor committed misconduct. To obtain reversal of a conviction on the basis of prosecutorial misconduct, a defendant must show the prosecutor's conduct was improper and the conduct had a prejudicial effect, which means there must be a substantial likelihood the conduct affected the verdict. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). A prosecutor's 'remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Mr. Knippling first asserts the prosecutor committed misconduct by knowingly using perjured testimony. He claims the testimony of Timi, Angel, and Elijah did not match their prior statements to the police. While their testimony was not a perfect match to their prior statements, Mr. Knippling was able to, and did, bring the discrepancies to the jury's attention. These inconsistencies go to the credibility of the witnesses. There was no showing the testimony was perjured and no prosecutorial misconduct.
Mr. Knippling argues the prosecutor also committed misconduct because he vouched for the credibility of the State's witnesses. It is improper to vouch for a witness's credibility, but attorneys may argue credibility and draw inferences about it from the evidence. Brett, 126 Wn.2d at 175. A prosecutor arguing credibility only commits misconduct when it is 'clear and unmistakable' he is expressing a personal opinion rather than arguing an inference from the evidence. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983).
Mr. Knippling claims the prosecutor vouched for the State's witnesses by claiming their testimony was consistent. This is not misconduct. The prosecutor also asked the jury to return a guilty verdict. Such a request does not amount to vouching for the State's witnesses.
Mr. Knippling next argues the court committed reversible error when it removed him from the courtroom during the State's closing argument. A criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial. State v. Chapple, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001). But this right is not absolute. Id. A defendant's persistent, disruptive conduct can constitute a voluntary waiver of this right. Id. A defendant should first be warned his conduct could lead to removal. Id. at 320. The defendant's conduct also must be severe enough to justify removal. Id. The court must employ the least severe alternative that will prevent the defendant from disrupting the trial. Id. The defendant must be allowed to return to the courtroom upon assurances his conduct will improve. Id.
During the prosecutor's closing argument, Mr. Knippling interrupted to interject statements. The court warned him that if he did not stop interrupting, he would be removed from the courtroom so the prosecutor could finish his argument. Mr. Knippling again interrupted, disputing the accuracy of the testimony. The court removed him from the courtroom. These interruptions were argumentative and disruptive. The court's removal of Mr. Knippling was proper in this situation.
He also argues the State's witnesses were not competent to testify pursuant to CrR 6.12(c). That rule provides:
The following persons are incompetent to testify: (1) Those who are of unsound mind, or intoxicated at the time of their production for examination; and (2) children who do not have the capacity of receiving just impressions of the facts about which they are examined or who do not have the capacity of relating them truly. This shall not affect any recognized privileges.
There was no challenge of any witnesses' competency. It is the trial court that determines competency to testify. State v. Froehlich, 96 Wn.2d 301, 304, 635 P.2d 127 (1981). Because Mr. Knippling did not raise this issue below, we will not address it for the first time on appeal. See State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004).
Mr. Knippling further claims the prosecutor violated discovery rules by withholding exculpatory evidence. He bases this claim on the following exchange while he was cross-examining Timi Knippling.
Q: [Mr. Knippling] You wouldn't recognize making out one of these (indicating)?
A: [Timi] Oh, restraining order? Yes.
Q: Do you recognize making out this (indicating)?
A: Can't see it from here.
MR. LINDSAY: Your Honor, I have no idea what he is showing.
THE WITNESS: The restraining order that I took out against him.
THE COURT: Just a minute. Was this in the discovery packet?
MR. LINDSAY: No. I have no idea what this is.
THE COURT: Take a look, and we will move on.
MR. KNIPPLING: I mentioned it throughout my whole case. I mentioned it three or four times. You said it didn't exist, but, yet, I have the papers right there. Of course, I wanted want it admitted.
RP at 118-19. This testimony does not establish the State withheld evidence from Mr. Knippling. He had possession of the document and used it at trial as an exhibit. There was no discovery violation. See In re Pers. Restraint of Rice, 118 Wn.2d 876, 887, 828 P.2d 1086 (prosecution is required to turn over evidence in its possession or knowledge which is both favorable to the defendant and material to guilt or punishment), cert. denied, 506 U.S. 958 (1992).
Mr. Knippling claims the doctrine of cumulative error also requires reversal. Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified on other grounds, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). But when no prejudicial error is shown to have occurred, cumulative error could not have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Because no prejudicial error occurred here, the cumulative error doctrine is inapplicable.
Mr. Knippling has also filed a personal restraint petition, in which he claims his judgment and sentence as well as the court's findings supporting the exceptional sentence indicate he was not present during the sentencing proceedings. The record shows otherwise.
Mr. Knippling also asserts the court failed to certify his fingerprints on the judgment and sentence. But the court clerk attested that the fingerprints on the judgment and sentence were Mr. Knippling's fingerprints.
Mr. Knippling contends the information and amended information were defective. He first asserts neither was certified under the penalty of perjury. RCW 10.37.050, .052, and .054 set forth the requirements for an information. None of these statutes requires the prosecutor to certify the information under penalty of perjury. Furthermore, the prosecutor is bound by CR 11 which requires an attorney who signs a pleading to believe its contents are true. The information was not defective.
Mr. Knippling also claims the information was defective because it stated he committed these crimes on November 11, but he was notified of his rights on November 8. He argues he could not have been notified of his rights before he committed the crimes. The information was filed on November 26, 2002. There is nothing in the record indicating Mr. Knippling appeared in court or was given his rights on November 8.
We affirm the convictions and remand for resentencing. The personal restraint petition is denied.
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 BROWN, J., Concur.