Opinion
No. 27426-8-III.
Filed: January 27, 2011.
Appeal from a judgment of the Superior Court for Benton County, No. 07-1-01052-5, Cameron Mitchell, J., entered August 7, 2008.
Affirmed by unpublished opinion per BROWN, J., concurred in by Kulik, C.J., and Korsmo, J.
Steven L. Canha appeals his convictions for two counts of second degree assault with firearms enhancements and two counts of unlawful possession of a firearm. He contends the trial court erred in denying his evidence suppression motion, he received ineffective assistance of counsel, and the firearms enhancements violate double jeopardy. Mr. Canha, pro se, mainly raises evidence and speedy trial concerns in his statement of additional grounds for review (SAG). We affirm.
FACTS
In October 2007, Steven Canha and Karen Price went out drinking with Ms. Price's son, Kevin Price, and his girl friend, Kim Douglas. Mr. Canha and Ms. Price were celebrating their home refinancing. They used some refinancing money to pay debts of Ms. Price and Mr. Price. Mr. Price and Ms. Douglas lived in a mobile home on the home property. Mr. Price considered Mr. Canha like family, but when Mr. Canha first started dating his mother, he had written Mr. Canha's name on a bullet and said that if he did not treat Ms. Price right, the bullet was for him. Mr. Canha believed Mr. Price was joking.
After consuming significant amounts of alcohol, the group returned home. There, Mr. Price believed he saw Mr. Canha push his mother and confronted him. Mr. Canha denied the pushing and ordered Mr. Price to leave. Mr. Price refused. Mr. Canha told him that he would make him leave and began walking upstairs. Mr. Price followed. What happened next is disputed, but substantial evidence at trial showed Mr. Canha first pointed a .22 caliber derringer at Mr. Price; the pair fought and Mr. Price wrestled the .22 away from Mr. Canha and threw it aside. Ms. Price took the .22 and put it in a bedroom drawer. More fighting followed. Ms. Douglas called the police, reporting a fight involving firearms. About this time, Mr. Price saw Mr. Canha pointing a .38 caliber derringer at him. Mr. Price ran to his mobile home.
Benton County Sheriff's Deputy Scott Runge was first to arrive. The deputy encountered Ms. Price and Mr. Price emerging from their separate residences. Mr. Canha apparently disregarded orders to come out until he cared for his dogs. The police noticed Mr. Canha was intoxicated, but still followed police instruction. Mr. Canha was bleeding and complaining of back pain. An ambulance transported Mr. Canha to the hospital for treatment. Then, the remaining officers performed a protective sweep of the house to ensure no other persons were inside who might be armed or injured. They followed a blood trail leading to an upstairs bedroom. The police saw, in plain view, two firearms inside an opened drawer. When the police came back out, they questioned Ms. Price about the firearms, who admitted she owned them. She then allowed police to come back into the house and voluntarily handed over the guns.
The State charged Mr. Canha with two counts of second degree assault and two counts of unlawful possession of a firearm (Mr. Canha is a convicted felon). Mr. Canha moved unsuccessfully to suppress the evidence found in the house. The court reasoned the evidence was admissible because it was found in plain view during the protective sweep, and Mr. Canha was not removed from the scene to avoid getting his consent to search. Mr. Price gave a statement to Deputy Runge on the night of the incident admitting he struck Mr. Canha first. Later, he asserted he struck in an attempt to get a gun away from Mr. Canha. Mr. Price was issued a criminal citation for assault in the fourth degree (domestic violence) that evening, but the charge was later dismissed.
At trial, the witnesses seemed to agree all four participants were drunk. Mr. Canha testified he could not remember the events of the evening because he had been too drunk. Deputy Runge testified that to characterize all the parties at the residence as "highly intoxicated" was a "fair understatement." Report of Proceedings (RP) at 362. Deputy Runge described Mr. Canha as blubbering like a small child, rambling, incoherent, and needing help to stand. He described Mr. Canha as "an emotional mess." RP at 417. He noted "intoxication was an apparent factor" in this case. RP at 369. Defense counsel did not propose a voluntary intoxication instruction.
Mr. Canha was arraigned on November 1, 2007. On December 6, 2007, Mr. Canha was ordered to undergo a mental health evaluation with a stay in proceedings. Mr. Canha later unsuccessfully moved to dismiss for a speedy trial violation. Mr. Canha's first counsel was disqualified on March 20, 2008. Mr. Canha's second counsel was disqualified on March 27, 2008. The proceedings were continued on several occasions. Mr. Canha again moved to dismiss on speedy trial grounds. Eventually, Mr. Canha signed a speedy trial waiver on May 29, 2008. Trial occurred in July 2008. Mr. Canha was convicted, as charged, and sentenced to 79 months for the assault counts, along with an additional 72 months to be served consecutively, as a result of the firearms enhancements. Mr. Canha appeals.
ANALYSIS A. Suppression Motion
The issue is whether the trial court erred in denying Mr. Canha's motion to suppress evidence, considering he did not give his consent.
We review the trial court's suppression motion conclusions of law de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). The trial court's suppression hearing findings of fact are reviewed for substantial evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Under article I, section 7 of the Washington Constitution, warrantless searches are per se unreasonable. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996). Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The warrant provides the requisite "authority of law." State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). Exceptions to the warrant requirement are to be "jealously and carefully drawn." State v. Reichenbach, 153 Wn.2d 126, 131, 101 P.3d 80 (2004) (quoting Hendrickson, 129 Wn.2d at 72). One exception is consent. State v. Walker, 136 Wn.2d 678, 682, 965 P.2d 1079 (1998). The State bears the burden of establishing the validity of a warrantless search based upon consent. State v. Mathe, 102 Wn.2d 537, 540, 688 P.2d 859 (1984). The State must meet three requirements to show a warrantless but consensual search was valid: (1) the consent must be voluntary; (2) the person granting consent must have authority to consent; and (3) the search must not exceed the scope of the consent. State v. Nedergard, 51 Wn. App. 304, 308, 753 P.2d 526 (1988).
In search and seizure cases involving cohabitants, the court has adopted the common authority rule. State v. Morse, 156 Wn.2d 1, 7-8, 123 P.3d 832 (2005). A cohabitant with common authority over the premises has authority to consent to a search and that consent is valid against an absent, nonconsenting person with whom that authority is shared. United States v. Matlock, 415 U.S. 164, 170, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). But if cohabitants with equal authority over common areas are present, the police must obtain consent from each cohabitant. Morse, 156 Wn.2d at 13; State v. Haapala, 139 Wn. App. 424, 428-29, 161 P.3d 436 (2007).
Here, Ms. Price gave police consent to enter into her home. At the time Ms. Price gave consent, Mr. Canha was either en route, or at the hospital receiving treatment. The record clearly shows Mr. Canha was taken to the hospital for medical treatment. Where an occupant with an equal privacy right in the premises acts in her self-interest to allow seizure, her consent is effective even if the other occupant has not been given an opportunity to consent. State v. Vidor, 75 Wn.2d 607, 452 P.2d 961 (1969). The record shows Ms. Price voluntarily acted in her self-interest when she allowed the police to remove the guns from the home to protect her, Mr. Canha, and Mr. Price. The latter two were prohibited from being in the home with firearms present. Thus, Ms. Price's consent to search was sufficient for officers to gain entry into the home without a warrant.
Moreover, the seizure of the guns would have been proper under the "plain view" doctrine. The "plain view" doctrine is an exception to the Fourth Amendment's warrant requirement that applies after police have intruded into an area in which there is a reasonable expectation of privacy. State v. Myers, 117 Wn.2d 332, 346, 815 P.2d 761 (1991). "The doctrine requires that the officer had a prior justification for the intrusion and immediately recognized what is found as incriminating evidence such as contraband, stolen property, or other item[s] useful as evidence of a crime." State v. O'Neill, 148 Wn.2d 564, 582-83, 62 P.3d 489 (2003). The "protective sweep" was recognized as a justification for this intrusion in Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990); United States v. Pena, 924 F. Supp. 1239, 1247 (D. Mass. 1996); State v. Boyer, 124 Wn. App. 593, 600, 102 P.3d 833 (2004). The sweep is limited to a cursory inspection of places a person may be found and must last no longer than necessary to dispel the reasonable suspicion of danger or to complete the arrest, whichever occurs sooner. Buie, 494 U.S. at 335-36.
