Opinion
No. 28468-9-III
10-13-2011
STATE OF WASHINGTON, Respondent, v. WESLEY OSCAR KRONICK, Appellant. STATE OF WASHINGTON, Respondent, v. SCOTT P. DAVIS, Appellant.
(consolidated with No. 28471-9-III)
UNPUBLISHED OPINION
, J. — Wesley O. Kronick and Scott P. Davis appeal their reckless driving convictions and sentences. They contend the trial court erred in allowing certain speed testimony and in excessively sentencing them. Alternatively they contend they received ineffective assistance of counsel. Finally, they urge cumulative error. We affirm.
SITUATION
On the morning of August 23, 2008, Department of Fish and Wildlife (DFW) Officer Brendan Vance was traveling eastbound on Highway 14 in Klickitat County. The highway speed limit was 60 miles per hour. Near milepost 89, Officer Vance came up behind two motorcyclists, Mr. Kronick and Mr. Davis. As he watched, the motorcyclists exchanged hand signals, "crouched down" from their upright seating positions and accelerated to "a high rate of speed." Report of Proceedings (RP) (Aug. 5, 2009) at 42.
Officer Vance activated his emergency lights and siren and followed the men for approximately 11 to 12 miles, unable to get them to pull over. Throughout the pursuit, Officer Vance personally observed the men traveling at speeds he estimated at 100-120 or more miles per hour while passing other vehicles on blind corners and in no passing zones. Officer Vance was eventually able to stop and arrest Mr. Kronick and Mr. Davis.
The State charged Mr. Kronick and Mr. Davis with attempting to elude a pursuing police vehicle and reckless driving. The trial court consolidated the cases as have we.
Before jury trial, Mr. Kronick's and Mr. Davis' counsel asked if the State was going to present evidence relating to speedometer readings. The prosecutor replied he was going to ask about a speedometer and speed governor and the defendants' possible speed based on pacing. Relying on ER 901, defense counsel objected, stating, "if [Officer Vance] wasn't the person making sure both the governor and the speedometer were accurately calibrated, or information isn't presented for that foundation, I think it should be left out." RP (Aug. 5, 2009) at 28. Defense counsel stated, "I know the case law is clear that he can give a lay witness opinion ... of speed based upon an estimate, but that it should limit there." Id. at 28-29. The court allowed the officer to testify, "as to whether or not his vehicle was equipped with a speedometer, whether or not it had been calibrated and as to what he read on the speedometer." Id. at 29.
At trial, Officer Vance testified his DFW vehicle was not equipped with a radar device but did have a speedometer. After the officer testified he did not know if his speedometer was calibrated, defense counsel successfully objected to any further reference to the speedometer. Officer Vance estimated Mr. Kronick and Mr. Davis were traveling at approximate speeds of 100-120 or more miles per hour. This evidence was elicited without objection on both direct and cross-examination. Officer Vance testified he had completed a week of traffic training through the Washington State Patrol, had completed additional emergency vehicle and operational control training through his department, and had conducted traffic based speed contacts in the past. Officer Vance testified his vehicle was equipped with a speed governor limiting his ability to go above approximately 103 miles per hour. The governor activated while he was pursuing Mr. Kronick and Mr. Davis. Both men testified to going approximately 80-85 miles per hour.
The jury found both men guilty of reckless driving and acquitted them of felony eluding. The State requested a sentence of 45 days in jail. At sentencing, the court described reckless driving as a "very serious offense" and labeled the men's driving as "abhorrent." RP (Aug. 17, 2009) at 8-9. The court stated the men's driving, "almost shock[ed] [his] conscience in a way." Id. at 9. The court sentenced Mr. Kronick and Mr. Davis to 365 days of incarceration with 335 suspended, leaving 30 days to serve in jail. Mr. Kronick and Mr. Davis appealed.
ANALYSIS
A. Evidence Concerns
The issue is whether the trial court erred by abusing its discretion in allowing Officer Vance's speed related testimony concerning Mr. Kronick and Mr. Davis.
