Opinion
No. 36140-0-II.
September 3, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-1-01601-9, Robert L. Harris, J., entered January 18, 2007.
Lance Smith appeals his convictions and sentence for second degree rape of a child and first, second, and third degree child molestation. Smith argues that (1) the State committed constitutional error by commenting on his Fifth Amendment right to remain silent; (2) he did not receive effective assistance of counsel as required by the Sixth Amendment; (3) he was denied his right of allocution at sentencing; (4) the trial court erred by imposing conditions of community custody that were not authorized by statute; and (5) the trial court erred by imposing a lifetime no contact order without specifying which charges the order pertained to. We affirm the convictions, vacate the challenged community custody conditions and remand to the trial court to address the sentencing issues. We do not consider the lifetime no contact order issue because the details of Smith's no contact order were not included in the record.
FACTS
On July 25, 2005, the State charged Smith with several counts of first degree rape, second degree rape, and first and second degree child molestation. Smith lived intermittently with his niece and her family from 1995 to 2005. At trial, Smith's great-niece testified that he molested her, put his mouth on her vagina, and inserted his finger into her vagina on multiple occasions during the time he lived with her family. Tamara Webb, the victim's mother, testified that when her husband served Smith with notice to leave her property "he didn't even look at the paperwork, he just said, if this is about that little girl, she got everything that she asked for." 3 Report of Proceedings (RP) at 298. The State also asked Webb about Smith's relationship with her daughter, and Webb replied that "[t]hey were always friendly." 3 RP at 296. She said, "Everybody always told me it seemed strange, but I just thought it was because he was our uncle and he loved us." 3 RP at 296. Smith consistently denied the allegations.
Detective Evelyn Oman and Laurie Brown, Smith's sister, also testified for the State. When asked if she spoke to Smith during the course of her investigation, Detective Oman replied that she had not because she was unable to reach Smith with the phone numbers provided to her. Detective Oman testified that one of the phone numbers reached a person who said "they didn't know [Smith] and the second number was disconnected." 4 RP at 379-80. Brown testified that she spoke to her brother after learning of the accusations against him, and Smith told her "he had not done it" and that if anything did happen he "[was] not aware of it." 4 RP at 414.
On cross-examination, defense counsel also asked Brown about her conversation with Smith and she again testified that Smith told her "if anything had happened . . . [he was] not aware of it." 4 RP at 418. In closing argument, defense counsel referred to this testimony, stating, "When [Smith] talked to his sister, when we asked his sister, has he ever admitted to [the allegations]? . . . [H]e has steadfastly denied that this has ever happened." 4 RP at 506.
On January 18, 2007, a jury convicted Smith of three counts of second degree rape of a child, two counts of first degree child molestation, one count of second degree child molestation, and one count of third degree child molestation. The trial court sentenced Smith to 280 months' confinement and community custody for life. The court also imposed community custody conditions and a no contact order. Smith filed a timely appeal.
ANALYSIS
I. Comment on Right to Silence
Smith argues that the State committed constitutional error by eliciting testimony that emphasized his pre-arrest silence. First, Smith cites Detective Oman's testimony that she was unable to reach Smith by telephone during the investigation. Smith also cites Brown's testimony that she spoke to Smith about the allegations and he denied them. The State argues that it never attempted to exploit the references to silence and never asked the jury to rely on them in any way. Therefore, the State argues, the testimony amounts to "a mere reference to silence" and not an impermissible comment on a constitutional right. Resp't's Br. at 4.
Smith did not object to Detective Oman or Brown's testimony at trial. Without objection at trial, a manifest error affecting a constitutional right must have occurred to warrant reversal. RAP 2.5(a). The appellant bears the burden of demonstrating that the alleged error actually affected his rights, because it is a showing of actual prejudice that makes the error "manifest," thereby allowing appellate review. State v. Gregory, 158 Wn.2d 759, 839, 147 P.3d 1201 (2006) (quoting State v. McNeal, 145 Wn.2d 352, 357, 37 P.3d 280 (2002)).
The State may not comment on a defendant's Fifth Amendment right to remain silent, including a defendant's pre-arrest silence. Gregory, 158 Wn.2d at 839; State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996). However, not all remarks amount to a comment on a constitutional right. Gregory, 158 Wn.2d at 839. A remark amounts to a comment where the State "manifestly intended the remarks to be a comment on that right" and used the comment "to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt." Gregory, 158 Wn.2d at 840 (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991); Lewis, 130 Wn.2d at 706-07).
Smith argues that "[w]hen Detective Oman testified about her attempt to contact Mr. Smith, the clear implication of her testimony was that Mr. Smith had provided false information . . . in an effort to avoid speaking to her." Appellant's Br. at 8. At trial, the State asked Detective Oman, "When you received this report [alleging sexual abuse of a child], what did you do?" 4 RP at 378. After asking a series of questions about who she had spoken to in the course of her investigation, the State asked:
[State]: Did you speak to the Defendant?
[Oman]: No, I did not. I attempted to; however, we didn't have a location for him and I had been given two telephone numbers and one of them, the person that answered said they didn't know him and the second number was disconnected.
[State]: All right. And was that the end of your investigation?
[Oman]: Yes.
4 RP at 379-80.
Similarly, in Gregory the prosecutor made a reference in closing argument to the defendant's failure to contact the police investigator for three days. 158 Wn.2d at 840. Our Supreme Court held that the prosecutor's reference did not amount to a comment on the defendant's pre-arrest silence because the State used the investigator's testimony to explain the investigative process, not to comment on the defendant's delay in contacting the police. Gregory, 158 Wn.2d at 840. The Gregory court concluded that the prosecutor's reference was "so subtle and so brief that it did not naturally and necessarily emphasize [any] testimonial silence." 158 Wn.2d at 840. Detective Oman merely described attempts to contact Smith in the course of describing the investigative process. The State did not "manifestly intend[ ]" the remark to be a comment on Smith's right to silence. Gregory, 158 Wn.2d at 840. The State did not ask Detective Oman why she did not speak to Smith during her investigation, she volunteered the information, and the State did not continue to question her about Smith after she made the statement. Furthermore, Detective Oman did not say who had supplied her with the defective phone numbers and neither Detective Oman nor the State ever suggested that Smith provided the incorrect phone numbers in an attempt to avoid speaking with her. Overall, the remark was "so subtle and so brief" that it did not naturally emphasize Smith's pre-arrest silence. Gregory, 158 Wn.2d at 840. Detective Oman's testimony did not amount to an impermissible comment on Smith's pre-arrest silence.
Brown's testimony did not amount to an impermissible comment on Smith's pre-arrest silence, either. Brown testified that she had a conversation with her brother, Smith, after learning about the accusations against him. The State asked:
[State]: In the conversation[,] did your brother make any statement concerning [the allegations]?
[Brown]: Yes.
[State]: Did he indicate he had done it or not done it?
[Brown]: He had said he had not done it.
[State]: Did he indicate to you that there was a possibility he had done it, but was not aware of it?
[Brown]: Not in that context, no.
[State]: What was the language that he used?
[Brown]: What he said to me is that if anything did happen, I am not aware of it.
[State]: And . . . did you tell that to Detective Evelyn Oman?
[Brown]: Yes, I did.
[State]: Do you recall if the language you used to Detective Oman was, if this did happen, then I wasn't conscious of it?
[Brown]: I do not believe that is the word that I used.
[State]: All right.
[Brown]: I think that indicates a different thing.
[State]: All right. That's all I have to ask you.
Thank you very much.
4 RP at 414. After direct examination by the State, the defense counsel elicited the same testimony from Brown on cross-examination:
[Defense]: In any of these conversations, without telling us what Mr. Smith told you, has he ever admitted to doing any of these things that have been alleged here?
[Brown]: No.
[Defense]: Now, you reported to Detective Oman about something that Mr. Smith had told you. Can you recall exactly what it was that Mr. Smith told you and what was that?
[Brown]: Probably not exactly, but what he had said to me was that if anything had happened, that I'm not aware of it. If she thinks something happened, I'm not aware of it. To those, I don't know if those were the exact words, though.
[Defense]: No further questions of this witness, Your Honor.
4 RP at 417-18. In closing argument, the defense counsel emphasized this testimony, saying:
Mr. Smith has steadfastly denied [the allegations], okay? When he was on the stand he denied that. When he talked to his sister, when we asked his sister, has he ever admitted to that? When the investigator, when anybody else talked to him he has steadfastly denied that this has ever happened, hasn't he? And he's never made any admissions.
4 RP at 506 (emphasis added). Although Smith does not articulate his argument regarding Brown's testimony, he appears to be arguing that the conditional statement, "if anything did happen, I am not aware of it," was equivalent to an exercise of his right to remain silent. 4 RP at 414.