Here, police were dispatched to investigate a crime involving firearms. Mr. Canha initially refused to exit the house and was covered in blood and injured when he finally did exit. The police were justified in entering the home under the "protective sweep" doctrine because they needed to enter the home to ensure that no other persons were present who might be armed or injured in the home. The officers were lawfully in a vantage point to see the guns but did not reach or seize them; Ms. Price voluntarily retrieved the guns for them when the officers determined the guns were crime evidence. In sum, the seizure was lawful and the trial court did not err in denying suppression.
B. Assistance of Counsel
The issue is whether trial counsel was ineffective in the second degree assault prosecutions for failing to request a voluntary intoxication instruction.
"We review a challenge to the effective assistance of counsel de novo." State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). We conduct a three-part inquiry: (1) whether Mr. Canha was entitled to the instruction, (2) whether it was appropriate not to ask for the instruction, and (3) whether Mr. Canha was prejudiced. State v. Kruger, 116 Wn. App. 685, 690-92, 67 P.3d 1147 (2003).
Under RCW 9A.16.090, a defendant is entitled to have the jury consider intoxication in determining whether the defendant could form the requisite intent to commit the crime charged: no act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state.
Voluntary intoxication instructions are proper solely when (1) a particular mental state is an element of the crime charged and when substantial evidence shows (2) the defendant consumed alcohol and (3) that the drinking affected his ability to form the required mental state. State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002). The evidence "must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged." State v. Gabryschak, 83 Wn. App. 249, 252-53, 921 P.2d 549 (1996). Substantial evidence must show that the alcohol consumption affected the defendant's ability to form the required mental state. Everybodytalksabout, 145 Wn.2d at 479. A defendant is entitled to a voluntary intoxication instruction if the State's evidence, and evidence the defense elicits during cross-examination of the State's witnesses, contains substantial evidence of the defendant's drinking and its effect on his mind or body. Gabryschak, 83 Wn. App. at 253.
Here, the State had to prove a particular mental state for the second degree assault charges under RCW 9A.36.021(c). Case law requires the State to prove the common law element of intent. State v. Allen, 116 Wn. App. 454, 463-64, 66 P.3d 653 (2003) (citing State v. Davis, 119 Wn.2d 657, 662, 835 P.2d 1039 (1992)). The jury was instructed that "[a]n assault is an act done with the intent to create in another apprehension and fear of bodily injury." Clerk's Papers at 34.
The record shows substantial evidence of Mr. Canha's intoxication. While some evidence shows he was able to remember some events and was coherent during his booking and bond hearing, substantial evidence shows Mr. Canha's drinking affected both his mind and body. He sobbed, ranted, and was generally incoherent. Mr. Canha delayed in leaving the house so he could care for his dogs, even though the house was surrounded by police officers with guns drawn. He repeatedly testified that he did not remember the incident because he was too drunk. Other witnesses, including Deputy Runge recognized his intoxication was apparent. Considering all, an intoxication instruction was warranted on the two assault charges.
Next, we examine whether the failure to request the instruction was ineffective assistance. Strickland v. Washington requires both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As to the first prong, the question is whether a reasonable attorney should propose an intoxication instruction under these facts. See e.g., State v. Glenn, 86 Wn. App. 40, 44, 935 P.2d 679 (1997) (counsel's performance is deficient if it falls below "a minimum objective standard of reasonable attorney conduct"). Counsel's actions pertaining to the defendant's theory of the case do not constitute deficient performance. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
We believe counsel made a strategic decision not to provide the jury with a voluntary intoxication instruction because doing so would be inconsistent with his theory of the case. Mr. Canha's theory of the case was that he never touched the guns. He argued in closing that none of the State's witnesses were to be believed because they were intoxicated. Tactically, Mr. Canha would be in no position to rebut the State's case if he was so drunk that he did not know what he was doing. If counsel had provided a voluntary intoxication instruction to the jury regarding his intent in holding the guns without intent to assault, it would cut against his defense that he never touched the guns. It also would undermine the credibility of his testimony. Considering his strategy, his intent did not need to be addressed in an intoxication instruction that may confuse by seeming to admit he held the guns, even though without intent to assault. The firearm charges, after all, were the more serious charges in terms of sentencing consequences. Therefore, deciding not to provide the jury with the voluntary intoxication instruction did not constitute deficient performance.
"If an ineffective assistance claim can be resolved on one prong of this test, the court need not address the other prong." State v. Staten, 60 Wn. App. 163, 171, 802 P.2d 1384 (1991). Since counsel's performance was not deficient, we do not address prejudice. Mr. Canha did not receive ineffective assistance of counsel.