"The admission of evidence lies largely within the sound discretion of the trial court." State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993). We will not disturb a trial court's determination to allow certain evidence absent a manifest abuse of discretion. Id. A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
Initially, the State contends this issue is not appealable because the men did not object below. "The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). This rule ensures that the trial court is given timely opportunity to avoid error and the necessity of a new trial. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). When a pretrial motion in limine is granted, and the proponent of the evidence attempts to introduce it in violation of the exclusion order, the opponent must make a timely objection when the evidence is introduced. Otherwise, the objection is deemed waived. State v. Sullivan, 69 Wn. App. 167, 171-72, 847 P.2d 953 (1993). A timely objection, motion to strike, or other curative action is also required to preserve a claim of error when a witness makes an inadvertent remark or gives an unresponsive answer that violates a pretrial ruling. State v. Neukom, 17 Wn. App. 1, 4, 560 P.2d 1169 (1977).
Here, when ruling on the defense motion in limine the court limited speedometer testimony to whether Officer Vance's truck had a speedometer, whether it was calibrated, and what he read on the speedometer. However, at trial Officer Vance testified his truck had a speedometer but that he did not know if it had been calibrated. The State then asked Officer Vance if he looked at the speedometer. Defense counsel objected based on the officer's previous statement that he did not know if the speedometer was calibrated. The trial court sustained the objection, arguably reversing its earlier ruling in limine.
Defense counsel did not object to any other testimony regarding speed that was based on the speedometer or governor, including testimony that Mr. Kronick and Mr. Davis now assert was admitted in error. And, defense counsel questioned Officer Vance regarding the men's speed and pacing, thereby eliciting further evidence regarding the speedometer. Where no objection, motion to strike, or request for a curative instruction is made, the error is not preserved. RAP 2.5(a). A party cannot set up an error at trial and then complain about it on appeal. State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990). In any event, Officer Vance's testimony was couched in terms of approximation based on his personal observations and speed estimations, allowable as lay testimony under ER 701. And, Mr. Kronick and Mr. Davis correctly concede such speed estimations are admissible.
Alternatively, Mr. Kronick and Mr. Davis contend defense counsel was ineffective for failing to object at trial to testimony regarding the speedometer and Officer Vance's lay opinion regarding their speed. To prove ineffective assistance, Mr. Kronick and Mr. Davis must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Counsel's performance is deficient if it falls "below an objective standard of reasonableness." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). When reviewing a claim of ineffective assistance of counsel, we strongly presume counsel's representation was effective and competent. A decision made by trial counsel for legitimate strategic or tactical reasons cannot support an ineffective assistance of counsel claim. Id. To establish ineffective assistance of counsel for failure to object, the defendant must show that the objection would likely have been sustained. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
Mr. Kronick and Mr. Davis argue defense counsel had no reason for failing to object to Officer Vance's testimony. But, as reasoned above, Officer Vance's direct testimony was proper lay testimony estimating speed. Thus, any objection would likely have been overruled. The record shows counsel made a well-reasoned motion to exclude the use of any information gathered by the officer from his speedometer. The court initially allowed the State to present this testimony. After the officer testified that he did not know whether the device had been calibrated, trial counsel again raised the issue by objecting to speedometer-based speed testimony. The objection was sustained. The speedometer was not mentioned again. Trial counsel effectively eliminated evidence gathered from this device.
A lay witness may solely give opinions or inferences that are (a) rationally based on the witness' perception and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. ER 701; State v. Farr-Lenzini, 93 Wn. App. 453, 462, 970 P.2d 313 (1999). And if the lay opinion relates to a core element that the State must prove, a substantial factual basis must support that opinion. Id. at 462-63. Courts have upheld the admission of lay opinions regarding speed of a vehicle. Id. at 462 (citing State v. Kinard, 39 Wn. App. 871, 874, 696 P.2d 603 (1985)).
Even if counsel's performance had been deficient for failing to object, Mr. Kronick and Mr. Davis cannot show prejudice. A person is guilty of reckless driving when that person drives a vehicle in willful or wanton disregard for the safety of persons or property. RCW 46.61.500(1). Both men testified they were traveling up to 85 miles per hour, 25 miles above the speed limit. Testimony showed they were passing other vehicles on blind corners and in no passing zones. Our Supreme Court has recognized, "the fact of speed alone may permit a jury to infer that a driver was driving recklessly." State v. Randhawa, 133 Wn.2d 67, 78, 941 P.2d 661 (1997). Accordingly, even if Officer Vance's testimony was excluded, sufficient evidence supports Mr. Kronick's and Mr. Davis' convictions. Under these circumstances, Mr. Kronick and Mr. Davis cannot demonstrate ineffective assistance of counsel.
