Opinion
No. 35651-1-II.
April 22, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00834-1, Robert A. Lewis, J., entered December 4, 2006.
Affirmed in part and remanded by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J.; Quinn-Brintnall, J., concurring in the result only.
Winn Robert Griffee appeals his conviction of first degree child molestation, arguing that his trial attorney was ineffective, that the trial court erred in denying his motion for a mistrial, and that several of his community custody conditions are unlawful. We affirm his conviction but remand for correction of the community custody conditions.
Facts
When Robyn Griffee was in the eighth grade, she told her friend Miranda Sams that she had been sexually abused; Sams relayed the information to their school counselor, Adriane Campbell. Campbell talked with both girls and then called in a CPS caseworker. After a caseworker and a police detective interviewed Robyn, the State charged Griffee, her father, with first degree rape of a child, first degree child molestation, second degree rape of a child, and second degree child molestation.
At trial, Robyn testified that when she was eight years old, Griffee would ask for a back rub in his bedroom. During the back rubs, Griffee fondled her breasts and her vagina both over and under her clothing. This touching continued, and eventually Griffee began to digitally penetrate Robyn and make her touch his penis. Robyn testified that the abuse occurred at home while her mother was out and once when she went on a long-haul truck ride with Griffee. Robyn testified that she first revealed the abuse to her friend, and after Sams told the school counselor, Robyn confirmed that the abuse Sams had reported was true.
Sams testified that after receiving a disturbing note from Robyn, she went to Campbell and said she was afraid one of her friends was going to kill herself. She and Robyn then went to Campbell's office, but Sams left when the CPS worker interviewed Robyn.
Campbell testified about Sams and Robyn coming to speak to her and described Robyn as "sad, upset, extremely uncomfortable" during the resulting interviews with the CPS worker and a police detective. Report of Proceedings (RP) at 160.
Dr. John Stirling, a pediatrician who specializes in examining and diagnosing child sexual abuse, testified that when CPS referred Robyn to his office, he took a history from her and her mother, but Robyn refused to undergo a pelvic examination.
Robyn's older brother testified that Robyn would go into their parents' bedroom to give Griffee backrubs, and her mother testified that Griffee would ask everyone in the family, including Robyn, for backrubs.
Griffee denied touching Robyn in a sexual manner.
During the jury deliberations, one of the jurors informed the bailiff that Griffee had followed her out of the building the night before, and she thought he wrote down her license plate number. A couple of other jurors stated that Griffee had poked his head into the jury room that morning when the door was open and before deliberations began.
The trial court discussed the matter with counsel, and defense counsel stated that Griffee could not have looked into the jury room because he did not arrive at the courthouse until about 9:20 am, after the jury resumed deliberations.
The bailiff said she shut the jury room door at 9:00 am, with all jurors present, and Griffee added that he did not arrive at the courthouse until 9:15 or 9:20 am, having first stopped at a credit union that opened at 9:00 am.
The trial judge informed counsel that he would call in the juror who claimed Griffee had followed her into the parking lot and that he alone would question her. That questioning proceeded as follows:
THE COURT: All right. First of all, I do not want you to tell me anything that you and the jury have been discussing with regard to the deliberations in this case. I'm going to ask you some specific questions because it's my understanding from the bailiff that you relayed some information about Mr. Griffee. And apparently you had — Mr. Griffee was in proximity to you last night; is that correct?
JUROR NO. 1: He followed me. He came out as I was walking to my car. Actually, it wasn't just me, it was more than me — to the car.
THE COURT: All right. So some of you were headed to — is this the juror parking lot over here?
JUROR NO. 1: Yes.
THE COURT: All right. And what door did you all exit out of?
JUROR NO. 1: The one between the jail and the Courthouse. Or — well, it's the one on 13th and —
THE BAILIFF: The west side?
JUROR NO. 1: The west side. There we go.
THE COURT: All right. And when you say that he followed you, you mean he came out the same door?
JUROR NO. 1: He just came out behind us, yes.
THE COURT: And about how closely was he to you?
JUROR NO. 1: Little bit further than he is right now. Well, he walked right past my car, so I guess he was closer.
THE COURT: All right. And did he communicate with you or any —
JUROR NO. 1: He didn't say a word.
THE COURT: — other juror?
JUROR NO. 1: I just saw him turn around and look.
THE COURT: All right.
JUROR NO. 1: It was just — it was just uncomfortable.
THE COURT: All right. Other than turning around and looking, did he take any other actions, make any other communication? Now, there was some reference to the bailiff about him writing down a license number?
JUROR NO. 1: No. He didn't write anything down.
THE COURT: Okay.
JUROR NO. 1: Just turned around and looked.
THE COURT: So he walked past you, looked, and then continued walking?
JUROR NO. 1: And then he turned around, yeah.
THE COURT: All right. Thank you very much. You can resume — oh, I guess the only other question is basically, the information that you've relayed to me, have you relayed it to the other jurors as well?
JUROR NO. 1: Just now, yeah. Yes.
THE COURT: Okay. Don't discuss it any further. I may have the entire jury back out in a moment, but you can rejoin the rest of them.
RP at 400-02. The court then discussed the matter with the parties:
Well, given that the contact does not appear to have been an attempt to communicate with any juror — and there may be some misunderstanding with regard to the other contact — it still might be helpful that I instruct the jury that inadvertent contacts with the defendant, any witness, or any party in the courthouse or outside the courtroom proceedings is not evidence and should not be considered by them. And that they should resume their deliberations based upon the evidence presented in court.
