Opinion
No. 57265-2-I.
January 14, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09932-0, Sharon S. Armstrong, J., entered October 19, 2005.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Baker, J., concurred in by Agid and Dwyer, JJ.
Edward R. Whittington was convicted by a jury of two counts of first degree rape. On appeal, he contends that the trial court erred in entering two convictions for a single crime. We agree and direct the trial court to vacate count II.
Next, Whittington argues that he should be resentenced because three of the prior foreign convictions included in his offender score were not comparable to Washington felonies. He also contends that the trial court erred by imposing no-contact orders unrelated to the offense charged. Because Whittington affirmatively agreed with the State's characterization of his offender score, we affirm the sentence in part, but direct the trial court to strike several conditions of community custody that are unrelated to his conviction.
Finally, Whittington makes claims of ineffective assistance of counsel, a violation of his right to a speedy trial, jury misconduct, and prosecutorial misconduct. Because we find no reversible error relating to these claims, we affirm count I, a conviction for rape in the first degree.
MULTIPLE CONVICTIONS
Whittington was charged with two counts of a single crime, rape in the first degree. Each count was charged as an alternative means of committing the same crime. The jury returned a guilty verdict on each count and the trial court entered judgment on both. Whittington argues that the trial court erred by entering judgment on two convictions for the same offense. We agree.
Count I charged Whittington under RCW 9A.44.040(1)(c) and Count II charged RCW 9A.44.040(1)(d). RCW 9A.44.040 provides, in pertinent part:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
. . .
(c) Inflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious; or
(d) Feloniously enters into the building or vehicle where the victim is situated.
The State may bring, and the jury may consider, multiple charges arising from the same criminal conduct. But a court violates double jeopardy when it enters multiple convictions for the same offense. In State v. Womac, the defendant was charged with three separate offenses for one crime in a single proceeding, and the court entered judgment on all three charges. Our Supreme Court held that the charges constituted the same offense for purposes of double jeopardy, and thereby directed the lower court to vacate counts II and III.
State v. Womac, 160 Wn.2d 643, 658, 160 P.3d 40 (2007).
Womac, 160 Wn.2d at 658.
160 Wn.2d 643, 160 P.3d 40 (2007).
Womac, 160 Wn.2d at 647.
Womac, 160 Wn.2d at 660.
In contrast, where a jury makes multiple findings of guilt for the same offense but the trial court enters judgment on one conviction only, no vacation is necessary. The Womac court discussed two such cases. For example, in State v. Ward, vacation was not necessary because, although a jury convicted Ward of both second degree felony murder and the predicate felony of second degree assault, judgment was entered only on the felony murder conviction. Similarly, in State v. Trujillo, the defendants were charged and convicted of alternative charges of attempted murder and first degree assault, but no vacation was necessary because the trial court did not enter judgment on the assault conviction. Furthermore, the Trujillo court noted that if the assault conviction "was in fact reduced to judgment, the trial court should enter an order vacating the assault judgment." Here, as in Womac, the trial court entered judgment against Whittington on two counts for the same offense. Consequently, one count must be vacated.
125 Wn. App. 138, 104 P.3d 61 (2005).
Womac, 160 Wn.2d at 658-59 (citing State v. Ward, 125 Wn. App. 138, 144, 104 P.3d 61 (2005)).
112 Wn. App. 390, 49 P.3d 935 (2002).
Womac, 160 Wn.2d at 659-60 (citing Trujillo, 112 Wn. App. at 411-12).
Womac, 160 Wn.2d at 660 (quoting Trujillo, 112 Wn. App. at 412 n. 15) (internal quotations marks and emphasis omitted).
The State argues that it charged two counts for one crime in order to obtain a verdict that showed whether the jury had reached unanimity on either of the alternative means. This argument is flawed. Jury unanimity is required as to the commission of an offense but not as to each of the alternative means. If the State charges alternative means in separate counts, a conviction will result only if a unanimous verdict of "guilty" is reached on at least one count. Thus, the State risks losing on all counts if the jurors cannot agree on the means with which the crime was committed. And, as demonstrated above, even if the jury unanimously agrees that the crime was committed by both alternative means, only one conviction may stand.
State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007) (citing State v. Kitchen, 110 Wn.2d 403, 410-11, 756 P.2d 105 (1988)).
It is preferable to charge all alternative means in one count. The court should provide the jury with a special verdict form and a unanimity instruction. The special verdict form memorializes the means on which the jury relied in reaching its verdict. In the event that an appellate court rules that there is insufficient evidence to convict on one of the alternative means, the court can determine whether the remaining means support the conviction. This method establishes the necessary record for appeal while avoiding the problems that may arise when two counts are charged for a single criminal act.
See State v. Ortega-Martinez, 124 Wn.2d 702, 708, 717, 881 P.2d 231 (1994) (stating that jury unanimity is required where insufficient evidence supports any of the alternative means, but holding that jury unanimity was not required because substantial evidence supported both alternative means); State v. Whitney, 108 Wn.2d 506, 511-12, 739 P.2d 1150 (1987) (jury unanimity not required where both alternative means are supported by substantial evidence).