C. Double Jeopardy
The issue is whether the imposition of firearms enhancements for second degree assault violates double jeopardy. Mr. Canha contends his right to be free from double jeopardy was violated because his assault charges were elevated to a higher degree because he was armed and was also charged with possession of a firearm.
We review double jeopardy claims de novo. State v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773 (2010). "Both our federal and state constitutions protect persons from being twice put in jeopardy for the same offense." State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010); U.S. Const. amend. V; Const. art. I, § 9. This includes, "being (1) prosecuted a second time for the same offense after acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished multiple times for the same offense." State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).
"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). If the legislature intends to impose multiple punishments, their imposition does not violate the double jeopardy clause. Id. at 368. In short, when a single trial and multiple punishments for the same act or conduct are at issue, the initial and often dispositive question is whether the legislature intended that multiple punishments be imposed. State v. Kier, 164 Wn.2d 798, 803-04, 194 P.3d 212 (2008).
Mr. Canha contends the court must utilize the Blockburger or "same elements" test to determine if double jeopardy is violated. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). However, we turn to Blockburger if the legislative intent is unclear. Kier, 164 Wn.2d at 804.
Washington courts generally hold double jeopardy is not offended by weapon enhancements even when being armed with the weapon is an element of the underlying crime. See e.g., State v. Claborn, 95 Wn.2d 629, 636-37, 628 P.2d 467 (1981); see also State v. Huested, 118 Wn. App. 92, 95-96, 74 P.3d 672 (2003) ("`a person who commits certain crimes while armed with a deadly weapon will receive an enhanced sentence, notwithstanding the fact that being armed with a deadly weapon was an element of that offense'") (quoting State v. Caldwell, 47 Wn. App. 317, 320, 734 P.2d 542 (1987))).
Mr. Canha relies on Apprendi and Blakely to argue there is no longer any difference between an element and a sentencing factor. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 306-07, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). His argument fails to account for the fact that cumulative punishments can be imposed in the same proceeding if this is the legislature's intent, notwithstanding Blockburger.
Most recently, State v. Aguirre, 168 Wn.2d 350, 229 P.3d 669 (2010) addressed the issue of whether the addition of a deadly weapon enhancement to an offender's sentence for second degree assault violated double jeopardy. The Aguirre court rejected Mr. Canha's argument and decided Apprendi and Blakely do not alter the double jeopardy analysis. Aguirre, 168 Wn.2d at 357. The Aguirre court based its decision on its recent holding in Kelley, 168 Wn.2d 72. The Kelley court reviewed the legislature's intent as to whether cumulative punishments are intended by imposition of a deadly weapon/firearm enhancement. Id. at 78. The court concluded cumulative punishment is clearly intended. Id. at 80.
D. Evidence Rulings
The issue is whether the trial court abused its discretion in excluding evidence of Mr. Price's citation for fourth degree assault and evidence of a prior threat made by Mr. Price to Mr. Canha. Mr. Canha contends evidence of Mr. Price's role as an aggressor was relevant and admissible.
A trial court's admission of evidence is reviewed for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). Likewise, a trial court's exclusion of evidence is reviewed for an abuse of discretion. State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). The trial court's balancing of the danger of prejudice against the probative value of the evidence is a matter within the trial court's discretion, which we will overturn "only if no reasonable person could take the view adopted by the trial court." Id.
Evidence of a person's character is generally not admissible to show action in conformity therewith on a particular occasion. ER 404(a). But in criminal cases, a defendant may introduce evidence of the victim's violent disposition to prove the victim acted in a violent manner at the time of the crime. State v. Alexander, 52 Wn. App. 897, 900, 765 P.2d 321 (1988); ER 404(a)(2).
Here, the trial court excluded evidence regarding the issuance of a criminal citation to Mr. Price, a charge later dismissed. Mr. Canha was not precluded from questioning Mr. Price or Deputy Runge about the basis for the citation — whether Mr. Price assaulted Mr. Canha by punching him in the face or about whether Mr. Price gave conflicting statements to Deputy Runge. Testimony was presented about the different versions of what happened between Mr. Price and Mr. Canha. Thus, the court did not abuse its discretion when excluding testimony regarding the citation.
