Opinion
Nos. 34451-3-II; 34461-1-II.
September 3, 2008.
Appeals from a judgment of the Superior Court for Pierce County, No. 04-1-03902-1, Bryan E. Chushcoff, J., entered February 10, 2006.
James Douglas appeals his convictions of second degree assault, fourth degree assault, bail jumping, first degree arson, residential burglary, and violation of a domestic violence court order, arguing ineffective assistance of counsel and trial court error. He raises similar and additional arguments in his statement of additional grounds. We reverse and remand his first degree arson, residential burglary, and violation of a domestic violence court order convictions. We affirm his remaining convictions of second degree assault, fourth degree assault, and bail jumping.
RAP 10.10.
We draw the facts from the trial evidence. We address some parties by first name for clarity, intending no disrespect.
A. Background
James and Debra Douglas were formerly married and had a daughter, Alyssa, born in September 2003. According to Debra, in October 2003 she and Alyssa moved in with her parents, Carroll and Pauline Pederson, because of Douglas's verbal and emotional abuse and her postpartum depression. While Debra was living with her parents, Douglas had visitation with Alyssa. Debra initially transferred Alyssa to Douglas directly, but around January 2004, her parents took over the custody exchanges because, according to Debra, Douglas continued verbally and emotionally abusing her.
During the custody exchanges, several confrontations occurred between Douglas and the Pedersons. Pauline testified about one occasion where Douglas called the Pedersons "Fucking . . . dumb people" and threatened Carroll, saying he would like to "[k]nock him down and knock the [shit] out of him." VI Report of Proceedings (RP) at 661.
At the time of the incidents at issue, Douglas was 36 years old and the Pedersons were in their 70s.
The Pedersons also testified about an incident when Douglas arrived at their church to pick up Alyssa at an unscheduled time and a disagreement between Douglas and Carroll ensued. According to Pauline, Douglas put his fist toward Carroll and told him he would like to "beat the [shit] out of him." VII RP at 661.
Pauline said that she called 911 on at least four occasions during the custody exchanges. Police eventually recommended that the Pedersons conduct the exchanges in the Bonney Lake Police Department parking lot and the parties did so. Pauline testified that, at Debra's suggestion, she began wearing a hidden tape recorder during the exchanges to record the encounters with Douglas.
B. Assaults
On July 25, 2004, Douglas was scheduled to pick up then 10-month-old Alyssa from the Pedersons in the police parking lot. Debra testified that Douglas called to tell her he had found some boxes belonging to her and would give them to her parents at the exchange. Debra testified that she asked her parents to photograph the boxes' contents before giving Alyssa to Douglas. Pauline testified that she wore her recorder that day and taped the entire incident.
Preston Peters, a witness, testified that he was walking from the police station to his vehicle when he heard yelling and screaming in the parking lot and saw Carroll and Alyssa on the ground. Peters testified that Carroll was on all fours trying to get up while Douglas was hitting Carroll in the face with his fists and kicking him in the stomach and ribs and that it was "pretty ferocious." VI RP at 619. He testified that Carroll was doing nothing but trying to get up, but he could not stand. He testified that Pauline was screaming and trying to stop Douglas and that when he arrived, Douglas stopped hitting Carroll and picked up Alyssa. Pauline tried to stop Douglas from taking Alyssa and Douglas hit Pauline in the face and got into his vehicle, at which point Peters called the Bonney Lake police to report an assault in their parking lot.
Detective Brian Byerley testified that he arrived at the parking lot after the assault had already occurred and saw Carroll getting up from the ground with a bloody head. Byerley saw Douglas getting into his vehicle with Alyssa in his arms. Pauline was screaming that Carroll had been assaulted. Byerley went to the driver's side of Douglas's vehicle and instructed him to stop but Douglas did not respond. Byerley then opened the vehicle door to prevent Douglas from leaving and took him into custody.
