Opinion
No. 27094-3-II
Filed: July 8, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County Docket No: 00-1-01174-9 Judgment or order under review Date filed: 02/22/2001
Counsel for Appellant(s), Rodney Ray Bell (Appearing Pro Se), Clallam Bay Corectional Center, Doc No. 940406, 1813 Eagle Crest Way, Clallam, WA 98326-9724.
John A. Hays (Appearing Pro Se), Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Petitioner(s), Rodney Ray Bell (Appearing Pro Se), Clallam Bay Corectional Center, Doc No. 940406, 1813 Eagle Crest Way, Clallam, WA 98326-9724.
Counsel for Respondent(s), Edwin Nick Norton, Skagit County Prosecuting Attorney, 605 So. 3rd St, Mount Vernon, WA 98273.
Rodney Bell appeals his second degree assault conviction. The charge arose from an altercation in the Cowlitz County jail between Bell and another inmate, Jimmy Campbell. Bell argues that his conviction should be reversed because (1) the information failed to allege that the assault was unlawful; (2) the arresting officer commented on Bell's pre-arrest silence; (3) the evidence was insufficient; (4) the trial court's self-defense instruction was deficient; and (5) his counsel was ineffective. Additionally, in his consolidated pro se personal restraint petition (PRP), Bell alleges that the court miscalculated his offender score. Because (1) the charging document included all necessary statutory elements; (2) the deputy did not negatively comment on pre-arrest statements; (3) the evidence was sufficient to establish that Bell broke Campbell's nose; (4) the jury instructions required the State to disprove Bell's self-defense claim; (5) Bell's counsel was effective; and (6) the trial court properly included Bell's driving under the influence (DUI) convictions in calculating his offender score, we affirm.
FACTS
On December 28, 2000, Bell struck fellow Cowlitz County jail inmate Campbell in the face, breaking his nose. Bell claimed self-defense. Campbell claimed that the attack was unprovoked. Campbell testified that he had been sitting in the recreation area of the jail that day when Bell came in to use the phone; Campbell was seated with his back to the telephone, approximately two feet away. Bell appeared upset and was mumbling when he got off the phone, so Campbell decided to move to another table to avoid him. As Campbell was turning to stand up, Bell took Campbell's pencil from him, said Campbell was `nothing but a punk bitch, like [his] brother,' and struck him twice in the face. Report of Proceedings (RP) (February 14, 2001) at 19. Campbell's nose bled profusely.
Campbell speculated that Bell also stabbed him with the pencil (on the face) because Bell had taken it out of his hand before he punched him. Afterward Bell threw the pencil against the wall.
After attempts to stop the bleeding proved unsuccessful, Campbell was taken to Longview Radiology and then to the emergency room. The next morning his nose was repaired: '[the doctor] placed some a metal rod up my nose, and then took his thumb and popped it back over into place.' RP (February 14, 2001) at 24.
Laura Thurman, a deputy from the Cowlitz County Sheriff's Office, investigated the incident later that afternoon. After hearing the conflicting stories, but seeing Campbell's injuries, she arrested Bell.
A jury convicted Bell of second degree assault on February 15, 2001, and he was sentenced with an offender score of seven.
Bell was in jail on the date of the assault for taking a motor vehicle without permission, driving under the influence, and attempting to elude a pursuing police officer. Bell pleaded guilty to the DUI and eluding charges and was sentenced on these charges with an offender score of eight. The assault and driving offenses were sentenced on the same date.
Bell challenges his conviction for second degree assault and challenges the calculation of his offender score.
ANALYSIS
Sufficiency of the Information
On January 3, 2001, the State charged Bell with one count of second degree assault as follows:
The defendant, in the County of Cowlitz, State of Washington, on or about December 28, 2000, did intentionally assault Jimmy Campbell, a human being, and thereby recklessly inflicted substantial bodily harm, to-wit: a broken nose, upon such person; contrary to RCW 9A.36.021(1)(a) and against the peace and dignity of the State of Washington.
Clerk's Papers (CP) (#27094-3-II) at 1.
As he did below, Bell asserts that the charging document fails to state a cause of action. Specifically, Bell objects because the State did not allege that he unlawfully assaulted another. The word `unlawful' is not a statutory element of second degree assault, but Bell claims that it is an essential element because an assault can be justified and is not a crime under the circumstances listed in RCW 9A.16.020. Thus, he claims, simply alleging assault without explaining that the assault was unlawful fails to allege a crime. The State responds that alleging `intentional' or `reckless' necessarily alleges unlawfulness and that it is not necessary to allege lack of self-defense. See RCW 9A.08.010(a) and (c).