We direct the trial court to vacate count II.
OFFENDER SCORE
With the agreement of Whittington's counsel, the court included six foreign convictions from the state of Illinois in calculating Whittington's offender score. On appeal, Whittington argues that three of those convictions, two 1998 convictions for possession of a stolen motor vehicle and a 1993 conviction for theft, should not have been included because he objected to their comparability and the State did not prove that they were comparable to Washington felonies. Because Whittington agreed to the offender score and did not object to the comparability of these convictions, we disagree.
Ordinarily, the State bears the burden of proving by a preponderance of the evidence the existence of a prior conviction used as a basis for sentencing. If a prior out-of-state conviction is used, the State must also prove the conviction would be a felony under Washington law. However, where a defendant has affirmatively agreed that his out-of-state convictions are comparable to Washington felonies, the State is not required to prove comparability.
State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999).
Ford, 137 Wn.2d at 480.
State v. Bergstrom, ___ Wn.2d ___, 169 P.3d 816, 819 (2007); State v. Ross, 152 Wn.2d 220, 230-31, 95 P.3d 1225 (2004).
At a September 23, 2005 sentencing hearing, Whittington conceded that he committed the offenses in question under aliases and that the offenses were comparable to Washington felonies. However, defense counsel objected to the State's evidence because the State had not submitted certified copies of the judgments from the clerk of court in the county where the defendant was convicted. Sentencing was continued until October 17, 2005, in order for the State to obtain certified copies. Meanwhile, the State obtained the certified copies and filed them with the court.
Whittington now claims that his attorney objected to the inclusion of three of the six prior convictions at the October 17, 2005 sentencing. At the hearing, counsel for the defense said that he had become aware of a new case and he "wanted to make the record that there is apparently new case law on the issue of comparability which [he] did not consider when . . . comparing the statutes." Defense counsel did not object to the offender score or to the inclusion of any of Whittington's prior convictions. Whittington did not reverse his position regarding the comparability of the prior possession of a stolen motor vehicle or theft convictions. Based on the record below, we conclude that Whittington neither retracted his acknowledgment that the prior convictions were comparable to Washington felonies nor specifically objected to his offender score.
Because Whittington affirmatively agreed with the State's characterization of his criminal history, we affirm the sentence as to count I.
CONDITIONS OF COMMUNITY CUSTODY
Whittington contends, and the State concedes, that the trial court erred by imposing conditions of community custody unrelated to the crime charged. Our Supreme Court has held that a restraint prohibiting a defendant from contact with minors was not justified where the crime did not involve children. Whittington was convicted of raping a 49-year-old woman. Because no children were alleged to be victims or witnesses, we direct the trial court to modify the judgment and sentence to strike any conditions, or portions thereof, relating to children.
The conditions at issue are:
5. Do not initiate or prolong physical contact with children for any reason.
6. Do not enter areas/places where minors are known to congregate without the specific permission of the sexual deviancy counselor or the Community Corrections Officer.
7. Inform the Community Corrections Officer of any romantic relationships to verify there are no victim-age children involved, and that the adult is aware of your conviction history and conditions of supervision.
8. Have no contact with the victim or any minor-age children without the approval of your Community Corrections Officer.
9. Hold no position of authority or trust involving children.
State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998).
INEFFECTIVE ASSISTANCE
Whittington argues that he received ineffective assistance of counsel because his trial counsel failed to call a number of possible witnesses, advised Whittington not to testify, and did not discuss the option of a bench trial with him. Whittington first brought this claim in a motion for a new trial. The trial court held an evidentiary hearing at which Whittington and Yvonne Curtis, his trial counsel, both testified. Based on testimony, arguments, and numerous declarations, the court denied the motion. We will not disturb a decision to deny a new trial based on a claim of ineffective assistance of counsel absent a manifest abuse of discretion.
State v. West, 139 Wn.2d 37, 42, 938 P.2d 617 (1999) (citing State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989)).
When reviewing an ineffective assistance claim, we begin with the presumption that counsel's representation was effective. To overcome that presumption, Whittington must meet a two-part test. First, he must show that his counsel's performance fell below an objective standard of reasonableness, considering all the circumstances. Second, he must show prejudice by demonstrating a reasonable probability that the trial outcome was affected by his counsel's unprofessional errors. Because neither prong has been met, we conclude that Whittington did not receive ineffective assistance of counsel.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 335.
Whittington contends that his attorney's performance was deficient because she failed to call several potential witnesses who would have testified that he and the victim had a consensual sexual relationship. Generally, the decision whether to call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. This presumption can be overcome by showing that counsel failed to adequately investigate or prepare for trial. However, the decision not to call a witness is considered a legitimate trial strategy where, as here, counsel has fully investigated and makes an informed decision. Curtis or her investigator interviewed each potential witness whose name Whittington gave her and, based on the interviews, Curtis decided not to subpoena those individuals. Because Curtis made an informed decision, we conclude that her decision not to call the witnesses was a proper trial tactic.
