Opinion
No. 32591-8-II.
May 9, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04526-8, Frederick W. Fleming, J., entered November 30, 2004.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, PO Box 7718, Tacoma, WA 98406-0718.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton and Armstrong, JJ.
Johnnie White appeals his convictions on two counts of third degree assault, claiming that he received ineffective assistance of counsel at trial and that the police lacked probable cause to arrest him. We affirm his convictions.
FACTS I. Background
On September 23, 2004, police received a call at approximately 10:30 p.m. from a woman asking police to go to an apartment in Tacoma and check on her sister's safety. Officers Kenneth Smith and Daniel Fozzard responded. When the officers arrived, they made contact with Elva Comenout, who appeared afraid. Comenout described how White, her boyfriend, had become angry, torn the phone off the wall, and choked her twice.
Police arrested White, handcuffed him, and read him his Miranda rights. At this point, White became hostile toward the officers and Smith took him out into the hallway. While in the hall, White was `[v]ery agitated and aggressive' and was shouting at Comenout, who was in the apartment filling out a domestic violence victim statement with Fozzard. 2 Report of Proceedings (RP) at 26. Also in the apartment that evening were two other men.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Smith had White sit on the floor outside the apartment. Because White `started like crawling back towards the apartment door trying to yell at [Comenout],' Smith moved White about 20 feet down the hall. 2 RP at 26. When it came time to take White away, he refused to stand up. Fozzard came to assist Smith in lifting White, and White began to kick the officers. He kicked Fozzard two or three times in the thigh and Smith about six times in the shin and knee. White also lunged at Fozzard as though he were going to head butt him. Fozzard then hit White in the face.
After hitting White, the officers wrestled him to the ground and told him to roll onto his stomach. White did not comply, so the officers each grabbed one leg and dragged him down the hallway and down the stairs. Neither officer was hurt by the kicking.
II. Procedural history
White was charged with third degree assault against the officers. During a pretrial hearing, the prosecutor said he did not intend to present evidence of the domestic violence against Comenout. He did, however, want to mention the domestic violence call to show that the officers had probable cause to be at the apartment. Defense counsel agreed to stipulate to probable cause in order to keep out evidence of the domestic assault. Defense counsel added: `And I ask the court to admonish the State in bringing in any of those [domestic violence] issues.' 1 RP at 8.
The State responded that if Comenout testified and was asked about the assault, then her statements to police should come in. The court never issued a formal ruling, but the prosecutor agreed not to elicit testimony about the details of White's assault on Comenout.
During trial, no one testified that White had tried to choke Comenout, although the officers testified about responding to a domestic violence call and arresting White for domestic violence assault. The State only offered the officers' testimony.
The defense called Comenout to testify, and she said she did not hear anything after the police took White into the hallway. Defense counsel had Comenout identify the domestic violence victim statement that she filled out and signed, and had her identify Smith's signature as a witness to the statement. Comenout said that Smith did not sign the statement in her presence and that she only spoke to Fozzard.
White testified that he only had `a couple' of beers before the police arrived and that he had a `slight' buzz. 2 RP at 109, 111. White denied kicking the officers and said he did not understand why he was being arrested or why they punched him in the forehead.
Tla-Wle-Kee Hobucket, one of the other men in the apartment that night, testified that he had purchased two 18 packs of beer and that there was none left when the police arrived. Hobucket admitted consuming 12-16 beers before the police arrived. He did not remember if he heard anything outside the apartment door.
During closing arguments, White's attorney explained how the jurors needed to find that White acted with intent before they could convict him of assault. Instead of emphasizing White's denial, the attorney said of the testimony, `Everyone is telling the truth, no one is lying.' 3 RP at 156.
The attorney told the jury that White was an alcoholic. He argued that when the officers took him into the hall, White was just trying to get back into the apartment.
With his limited cognitive abilities, that is his home. When you're drunk, you're alcoholic, certain other things take over. . . . [I]t is a stimulus response and that is all that he could — let's us [sic] not put it on the level of thought or cognitive ability. It's a reaction. . . . And it's in that context that you have to determine whether or not Johnnie White ever intentionally struck an officer.