Pauline testified that Douglas was already angry when he arrived at the parking lot that day because Debra declined to allow weekend visitation and he became verbally abusive during the exchange. Pauline testified that Carroll was holding Alyssa, Douglas hit him, Carroll fell to the ground, and Alyssa landed on the blacktop between Carroll and their vehicle. Pauline testified that Douglas continued beating Carroll, and she did not know how many times he hit him. She further stated that when an unidentified man approached, Douglas stopped beating Carroll but then kicked him in the back as he lay bleeding on the blacktop. She stated that Douglas then picked up Alyssa, who was screaming, and tried to leave. She grabbed Douglas and ripped the collar of his shirt, and he punched her in the forehead. She testified that after Douglas's assault on Carroll, the left side of Carroll's face and his eye were swollen and purple and there was a lot of blood on their vehicle and on the pavement.
Carroll testified that Douglas became verbally abusive during the exchange after the Pedersons told him, that before they would take Alyssa out of the car, they wanted to photograph the contents of the boxes he brought and they started photographing the contents. He stated that he did not intend to keep Alyssa from Douglas, but he was waiting for a police officer to come out of the station to calm Douglas down before giving Alyssa to him. He testified that Douglas told him to give him his daughter and that when he turned away, Douglas punched him three times and Alyssa fell to the ground. He remembered feeling a blow to his left kidney area. He testified the assault left his ear bleeding badly and his head and eye were swollen. He received treatment for vertigo from inner ear damage and his hearing has gradually deteriorated since the assault.
Dr. Elizabeth Bahn testified about Carroll's injuries. She said they included a closed head injury, facial fracture, contusions and abrasions, soft tissue swelling, damage to the left side of his face (including head and ear), chest wall contusions, and symptoms of vertigo and associated nausea.
C. Arson, Residential Burglary, and Violation of a Domestic Violence Court Order
On October 10, Debra and Alyssa were still living with the Pedersons. After the assaults, Douglas lost visitation rights with Alyssa and the custody exchanges no longer took place. The Pedersons also obtained a no-contact order against Douglas.
On the morning of October 10, firefighters and investigators responded to a fire at the Pedersons' residence. Pierce County Deputy Fire Marshall Robert Skaggs observed that the fire had blown out the residence's front window and there was furniture in the front yard, which he testified was unusual, and indicated that an explosion had occurred inside the structure. He described an overpowering smell of gasoline inside the residence that required officials to wear protective gear and stated that he had rarely encountered a fire where gasoline had so saturated a residence.
Skaggs discovered several empty gasoline cans inside the residence and evidence that an arsonist had set a delay device to assist him in exiting the residence through the laundry room door to the garage. He also found the gas cap removed from the Pedersons' vehicle, parked on the side of the residence, with a matchstick set inside the gas portal.
City of Tacoma Fire Captain Brian Dougherty was the first firefighter to enter the residence and testified that he entered through the garage/laundry room door via forced entry.
Debra testified that Douglas had been to her parents' residence but that neither she nor her parents had given him a key. She testified that on the morning of October 10, she and her family left for church and she was the last person to leave the residence, locking the door between the laundry room and garage but leaving the garage door raised slightly for the Pedersons' dog. She testified that inside the residence, the gasoline smell was primarily concentrated in the room she and Alyssa shared and was "so bad that it burned your lungs" and that items inside Alyssa's crib were soaked in gasoline. III RP at 173-74.
The Pedersons' residence sits on a private dead-end road. Several neighbors heard the explosion and saw the fire. They also saw a white sport utility vehicle or pickup truck speeding from the scene. The neighbors' accounts conflicted as to whether the truck had a canopy.
At trial, Debra testified that Douglas owned a white truck on October 10 and that he sometimes drove it with the canopy removed. She identified the vehicle from a photograph.
Neighbor Kyle Bullock testified that he saw a white truck "taking off" out of the Pedersons' driveway. IV RP at 452. He described it as a late model 1990s Ford "half-ton version" with a matching white canopy and an A, 2, 9, and 4 or 7 on the license plate. IV RP at 453.
Detective Mark Collier testified that the suspect vehicle was a "very, very unique" model Ford Explorer half-pickup truck with a removable canopy. IV RP at 445. And a Department of Licensing employee testified that there was no 9, 4, or 7 on Douglas's vehicle license plate; there were currently 2,654 white vehicles with "A2" license plates in Pierce County; and there was one 2001 white Ford pickup truck with an "A2" license plate in Pierce County and it was registered to Douglas.