RCW 9A.36.021 reads in relevant part as follows:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.
This statute reads in relevant part as follows:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: . . . .
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.
RCW 9A.16.020.
Because Bell objected to the charging document before the State rested, we strictly construe the charging document to determine whether it included all essential elements. See State v. Borrero, 147 Wn.2d 353, 360, 58 P.3d 245 (2002); State v. Kjorsvik, 117 Wn.2d 93, 102-03, 812 P.2d 86 (1991) (explaining that a more liberal review standard applies when the defendant challenges charging document for the first time on appeal to create an incentive to challenge faulty charging documents early and to prevent `sandbagging') (quoting 2 W. LaFave J. Israel, Criminal Procedure sec. 19.2, at 442 n. 36).
The primary goal of this `essential elements' rule is to give a defendant notice of the nature of the crime charged so he will be able to prepare to defend against the charge. A charging document that fails to set forth the essential elements of a crime in such a way that the defendant is notified of both the illegal conduct and the crime with which he is charged is constitutionally defective. Kjorsvik, 117 Wn.2d at 101-02. The remedy for such defect is reversal and dismissal of the charges without prejudice to the State. State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992).
But lack of self-defense is not an essential statutory element that must be alleged in the charging document. See State v. McCullum, 98 Wn.2d 484, 493, 656 P.2d 1064 (1983) (interpreting statutory language changes in homicide and self-defense statutes as evidence of legislature's intent `to relieve the prosecution of the necessity of pleading the absence of self-defense'); City of Seattle v. Lewis, 70 Wn. App. 715, 718, 855 P.2d 327 (1993), review denied, 123 Wn.2d 1011 (1994).
Because lack of self-defense is not an essential element of assault, it need not be alleged directly or indirectly in the charging document.
Sufficiency of the Evidence
The charging document alleged that Bell `recklessly inflicted substantial bodily harm, to-wit: a broken nose.' CP (#27094-3-II) at 1. Bell contends the evidence only established that at some point Campbell's nose was broken; it did not establish that Bell's actions broke his nose. We disagree.
In reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). We also draw all reasonable inferences from the evidence in favor of the jury's verdict. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person is guilty of second degree assault if (under circumstances not amounting to first degree assault) (1) he intentionally assaults another and (2) thereby recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a).
Viewed in the light most favorable to the State, the evidence shows that Bell struck Campbell in the nose two times; Campbell's nose then bled profusely; x-rays taken a short while later showed that his nose was broken in two places.
The jail guard on duty who discovered Campbell after Bell struck him testified as follows about the amount of blood:
Q: Okay. Would you describe the bleeding that you saw?
A: It was like somebody turned on the water faucet, and it was just pouring from his nose. And he was just standing there in a state of shock with blood just pouring from his nose.
Q: How much blood was he losing at that time; do you know?
A: I don't know the quantity, but I think if you could have stuck a coffee cup underneath it, it probably would have filled it up. It was a large amount of blood.
Q: . . . [W]hat did you have Mr. Campbell do?
A: I told him to go stand at a toilet and the sink in the area, and I'd said, go stand over the toilet, you're bleeding all over the place, and less mess for us to clean up.
RP (February 14, 2001) at 60-61.
A rational jury could infer from this evidence that Bell's blows broke Campbell's nose. Thus, the evidence is sufficient to support Bell's second degree assault conviction.
Pre-Arrest Silence
Deputy Thurman testified that she interviewed Bell and Campbell the afternoon of the altercation around 2:00 p.m. Without objection, she testified to her conversation with Bell that day as follows:
Q: On December the 28th, did you have contact with the Defendant?
A: Yes, I did.
Q: And did you ask to speak with him?
A: Yes.
Q: Okay. And what did he tell you at that time?
A: That he had nothing to say.
Q: Okay. Was there anything else that he told you at that time?
A: Yes. He — he said, he'd see me in court, and he laughed.
Q: When you had contact with him on the 28th, about what time was it, approximately? . . . .
A: Between two and five. . . . .
Q: Did you later have contact with Mr. Bell?
A: Yes.
Q: And when was that?
A: When I told him what he's being charged with and how much his bail was.
Q: At that time, was he advised of his rights?
A: No.
Q: Did you later speak with him?
A: Yes.
Q: When was that?
A: When he asked to speak with me.
Q: When was that in relation to your informing him of what he was charged with?
A: Oh, probably within a half hour.
