Opinion
No. 60548-8-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03785-1, Bruce W. Hilyer, J., entered September 4, 2007.
Affirmed by unpublished per curiam opinion.
Martin Banks challenges his conviction for one count of possession of cocaine with intent to deliver. Banks argues that he was denied his right to present a defense when the trial court sustained a witness's blanket assertion of the Fifth Amendment right against self-incrimination and then refused to give a missing witness instruction. He further contends that his waiver of the right to testify was not voluntary and knowing because it was predicated on misinformation. We conclude that the trial court did not abuse its discretion in refusing to compel Laverne Maxwell to take the stand, that the missing witness instruction was not warranted, and that the proper vehicle for a claim that the right to testify was violated by defense counsel is a claim for ineffective assistance of counsel. Accordingly, we affirm.
FACTS
On April 4, 2006, a joint team of federal and local drug enforcement agents arrested Laverne Maxwell on a drug charge in the University District area of Seattle. Officer James Thomsen testified that Maxwell agreed to attempt to buy an ounce of crack cocaine from a drug dealer known as "Chilly Willy" in exchange for not being booked into jail that night. Officer Thomsen dialed the phone number provided by Maxwell, put his ear to the phone, and listened as Maxwell told Chilly Willy that he wanted to buy an ounce of cocaine. Chilly Willy confirmed the request, and they agreed to meet in the Central District. Chilly Willy said he would call Maxwell when he reached the area. Officer Thomsen and Maxwell drove to the Central District. In a second phone call, Maxwell and Chilly Willy agreed to meet at the intersection of Martin Luther King Jr. Way and East Union Street. Chilly Willy said that he would be driving his red Ford Explorer. Several minutes later, a man drove by in a red Ford Explorer. Officer Thomsen said that Maxwell identified the driver as Chilly Willy. Maxwell placed a third phone call to Chilly Willy, and the red Ford Explorer returned and drove by the location a second time.
Officer Thomsen radioed a description of the car and a license plate number to the arrest team. They stopped the red Ford Explorer and arrested its driver, Martin Banks, for suspected possession of cocaine. There was a struggle during the arrest, and Banks was shot with a stun gun and handcuffed before being searched.
Officer Tim Brenton recovered a cell phone from Banks' car during the search.
Officer Thomsen testified that he conducted a verification phone call by personally calling the phone number that Maxwell had provided to set up the drug deal. The cell phone recovered from Banks' car rang. Officer Brenton answered it, and each officer recognized the other's voice.
No cocaine was found at the scene of Banks' arrest. Police did find marijuana, but Banks presented paperwork showing that he was authorized to use it for medical purposes. Officers testified that when Banks was taken to the precinct and strip searched, they recovered a baggie containing 26 grams of cocaine from between his buttocks. Banks was subsequently charged with one count of possession with intent to deliver cocaine.
According to defense counsel's investigator, Maxwell denied making calls to Banks for the police and denied working as a confidential informant at the time of Banks' arrest. Accordingly, the defense theorized that when the drug enforcement team stopped Banks and found only medical marijuana and paperwork authorizing its use, they became enraged and framed him. To support this theory, the defense sought to call Maxwell to rebut Officer Thomsen's testimony. Maxwell, however, was in custody and facing charges stemming from his April 4, 2006 arrest.
When Maxwell was brought to court, he asserted his Fifth Amendment right against self-incrimination. Maxwell's counsel explained that Maxwell did not want to take the stand because his testimony could open the door for questions relating to Maxwell's pending drug charge. Defense counsel argued that although Maxwell could assert his Fifth Amendment right regarding incidents leading to his own arrest, he was not entitled to assert the right as to questions pertaining to the phone calls he allegedly made to Banks. The State argued that if Maxwell denied working with the police, it would be necessary to question him about his arrest during cross-examination. The trial court ruled that there was a "close nexus" between the charge Maxwell faced and the testimony sought by the defense. Report of Proceedings (RP) (Mar. 14, 2007) at 7. Because Maxwell's anticipated testimony would open the door to cross-examination concerning Maxwell's pending drug charge, the court ruled that Maxwell had a right not to testify.
Defense counsel then sought a missing witness instruction, arguing that Maxwell was in the State's control and the instruction was appropriate in light of Maxwell's statements to the defense. The trial court declined to give the instruction because it "would involve a whole host of other issues that would be confusing to the jury and would not assist them in the charge that they have." Id. at 65.
Defense counsel also sought to introduce the marijuana found in Banks' car and the paperwork supporting its medical use to support its theory that police framed Banks after they failed to find illegal drugs. The trial court ruled that the marijuana evidence was irrelevant because the charge against Banks involved only cocaine. It also found that the defense theory about being framed was too speculative without testimony to support it. Defense counsel stated that Banks intended to testify that the officers became enraged only after he showed them his medical marijuana paperwork, although "we don't know, of course, until the State's case is presented." RP (Mar. 14, 2007) at 29. The trial court responded that it would revisit its ruling if Banks decided to testify.