On October 25, police officers located Douglas's vehicle parked at his parents' home. When they later returned with a warrant, on October 28, they learned his truck had been voluntarily repossessed.
The repossession agent testified about retrieving a 2001 Ford Explorer Sport Track, "a little pickup version," with license number A25206P from an address in Maple Valley on October 26. V RP at 565. He did not recall the vehicle's color. He testified that the repossession was voluntary and that the owner's mother gave him the vehicle keys. He testified the vehicle was in "decent shape," and he had no difficulty driving it. IV RP at 568. He stated that it appeared to have been sitting outside for a time and the inside was "`cleaned out.'" IV RP at 568. On October 29, the officers searched the vehicle at the repossession lot but they found no arson-related evidence.
According to the police report, Douglas's mother told officers that Douglas instructed her to have his vehicle repossessed. She would not tell the officers why he asked her to so, only that Douglas was yelling at her so she agreed to do it. She told the officers that she picked up the vehicle at a church located less than one mile from the Pedersons' home.
D. Bail Jumping and Arrest
On October 12, Douglas failed to appear at his arraignment on the July 25 assaults. On October 20, Pasco Police Officer Reuben Marquez and Franklin County Sheriff's Deputy Jacinto Munez arrested Douglas in Pasco on an outstanding warrant. Marquez testified that they located Douglas driving a van and that he failed to pull over when they activated their patrol vehicle's lights and sirens. Marquez observed from the van's side view mirror that Douglas was "continuously moving around in the vehicle" and that he could see the police behind him. IV RP at 339. Douglas drove through a bank drive-through window, and Munez sped to the other side of the drive and blocked Douglas. The officers took Douglas into custody without further incident.
In the van's "lunge area" (the area within reach of the driver), Marquez and Munez found two loaded firearms, two boxes of ammunition containing approximately 500 rounds, and body holsters. IV RP at 342. Munez testified that Douglas did not threaten the officers with the firearms during their pursuit and they were not aware of their existence until after his arrest.
Douglas or his father owned the firearms.
The State charged Douglas with one count of first degree arson. It later filed an amended information additionally charging him with one count of second degree assault of Carroll Pederson, one count of fourth degree assault of Pauline Pederson, and one count of bail jumping for his failure to appear on October 12. The trial court granted the State's motion for joinder of Douglas's second and fourth degree assault and bail jumping charges with the first degree arson charge under CrR 4.3(a).
Months later, the State filed a second amended information. It added a domestic violence aggravating factor to the first degree arson count, one count of residential burglary with a domestic violence aggravating factor, and one count of violation of a domestic violence court order with an elevating factor that the violation created a substantial risk of death or serious injury constituting a felony.
On October 10, Douglas was subject to protection orders prohibiting contact with the Pedersons or their residence and with Debra. The trial court had ordered him to surrender any firearms.
E. Trial
A jury heard the matter. Defense counsel did not seek to exclude evidence that Douglas possessed firearms at the time of his arrest, and he did not object to the State's reference to the firearms during opening statement.
The arresting officers also testified about the firearms evidence without defense objection. During the officers' testimony, the State sought to have the firearms, ammunition, and holsters admitted as exhibits. Defense counsel noted that the State never disclosed that it would seek to admit that evidence and then objected to it as irrelevant. The trial court overruled the objection as late and admitted the evidence. The jury also heard additional testimony and closing argument regarding the firearms evidence.
Defense counsel sought to impeach Carroll's testimony by relying on an earlier recorded interview of Carroll that counsel had not had transcribed. The trial court ordered defense counsel to provide a transcript of the earlier interview under ER 613 before it would allow its use for impeachment purposes. The following day, defense counsel again failed to provide the transcript. The trial court allowed counsel to play the tape "like a note" to refresh Carroll's memory, but it found that Carroll's prior recorded statement did not contradict his trial testimony. IX RP at 981. The trial court also denied defense counsel the opportunity to impeach Carroll based on the earlier interview that lacked a transcript.