Q: Okay. When you then saw him, was he advised of his rights?
A: Yes, he was. . . . .
Q: At that time, did he tell you about what happened?
A: Yes, he did.
RP (February 14, 2001) at 75-77.
Deputy Thurman then recounted Bell's version of events: that Campbell held a pencil to Bell's throat, Bell knocked it out of his hand, and then punched him. Bell told Deputy Thurman that he hit Campbell because he was afraid Campbell would stab him. The defense counsel did not object to Deputy Thurman's testimony.
Of course, introducing evidence of a defendant's post-arrest silence violates his Fifth and Fourteenth Amendment rights. Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). But merely mentioning a suspect's pre-arrest silence, although not advisable, generally does not violate due process. State v. Lewis, 130 Wn.2d 700, 706, 927 P.2d 235 (1996).
Relying on Easter, Bell argues that it was error to allow Deputy Thurman's testimony. The State argues that testimony about Bell's silence was not used to suggest Bell's guilt and was not error.
In its opinion reversing Easter's conviction, the Court observed that by calling Easter a `smart drunk' the officer did not merely offer his opinion that he was intoxicated but he also characterized Easter's silence as evasive and `evidence of his guilt.' Easter, 130 Wn.2d at 235. The Court explained that the use of pre-arrest silence as substantive evidence of guilt implicates the Fifth Amendment and is not merely an evidentiary issue. Easter, 130 Wn.2d at 235. Moreover, the error was prejudicial in Easter because the officer commented on the silence, interpreting it as evasive, and the State emphasized the silence in closing argument. 130 Wn.2d at 242-43.
But in State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999), testimony regarding a defendant's pre-Miranda statements was not a comment on the evidence. The testimony at issue was as follows: `I asked him if he would want to take a polygraph examination when he returned to our jurisdiction, . . . . He indicated that he would be willing to do that when he got back' and `I asked him if he would provide me with a written statement, and he said that he would do that after he had discussed the matter with his attorney.' Sweet, 138 Wn.2d at 480 (footnotes omitted). No polygraph or written statement was introduced at trial.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Sweet, 138 Wn.2d at 480. Comparing this testimony to the testimony in Easter reveals significant differences between them. The testimony in Sweet was at best `a mere reference to silence which is not a `comment' on the silence [and] is not reversible error absent a showing of prejudice.' 138 Wn.2d at 481 (quoting Lewis, 130 Wn.2d at 706-07). Thus, Sweet did not establish prejudice as a result of the testimony. Sweet, 138 Wn.2d at 481.
Here the unobjected-to testimony is more like that in Sweet than Easter. Deputy Thurman did not negatively characterize Bell's statements, and the State made no reference to Bell's statement or silence in argument. Thus, Bell's due process rights were not violated by Deputy Thurman's unchallenged testimony. See also State v. Henderson, 100 Wn. App. 794, 998 P.2d 907 (2000) (holding the defendant failed to establish prejudice to support a mistrial when mere mention of his silence came up during testimony, but that error, coupled with other prosecutorial misconduct, constituted prejudicial cumulative error).
Harmless Error
Moreover, any error in allowing the unchallenged testimony was harmless. If we are convinced beyond a reasonable doubt that any jury would reach the same result absent the admission of the testimony and the untainted evidence is so overwhelming it necessarily leads to a finding of guilt, admitting the testimony, if error, is harmless. Easter, 130 Wn.2d at 242 (citing State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995), and State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990)). Bell claims the evidence is not overwhelming because his witness testified that he acted in self-defense. But Bell testified that he got the pencil away from Campbell before he assaulted him. `I remember I knocked the pencil out.' RP (February 14, 2001) at 111. Thus, even under Bell's version, the punches to Campbell's face were force disproportionate to that with which he had earlier been threatened, since the pencil was no longer available to Campbell as a weapon. Error, if any, in allowing Deputy Thurman's unchallenged testimony regarding Bell's pre-Miranda statements was clearly harmless.
Ineffective Assistance
Bell claims in his pro se brief that his trial counsel was ineffective because (1) he failed to present available evidence that would bolster his self-defense theory; (2) he failed to exclude Deputy Thurman's reference to another inmate's statement because that inmate did not testify; and (3) he failed to propose an instruction explaining that the State had the burden to disprove his self-defense claim.
