Opinion
No. 24073-8-III.
October 31, 2006.
Appeal from a judgment of the Superior Court for Okanogan County, No. 04-1-00281-6, Jack Burchard, J., entered April 25, 2005.
Counsel for Appellant(s), Anthony Rocco Castelda, Attorney at Law, Po Box 1307, 204 S Whitcomb Ave, Tonasket, WA, 98855-8818.
Counsel for Respondent/Cross-Appellant, Karl F Sloan, Okanogan County Prosecuting Attorney, Po Box 1130, Okanogan, WA, 98840-1130.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Kulik, JJ.
Franklin R. Simpson and a cohort robbed a gas station. The cohort shot the clerk in the process. A jury convicted Mr. Simpson of numerous charges arising from the incident. He assigns error to a number of the court's rulings but argues primarily that his lawyer did not do much to defend him and therefore failed to provide a constitutionally adequate defense. Left unsaid, however, is what should have been done and what difference it might have made. The court also dismissed a charge of rendering criminal assistance concluding that it was part and parcel of charges for a related accomplice liability. That was error. We then affirm Mr. Simpson's convictions and remand for reinstatement of the conviction for rendering criminal assistance.
FACTS
Franklin R. Simpson helped Tracy Corbett rob the Flying B gas station in Okanogan, Washington. Mr. Corbett entered the gas station, robbed it, and shot the store clerk. He used Mr. Simpson's gun. Mr. Simpson drove Mr. Corbett from the scene in Mr. Simpson's truck. Both the store clerk and a witness contacted the police and described the truck to police.
A deputy sheriff saw Mr. Simpson's truck within minutes. Mr. Simpson pulled into a driveway. Mr. Corbett fled on foot. Mr. Simpson tried to drive away. The deputy stopped him. Mr. Simpson told the deputy that he was the only person in the vehicle. The deputy arrested Mr. Simpson.
The State charged Mr. Simpson with: (1) attempted first degree murder, (2) robbery in the first degree, (3) theft in the second degree other than a firearm, (4) rendering criminal assistance in the first degree, (5) driving while license suspended or revoked in the second degree, (6) solicitation to commit theft in the third degree, (7) possession of a stolen firearm, and (8) unlawful possession of a firearm in the second degree. The State later dismissed the theft in the second degree other than a firearm.
The case was tried to a jury over six days. Mr. Simpson's counsel reserved his opening statement.
The State called Mr. Corbett. The prosecutor questioned him. Mr. Corbett answered "no" frequently and he responded twice that he did not remember. The State moved to have the court declare Mr. Corbett unavailable as a witness and to admit his prior deposition testimony. The court allowed Mr. Simpson's lawyer to inquire. The court ultimately concluded Mr. Corbett was unavailable and allowed the State to read Mr. Corbett's prior deposition testimony.
Mr. Simpson's counsel cross-examined most of the State's witnesses but neither called defense witnesses nor offered any exhibits.
Defense counsel admitted that Mr. Simpson had been drinking and driving and that he lied to the deputy. But he argued that Mr. Simpson lied because he was drunk and scared.
The jury found Mr. Simpson guilty of attempted second degree murder, robbery in the first degree, rendering criminal assistance in the first degree, driving while license suspended or revoked in the second degree, possession of a stolen firearm, and unlawful possession of a firearm in the second degree.
The court dismissed Mr. Simpson's conviction for rendering criminal assistance in the first degree at the sentencing hearing, because "it would be unjust to have additional punishment or additional conviction for count four, rendering criminal assistance," and because Mr. Simpson's liability as an accomplice (for attempted second degree murder and first degree robbery) was "really no different than rendering criminal assistance." Report of Proceedings (RP) (Apr. 25, 2005) at 26, 27.
Mr. Simpson appeals his convictions. The State appeals the court's dismissal of Mr. Simpson's conviction for rendering criminal assistance in the first degree.
DISCUSSION Ineffective Assistance of Counsel
Mr. Simpson argues that his lawyer did not effectively represent him. And, in fact, he contends, the lawyer did little, if anything, to represent his interests. Specifically, the lawyer did not make an opening statement, call witnesses, offer exhibits, or cross-examine the State's witnesses. He also complains that the lawyer waived his right to a suppression hearing. And the lawyer admitted during closing arguments that Mr. Simpson had been drinking and driving and that he lied to a deputy sheriff. Mr. Simpson argues that the prejudice from these deficiencies is apparent. But he does not suggest how or in what way or to what degree any other strategy would have affected the outcome here.
We review claims for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We begin with a strong presumption that defense counsel's performance was effective. Id. A defendant has the burden to overcome that presumption. State v. McFarland, 127 Wn.2d 322, 335, 337, 899 P.2d 1251 (1995). A defendant must show that defense counsel's representation was deficient. Id. at 334-35. And he must show some probability that the result would have been different but for the lawyer's deficiencies. Id.