The State did not "manifestly intend[ ]" for Brown's testimony to be a comment on Smith's right to silence. Gregory, 158 Wn.2d at 840. It is not clear that the State even believed Smith's statement was an exercise of his right to remain silent. The State's line of questioning suggests that the State believed Smith's statement was an admission that he might have committed the alleged acts without being consciously aware of doing so. When Brown rejected that possibility, the State ceased its questioning. Furthermore, the State never emphasized this testimony to the jury as substantive evidence of guilt. Gregory, 158 Wn.2d at 840. On the contrary, the defense counsel elicited the same testimony from Brown and then emphasized it to the jury in closing argument for the opposite purpose" to demonstrate Smith's innocence.
Smith bears the burden of demonstrating that the State's alleged error of commenting on his right to silence actually affected his rights. Gregory, 158 Wn.2d at 839. Smith has not demonstrated, and the record does not show, that either Detective Oman or Brown's testimony amounted to a comment on Smith's constitutional right to silence that actually affected his right to a fair trial.
II. Ineffective Assistance of Counsel
Smith argues that he received ineffective representation by defense counsel at trial, in violation of the Sixth Amendment. Specifically, Smith bases his contention on defense counsel's failure to object to Webb's testimony that "everybody had always told her that Mr. Smith's interactions with [the victim] seemed strange" and failure make a motion in limine excluding testimony that highlighted Smith's exercise of his right to remain silent. Appellant's Br. at 9-10. The State argues these alleged failures were part of defense counsel's overall trial strategy, designed to show Smith had consistently denied the allegations against him.
Smith also argues that defense counsel failed to preserve his right of allocution at the sentencing hearing. This argument is addressed in section II, part B.
The U.S. Constitution and the Washington Constitution guarantee effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. See State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). We maintain a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). In order to establish ineffective assistance of counsel, the defendant must show (1) defense counsel's performance was deficient, and (2) the defense counsel's errors were so serious that they deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant cannot base his claim of deficient performance on defense counsel's legitimate trial strategy or tactics. State v. Lopez, 107 Wn. App. 270, 277, 27 P.3d 237 (2001) (citing State v. Hendrickson, 129 Wn.2d at 77-78).
A. Defense Counsel's Performance Not Deficient
First, defense counsel's performance was not deficient for failing to make motions in limine excluding Brown and Detective Oman's testimony. As discussed in section I, that testimony merely referred to Smith's silence without rising to the level of an impermissible comment on Smith's constitutional right to remain silent. Therefore, defense counsel's performance was not deficient for failing to make a motion in limine to exclude the testimony. Furthermore, defense counsel's failure to exclude Brown's testimony for the State cannot be deficient when defense counsel purposely elicited the same testimony from Brown on cross-examination as part of an overall trial strategy demonstrating that Smith had consistently denied the allegations against him. Lopez, 107 Wn. App. at 277.
Second, defense counsel's performance was not deficient for failing to object to Webb's testimony. At trial, the State asked Webb:
[State]: When you observed the interaction between Mr. Smith and your daughter, how were they interacting?
[Webb]: They were always friendly. She would always sit on his lap or ride on his shoulders or —
[State]: Did you notice anything unusual about their interaction?
[Webb]: Everybody always told me it seemed strange, but I just thought it was because he was our uncle and he loved us.
3 RP at 296. The decision of "when or whether to object is a classic example of trial tactics" and "[o]nly in egregious circumstances . . . will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Here, it is plausible that defense counsel chose not to object because Webb's testimony favored Smith. Webb, the mother of the victim, was stating that she personally did not think there was anything strange about Smith's interactions with her daughter, that Smith and her daughter were "friendly," and that she thought Smith was close to her daughter because "he was our uncle and he loved us." 3 RP at 296. In light of Webb's favorable testimony, defense counsel's decision not to object was most likely a tactical decision and not an instance of deficient performance. Madison, 53 Wn. App. at 763. Furthermore, even if defense counsel's performance was deficient for choosing not to object to the statement "everybody always told me it seemed strange," Webb's testimony generally favored Smith and disputed the contention that Smith's interactions with her daughter were "strange." 3 RP at 296. Therefore, the failure to object to that portion of her testimony was not an error "so serious as to deprive the defendant of a fair trial" Strickland, 466 U.S. at 687.
Smith has not demonstrated that defense counsel's performance was deficient or that defense counsel's errors deprived him of a fair trial. Consequently, Smith has not overcome the court's strong presumption that defense counsel's representation was effective.