To establish ineffective assistance of counsel, the claimant must show (1) deficient performance upon review of the entire record and (2) a reasonable probability that, except for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
Performance of counsel is deficient when it falls `below an objective standard of reasonableness' under prevailing professional standards. In re Personal Restraint of Stenson, 142 Wn.2d 710, 742, 16 P.3d 1 (2001) (citing Strickland, 466 U.S. at 688). The defendant must show there were no legitimate strategic or tactical reasons for the challenged attorney conduct. McFarland, 127 Wn.2d at 336. We strongly presume that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
Available Evidence
Bell does not support his claim that his counsel had evidence that he should have presented to the jury to further Bell's self-defense claim. Bell does claim that his counsel should have confronted Campbell with an allegedly inconsistent written statement because '[Campbell's] statement stated the defendant stabbed the victim with a pencil and then hit the victim once [and in his] trial testimony he testified he never got stabbed but hit two times.' Br. of Pro se at 1-2. But Campbell's written statement is not included in the record, and Bell's counsel did challenge Campbell's version of events. Choosing not to introduce the victim's written statement describing a more serious assault into evidence was likely strategic and thus was not ineffective.
Hearsay Statement of Uncalled Witness
Next Bell argues that it was error for his counsel to have allowed testimony about another witness when that witness would not testify at trial. He refers to when Bell's counsel asked Deputy Thurman why she chose to charge Bell over Campbell. Counsel pointed out that as a result of her investigation, the deputy had two versions that painted Bell as the first aggressor and two that said it was Campbell. The record clearly shows that this was a tactic that allowed Bell's counsel to characterize Deputy Thurman's decision as arbitrary (`Did you flip a coin?' RP (February 14, 2001) at 89). Thus, it was not ineffective. Instruction on Burden Shift Finally Bell appears to argue that the court should have given a jury instruction that explained the State's burden to disprove self-defense. The court instructed the jury on the lawful use of force in three instructions. Specifically, the court explained in Instruction No. 13 that it is a defense to the charge of second degree assault `that the force used was lawful as defined in this instruction.' CP (#27094-3-II) at 30. That instruction later explained that [t]he State of Washington has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty. CP (#27094-3-II) at 30. Thus the court properly instructed the jury on the State's burden to disprove Bell's self-defense claim beyond a reasonable doubt, and no further instruction was necessary or appropriate. Offender Score Bell was in jail on the date of the assault on charges of taking a motor vehicle without permission, DUI, and attempting to elude. In exchange for the State's promise to drop the taking a motor vehicle charge, Bell pleaded guilty to the DUI and elude charges. He was sentenced to the assault charge and the attempting to elude and DUI charges at the same time. He now challenges his offender score as incorrect. His argument, in its entirety, is that [Prosecutor] Norton agreed that if . . . Bell plead[ed] guilty to [the attempting to elude and DUI charges] that [Prosecutor] Norton would recommend a sentence in defendant's standard range for the charge of assault 2 crime date 12-28-00. Mr. Norton added a misdemeanor D.U.I. and [an attempt to elude] charge in this range. There [are] only five prior convictions adding these charges puts me at an offender score of 7 which is beyond standard range. CP (#27693-3-II) at 25. It is not clear exactly what Bell argues; nevertheless, we have reviewed the sentencing documents in each case and find the trial court's calculations correct. On the assault charge, Bell was sentenced with an offender score of seven. This score comes from one prior second degree robbery conviction a violent felony calculated at two points under former RCW 9.94A.360(8) (2000) plus four nonviolent felony convictions, plus one other current nonviolent felony conviction (the attempting to elude charge). Bell's standard range on this charge is 43 to 57 months. The court sentenced him to 43 months to be served concurrently with the attempting to elude charge. On the attempting to elude charge, Bell was sentenced with an offender score of eight. The court reached this score by taking Bell's five prior felony convictions plus one past DUI conviction, plus one current felony conviction (the assault conviction), and one current DUI conviction. Because DUI convictions, though not felonies, are included in calculating the offender score on an attempting to elude charge (RCW 9.94A.525 ), the trial court properly calculated Bell's standard range sentence. Bell's standard range was 17 to 22 months. The court sentenced him to 22 months on the attempting to elude charge (and 12 months on the DUI). Finding no error, we affirm. 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.
State's burden to prove no self-defense, Instruction No. 13, 11 Washington Pattern Jury Instructions: Criminal 17.02, at 196 (2d ed. 1994) (WPIC); defendant entitled to act if subjectively believe in actual danger, Instruction No. 15, WPIC 17.04, at 203; no duty to retreat, Instruction No. 16, WPIC 16.08, at 192.
Former RCW 9.94A.360(11) (2000). See Laws of 2001, ch. 10, sec. 6.
MORGAN, J., concur.