. . .
And when they pick him up he's constantly trying to turn back into the apartment, constantly turning back into the apartment. And that is when they claim that he intentionally assaulted when they're gaining control of him and then he turns around. He's a rabbit. That's what he was trying to do. Any other reading of this presumed that he's just a vicious individual.
But when he testified what did he say? The only thing I know is he hit me. Everything else I didn't do. I didn't do it because I cannot say I did any of those things, it just didn't happen because I could not connect it up. And the intent with his physical reaction to what was happening, and that is what assault is all about, if you can say beyond a reasonable doubt he could connect this up with his physical reactions, he wasn't just reacting, then you've got to convict. But there's where reasonable doubt exists.
3 RP at 160-61.
The jury convicted White on both counts. At the sentencing hearing, White's counsel told the court that White was bipolar but was not being medicated currently or at the time of the incident. White was receiving general assistance unemployable (GA-U) benefits for his mental health problems before he was put in jail. The Department of Social and Health Services provides this benefit for people who cannot work due to incapacity.
Washington State Department of Social and Health Services, http://www1.dshs.wa.gov/esa/eazmanual/Sections/PS GAU.htm (last visited April 19, 2006).
ANALYSIS I. Ineffective assistance of counsel A. Standard
Washington has adopted the Strickland test to determine whether a defendant had constitutionally sufficient representation. State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011 (2001). The defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced him. Cienfuegos, 144 Wn.2d at 226-27. In other words, White bears the burden of showing that, but for the ineffective assistance, there is a reasonable probability that the trial outcome would have differed. Cienfuegos, 144 Wn.2d at 227 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). The benchmark for judging ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
`Deficient performance is not shown by matters that go to trial strategy or tactics.' Cienfuegos, 144 Wn.2d at 227 (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)). Courts maintain a strong presumption that counsel's representation was effective. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995).
B. Did White's defense counsel concede guilt?
White claims his attorney `conceded every element of the offenses except intent' during closing argument. Appellant's Brief (App. Br.) at 15. The attorney argued essentially that White was intoxicated and that his actions were instinctual efforts to return to the apartment.
An attorney may not admit his client's guilt contrary to his client's earlier entered plea of `not guilty' unless the defendant unequivocally understands the consequences of the admission. Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir. 1981) (citing Brookhart v. Janis, 384 U.S. 1, 8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966)). Plus an attorney may not stipulate to facts that amount to the `functional equivalent' of a guilty plea. Wiley, 647 F.2d at 649.
For tactical reasons, counsel may stipulate to a particular element of a charge or to issues of proof. Wiley, 647 F.2d at 649. Furthermore, counsel's performance is not deficient when he or she admits guilt on one particular count where the evidence is overwhelming. State v. Silva, 106 Wn. App. 586, 596, 24 P.3d 477 (2001) (citing Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)). This type of concession can be a reasonable trial strategy when counsel is attempting to gain credibility with the jury in order to secure an acquittal on more serious charges. Silva, 106 Wn. App. at 597-98.
In this case, White has not shown deficient performance or prejudice. White cites cases involving attorneys who stated outright that their clients were guilty. E.g., Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir. 1983) (finding ineffective assistance where the defense attorney urged the jury to return a guilty verdict); Wiley, 647 F.2d at 645 (finding ineffective assistance where the attorney said in closing that his client was `guilty as charged').
In contrast, White's attorney never said outright what White did or did not do. He implicitly accepted the police officers' version by saying, `Everyone is telling the truth, no one is lying.' 3 RP at 156. His closing argument emphasized White's lack of intent and downplayed the struggle with police. The attorney reiterated White's denial, characterizing White's testimony as, `I didn't do it because I cannot say I did any of those things, it just didn't happen because I could not connect it up.' 3 RP at 161.
This approach, in light of the testimony by two police officers, was a reasonable trial tactic meant to gain credibility with the jury. Instead of putting White's word against the police and arguing over what exactly happened, the defense attorney chose to demonstrate that White lacked the required level of intent. This was a reasonable strategy, not deficient performance.