B. Right of Allocution
Smith argues that his right of allocution at sentencing was violated "[w]hen the trial court announced the sentence without even acknowledging Mr. Smith or inviting him to speak." Appellant's Br. at 13. He cites RCW 9.94A.500(1) ("[T]he court shall . . . allow arguments from . . . the offender"), and State v. Crider, 78 Wn. App. 849, 861, 899 P.2d 24 (1995) ("Offering a defendant the opportunity to address the court prior to passing sentence should be a rote exercise at every sentencing."). Smith claims that the trial court should have offered him the opportunity to address the court or defense counsel should have objected and asserted his right to address the court.
The State agrees with the law cited by Smith, but correctly points out that Smith did receive an invitation to speak on his own behalf at sentencing. The record shows that the court asked:
[The Court]: All right. Mr. Smith, is there anything you wish to tell me before I pronounce sentence?
[Smith]: No, Your Honor.
4 RP at 529-30.
The trial court did not violate Smith's right of allocution, and defense counsel did not fail to preserve that right for his client.
III. Community Custody Conditions
Smith argues that the trial court erred by imposing two community custody conditions relating to alcohol that are not crime-related or otherwise authorized by statute. The challenged conditions are:
Smith does not challenge the condition prohibiting him from consuming alcohol while on community custody supervision. Such a condition is lawful even if alcohol did not contribute to the offense. RCW 9.94A.700(5)(d); Jones, 118 Wn. App. at 206.
(1) "The defendant will [] be required to take monitored antabuse per his/her community corrections officer's direction, at his/her own expense, as prescribed by a physician"
(2) "Defendant shall not be in any place where alcoholic beverages are sold by the drink for consumption or are the primary sale item."
Clerk's Papers (CP) at 84. The State agrees that the court should remand this issue to the trial court to determine whether these community custody conditions are appropriate for Smith.
A defendant may raise objections to community custody conditions for the first time on appeal. State v. Jones, 118 Wn. App. 199, 204, 76 P.3d 258 (2003). A trial court may require an offender to "comply with any crime-related prohibitions" as a condition of community custody. RCW 9.94A.700(5)(e). A "[c]rime-related prohibition" is "an order of a court prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted." RCW 9.94A.030(13). We review crime-related conditions for abuse of discretion, and will only reverse a condition if it is manifestly unreasonable or based on untenable grounds. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).
The State concedes that neither the pre-sentence investigation report nor the additional conditions requested by the Department of Corrections contain any specific allegations of alcohol abuse. Furthermore, there is no evidence in the record suggesting that the circumstances of Smith's offenses directly or indirectly involved alcohol. The challenged prohibitions do not relate to the circumstances of Smith's offenses and are not mandated by any other statutory provision. See RCW 9.94A.700(4) and (5) (mandatory and discretionary conditions of community custody).
We vacate the challenged alcohol-related community custody conditions and remand to trial court to correct the sentence.
IV. Lifetime No Contact Order
Smith argues that the trial court erred by entering an order
prohibiting contact with the victim for life without specifying which charge the no contact order pertains to. The State has already conceded that the court should remand Smith's community custody conditions for reconsideration, and agrees that it would be appropriate for the trial court to clarify the no contact order issue at that time.
As stated in section IV, a defendant may raise objections to community custody conditions for the first time on appeal and we review crime-related conditions for abuse of discretion. Jones, 118 Wn. App. at 204; Riley, 121 Wn.2d at 37. A crime-related prohibition, such as a no contact order, may not exceed the statutory maximum for the underlying offense. State v. Armendariz, 160 Wn.2d 106, 118-19, 156 P.3d 201 (2007). However, we will not consider matters outside the trial record on appeal. McFarland, 127 Wn.2d at 335. Review of issues that require consideration of matters outside of the record are properly presented in a personal restraint petition. McFarland, 127 Wn.2d at 335.
A jury convicted Smith of five class A felonies with maximum life sentences, one class B felony with a maximum sentence of ten years, and one class C felony with a statutory maximum of five years. RCW 9A.20.021.
Certainly this record supports a lifetime no contact order. In any case, on remand, Smith may ask the trial court to clarify which conviction the no contact order pertains to.
We affirm the convictions, vacate the challenged community custody conditions, and remand to the trial court to address the sentencing issues.
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.
ARMSTRONG, J. and HUNT, J., concur.