The trial court further ruled that during his cross-examination of Byerley, defense counsel opened the door to otherwise inadmissible hearsay testimony by questioning Byerley about the contents of his report regarding the Pedersons' complaint against Douglas. Based on the report, Byerley testified that the Pedersons independently stated that Douglas threatened them during a custody exchange because he was unhappy with the meeting location and said he would "beat the fuck out of Mr. Pederson." III RP at 312.
The jury convicted Douglas as charged.
F. Posttrial
Pro se, Douglas moved for a mistrial based on ineffective assistance of counsel. Counsel withdrew and the trial court appointed new counsel.
The trial court heard Douglas's motion for a new trial. It heard argument from him and allowed him to submit evidence. After addressing his arguments, it denied his motion. He appeals.
Douglas then moved pro se for "discretionary review/extraordinary writ of proceeding/dismissal" in our court. Clerk's Papers at 324. We converted the motion to a notice of appeal.
ANALYSIS
Ineffective Assistance of Counsel
Because they are dispositive on some of Douglas's claims, we first address his assignments of error regarding ineffective assistance of counsel.
To establish the claim of ineffective assistance, a defendant must show counsel's deficient performance by an objective standard of reasonableness and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate prejudice, the defendant need only show a reasonable probability the outcome at trial would have differed such that it undermined confidence in the outcome. Strickland, 466 U.S. at 693-94. He must make a showing as to both prongs and must also overcome a strong presumption that defense counsel's conduct was effective. Strickland, 466 U.S. at 687; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Legitimate trial tactics do not constitute deficient performance. State v. Hayes, 81 Wn. App. 425, 442, 914 P.2d 788 (1996).
A. Firearms Evidence
Douglas first contends that counsel was ineffective for failing to object to the admission of the firearms evidence as irrelevant, prejudicial, and inadmissible under ER 404(b). He argues that it was clear the trial court admitted the evidence only because counsel's objection was late, long after the State had already mentioned this evidence during opening statement with no defense objection at the appropriate time. He also contends that the trial court erred by allowing the inadmissible evidence to show consciousness of guilt, asserting that consciousness of guilt was not relevant to the bail jumping charge. He also contends that counsel was ineffective for failing to propose a limiting instruction.
The record demonstrates that defense counsel was aware of the firearms evidence before trial, but he failed to try to exclude the evidence or to object until after opening statement and testimony about the firearms. At that point, defense counsel argued that the evidence was inflammatory, prejudicial, and not relevant to any crime charged. The record clearly demonstrates that the trial court admitted the evidence because defense counsel's objection was late.
At argument for joinder, the State noted that firearms were present at Douglas's arrest. The statement of probable cause and police reports also noted that firearms were present when officers arrested Douglas.
Although the trial court noted that weapons possession showed some consciousness of guilt and tended to show Douglas's willingness to violate a court order, immediately following these comments it stated, "I don't know" he is not charged with that as such." IV RP at 351. It also agreed that the evidence was irrelevant and prejudicial.
As the State did not charge Douglas with any crime involving the firearms evidence as an essential element, the evidence was irrelevant and highly prejudicial. See State v. Freeburg, 105 Wn. App. 492, 501, 20 P.3d 984 (2001). Moreover, there was also no apparent tactical reason for defense counsel not to try to exclude the evidence or object to it sooner, as shown by the late objections he made.
Here, the trial court's agreement that the evidence was irrelevant and prejudicial suggests that it would not have admitted the evidence had defense counsel objected earlier, when the State first mentioned it, or perhaps if defense counsel had brought a motion in limine. But because of counsel's failure to timely object during opening statement, the trial court allowed the State to present the jury with testimony regarding the firearms, as well as the physical evidence of the firearms, boxes of ammunition, and holsters. Defense counsel also failed to propose a limiting instruction as to how the jury should treat the firearms evidence. Defense counsel's failure to seek exclusion of the firearms evidence or to limit the jury's treatment of it was not objectively reasonable. Douglas meets Strickland's first prong. 466 U.S. at 687.