First, Mr. Simpson's lawyer cross-examined most of the State's witnesses — all but three. And his lawyer argued that Mr. Simpson was scared and drunk when he lied to the deputy. His lawyer also argued that Mr. Simpson's level of intoxication was inconsistent with the State's argument that Mr. Simpson masterminded the crimes.
Mr. Simpson has not shown why he believes a suppression hearing was necessary or what additional defenses his lawyer should have argued. He has not identified any witnesses that should have been called nor has he suggested what any witnesses might have said. Nor has he identified any exhibits that should have been admitted, or how some exhibit might have helped his defense.
It is certainly not inappropriate trial strategy to waive a suppression hearing if it is unnecessary, to reserve additional time for closing arguments, to choose not to cross-examine witnesses if their testimony will only reiterate information favorable to the State's case, to refuse to call witnesses if no favorable witnesses can be found, to admit facts that are supported by clear evidence, and to defend against the most serious charges by directing the jury's attention toward lesser charges. See id. at 336.
Finally, Mr. Simpson suggests no alternative for a more effective trial strategy. He cannot, then, address the second prong required to show ineffective assistance — how anything else would have affected the outcome. Mr. Simpson has not, then, shown that he received ineffective assistance of counsel. Id. at 334-35. Unavailability — Witness Tracy Corbett Mr. Simpson contends that the trial court erred by concluding that Mr. Corbett was unavailable for purposes of ER 804. That ruling permitted the State to read Mr. Corbett's deposition to the jury.
We review a trial court's decision to admit evidence for an abuse of discretion. State v. DeSantiago, 149 Wn.2d 402, 411, 68 P.3d 1065 (2003); State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). The question here is whether the trial court erred when it concluded that Mr. Corbett was unavailable. A witness is unavailable if he or she "[t]estifies to a lack of memory of the subject matter of [his or her] statement." ER 804(a)(3) (emphasis added).
The State called Mr. Corbett to the courtroom before the jury entered. Mr. Corbett told the judge he did not have anything to say since he already told the State what he knew: "No. I'm not saying nothing. I mean I ain't got nothing to say. I already said what I said. . . . You guys bring me back here and hold me in the hole, you know, I just want to get back to Shelton." RP at 916. The judge told Mr. Corbett he would put him under oath. The judge asked Mr. Corbett to listen to the questions and to consider answering them.
RP cites are to the trial report of proceedings unless otherwise indicated.
The State questioned Mr. Corbett. He responded: "yes," "no," "I'm not sure," "I don't know," and "I don't remember." RP at 920-26. The State asked about the robbery. Mr. Corbett refused to admit he did it or that he was armed.
The State requested that the court find Mr. Corbett unavailable after he provided numerous "no" responses. RP at 924, 926. The court refused and permitted Mr. Simpson's lawyer to inquire. Mr. Corbett responded that he knew they were talking about what happened at the convenience store, he "remember[ed] a little bit" of "what happened that night," and that he was "willing to answer questions to the best of [his] memory and ability." RP at 927.
The court concluded that Mr. Corbett was "unavailable" because:
At this point, he has answered that he went to the gas station and some people — and some accused him of a robbery there. That he was there alone but he's not answering questions about having a firearm or committing a robbery or doing those things that he testified to before [in his deposition].
RP at 931. And the court found that Mr. Corbett "is persisting in refusing to testify and is testifying to lack of memory." RP at 932. The court then allowed the State to read Mr. Corbett's prior deposition testimony to the jury in lieu of live testimony.
The witness's responses easily support the trial judge's conclusion that this witness was "unavailable" based upon his refusal to answer and lack of memory. ER 804(a)(2), (3). And we affirm that exercise of discretion. Alterations to Deposition
A defendant must timely object to the admission of improper evidence to preserve any error for appeal. State v. Silvers, 70 Wn.2d 430, 432, 423 P.2d 539 (1967). "Failure to challenge the admissibility of proffered evidence constitutes a waiver of any legal objection to its being considered as proper evidence by the trier of facts." Id.
Mr. Simpson argues that the trial court erred when it allowed the State to make corrections to the deposition as it read it aloud for the jury. The State here made corrections to the deposition due to phonetic transcription errors. See RP at 938-39, 948-49, 951-54, 971, 977, 982, 984-85, 989-91. Mr. Simpson did not object to the State's corrections. See RP at 945-1010. He agreed with many. See RP at 949, 951-54, 977, 992. And more important, here on appeal he does not point to any that are wrong. There is no error then.
Trial Court Comment on Evidence
The trial court told the jury that "[a]t this point, just to be safe, I'd treat [the oral admission of the testimony] just like the testimony of any other witness." RP at 988-89. Mr. Simpson argues that this is an impermissible comment on the credibility of the evidence. It amounted to the judge providing his personal opinion of how the jury should treat the deposition testimony.
The judge may not convey his thoughts on the merits of the case or the credibility of a witness. State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990).
The court allowed the State to make corrections to the deposition testimony to fix errors in the transcription; some of the spelling was phonetic. Mr. Simpson agreed to many of the corrections, and offered his own.
A juror asked the court if it would receive a copy of the deposition for deliberations. The judge responded:
We haven't decided that yet. At the — the only problem I'm having is that it's not — obviously there's some problems with this transcript because they didn't get the names correct and some things so I don't know if we'll send that to you or not. At this point, just to be safe, I'd treat it just like the testimony of any other witness.
RP at 988-89.
These comments do not convey a personal attitude toward the merits of the case, nor do they convey his opinion of the credibility of the testimony. Swan, 114 Wn.2d at 657. The judge told the jury to do just what the law required it to do; that is, treat the deposition testimony like the testimony of other witnesses. State v. Whisler, 61 Wn. App. 126, 135, 810 P.2d 540 (1991).
STATE'S CROSS-APPEAL Dismissal of Rendering Criminal Assistance
The trial judge dismissed Mr. Simpson's conviction for rendering criminal assistance in the first degree at the sentencing hearing. He concluded that it was the same conduct as the accomplice liability for the attempted murder and robbery charges. The State contends this was error. The court essentially concluded that the conviction for rendering criminal assistance violated prohibitions against double jeopardy.
We review the assignment of error, then, de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
No person may twice be put in jeopardy of life or limb for the same offense. In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 46, 776 P.2d 114 (1989). A defendant cannot be convicted of multiple criminal offenses where a single act violates several statutory provisions if the offenses are determined to be "the same offense" under double jeopardy. Freeman, 153 Wn.2d at 770-71.
Rendering criminal assistance in the first degree requires that a defendant provide "transportation . . . or other means of avoiding discovery or apprehension" "to a person who has committed or is being sought for murder in the first degree or any class A felony." RCW 9A.76.050(3), .070(1). The defendant must act "with intent to prevent, hinder, or delay the apprehension or prosecution" of the individual sought for criminal activity. RCW 9A.76.050(3).
Accomplice liability requires that a defendant "aid? or agree? to aid" another person in "planning or committing" a crime "[w]ith knowledge that it will promote or facilitate the commission of the crime." RCW 9A.08.020(3)(a)(ii).
To recap the pertinent facts here, Mr. Simpson and Mr. Corbett went to the Flying B gas station. Mr. Corbett entered the store. He robbed the store and shot the clerk. Mr. Corbett used Mr. Simpson's gun. Mr. Corbett and Mr. Simpson fled the scene in Mr. Simpson's truck. The store clerk called police. The deputies located Mr. Simpson's truck within a few minutes. Mr. Corbett fled on foot. Mr. Simpson tried to drive away. A deputy stopped him. Mr. Simpson said he was the only person in the truck.
Dismissal here was appropriate only if Mr. Simpson's constitutional double jeopardy rights were violated. See Freeman, 153 Wn.2d at 770-71; State v. Ehli, 115 Wn. App. 556, 560, 62 P.3d 929 (2003).
The offenses here, rendering criminal assistance in the first degree and accomplice liability (for attempted murder in the second degree and first degree robbery) do not contain the same elements. RCW 9A.08.020(3)(a)(ii); RCW 9A.76.050(3); see State v. Vladovic, 99 Wn.2d 413, 423-24, 662 P.2d 853 (1983). Evidence that a defendant provided another with "transportation . . . or other means of avoiding discovery or apprehension" is necessary for rendering criminal assistance, but not for accomplice liability. RCW 9A.76.050(3); RCW 9A.08.020(3)(a)(ii). And evidence that a defendant aided or agreed to aid another in planning or committing a crime is necessary for accomplice liability, but not for rendering criminal assistance. RCW 9A.08.020(3)(a)(ii); RCW 9A.76.050(3). The double jeopardy clause does not, then, prohibit convictions for each offense. Vladovic, 99 Wn.2d at 423-24.
The trial court erred when it dismissed Mr. Simpson's conviction for rendering criminal assistance in the first degree. Freeman, 153 Wn.2d at 770-71. The conviction for rendering criminal assistance should be reinstated.
We affirm Mr. Simpson's convictions, reverse the dismissal of the conviction for rendering criminal assistance, and remand for resentencing.
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.
SCHULTHEIS, J. and KULIK, J., concur.