Opinion
No. 54100-5-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-09541-5. Judgment or order under review. Date filed: 03/15/2004. Judge signing: Hon. Cheryl B Carey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Michele Ann Taylor, King Co Pros Office, 516 3rd Ave, Seattle, WA 98104-2390.
Christopher Bingham appeals his conviction of one count of first degree escape, arguing that the trial court erred by denying his motion for a mistrial based on a violation of a pretrial order, that he received ineffective assistance of counsel, and that erroneous jury instructions relieved the State of its burden to prove every element of the crime charged. Because he fails to establish reversible error, we affirm.
FACTS
After Christopher Bingham failed to return to the Bishop Lewis Work Release Facility, the State charged him with first degree escape. Prior to trial, the trial court granted a defense motion to exclude mention of the word "escape" by witnesses or in documents, based on the defense contention that the jury was to determine whether an escape had occurred.
During the defense cross-examination of State witness Kelly Anderson, a Bishop Lewis Work Release Facility Program Monitor, after clarifying that Bingham signed out on July 1st, the following exchange occurred:
Q. You are not going to let anyone leave the facility without signing out?
A. Not normally, no. It is — when we sign someone out part of it is for the benefit of the resident, as well as the security of the public and D.O.C. in Pioneer, the resident is supposed to be aware of where he is going, and the staff is to interact and to make sure they sign out. If somehow the resident does get out of the facility without signing out, that would be an infraction as well, you know, because it is their responsibility to sign out of the facility.
Q. And in fact that's your job to make sure they sign out?
A. Correct.
Q. They can't leave the facility without signing out?
A. If they did that would be considered an escape of various degrees. Verbatim Report of Proceedings 2/5/04 at 27-28.
Defense counsel objected and moved for a mistrial, arguing that Anderson's use of the word "escape" violated the pretrial ruling. The trial court denied the motion finding that the witness did not willfully disregard the pretrial order but was responding to repeated questions posed by defense counsel about general procedures, rather than Bingham's actions, but agreed to give a curative instruction. Defense counsel chose not to have the trial court immediately instruct the jury, but offered a curative instruction to include with the jury instructions at the conclusion of the evidence.
The State also presented the testimony of Lee Hang, another work release program monitor, who testified about the procedures followed when residents fail to return at their appointed time, as well as her actions on July 1st when Bingham was due to return. After a defense cross-examination that ended with questions about general procedures for calling jails and hospitals and writing infractions, the prosecutor began redirect as follows:
Q. Just briefly. Ms. Hang, did you receive training for the escape procedures? I mean, for the procedures?
A. Yes. I did.
[Defense Counsel]: I object to the form of the question.
The Court: Sustained.
Q. Did you — what training did you receive?
A. When I did my first training my lead person showed me how the procedure starts, and I watched them, and then after the next time if I have to do another procedure I do it, and they watched me. And then I also work with two other people, where if there is any question they are there to help me out.
Q. And on July 1st when you were doing procedures did you do them in accordance with training you'd received?
A. Yes. I did.
Verbatim Report of Proceedings 2/5/04 at 60-61.
Defense counsel again moved for a mistrial. The trial court denied the motion, finding the prosecutor's use of the word escape was not willful, stating, "Unfortunately, it's difficult because the actual procedure that's being addressed is called `the escape procedure.'" Verbatim Report of Proceedings 2/5/04 at 64. The trial court noted that a jury instruction specifically states that arguments and questions asked by the attorneys are not evidence and that the curative instruction would be included. Bingham testified that on July 1st, his girlfriend picked him up from work during his lunch break because she and their daughter were being evicted. He helped them get a new apartment and then sometime during the move, which took approximately one week, he went to a friend's house in Puyallup where some people beat him up with a baseball bat, put him in the trunk of a car and then left him near Enumclaw. Bingham testified that he did not return to work release after the move or go to a hospital after sustaining the beating or call police to report the assault because he was scared. The jury found Bingham guilty as charged and the trial court sentenced him to 75 months confinement, within the standard range. Bingham appeals, contending that the trial court should have granted a mistrial based on violations of the pretrial order, that he received ineffective assistance of counsel when his attorney failed to ensure that the curative instruction was read to the jury, and that the jury instructions relieved the State of its burden to prove an essential element of the crime.
ANALYSIS
Bingham contends that the violations of the trial court's order regarding use of the word "escape" so prejudiced the jury that he was denied a fair trial. We disagree.
In reviewing a trial irregularity, we consider its seriousness, whether it was cumulative of properly admitted evidence, and whether it could have been cured by an instruction to the jury. State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987). We review a trial court's decision to grant or deny a motion for a mistrial based on a trial irregularity for abuse of discretion. Id. at 255.