Although defense counsel argued that the State failed to alert him during discovery that it would seek to admit the firearms evidence as exhibits, the State was not required to divulge its tactical use of exhibits. See State v. Smith, 15 Wn. App. 716, 721, 552 P.2d 1059 (1976).
With regard to Strickland's second prong, we look to the strength of the State's case on each charge to determine whether prejudice occurred. 466 U.S. at 687. On Douglas's second and fourth degree assault charges, the State presented direct evidence that he committed the assaults, including the testimony of the victims, a police detective witness, and a disinterested bystander witness.
The jury also heard Dr. Bahn's testimony regarding Carroll's injuries and saw photographs of Carroll's physical condition after the assault. Likewise, Officers Marquez and Munez testified about arresting Douglas on an outstanding warrant after his failure to appear for his arraignment on October 12, and Douglas presented no defense to the bail jumping charge. Based on the State's evidence that he committed second and fourth degree assault and bail jumping, Douglas cannot demonstrate a reasonable probability that the trial outcome would had differed but for admission of the firearms evidence. Strickland, 466 U.S. at 687. His ineffective assistance of counsel claim fails with respect to these convictions.
We next turn to the effect of the firearms evidence on the first degree arson, residential burglary, and violation of a domestic violence court order convictions. With respect to these charges, the evidence against Douglas was entirely circumstantial and included (1) testimony regarding his history with and assaults of the Pedersons; (2) his failure to appear at arraignment on the assault charges two days after the arson; (3) evidence that gasoline from the fire was concentrated in the room Debra and Alyssa shared and in Alyssa's crib; (4) neighbor accounts of a vehicle leaving the scene of the arson matching Douglas's vehicle in some respects but not in others; (5) evidence that Douglas had his vehicle voluntarily repossessed two weeks after the arson; (6) evidence that he failed to pull over when officers located him in Pasco; and (7) a protection order restraining him from entering the Pedersons' residence.
Washington courts view the admission of firearms evidence as highly prejudicial even where not directly related to the crime itself. See State v. Rupe, 101 Wn.2d 664, 708, 683 P.2d 571 (1984) (finding evidence that the defendant legally owned firearms not connected to the crime irrelevant and highly prejudicial in determining whether to impose a death sentence and noting that personal reactions to firearm ownership vary greatly and may influence the belief that a defendant is dangerous and deserves to die just for owning firearms); Freeburg, 105 Wn. App. at 501 (noting that courts have "`uniformly condemned . . . evidence of . . . dangerous weapons'" where the evidence is unrelated to the crime charged, even when found in the defendant's possession, and that the prejudicial effect is especially clear where the trial court fails to give a limiting instruction) (quoting United States v. Warledo, 557 F.2d 721, 725 (10th Cir. 1977)).
Here, the firearms evidence was highly prejudicial and aided the State's circumstantial case that Douglas "looked guilty" of the arson at the time of arrest and was trying to elude police. Likewise, it demonstrated a propensity for violence, an impermissible inference. See State v. Kelly, 102 Wn.2d 188, 199-200, 685 P.2d 564 (1984); State v. Ra, 142 Wn. App. 868, 881, 175 P.2d 609 (2008). The jury not only heard testimony regarding the firearms but also handled the physical evidence of the firearms, ammunition, and body holsters. As defense counsel failed to request a limiting instruction, the trial court did not instruct the jury to consider that evidence for a limited purpose.
Although the firearms evidence might have been admissible as evidence of flight, see Freeburg, 105 Wn. App. at 497-98, the trial court did not admit it on that basis. And as addressed, the record demonstrates that defense counsel would likely have succeeded had he sought to exclude the evidence in a timely manner.
Because the firearms evidence was highly prejudicial and the jury could have drawn impermissible inferences from it, we are unable to say with reasonable certainty that the outcome at trial would not have differed but for this evidence with respect to the first degree arson, residential burglary, and violation of a domestic violence court order charges. Douglas meets both prongs of Strickland, and we reverse and remand these convictions for a new trial.
