Opinion
No. 28618-1-II c/w 28626-2-II
Filed: November 13, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 01-1-06179-0 Judgment or order under review Date filed: 03/22/2002
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, P.O. Box 7718, Tacoma, WA 98406-0718.
Stephanie C Cunningham, Attorney at Law, # 552, 4603 University Vlg NE, Seattle, WA 98105-5091.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Marcell and DaShone Quabner appeal their convictions for assault, harassment, and unlawful possession of a firearm. We affirm.
In November 2001, Shakira Jackson had an apartment in Tacoma. One of her neighbors was LaChica Jones.
On November 29, Marcell Quabner and DaShone Quabner were at Jackson's apartment, along with Jeannette McQueen and two other women. None of the women was pregnant.
According to Jackson and McQueen herself, McQueen was using a variety of drugs, including `sherm,' marijuana, crack cocaine, Percoset, and Vicodin. McQueen also was drinking alcohol and had not slept for several days.
`Sherm' is a cigarette dipped in embalming fluid. Report of Proceedings (RP) at 160-61.
At approximately 4 p.m. on November 29, McQueen knocked on Jones's door. She was `hysterical' and crying. She said she had been `hit in the face.' She asked to use the phone and then called both 911 and her mother. She told 911, `He already beat me up. My cousin's in there and he's got a gun to him . . . He's hit everybody. Their name is [Marcell] and (inaudible) . . . they're abouts try to leave.' She told her mother, `come quick. He's got a gun on me.' She stated during one of the calls `that she got hit in the face and somebody had her cousins, they were pregnant.'
RP at 262.
RP at 331-32; Exhibit 1.
RP at 179.
RP at 263. As used here, `cousins' apparently means friends.
McQueen's mother drove to Jackson's apartment, where she saw Marcell and DaShone throw something into a blue car and shut the trunk. They then left on foot.
Officer Leslie Belford arrived five or ten minutes after McQueen had called 911. He observed that McQueen was upset, crying, and shaky. She was pacing back and forth and acting nervous. She stated that DaShone had assaulted her, and that Marcell had assaulted Jackson when Jackson had tried to intervene. She said that one of the Quabners had produced a gun, apparently from his car, and threatened to shoot her in the head. She had then fled to Jones's.
Belford also observed that Jackson was `under some kind of trauma' — she was `visibly upset,' crying, and pacing back and forth. Although her account generally paralleled McQueen's, she alleged that both Marcell and DaShone had guns with which they had threatened to kill both McQueen and Jackson.
RP at 408, 219.
Belford observed that a blue Chevy Caprice was nearby. It matched the description of the blue car seen by McQueen's mother. He found a handgun on the front seat, but no fingerprints on either the gun or the car. The car was not registered to Marcell or DaShone.
Marcell and DaShone were arrested separately. Marcell was wearing a holster for a handgun, although not the kind of handgun found in the Caprice. He also gave fake names to the arresting officers. DaShone had keys that opened and operated the Caprice.
On November 30, 2001, the State charged Marcell and DaShone with two counts of assault in the second degree and two counts of felony harassment. Additionally, it charged Marcell with one count of unlawful possession of a firearm in the first degree, and DaShone with one count of unlawful possession of a firearm in the second degree.
By January 17, 2002, McQueen and Jackson had recanted. Defense counsel sought and received a continuance over Marcell and DaShone's objection.
At the January 29, 2002 omnibus hearing, Marcell's counsel, Jeniece LaCross, told the court that she and Marcell had suffered a `breakdown in communication.' Addressing Marcell, the court said that `if your ability to communicate with Ms. LaCross has deteriorated at this time, I will schedule a hearing to see if she's able to get the Department of Assigned Counsel to appoint someone else.'
Omnibus RP at 7.
On February 13, 2002, Marcell moved in limine to exclude as hearsay McQueen's and Jackson's statements to Jones, 911, McQueen's mother, and Belford. At a hearing the next day, the defense essentially argued that McQueen's hysteria was due to drugs and alcohol rather than the alleged events, and that McQueen had had an opportunity to fabricate her statements. The court admitted the statements as excited utterances.
On the date set for trial, February 19, 2002, Marcell moved to substitute attorney Michael Schwartz for LaCross. LaCross, Marcell, and Schwartz all said that communication between LaCross and Marcell had broken down. DaShone did not object to Schwartz's substitution. Schwartz requested a two-day delay, so he could obtain `all materials that have been made available to defense counsel thus far.' Schwartz told the court that he would have several new motions, and DaShone's attorney told the court that he had another trial, which was long and complex, starting in two weeks.
RP at 88.
The State opposed the motion. It argued that LaCross was competent and prepared, and that Marcell's dissatisfaction was without `legitimate cause.' It claimed that Schwartz's proposed motions would necessitate more than two days' delay, that the defense had already secured one continuance, and that the prosecutor would begin 12 weeks of leave in two weeks. After balancing `the public's interest in prompt and efficient administration of justice' against `the defendant's interest in counsel of his or her choice,' the trial court denied the motion.