Later, following a brief recess after the State presented its case, defense counsel informed the court that "in light of the Court's earlier rulings as to the marijuana and marijuana permit," Banks had decided not to testify on his own behalf. RP (Mar. 15, 2007) at 58. A jury found Banks guilty as charged. Banks appealed.
ANALYSIS
Fifth Amendment Privilege
Banks argues that the trial court denied his right to present a defense when it permitted Maxwell to assert a blanket Fifth Amendment privilege to all questions, rather than compelling him to take the stand and assert the privilege regarding specific questions.
The Sixth Amendment to the United States Constitution and the Washington Constitution protect a defendant's right to compel the testimony of witnesses. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). However, this right must be balanced against a defendant's Fifth Amendment right against self-incrimination in any proceeding. State v. Lougin, 50 Wn. App. 376, 381, 749 P.2d 173 (1988); State v. Fish, 99 Wn. App. 86, 93, 992 P.2d 505 (1999).
The privilege applies only when the defendant has "reasonable cause to apprehend danger from a direct answer." State v. Levy, 156 Wn.2d 709, 731-32, 132 P.3d 1076 (2006) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)). "The danger of incrimination must be substantial and real, not merely speculative." State v. Hobble, 126 Wn.2d 283, 290, 892 P.2d 85 (1995). An assertion of the privilege must be "supported by facts which, aided by `use of "reasonable judicial imagination,"' show the risk of self-incrimination." Lougin, 50 Wn. App. at 381 (quoting Eastham v. Arndt, 28 Wn. App. 524, 531-32, 624 P.2d 1159 (1981)).
"In general, a claim of privilege may be raised only against specific questions, and not as a blanket foreclosure of testimony." Lougin, 50 Wn. App. at 381; United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982). The trial court must inquire into the legitimacy and scope of the assertion and may allow the witness to refuse to answer all questions only if the judge has "specialized knowledge" of the likely testimony and can determine whether a blanket assertion is proper. Levy, 156 Wn.2d at 732; Moore, 682 F.2d at 856.
The determination of whether the hazards of self-incrimination are genuine and not merely illusory, speculative, contrived, or false is within the sound discretion of the trial court under all the circumstances then present. Hobble, 126 Wn.2d at 290-91. A trial court abuses its discretion if its exercise is manifestly unreasonable or based on untenable grounds or reasons. State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51 (1992).
Banks contends that Maxwell could have answered many relevant questions without incriminating himself, such as testifying that he did not make the calls to Banks, did not work with police, and did not sign the confidential informant agreement. But once a witness waives the Fifth Amendment privilege and testifies as to some matters, he is subject to cross-examination on questions germane to those matters. Lougin, 50 Wn. App. at 380. Where the disclosures could lead to other evidence which might be used in a criminal prosecution against the witness, the answer need only "`furnish a link in the chain of evidence needed to prosecute the witness for a crime.'" Hobble, 126 Wn.2d at 290 (quoting Seventh Elect Church in Israel v. Rogers, 34 Wn. App. 96, 100, 660 P.2d 294, review denied, 99 Wn.2d 1019 (1983)).
Assuming that Maxwell would have testified as Banks said he would — and it is not beyond reasonable judicial imagination to suppose that he might not — any such questions would open the door to cross-examination by the State concerning Maxwell's arrest for delivery of cocaine, thereby subjecting him to a risk of self-incrimination in his pending case on that charge. Banks contends that mere fact of Maxwell's arrest was not incriminatory. But that fact alone could be used by the State to prove Maxwell's identity on the underlying charge, as well as providing a link in the chain of evidence showing that he had the opportunity to commit the crime since he was arrested at the scene. The record shows that the trial court was aware of the nature of the pending charge against Maxwell and that it carefully considered the potential for self-incrimination arising from the anticipated line of questioning. Permitting Maxwell to assert a blanket privilege under these circumstances was not an abuse of discretion.
But even if the trial court abused its discretion in failing to require Maxwell to assert his privilege as to specific questions, the error was harmless. The record shows that Maxwell's counsel advised him not to testify. After consulting with defense counsel, Maxwell himself acknowledged that if called to the stand, he would assert his Fifth Amendment privilege. Under these circumstances, any error was harmless beyond a reasonable doubt. Lougin, 50 Wn. App. at 382-83 (concluding that when an unwilling witness knew she would be subject to cross-examination and made it clear that she would have claimed her privilege immediately upon taking the stand, the error of granting a blanket privilege was harmless).
Missing Witness Instruction
Banks argues that the trial court erred in declining to give a missing witness instruction informing the jury that it could infer from Maxwell's absence that his testimony would have been unfavorable to the State. We review a trial court's decision to reject a requested jury instruction for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).
The requested missing witness instruction stated, "If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party, and as a matter of reasonable probability it appears naturally in the interest o[f] the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case." CP at 37.