Because we affirm his remaining convictions of second and fourth degree assault and bail jumping, we address Douglas's other assignments of error on these convictions. Likewise, we address his assignments of error that may arise on retrial of the first degree arson, residential burglary, and violation of a domestic violence court order charges.
B. Cross-Examination of Carroll
Douglas next contends that he received ineffective assistance of counsel based on counsel's failure to properly cross-examine Carroll and to provide the trial court with a transcript as ordered. He argues that counsel impermissibly prejudiced his right to confront witnesses and denied him the opportunity to introduce doubt about Carroll's credibilityregarding his account of the assaults.
At trial, Carroll testified that Douglas was already angry when he arrived at the Bonney Lake Police Department on July 25. Defense counsel sought to impeach Carroll's testimony by showing that Carroll admitted in an earlier recorded statement that Douglas became angry when the Pedersons told him they would not give him Alyssa until after photographing the contents of Debra's boxes. The trial court listened to the recording and determined that Carroll's trial testimony did not contradict his earlier recorded statement because he previously only stated that Douglas became agitated when the Pedersons told him they wanted to take photographs, but he made no statement regarding Alyssa.
Cross-examination is a fundamental part of the right to confrontation guaranteed by the Sixth Amendment and is the principal means by which a party may test witness credibility. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).
But the record does not show that Carroll actually gave inconsistent testimony that was impeachable but for counsel's error. To the contrary, the trial court listened to the recording and determined that Carroll's trial testimony did not contradict his earlier recorded statement. In his earlier statement, Carroll said that Douglas became agitated when the Pedersons told him they wanted to take photographs, but he made no statement regarding Alyssa. Douglas fails to demonstrate prejudice under Strickland. 466 U.S. at 687.
Moreover, the trial court allowed counsel to play the tape "like a note" to refresh Carroll's memory. IX RP at 981.
C. Other Trial Issues
Douglas next argues that trial counsel made numerous other errors, including lack of preparedness, being "`surprised'" by evidence, and failing to investigate. Appellant's Br. at 48. He particularly notes defense counsel's failure to familiarize himself with the tape recording of the assault incident.
The record demonstrates that throughout trial, defense counsel's claims of surprise, lack of preparedness, and unfamiliarity with discovery were an intentional tactic to disrupt the State's case and control the evidence before the jury which, at times, worked in the defense's favor., With regard to the assault incident recording, counsel's strategy allowed him to present a defense theory to the jury that the Pedersons recorded the custody exchanges without court authorization and goaded Douglas into losing his temper. At the same time, the trial court granted defense counsel additional time to play the recording for Douglas and ultimately ruled the recording itself inadmissible.
In response to Douglas's bar complaint against him, defense counsel attested that Douglas's only chance for the jury to acquit him was if the State was distracted or failed to present a cogent case, so he did what he could within the bounds of acceptable trial decorum to make things difficult for the State. He attested that Douglas did not understand his trial maneuvers.
Defense counsel's other tactical successes based on claimed surprise or lack of preparedness included the trial court's allowing him to play the tape of Carroll's earlier interview to refresh his recollection rather than have the interview transcribed and his suggestions before the jury that the State failed to provide him with discovery, for which the trial court admonished him outside the jury's presence.
The record shows that defense counsel was familiar with the tape's contents because prior defense counsel described the contents to him. Other evidence regarding the assaults suggests that the tape's contents were not favorable to the defense.
Douglas fails to demonstrate that defense counsel's claims of surprise or lack of preparedness were not a trial tactic, and he also fails to demonstrate prejudice. His ineffective assistance of counsel on this basis fails.
D. Motion for New Trial
Douglas also contends that he received ineffective assistance in pursuing a new trial. He asserts that his posttrial counsel failed to timely investigate his case, obtain a trial transcript, or otherwise prepare, resulting in the trial court's denial of his motion.
The record shows that counsel's efforts to obtain trial transcripts and other records were reasonable, particularly in light of the transcript's length and the basis for Douglas's ineffective assistance claims from trial. The record also demonstrates that Douglas sought to dismiss counsel and proceed pro se without counsel's knowledge. The trial court allowed Douglas to argue his ineffective assistance claims directly and disposed of many of those arguments out of hand. It also ordered those portions of the transcript it deemed relevant to Douglas's claims of error, based in part on its own familiarity with the case from presiding over the trial.