The trial court excluded testimony about Mr. Price writing Mr. Canha's name on a bullet. Mr. Canha himself admitted that the incident was a joke. Considering the basis for the joke was Mr. Canha's manslaughter conviction, had the trial court admitted testimony regarding the bullet, the State likely would have been able to introduce evidence regarding that conviction. Thus, the trial court did not abuse its discretion in excluding the testimony regarding the bullet.
E. SAG
Mr. Canha raises several issues in his SAG. We note one brief hearing was held before Judge Carrie Runge during which she set new trial dates when Mr. Canha had been assigned new counsel. No evidence shows Mr. Canha was prejudiced by the trial settings or his brief appearance before Judge Runge for those routine matters. We turn now to Mr. Canha's speedy trial concerns.
CrR 3.3 generally requires the State to bring an in-custody defendant to trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(b)(1)(i), (h). The threshold for a constitutional speedy trial violation, however, is higher than that for a violation of CrR 3.3. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989); see also U.S. Const. amend. VI; Const. art. I, § 22. The constitutional right to a speedy trial is not violated by passage of a fixed time but, rather, at the expiration of a reasonable time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997). Courts consider four factors in determining whether a delay in bringing a defendant to trial impairs the constitutional right to the prompt adjudication of criminal charges: "the `[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" In re Pers. Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).
Mental incompetence at the time of trial is a bar to trial. RCW 10.77.050. If the trial court has reason to doubt the defendant's competency to stand trial, the court must order an expert evaluation of the defendant's mental condition. RCW 10.77.060(1)(a). The "reason to doubt" language "vests a large measure of discretion in the trial judge." City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985). "Defense counsel's opinion as to the defendant's competence is a factor that carries considerable weight with the court." State v. Harris, 122 Wn. App. 498, 505, 94 P.3d 379 (2004). An order for evaluation under RCW 10.77.060(1)(a) automatically stays the criminal proceedings until the court determines that the defendant is competent to stand trial. CrR 3.3(g)(1).
Here, an order for mental health evaluation and an order to stay proceedings were entered on December 6, 2007. Ultimately, Mr. Canha filed a motion to dismiss based on the argument that his counsel did not inform him that the evaluation would delay his trial. The court dismissed the claim and ultimately counsel withdrew because of the conflict. Mr. Canha again filed a motion to dismiss and again the court found his speedy trial rights were not violated because of the evaluation and stay.
CrR 3.3(c)(2)(vii) partly states the commencement date for trial begins anew upon, "The disqualification of the defense attorney or prosecuting attorney. The new commencement date shall be the date of the disqualification." Mr. Canha argues the commencement date would be the disqualification of his first defense attorney. However, Mr. Canha fails to take into account that the court appointed a second counsel who was disqualified from this matter on March 27, 2008; the time for trial began anew on that date. Based upon the March 27, 2008 commencement date, the State set a new trial date of May 27, 2008, which was within speedy trial.
Defense counsel then invoked the cure period and asked that the trial be continued to June 9, 2008. Thus, no speedy trial violation occurred during either trial setting. Mr. Canha then executed a speedy trial waiver on May 29, 2008 and requested a new trial date of June 30, 2008. The court accepted the waiver and the new trial date was set. On June 30, 2008, the State requested a new trial date of July 21, 2008, based upon new information being available, the arresting officer was recovering from surgery, and there was time left before the speedy trial deadline. The court granted the State's request and the new trial date of July 21, 2008 was set, which was within the time for speedy trial. Therefore, no speedy trial violation occurred.
Regarding, Mr. Canha's additional ineffective assistance concerns, he complains about his trial counsels advise to undergo a competency evaluation, but we have no record of interactions between Mr. Canha and his counsel to review. Mr. Canha takes issue with his trial counsel failure to ask for a self-defense instruction, but because claiming self-defense necessitates admitting his assaultive conduct, that would be inconsistent with his denial defense. Mr. Canha raises concerns about the jury having received evidence suggesting he had been jailed at some time, but the record shows solely that one witness testified payments had been made into Mr. Canha's books. Moreover, his trial counsel introduced some of the jail references and Mr. Canha discussed phone calls he made while he was incarcerated. In sum under the Strickland standards discussed above, Mr. Canha shows neither deficient performance nor prejudice from his additional concerns.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and KORSMO, J., Concur.