Under the "missing witness" doctrine where a party inexplicably fails to produce otherwise proper evidence within his control, the jury may draw an inference unfavorable to that party. State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968). State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991). A missing witness instruction is not appropriate unless (1) the uncalled witness is equally available to the parties, (2) the witness would be unimportant or the testimony cumulative, and (3) the party would not knowingly fail to call the witness unless the testimony would be damaging. Davis, 73 Wn.2d at 277-79; Blair, 117 Wn.2d at 488-90. No inference is permitted if the witness's absence can be satisfactorily explained. Blair, 117 Wn.2d at 489. The inference may not be proper if the testimony is protected by privilege; "however, the fact that the testimony might be self-incriminatory if adverse to the party not calling the witness does not preclude use of the missing witness inference." Blair, 117 Wn.2d at 490 (citing United States v. Pitts, 918 F.2d 197 (D.C. Cir. 1990)).
The circumstances in this case do not establish that the State would have produced Maxwell as a witness if the facts known by him were favorable. The record indicates that the State never intended to call Maxwell to testify because it did not think his testimony was necessary. Officer Thomsen testified to the details of the entire operation, including the phone conversation. Moreover, the State initially did not object to defense counsel calling Maxwell as a witness. When the State and defense counsel learned on the first day of trial that Maxwell was in custody to face charges arising from his alleged drug delivery on April 4, 2006, the State expressed its concern that Maxwell's testimony could lead to self-incrimination. The State had a valid interest in preserving Maxwell's Fifth Amendment rights and fairly adjudicating his pending case regardless of whether or not his testimony was favorable. These are compelling reasons for the State to choose not to call Maxwell as a witness. We conclude that the trial court did not abuse its discretion in refusing Banks' request for a missing witness instruction.
Right to Testify
Banks argues that his waiver of the right to testify was invalid because it was based on misinformation. A criminal defendant has a fundamental constitutional right to testify on his own behalf. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). "The defendant, not trial counsel, has the authority to decide whether or not to testify." Id. "[W]hile the decision to testify should ultimately be made by the client, it is entirely appropriate for the attorney to advise and inform the client in making the decision to take the stand." State v. Robinson, 138 Wn.2d 753, 763, 982 P.2d 590 (1999). A defendant's waiver of a fundamental right must be made knowingly, voluntarily, and intelligently. Thomas, 128 Wn.2d at 558. But the Constitution imposes no obligation on trial courts to inform defendants of the right to testify; accordingly, an on-the-record colloquy is not required to waive it. Id. at 559.
Banks argues that his waiver of the right to testify was not made knowingly, voluntarily, and intelligently because it was predicated on defense counsel's misunderstanding of the trial court's ruling regarding the marijuana evidence. After the State rested its case, defense counsel stated,
[I]n light of the Court's earlier rulings as to the marijuana and marijuana permit, Mr. Banks will not take the witness stand. It's my understanding that we cannot go into that, and we have been precluded from going into it with the officers. Mr. Banks' testimony, and again partial theory of the case, is that the police became upset with him when they found marijuana and he had a marijuana permit with it. They dealt with him quite harshly. That led to an altercation with police, in which he was tasered and thrown to the ground and things ensued. But in the motive of the police to frame him in this case, and but given the Court's ruling that we can't go into that, and haven't been able to go into it with the officers, he's declining to testify at this time.
RP 3/15/2007 at 58-59. According to Banks, this shows that defense counsel mistakenly believed that the trial court had definitively excluded any testimony about the marijuana evidence when, in fact, the trial court actually stated that it would revisit its ruling excluding the evidence if Banks chose to testify.
The State contends that Banks' decision not to testify was not based on misinformation, but rather was a deliberate tactical and strategic decision that was made only after considering the strengths and weaknesses of the State's case against him. But this interpretation glosses over defense counsel's specific references to the trial court's prior marijuana ruling as the basis for Banks' decision not to testify. Defense counsel's statements indicate that Banks' decision not to testify may have been at least partially based on misinformation. Therefore, on this record, we cannot conclusively determine whether Banks' decision not to testify was purely tactical and strategic or whether it was based on misinformation.
Banks contends that reversal is required because the trial court failed to correct the misunderstanding. We disagree. First, Banks has not cited authority specifically holding that the waiver of the right to testify is invalid when based on misinformation. Instead, he relies solely on cases holding that a guilty plea may be involuntary when based on misinformation. State v. Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006); State v. Miller, 110 Wn.2d 528, 531, 756 P.2d 122 (1988). Second, defense counsel is primarily responsible for ensuring that the defendant's right to testify is protected. Robinson, 138 Wn.2d at 766. Therefore, the appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is a claim for ineffective assistance of counsel. Id. at 765-66.
The record suggests that Banks' decision may have been based on a number of factors outside the record, including the strength of the State's case and the court's earlier ruling concerning the inadmissibility of the marijuana evidence. Because defense counsel and Banks discussed these matters outside the record, the proper remedy is to bring an independent proceeding by way of personal restraint petition under RAP 16.3. This will allow defense counsel to explain his tactics and dispute the allegations at an evidentiary hearing. State v. King, 24 Wn. App. 495, 505, 601 P.2d 982 (1979).
We affirm.