Opinion
No. 55446-8-I.
November 6, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-10008-7, Nicole MacInnes, J., entered December 10, 2004.
Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Christopher Gibson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John Mccurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed by unpublished per curiam opinion.
Tommie Mitchell was found guilty on one count of second degree unlawful possession of a firearm and three counts of first degree assault with firearms enhancements on each count. Mitchell alleges that the trial court improperly: (1) admitted computer assisted dispatch police records and denied defense counsel's subsequent request for a limiting instruction; (2) denied defense counsel's motions to withdraw and to continue sentencing; and (3) concluded that it had no legal authority to impose concurrent, as opposed to consecutive, sentences for appellant's assault convictions. We affirm because the records were properly admitted, the court acted within its discretion in denying defense counsel's motions, and did not depart from statutory standards in imposing the sentences.
I.
Emmanuel "E-Duey" Givens and Gregory Potter were driving through the Central District of Seattle when they came upon Tommie Mitchell driving with his friend, Rony Sampson. While Givens and Mitchell had once been friendly, they had lately been at odds. Mitchell believed that Givens had recently committed a drive-by shooting at Mitchell's mother's house.
When Givens turned off the street they were on, Mitchell gave chase. Givens cut through several residential streets before turning west on Yesler Way. Mitchell was in pursuit the whole way. After they had traveled a half block on Yesler, Givens and Potter heard gunshots coming from Mitchell's car. Givens picked up speed until he was traveling at 60 or 65 miles an hour down Yesler Way, weaving into oncoming traffic and running red lights in his attempt to elude Mitchell. The gunfire continued in bursts down Yesler Way until Mitchell broke off pursuit, squeezing off three parting shots.
Givens and Potter were stopped by police a few minutes later and taken into custody. Potter gave police a statement. Detectives found no guns, shell casings, or ammunition in Givens's car, but they did discover a bullet hole in the rear bumper. Potter testified at trial that the police also tested him numerous times for gunpowder residue, but found none.
During the course of the shooting spree, bullets struck two cars traveling on Yesler Way, narrowly missing the occupants. One driver was injured by flying glass when a bullet passed through her windshield.
Mitchell fled to Oregon, and was not arrested until he returned to Seattle after his money ran out.
Mitchell was charged with one count of second degree unlawful possession of a firearm and three counts of first degree assault with firearms enhancements on each count. A jury found him guilty as charged. The defendant requested an exceptional sentence down. The State agreed that such a sentence was appropriate. The court imposed a sentence of 360 months confinement.
II. CAD Evidence
Mitchell asserts that the trial court erred in admitting evidence from the Seattle Police computer aided dispatch (CAD) system. The decision to admit evidence lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. "There is an abuse of discretion when the trial court's decision is manifestly unreasonable or based upon untenable grounds or reasons."
State v. Brown, 132 Wn.2d 529, 571-572, 940 P.2d 546 (1997).
Brown, 132 Wn.2d at 572.
Potter testified that Mitchell fired first as Mitchell followed Givens down Yesler Way. Mitchell asserted that Givens fired first as Givens followed Mitchell's car.
During the trial, a detective testified about the computer aided dispatch system, describing how all calls received by 911 operators are recorded, how that information is dispatched to patrol cars, and how officers can enter information into the system themselves. He also testified that the system can cross-reference information, and had done so on the occasion of the shootings on Yesler Way. The prosecutor inquired of the detective if any reports had been cross-referenced from the area where Mitchell claimed Givens initially shot at him. The detective said no reports from that area had been filed. Defense counsel objected to the CAD testimony as hearsay, but was overruled. He also requested a limiting instruction, but was denied. In closing arguments, the prosecutor cited the lack of cross-referenced reports to cast doubt on Mitchell's claim that Givens had fired first and that Mitchell was acting in self-defense.
Evidence Rule 801(c) defines hearsay as "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 802 states that hearsay "is not admissible except as provided by these rules, by other court rules, or by statute." The Uniform Business Records as Evidence Act provides such an exception.
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
In State v. Bradley, the court upheld the admissibility of police department CAD printouts under this statute.
17 Wn. App. 916, 567 P.2d 650 (1977).
The printout is a record of an event made in the regular course of business that satisfies the requirements for admission under The Uniform Business Records as Evidence Act, RCW 5.45.020. A document that qualifies as a business record cannot be denied admission on the ground that the person who entered the information in the record does not testify in court. Thus the statements of the person who received the phone call come within an exception to the hearsay rule for business records.
Bradley, 17 Wn. App. at 918 (citations omitted).
ER 803(a)(7) applies when evidence is introduced regarding the absence of an entry in a business record. In pertinent part, the rule provides:
(a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(7) Absence of Entry in Records Kept in Accordance With RCW 5.45. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of RCW 5.45, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
ER 803(a)(7).
As the court in Bradley noted, a CAD record may contain double hearsay. First, it contains the statements of the person who received the call, dispatched the officers and recorded the time of their arrival; and second, the printout contains the declarations of the person who placed the phone call and described the nature and location of the incident. Nevertheless, the court held that the CAD records come within the exception to the hearsay rule for business records.
Bradley, 17 Wn. App. at 918.
It was proper for the detective to testify about the CAD system and the absence of cross-references to reports of shots coming from the area described by Mitchell. While the evidence was hearsay, it was admissible under RCW 5.45.020 and ER 803(a)(7).