RP at 96.
RP at 105.
At trial, which commenced the same day, McQueen recanted her statements to the police. She could not remember calling the police or her mother. She might have lied to the police, and their reports were incorrect. She and Jackson had been fighting, and Marcell and DaShone merely separated them. She had been `excited,' `paranoid,' and `fidgety' due to drugs, not due to the alleged events.
RP at 164.
Jackson likewise recanted. She said that she and McQueen had been fighting, and that Marcell and DaShone had merely pulled them apart. The officers' reports were incorrect, and she had told them that McQueen was lying.
On February 26, 2002, a jury found Marcell and DaShone guilty on all counts. After sentencing, they filed these appeals.
I.
Both Marcell and DaShone assert that the trial court violated the hearsay rule by admitting McQueen's hearsay statements to her mother, 911, Jones and Belford. A statement related to a startling event or condition is not excluded as hearsay if `made while the declarant was under the stress of excitement caused by the event or condition.' The defendants say this criterion is not met because McQueen was under the influence of drugs rather than the stress of excitement caused by the alleged events, and because McQueen had time to reflect on and fabricate her statements.
ER 803(a)(2); State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
Whether McQueen's excitement was due to drugs or the alleged events was a question of preliminary fact for the trial judge to decide under ER 104(a). Drug use was a factor to be considered, but is not by itself dispositive. So also, lapse of time. Here then, we cannot say that the trial court erred.
State v. Freigang, 115 Wn. App. 496, 509, 61 P.3d 343 (2002) (Morgan, J., concurring); State v. Karpenski, 94 Wn. App. 80, 102, 971 P.2d 553 (1999), abrogated on other grounds, State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003); Condon Bros., Inc. v. Simpson Timber Co., 92 Wn. App. 275, 286, 966 P.2d 355 (1998); see also Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); United States v. Franco, 874 F.2d 1136, 1139 (7th Cir. 1989).
State v. Greene, 15 Wn. App. 86, 88-89, 546 P.2d 1234 (`The use of the drug by the victim goes to the weight of the testimony, not its admissibility.'), review denied, 87 Wn.2d 1004 (1976).
State v. Strauss, 119 Wn.2d 401, 416-17, 832 P.2d 78 (1992); State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000).
II.
Marcell asserts that he had a right to substitute Schwartz for LaCross on the date set for trial. Although a defendant has the right to retain counsel of his choice, that right is not absolute. The right does not include a right to unduly delay the proceedings, so it is waived if not timely asserted. When deciding whether the right has been timely asserted, the `trial court must balance the defendant's interest in counsel of his or her choice against the `public's interest in prompt and efficient administration of justice."
State v. Chase, 59 Wn. App. 501, 506, 799 P.2d 272 (1990) (`the right to retain counsel of one's own choice has limits'); United States v. Washington, 797 F.2d 1461, 1465 (9th Cir. 1986) (`criminal defendants who can afford to retain counsel have a qualified right to obtain counsel of their choice') (emphasis added) (quotation omitted); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978) (defendant's right to counsel of choice is not absolute).
United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993), overruled on other grounds, United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir.), cert. denied, 528 U.S. 978 (1999).
Chase, 59 Wn. App. at 506 ('[i]n the absence of substantial reasons a late request should generally be denied') (citation omitted).
State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (quoting Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981), cert. denied, 454 U.S. 1162 (1982)), review denied, 126 Wn.2d 1016 (1995).
In this case, Marcell had nearly ten weeks to retain counsel of his choice, but did not do so until the morning set for trial. The trial court found that current counsel was competent and prepared, and that Marcell would not be prejudiced if the trial were to proceed. This was not an abuse of discretion, and the trial court did not err.
See, e.g., Chase, 59 Wn. App. at 506-07.
III.
Marcell contends that the evidence is not sufficient to support his conviction for unlawful possession of a firearm. Evidence is sufficient if a rational trier of fact taking it in the light most favorable to the State could find beyond a reasonable doubt each element of the crime charged. The evidence can be direct or circumstantial, and credibility determinations are left to the trier of fact.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Finley, 97 Wn. App. 129, 136, 982 P.2d 681 (1999), review denied, 139 Wn.2d 1027 (2000).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
In this case, Jackson excitedly told officers that both Marcell and DaShone had guns. When Marcell was later arrested, he was wearing a holster. McQueen's mother saw both him and DaShone throw something into the blue car. Marcell fled the scene and later gave false names to the police. Taken in the light most favorable to the state, this evidence is sufficient to support a finding that Marcell was in possession of a gun, and the trial court did not err by submitting the case to the jury.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD and BRIDGEWATER, JJ., concur.