In Escalona, where the credible evidence against the defendant was limited, the defendant's testimony was not substantially impeached, and the trial court had ruled in limine that a prior conviction could not be admitted, the victim's testimony that the defendant had "a record and had stabbed someone," was so inherently prejudicial that the trial court abused its discretion by denying a defense motion for a mistrial. Id. at 253-56. When the State failed to file a brief on appeal in State v. Wilburn, 51 Wn. App. 827, 829-30, 831, 755 P.2d 842 (1988), superseded by rule as stated in Adams v. Dep't of Labor Indus., 128 Wn.2d 224, 905 P.2d 1220 (1995), this court reversed a second-degree rape conviction based on the defendant's prima facie showing of reversible error where the trial court had excluded evidence of prior acts or convictions and a bail study interviewer then testified that she was surprised to see that the defendant "was back" and that he said, "Yes, I did it again and I need treatment." Id. at 832. In State v. Miles, 73 Wn.2d 67, 68, 436 P.2d 198 (1968), at prosecution for a liquor store robbery in Grandview, an officer testified about the contents of a message sent by the Yakima County sheriff's office to the Spokane police that formed the basis for the arrest of the defendants. The message described the suspects and their car and stated that they were headed for Spokane to duplicate the Grandview robbery. Id. Because the prejudicial impact of such irrelevant hearsay testimony could not be cured by an instruction, the defendants were denied a fair trial and their convictions were reversed.
Bingham's reliance on these cases is misplaced. He fails to demonstrate how use of the word "escape," particularly in the manner described here, could unfairly prejudice a defendant on trial for first degree escape, even in light of the trial court's in limine ruling. Use of the word "escape" by the witness to refer to the consequences of a resident leaving without signing out and by the prosecutor to refer to general work release training procedures does not constitute evidence about Bingham's actions. To the extent that the jury could otherwise have become confused as to whether to convict Bingham for escape simply based on these two uses of the word, the jury instructions clearly define the crime of escape, direct the jury to decide whether the State proved the essential elements of the crime, and direct the jury that statements and questions of the attorneys are not evidence. The trial court did not abuse its discretion in denying Bingham's motion for a mistrial.
Bingham also contends that he was denied effective assistance of counsel because his attorney failed to ensure that the trial court gave the curative instruction he offered. To establish ineffectiveness, Bingham must show that counsel's performance was deficient and prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). Because we strongly presume that defense counsel's conduct constituted sound trial strategy, Bingham must demonstrate that in light of the entire record, no legitimate strategic or tactical reasons support the challenged conduct. State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Prejudice is established where "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 334-35.
Although the trial transcript indicates that defense counsel submitted a curative instruction to the court, it is not included in the clerk's papers and there is no indication in the record that it was mentioned during the discussion of the court's instructions and the parties' exceptions. After reviewing the trial court's instructions, defense counsel may have decided not to follow up on his request for the curative instruction because it would only serve to emphasize the testimony in the minds of the jury. Moreover, Bingham fails to demonstrate or even argue that he was prejudiced by his attorney's performance, relying instead on the trial court's statement that any prejudice resulting from the second use of the word escape would be cured with an instruction. On this record, Bingham fails to establish ineffective assistance.
Finally, Bingham contends that errors in the jury instructions require reversal. In particular, despite changes to the statute eliminating the element of willfulness, the trial court gave the State's definition, "A person commits the crime of escape in the first degree when he knowingly leaves a work release facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense and willfully fails to return." Clerk's Papers at 20. The State's "to convict" instruction included the following element, "That the defendant willfully failed to return to the work release facility at the time specified[.]" Clerk's Papers at 24. The court also instructed the jury, "A person acts willfully when he or she acts knowingly." Clerk's Papers at 23.
Bingham argues that by requesting that the trial court include language about willfulness in the instructions, the State was then required to prove willfulness as it was defined for prosecutions under former RCW 72.65.070, repealed by 2001 c. 264 sec.sec. 7-8, prohibiting failure to return to work release, rather than as generally defined in other cases and used here. We disagree. The State charged Bingham under RCW 9A.76.110, the general escape statute, which provides: "A person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense." Because the instructions presented to the jury equated willfulness with knowledge, they required the State to prove that Bingham acted with knowledge and did not require proof of the additional element of willfulness as defined in prosecutions under the former statute. On this record, we conclude beyond a reasonable doubt that the jury verdict would have been the same absent the unnecessary addition of the "willfully" language. State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
Affirmed.
COLEMAN and BECKER, JJ., Concur.