C. Introducing evidence of domestic violence
White claims his counsel failed to object when the prosecution witnesses testified about the domestic violence episode that brought police to the apartment. He also claims his counsel elicited even more damaging testimony about the domestic assault from both the State and the defense witnesses. Finally, White objects to his counsel entering Comenout's domestic violence (DV) report into evidence. The State responds that introducing the DV report was a tactical effort to attack the officers' credibility and does not show ineffective assistance.
A copy of the DV report was entered into evidence and was available to the jury during deliberations. White has not provided a copy of that report to this court. Comenout testified that it was the form she filled out and gave to police when White was arrested. Thus it may well be that the report portrayed White as angry and violent.
However, the State is correct that White's attorney used the report to try to discredit the police by implying that they had tampered with it. If the report said that White had been drinking, it would have supported the defense theory that White lacked intent because he was intoxicated.
Comenout testified that Officer Smith's signature was at the bottom of her report even though he was not present when she filled it out.
We hold that White has not met his burden of showing that his attorney's performance was deficient. Without reading the report or knowing its contents, we cannot say that counsel's performance was deficient per se. Entering the DV report was a tactical decision. Defense counsel was making a concerted effort to defend his client in the face of very damaging testimony from the police officers.
D. Failure to evaluate White for a mental disorder
White next claims that his counsel's assistance was ineffective because his attorney failed to move for a psychiatric evaluation. White's counsel knew before trial that White was bipolar and was not medicated at the time of the incident. Counsel brought this up at White's sentencing but did not pursue this as a defense at trial.
White cites to several cases where attorneys were ineffective because they failed to investigate their clients' mental status. E.g., Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990); Harris v. Blodgett, 853 F. Supp. 1239, 1260-61 (W.D. 1994), aff'd, 64 F.3d 1432 (9th Cir. 1995). These cases are distinguishable factually because the defendants in those cases had documented histories of severe mental illness and institutionalization that supported diminished capacity or insanity defenses. Bouchillon, 907 F.2d at 596; Harris, 853 F. Supp. at 1260. White provides no documentation about the nature or severity of his illness.
On direct appeal, we do not consider matters outside the trial record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). When alleging ineffective assistance of counsel, the appellant bears the burden of showing deficient representation based on the record established in the proceedings below. McFarland, 127 Wn.2d at 335. If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition (PRP) or through an order for relief from judgment under CrR 7.8(b). McFarland, 127 Wn.2d at 335; CrR 7.8(b).
On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 7.5;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void; or
(5) Any other reason justifying relief from the operation of the judgment. CrR 7.8(b).
As described above, we presume that representation was effective. White bears the burden of showing otherwise. In making his claim, White only speculates that his mental problems played a role in the crime, saying his behavior `could very well have been predicated upon his mental health issues.' Appellant's statement of additional grounds at 2. In order to carry his burden of showing ineffective assistance, White must document his illness or offer expert testimony regarding his mental illness and whether that likely affected his ability to form intent. Because the record does not contain this type of evidence, White has not met his burden on appeal. If he wants to enter evidence of mental illness, White must bring a CrR 7.8 motion or a PRP. See McFarland, 127 Wn.2d at 335.
II. Probable cause to arrest
White claims that the police lacked probable cause to arrest him. He argues that the distress call came from another location and that the police did not hear noise coming from the apartment when they arrived.
Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has been committed. State v. Avery, 103 Wn. App. 527, 539, 13 P.3d 226 (2000) (citing State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295 (1986)). `The concept of probable cause requires the existence of reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant a man of ordinary caution to believe the accused is guilty of the indicated crime.' Avery, 103 Wn. App. at 539 (quoting State v. Seagull, 95 Wn.2d 898, 906, 632 P.2d 44 (1981)).
Smith testified that Comenout's sister had called from another location because she was worried about Comenout's safety. After arriving, Smith spoke with Comenout in the hallway and, from her statements, he determined that they had probable cause to arrest White for domestic violence. Although it was not admitted at trial, Comenout told police that White had become angry and choked her. This information gave police reasonable grounds to believe that White had committed a crime. Therefore, the police had probable cause to arrest White.
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.
HOUGHTON, P.J. and ARMSTRONG, J., concur.