Motion to Withdraw and Motion to Continue Sentencing
Mitchell asserts that the trial court erred in denying defense counsel's motions to withdraw and to continue sentencing. An appellate court reviews the granting or denial of a motion for continuance for manifest abuse of discretion. This includes continuances sought to obtain new counsel. A trial court's ruling on a motion to withdraw is also reviewed for abuse of discretion.
State v. Miles, 77 Wn.2d 593, 597-98, 464 P.2d 723 (1970).
State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994).
State v. Hegge, 53 Wn. App. 345, 350, 766 P.2d 1127 (1989).
On the day of sentencing, defense counsel requested the court to continue the sentencing, and asked that he be allowed to withdraw as counsel. Counsel explained that Mitchell had filed a complaint against him with the state bar association. The bar complaint had been dismissed prior to the motion. Defense counsel inferred from the bar complaint that Mitchell believed that there was ineffective assistance of counsel, and asserted that it would be a conflict were he to represent Mitchell in the event Mitchell made a motion to the court asserting ineffective assistance. He acknowledged that Mitchell had not made any actual complaint to the court. Defense counsel said that Mitchell might make a statement to the court, but that he had advised Mitchell that any statement he made would be recorded and might be incriminating. Mitchell did not make any statement at the sentencing hearing, nor has he made a motion asserting ineffective assistance of counsel or sought to replace counsel since that time.
The court found that the dismissed bar complaint was not enough to bar defense counsel from representing Mitchell, and denied the motion to continue.
Appellant cites to State v. Lopez to support his contention that the trial court erred in denying counsel's motion to withdraw. Addressing the implications of a court's refusal to permit the substitution of counsel where a defendant lacks faith in his appointed attorney, the Lopez court held that "[b]ecause of the potential implications on a defendant's Sixth Amendment rights, a court in this situation should inquire carefully into the defendant's reasons for the distrust."
79 Wn. App. 755, 904 P.2d 1179 (1995).
Lopez, 79 Wn. App. at 765.
The present case is readily distinguishable. Mitchell's counsel made his request at the sentencing hearing, not, as in Lopez, before the trial. Mitchell did not bring a motion to the court; rather his counsel inferred the possibility of a motion based on Mitchell's dismissed complaint to the bar association. Mitchell has made no claim of ineffective assistance on appeal. Given the ephemeral nature of defense counsel's motions, the trial court acted within its discretion in denying them.
Lopez, 79 Wn. App. at 763-64.
Consecutive Sentences
Mitchell challenges the court's conclusion that it had no legal authority to impose concurrent, as opposed to consecutive, sentences for appellant's assault convictions. A trial court's decision regarding the length of a sentence within the standard range is not appealable, because as a matter of law there can be no abuse of discretion. In contrast, it is well established that appellate review is still available for the correction of legal errors or abuses of discretion in the determination of what sentence applies.
State v. Kinneman, 155 Wn.2d 272, 283, 119 P.3d 350 (2005).
Mitchell was convicted of three counts of first degree assault, each with a separate victim. Assault in the first degree is a "serious violent offense" under RCW 9.94A.030(40). RCW 9.94A.589 (which deals with consecutive and concurrent sentences) provides that when a person is sentenced for two or more serious violent offenses arising from separate and distinct criminal conduct, the sentences "shall be served consecutively to each other." Crimes against separate victims constitute separate and distinct criminal conduct.
State v. Salamanca, 69 Wn. App. 817, 828, 851 P.2d 1242 (1993).
RCW 9.94A.540 provides, in pertinent part, that:
[T]he following minimum terms of total confinement are mandatory and shall not be varied or modified under RCW 9.94A.535:
. . . .
(b) An offender convicted of a crime of assault in the first degree or assault of a child in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.
"[T]he word `shall' in a statute is presumptively imperative and operates to create a duty."
State v. Martin, 137 Wn.2d 149, 154, 969 P.2d 450 (1999).
The trial court was also required to impose consecutive five year firearm enhancements. RCW 9.94A.510 provides that five years shall be added to the standard sentence range for felony crimes "[i]f the offender or an accomplice was armed with a firearm." The statute also mandates that "[n]otwithstanding any other provision of law, all firearm enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter."
In State v. Flett, the court held that the trial court erred in reducing the base sentences for each of the defendant's serious violent offense convictions below the statutory minimum and similarly reducing the firearm enhancements. The court held that the defendant, convicted of four counts of first degree assault while armed with a firearm, must receive a minimum sentence of 20 years composed of the minimum five-year mandatory term for each first degree assault conviction and the four weapons enhancement penalties.
98 Wn. App. 799, 992 P.2d 1028 (2000).
Flett, 98 Wn. App. at 808.
Under RCW 9.94A.589 and RCW 9.94A.540, the trial court was required to impose consecutive sentences of a minimum of five years for each assault charge. In addition, the court was required to impose consecutive firearm enhancements, and the court did so. Mitchell's second degree unlawful possession of a firearm conviction was set by the trial court to run concurrently with his third assault sentence.
The appellant relies on RCW 9.94A.535 to argue that his sentence is appealable.
A departure from the standards in RCW 9.94A.589(1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in this section, and may be appealed by the offender or the state as set forth in RCW 9.94A 585(2) through (6).
The appellant's argument fails. The court did not depart from the standards laid out in RCW 9.94A.589, but complied with the provisions of subsection (1)(b), which specify that all sentences imposed under that subsection shall be served consecutively to each other.
Under the holding of Flett and the provisions of the statutes, the trial court did not err in imposing a mandatory minimum sentence.
AFFIRMED.