State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981).
Byrd, 30 Wn. App. at 799.
See, e.g., State v. Hess, 12 Wn. App. 787, 532 P.2d 1173 (1975) (decision not to subpoena potentially harmful witness was justified), aff'd, 86 Wn.2d 51, 541 P.2d 1222 (1975); State v. Floyd, 11 Wn. App. 1, 521 P.2d 1187 (1974) (decision not to call alibi witness was legitimate part of trial strategy).
Even if Curtis's representation had been deficient, Whittington has not shown a reasonable probability that her failure to call these witnesses would have affected the outcome of his trial. According to posttrial affidavits, each of the witnesses would have testified regarding a belief or assumption that a romantic relationship existed between Whittington and the victim. However, the trial court concluded that such testimony — had it been proffered and had the jury believed it — would not have been sufficient to rebut the evidence of the victim's extensive physical injuries.
The remedy in Byrd was to remand for a hearing to determine the validity of the defendant's claim that he gave the witness's name to counsel, and the truth of the potential witness's affidavit. Byrd, 30 Wn. App. at 800. Thus, even if there had been a violation as was found in Byrd, there is no prejudice here. The trial court held a hearing on this matter and concluded that "Ms. Curtis appropriately investigated the case, interviewed the State's witnesses, obtained pre-trial rulings protective of the defendant's interests, engaged in jury selection, gave opening and closing, and examined witnesses in a manner well within the standard of a criminal defense attorney in this jurisdiction."
Next, Whittington contends that Curtis provided ineffective assistance when she did not call him to testify. However, Whittington conceded that he knew that it was ultimately his decision whether or not to testify, and that Curtis did not prevent him from testifying. A defendant who relies on the tactical advice of his counsel, advising him to exercise his right to remain silent, may not later claim denial of his right to testify.
State v. Robinson, 138 Wn.2d 753, 763, 982 P.2d 590 (1999).
Finally, in his statement of additional grounds, Whittington complains that he received ineffective assistance because Curtis did not discuss with him the option of choosing a bench trial over a jury trial. Curtis testified that she did not discuss this option with Whittington because she "would never advise a client to have a bench trial under the facts of this case." This court has previously held that our constitution does not guarantee a right to trial by judge rather than jury. Furthermore, it was harmless for Curtis to demand a jury trial here, where the trial judge unequivocally stated that she would have found the defendant guilty based on the evidence presented at trial.
State v. Oakley, 117 Wn. App. 730, 743-44, 72 P.3d 1114 (2003).
We conclude that Whittington did not receive ineffective assistance of counsel.
ADDITIONAL GROUNDS
In a statement of additional grounds, Whittington claims a speedy trial violation, ineffective assistance of counsel, jury misconduct, and prosecutorial misconduct. As explained above, Whittington did not receive ineffective assistance of counsel.
When determining whether a defendant's Sixth Amendment right to a speedy trial was violated, courts consider the length of the delay, the reason for the delay, defendant's assertion of his right, and the prejudice to the defendant. Prejudice may include oppressive pretrial incarceration, anxiety and concern of the accused, or possible impairment of the defense. Whittington's counsel requested a continuance to November 8, 2004, in order to complete her preparation of a defense. Trial was continued to November 29, 2004, based on the victim's reported unavailability. Whittington has not shown that the additional 21-day delay was prejudicial.
State v. Wernick, 40 Wn. App. 266, 272, 698 P.2d 573 (1985) (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972); State v. Christensen, 75 Wn.2d 678, 453 P.2d 644 (1969)).
Wernick, 40 Wn. App. at 272.
Whittington next contends that he was prejudiced by the trial court's failure to deal with possible jury misconduct relating to a cassette tape that was not entered into evidence, but fell into the jury's hands. The court clerk testified that the tape was accidentally brought into the jury room with other exhibits and left there for about one minute before the clerk realized it was missing. The clerk immediately went to the jury room to retrieve the tape. The jurors had no opportunity to listen to the tape. Because the error did not affect the verdict, it was harmless.
Finally, Whittington contends that he was prejudiced by statements made by the prosecuting attorney in opening and closing. Specifically, he argues that the prosecutor said that Whittington was wanted for murder, that he was a gangster out of Chicago and a homeless bum. He also argues that it was prejudicial for her to compare him with celebrity basketball player Kobe Bryant. In fact, the prosecutor's statements were consistent with the victim's testimony that Whittington had threatened to kill her and that she believed him because he told her he had killed before. The prosecutor did not say that Whittington was a gangster or a homeless bum. The prosecutor mentioned Kobe Bryant when she argued that the defendant did not have a motive to fabricate a rape story, in rebuttal to defendant's argument that the victim had lied about the rape. Whittington's prosecutorial misconduct claim is without merit.
We affirm the conviction on count I and remand for the trial court to strike the impermissible conditions of community custody from the judgment and sentence. We direct the trial court to vacate the conviction on count II.
REVERSED in part and AFFIRMED in part.
WE CONCUR: