Opinion
Nos. 51227-7-I, 52401-1-I Consolidated Cases.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-05367-8. Judgment or order under review. Date filed: 10/16/2002, Judge signing: Hon. Michael C Hayden.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Ja Price — Informational only (Appearing Pro Se), Doc # 730595, Washington State Penitentiary, 1313 North 13th Ave, Walla Walla, WA 99362-1065.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
If the trial court has reason to doubt a defendant's competence, it must follow the procedures for a competency hearing under RCW 10.77. Once competency is determined, however, the trial court is not required to hold a new hearing unless the defendant presents evidence that his or her condition has changed. Here, the trial court did not err in refusing to hold a new competency hearing because Price did not present any additional evidence to suggest that his condition changed. Additionally, Price does not have a viable claim for ineffective assistance of counsel because the challenged evidence was relevant and Price was not prejudiced.
FACTS
The State charged Jason Price with first degree rape, second degree assault with sexual motivation, and first degree kidnapping for events that occurred on June 5, 2001. On June 30, 2001, Price's attorney requested a competency evaluation. The court granted the motion and sent Price to Western State Hospital for a 15-day evaluation. After that evaluation, the trial court found Price competent to stand trial.
On September 26, 2001, Price's attorney requested an independent competency evaluation. The court allowed an in-jail competency evaluation. Based on the evaluation, the trial court found Price incompetent to stand trial and sent Price to Western for a 90-day competency evaluation.
On April 29, 2002, the trial court held a competency hearing. Dr. Trish Sowards testified that she believed Price was competent and that he was malingering psychotic symptoms in a goal-directed manner. The defense called Dr. Ken Muscatel to contest competency. At the hearing, Muscatel testified that he was unable to conduct the evaluation because of Price's behavior. The court recessed the hearing to give Muscatel an opportunity to evaluate Price. After the evaluation, Muscatel concluded that Price was competent to stand trial. The trial court found Price competent on May 7, 2002.
On July 18, 2002, Price's attorney again asked the court to find Price incompetent to stand trial because he was having difficulty communicating with Price. The trial court questioned Price and found him competent, noting that Price chose not to cooperate with his attorney.
At the CrR 3.5 hearing, Price testified and provided some information, but also exhibited bizarre behavior. Counsel again raised the issue of competency, arguing that Price's behavior at the hearing showed that he was not competent. The trial court did not order a new competency hearing.
Price testified at trial, but refused to answer counsels' questions. He was also abusive and threatening toward his attorney, the prosecutor, and the judge. After Price testified, his attorney requested a finding of incompetence. The trial court, while noting that Price's testimony was not in his best interest, found that Price was competent and refused to declare a mistrial. Price requested to testify again. The trial court allowed Price to testify again, on the condition that he cooperate and answer the questions asked. Price testified for the second time without any behavioral outbursts. He answered all questions and provided a defense to the charges, claiming that the sexual acts were consensual. The jury found Price guilty of second degree assault with sexual motivation, but was unable to reach a verdict on the remaining charges. The trial court declared a mistrial on the rape and kidnapping charges. At the sentencing hearing for the assault conviction, Price's attorney again requested a finding of incompetence based on Price's behavior. The trial court did not hold a competency hearing and sentenced Price within the standard range. Price appealed the conviction.
On October 23, 2002, a trial court found Price incompetent to stand trial and committed him to Western. A trial court found Price competent to stand trial on the remaining charges on February 7, 2003.
Price was retried for one count of second degree rape. Price did not testify during the second trial. The jury found Price guilty of second degree rape, and the trial court sentenced him within the standard range. Price filed a timely notice of appeal. The two appeals were consolidated.
ANALYSIS
The first issue we address is whether the trial court erred in failing to hold another competency hearing. The Fourteenth Amendment to the United States Constitution prohibits the conviction of persons not competent to stand trial. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). Under Washington law, "'[n]o incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues.'" Fleming, 142 Wn.2d at 862 (quoting RCW 10.77.050). The constitutional test is whether the defendant (1) understands the charges and (2) has the ability to assist counsel. State v. Marshall, 144 Wn.2d 266, 277, 27 P.3d 192 (2001). The determination of whether a competency examination is necessary rests within the discretion of the trial court. Fleming, 142 Wn.2d at 863. In making this determination, the trial court should consider "'defendant's appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel.'" Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). The procedures under the competency statute are mandatory. Fleming, 142 Wn.2d at 863. Once there is reason to doubt the defendant's competency, the trial court must follow the provisions of the statute. Fleming, 142 Wn.2d at 863.
Counsel for Price argues that there was reason to doubt Price's competency at several points during the proceedings leading up to and during the first trial and, therefore, the trial court abused its discretion in failing to hold another competency hearing. Once a competency determination is made, however, the court is not required to revisit competency unless "'new information presented has altered the status quo ante.'" State v. Ortiz, 119 Wn.2d 294, 301, 831 P.2d 1060 (1992). The issue then is whether Price presented new information that altered the previous competency determination. At the competency hearing, Dr. Trish Sowards testified that Price had an antisocial personality disorder and was faking psychotic symptoms, called malingering, in an attempt to avoid legal responsibility. Sowards testified that persons with antisocial personality disorders are frequently disruptive but that they have the capacity to cooperate if they chose to do so. She thus concluded that Price's disruptive behavior was volitional. She noted that he was able to give a well-organized, defense-oriented account of the events, but then followed that with bizarre statements. She testified that persons with psychoses are incapable of giving organized and goal-oriented responses. She also noted that Price did not suffer from hallucinations, and she provided specific examples of behaviors that led her to believe that Price was malingering for secondary gain.
Price's actions before the trial court were consistent with Dr. Sowards' diagnosis. Price was disruptive and made several bizarre statements. When Price took the stand for the first time, he was threatening and made several statements that did not pertain to the trial. After the testimony, his attorney again raised the issue of competency. In deciding to continue, the trial court stated:
Clearly he did not act in his best interest during that colloquy that I just heard. He does know that this is a court of law. He totally disrespects it. He knows the function of this court is to try him for rape. He knows that's the jury. He knows this is his lawyer, although he has certainly indicated he wishes wasn't his lawyer, I suppose. He knows the role of the prosecutor. I'm going to let the case go forward.
After the court made this ruling, Price requested the opportunity to testify again, telling the trial court that he would answer the questions and not be disruptive. During that testimony, Price was not disruptive, did not make bizarre statements, and gave an organized, defense-oriented account of what happened. Because Price's behavior was consistent with the expert testimony given at the previous competency hearing, Price did not present new information that would give the trial court reason to doubt competency. Therefore, the trial court did not abuse its discretion in failing to order a new competency hearing. The next issue we address is whether Price's counsel was ineffective because he failed to object to testimony at the second trial regarding Price's lips at the time of arrest and the officers' experience with other suspects who had burnt lips from crack pipes. Failure to object to evidence at trial constitutes a waiver and does not preserve the error for appellate review. RAP 2.5. Claims of ineffective assistance of counsel, on the other hand, are of constitutional magnitude and may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Davis, 60 Wn. App. 813, 822-23, 808 P.2d 167 (1991). Failure to object to irrelevant evidence may constitute ineffective assistance of counsel in some circumstances. But simply formulating an evidentiary error as an ineffective assistance of counsel claim does not transform it into an error of constitutional magnitude. Davis, 60 Wn. App. at 823. A defendant must show that the failure to object to the evidence prejudiced the case and that counsel's representation was ineffective under the test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness and (2) there is a reasonable probability that the deficient performance prejudiced the case. Strickland, 466 U.S. at 687. Here, there was no reason for Price's counsel to object to the challenged evidence and there was no showing of prejudice. Therefore, Price does not have a legitimate claim of ineffective assistance of counsel.
Additionally, Price argues that the court failed to give enough weight to his counsel's representations that he was not competent. "The court must give considerable weight to the lawyer's representations in applying the test to determine the competency of a defendant to stand trial." State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978). The attorney advised the court that he was having difficulty communicating with Price and that Price was not assisting with the defense. Dr. Sowards testified at the competency hearing that Price had an antisocial personality disorder and that he would likely be difficult to work with. She noted, however, that he was capable of cooperating. Thus, counsel's representations about the difficulty in discussing the case with Price were consistent with the testimony at the competency hearing. Again, the information did not change the status quo and therefore the trial court did not abuse its discretion in failing to order another competency hearing.
The testimony regarding Price's lips was relevant. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Price was charged with second degree rape, which required proof that Price had sexual intercourse with the victim by forcible compulsion. RCW 9A.44.050(1)(a). The victim testified that Price smoked crack before the rape, that he burned her with a crack pipe, and that he was also burned with the pipe. Thus, the evidence that Price's lips were burnt when he was arrested is relevant to corroborate the victim's account. Because the evidence was relevant, Price's counsel had no reason to object to it.
Additionally, even if not relevant, Price was not prejudiced by the evidence. Prejudice exists if there is a reasonable probability that the result of the trial would have been different if the evidence was excluded. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.'" State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694) (italics omitted)). Price argues that the disputed evidence improperly bolstered the victim's credibility and that this likely caused the jury to find him guilty. The State, however, presented substantial evidence to support the verdict — (1) the victim suffered injuries that were well-documented, (2) the victim's underwear, socks, and hair accessory were found at the scene, (3) parts of the victim's broken keychain were found in her car, (4) Price was apprehended near the scene, (5) Price had a burn on his neck consistent with the victim's testimony, and (6) Price gave several versions of his account that night. Because of the substantial evidence produced, there is not a reasonable probability that the verdict would have been different had the evidence been excluded. Therefore, Price was not prejudiced by counsel's failure to object to the testimony.
We affirm both convictions and conclude that Price does not have a viable claim for ineffective assistance of counsel.
KENNEDY, and COX, JJ., concur.