Mr. Kronick and Mr. Davis next argue the trial court erred in allowing Officer Vance's time-and-distance testimony. During trial, Officer Vance testified without objection from the time he first began to follow the motorcycles until the time everything came to a stop, they traveled "approximately 12 miles" in "[s]even or eight minutes." RP (Aug. 5, 2009) at 57-58. As discussed above, we are not inclined to review claims of error which were not raised in the trial court. RAP 2.5(a). A party who fails to object to the admissibility of evidence may not raise the issue on appeal. In re Det. of Post, 145 Wn. App. 728, 755-56, 187 P.3d 803 (2008) (citing In re Det. of Taylor, 132 Wn. App. 827, 836-37, 134 P.3d 254 (2006)), aff'd, 170 Wn.2d 302, 241 P.3d 1234 (2010). Thus, this argument is waived. And again, Mr. Kronick and Mr. Davis alternatively argue counsel was ineffective for failing to object on grounds Officer Vance's testimony violated the speed trap statute.
"Washington's speed trap statute establishes criteria for evidence to be admissible." State v. Smith, 87 Wn. App. 345, 349, 941 P.2d 725 (1997) (citing RCW 46.61.470(1)). The statute states that speed evidence is admissible, "if the same is determined by a particular section of or distance on a public highway, the length of which has been accurately measured off or otherwise designated or determined and . . . a timing device is operated from an aircraft, which timing device when used to measure the elapsed time of a vehicle passing over such a particular section of or distance upon a public highway indicates the speed of a vehicle." RCW 46.61.470(2). But, this case does not involve a speed trap. Moreover, as discussed above, both men admitted to exceeding the speed limit; thus, it is unlikely defense counsel's decision to not object would result in a different outcome. Without prejudice, Mr. Kronick's and Mr. Davis' ineffective assistance of counsel claim fails. See Hendrickson, 129 Wn.2d at 78 (if a defendant fails to satisfy either part of the test, the court need not inquire further).
Because we conclude no evidentiary or ineffective assistance error exists, we do not reach cumulative error. "Cumulative error may warrant reversal, even if each error standing alone would otherwise be considered harmless." State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Where no error exists, "there can be no cumulative error." In re Det. of Law, 146 Wn. App. 28, 42, 204 P.3d 230 (2008). Accordingly, the cumulative error doctrine does not apply.
B. Sentencing Concerns
The issue is whether the sentencing court imposed an excessive sentence by sentencing Mr. Kronick and Mr. Davis as if they had been convicted of attempting to elude a pursuing police officer.
The State requested a sentence of 45 days in jail. At sentencing, the court described reckless driving as a "very serious offense" and labeled the men's driving as "abhorrent." RP (Aug. 17, 2009) at 8-9. The court stated that the men's driving, "almost shock[ed] [his] conscience in a way." Id. at 9. The court sentenced Mr. Kronick and Mr. Davis to 365 of days incarceration with 335 suspended for a total sentence of 30 days.
Reckless driving is a gross misdemeanor. RCW 46.61.500(1). This offense is punishable by imprisonment up to a year. Former RCW 46.61.500(1) (1990). The trial court is not bound by felony standard-range sentencing principles. In other words, the trial court has discretion to sentence up to the maximum allowed punishment for a gross misdemeanor. Here, the court explained the driving was abhorrent and shocking. Since the court within its discretion imposed a sentence consistent with the requirements of former RCW 46.61.500(1), and Mr. Kronick and Mr. Davis fail to convince us that suspending all but 30 days is somehow legally excessive, they have failed to demonstrate any abuse of discretion necessitating review.
Effective July 22, 2011, Laws of 2011, chapter 96, section 34, amended RCW 46.61.500(1) as follows: "Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. Violation of the provisions of this section is a gross misdemeanor punishable by imprisonment (
Affirmed.
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.
Brown, J.
WE CONCUR:
Kulik, C.J.
Siddoway, J.
(of-not more than one year)) for up to three hundred sixty-four days and by a fine of not more than five thousand dollars."