We agree that posttrial counsel was not entitled to unilaterally withdraw based on Douglas's letter informing the trial court that he wanted to proceed pro se, but counsel was required to provide reasonable representation at the motion for new trial and at sentencing. See State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991). But as we already reverse and remand, we do not otherwise address this claim.
Douglas ultimately sought transcripts of opening statements and closing arguments, the CrR 3.5 hearing (which were actually motions in limine), and the testimony of Debra and the Pedersons. The trial court granted him transcripts for the motions in limine and opening statements and closing arguments, but it found that the other testimony did not bear on the issues he raised. We note that Douglas did not have a per se right to the transcripts in their entirety, particularly where the same judge presided over the trial and motion for a new trial. See State v. Hardy, 37 Wn. App. 463, 468, 681 P.2d 852 (1984).
E. Joinder
Douglas next contends that the trial court erred in joining his charges for trial. He also asserts that he received ineffective assistance of counsel because defense counsel was unprepared to argue against joinder and failed to recognize that the State erroneously argued joinder under CrR 4.3(a) rather than CrR 4.3.1(b). He further argues that joinder was improper because the State's case was weaker on the arson-related charges than on the assault charges and he had a stronger motive to testify on the latter.
CrR 4.3(a)(1), (2) permits joinder when offenses are of the same or similar character or are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Where the evidence shows that several crimes constituted parts of a larger plan, evidence of a prior crime or act is admissible to prove other charges. State v. Lough, 125 Wn.2d 847, 855, 889 P.2d 487 (1995). Likewise, evidence of other crimes may be admissible to show an unbroken sequence of events where each crime is a "link in the chain" and the jury must be presented with each crime in order to fully understand what transpired. State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981).
CrR 4.3.1(b) addresses mandatory joinder and sets forth that (1) two or more offenses are related under the rule if they are within the jurisdiction and venue of the same court and are based on the same conduct; and (2) when a defendant has been charged with two or more related offenses, a timely motion to consolidate them for trial should be granted unless, in part, the trial court determines that the ends of justice would be defeated if the motion were granted. See also State v. Lee, 132 Wn.2d 498, 501-02, 939 P.2d 1223 (1997).
We review de novo the legal question of whether offenses are properly joined. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998).
We review a trial court's refusal to sever charges for a manifest abuse of discretion, which occurs when it bases its decision on untenable or unreasonable grounds. State v. Kalakosky, 121 Wn.2d 525, 537-39, 852 P.2d 1064 (1993); State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997). The defendant has the burden to demonstrate that a trial involving multiple counts would be so manifestly prejudicial as to outweigh concerns of judicial economy. Kalakosky, 121 Wn.2d at 537.
Prejudice may be demonstrated where (1) a defendant could become embarrassed or confounded in presenting separate defenses; (2) the jury might use the evidence of one of the crimes charged to infer a criminal disposition from which to find the defendant guilty of other crimes charged; (3) the jury might cumulate the evidence of multiple crimes charged and find guilt when it would not have done so if it had considered the charges separately; or (4) joinder results in a "latent feeling of hostility engendered by the charging of several crimes as distinct from only one." State v. Harris, 36 Wn. App. 746, 750, 677 P.2d 202 (1984). Factors offsetting prejudice include (1) the jury's ability to compartmentalize evidence; (2) the strength of the State's evidence on each count; (3) the cross admissibility of evidence between different counts; (4) whether the trial court successfully instructs the jury to decide each count separately; and (5) whether concerns of judicial economy weigh in favor of joinder. Kalakosky, 121 Wn.2d at 537.
Here, the State argued that the charges related as one series of events under CrR 4.3(a). It asserted that the evidence in one case was cross admissible to prove identity and motive in the other. Defense counsel argued that (1) the charges were not of the same or similar character or of a single scheme or plan; (2) Douglas would be erroneously prejudiced by cumulative evidence and the hostility engendered by the totality of the evidence; (3) there was a question of identity in the arson case; and (4) Douglas had a strong motivation to testify in defense of the assault charges but not the arson-related charges.
The trial court granted the State's motion, finding that the charges were close in time, Douglas was on pretrial release for the assault charges when the arson occurred, and there were issues of identity and motive and potential cross admissible evidence of guilt. The trial court also noted that it could address issues regarding limitations on Douglas's testimony at trial.
The trial court weighs a defendant's interest in testifying as to one count but not another against concerns of judicial economy. State v. Weddel, 29 Wn. App. 461, 468, 629 P.2d 912 (1981).
In sum, the trial court properly joined the charges as a matter of law under CrR 4.3(a) and it did not abuse its discretion in declining to keep them separate. Likewise, defense counsel's performance was reasonable in arguing against the State's proper CrR 4.3(a) joinder motion, and Douglas's ineffective assistance of counsel claim on this basis fails. Statement of Additional Grounds
A. Ineffective Assistance of Counsel
Finally, we address Douglas's assignments of error raised in his statement of additional grounds. Initially, we note that Douglas has raised a claim regarding his attorney's intoxication that the trial court reviewed on a motion for a new trial and denied. In reviewing the trial record, it is clear that Douglas has failed to meet either prong of the Strickland test. 466 U.S. at 687, 693-94.
Douglas next claims that counsel was ineffective in failing to present a diminished capacity defense. Douglas's argument fails because the trial court also reviewed his medical records regarding a diminished capacity defense and found them insufficient to establish the defense, and it also noted that the defense conflicted with Douglas's defense that he did not commit arson. The record also shows that defense counsel argued for mitigation of Douglas's sentence based on psychological factors.
Douglas next contends that defense counsel refused to submit his ripped shirt as evidence that Pauline Pederson assaulted him on July 25. This evidence was cumulative, as Douglas already conceded before the trial court.
Douglas also argues that defense counsel made misstatements before the jury. We review the entire record to determine counsel's competency, and a slip of the tongue is insufficient to demonstrate ineffective assistance. See State v. Bonisisio, 92 Wn. App. 783, 797-98, 964 P.2d 1222 (1998). Based on the entire record, counsel's misstatements were not deficient performance and further do not establish prejudice. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).
Douglas also contends that defense counsel was ineffective when he disclosed the name of another possible arson suspect where the trial court prohibited it. The record demonstrates that this was a clear tactic by counsel to introduce doubt into the State's case by suggesting another suspect existed. See State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Douglas next argues that defense counsel failed to assist him in obtaining his trial transcript and actually argued against him receiving this. The record does not support this contention.
As we have otherwise addressed Douglas's remaining claims of ineffective assistance of counsel in his direct appeal, we do not reconsider them here.
B. Trial Court Error
Douglas also asserts trial court error beyond the scope of our review, including that (1) an off-record conversation demonstrated collusion between the trial court and defense counsel to injure him and (2) he never had an opportunity to review his transcripts before his hearing for a new trial. See McFarland, 127 Wn.2d at 338 n. 5 ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
Douglas also argues that the trial court erred by not allowing him to present his motion for a new trial until after sentencing, not allowing him to call witnesses or allowing him time to fully present the motion, failing to provide adequate counsel, failing to allow him to present a motion for acquittal or present a diminished capacity defense, failing to allow him to present a motion for expert services, and failing to retry his case. The record demonstrates that the trial court allowed Douglas to make all arguments he wished and to present evidence at his motion for a new trial. It denied the motion after hearing Douglas's claims. Douglas's argument fails.
Finally, Douglas argues that the trial court erred by not allowing him to address his motion for a new trial at a January 13 hearing and by only granting him transcripts of opening statements and closing arguments. The record shows that counsel represented Douglas at the January 13 hearing, and we have otherwise addressed his entitlement to transcripts. All of Douglas's additional grounds arguments fail.
The convictions of first degree arson, residential burglary, and violation of a domestic violence court order are reversed and the matter remanded. The convictions of second degree assault, fourth degree assault, and bail jumping are affirmed.
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.
ARMSTRONG, J. and HUNT, J., concur.