RP at 402-03. After the State and the defense agreed with this procedure, the trial court had the bailiff bring in the jury for the following oral instruction:
It's come to my attention that last evening and perhaps this morning one or more of you may have had inadvertent contact with the defendant, in terms of his being in proximity to areas where you were. I'm not advised that any communication or attempted communication took place, only contact. And of course, as I advised you at the beginning of the proceedings, the parties, the defendant, and any witnesses are instructed not to discuss or to communicate with you on any subject outside of the courtroom to avoid the appearance of impropriety.
I'm instructing you now that inadvertent contacts and being in physical proximity of the defendant, the witnesses, and the parties to these proceedings is a normal course of being in the same building in the same area. It is not evidence in the case. The evidence you are to consider is the testimony of the witnesses presented in court. Inadvertent contacts are not evidence, should not be discussed, and should have no part in your deliberations.
With that instruction, I'll allow you to return with the bailiff and resume your deliberations.
RP at 403-04.
Shortly thereafter, the jury informed the bailiff that it had reached a verdict. Before the jury returned to the courtroom, the defense moved for a mistrial, arguing that juror number 1 had discussed with the jury panel her discomfort over the contact with Griffee and that the entire jury, thus, was tainted. The trial court denied the motion and brought the jury back to the courtroom. The jury found Griffee guilty on count II (first degree child molestation) but not guilty on the remaining three counts.
The trial court imposed a standard range sentence that included 36-48 months of community custody. Griffee's judgment and sentence included the following conditions of community custody, among others:
Defendant shall not reside in a community protection zone (within 880 feet of the facilities or grounds of a public or private school if the offense was committed on or after July 24, 2005. (RCW 9.94A.030(8)).
. . . .
Defendant shall not possess, use or deliver drugs prohibited by the Uniform Controlled Substances Act, or any legend drugs, except by lawful prescription. The defendant shall notify his/her community corrections officer on the next working day when a controlled substance or legend drug has been medically prescribed.
. . . .
Defendant shall enter into, cooperate with, fully attend and successfully complete all in-patient and outpatient phases of a sexual deviancy treatment program as established by the community corrections officer and/or the treatment facility. Defendant shall not change sex offender treatment providers or treatment conditions without first notifying the Prosecutor, community corrections officer and shall not change providers without court approval after a hearing if the prosecutor or community corrections officer object to the change. "Cooperate with" means the offender shall follow all treatment directives, accurately report all sexual thoughts, feelings and behaviors in a timely manner and cease all deviant sexual activity.
. . . Defendant shall, at his or her own expense, submit to periodic polygraph examinations at the direction of his/her community corrections officer to ensure compliance with the conditions of community placement/custody.
Clerk's Papers (CP) at 134-36. The court also imposed these crime-related conditions as part of an appendix attached to the judgment and sentence:
5. You shall not possess, use or own firearms, ammunition or deadly weapons. Your Community Corrections Officer shall determine what those deadly weapons are.
. . . .
10. You shall take Antabuse per your Community Corrections Officer's direction, if so ordered.
CP at 144-45.
Griffee now appeals both his conviction and the above community custody conditions.
ANALYSIS I. Ineffective Assistance
Griffee claims initially that his attorney was ineffective when she failed to object to the testimony of Sams, Campbell, and Dr. Stirling as irrelevant and prejudicial.
The United States and Washington State constitutions guarantee a criminal defendant the right to the effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22. To prevail on an ineffective counsel claim, the defendant must show both deficient representation and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Our scrutiny of counsel's performance is highly deferential; we presume that counsel provided reasonable assistance. Thomas, 109 Wn.2d at 226. Regarding the second prong, prejudice is established when there is a reasonable probability that, but for counsel's unprofessional errors, the trial result would have been different. Thomas, 109 Wn.2d at 226.
Evidence is relevant, and thus admissible, if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable. ER 401, 402. Minimal logical relevance is all that is required. 5 Karl B. Tegland, Washington Practice: Evidence § 401.4, at 261 (5th ed. 2007). Griffee argues here that the testimony of Sams, Campbell, and Dr. Stirling did not meet this threshold because they did not testify regarding facts that supported the elements of any of the crimes charged. Griffee contends that counsel's failure to move to exclude the testimony of all three witnesses as irrelevant fell below the standard of a reasonably prudent attorney, tipped the balance from an acquittal to a guilty verdict, and denied him effective assistance.
The defense moved before trial to exclude as hearsay Sams's testimony about what Robyn told her. The State responded that the manner in which Robyn's allegations were disclosed was not hearsay and that her testimony was relevant to assisting the jury in determining whether Robyn was believable and whether the crime occurred. The court granted that motion as well as the defense motion to exclude hearsay testimony from Campbell.
When Sams testified, the defense successfully objected to her description of how Robyn felt about Griffee as well as Robyn's allegations of abuse. The trial court did allow Sams to describe her friend's demeanor before she spoke to Campbell as well as the way Sams disclosed Robyn's allegations to the counselor.
Campbell, in turn, testified that Sams had come to her about a friend who was experiencing "inappropriate things happening at home." RP at 156. Campbell then described her contact with CPS and Robyn's demeanor during interviews with the CPS worker and a detective.
In addition to telling the story of how Robyn's allegations came to light, the testimony of both Sams and Campbell bolstered Robyn's credibility. Under the "minimal logical relevance" standard, this testimony was relevant and not unduly prejudicial, and counsel was not deficient in failing to limit it any more than she did.
Shortly after Dr. Stirling began to testify, defense counsel objected to his continued testimony as irrelevant. Even though Robyn had refused to submit to a pelvic examination, the State wanted him to testify that given the type of abuse she was describing, he would not expect any physical findings from such an examination. Following an offer of proof, the court limited his testimony to the statement that Robyn declined his offer of a pelvic examination, not unusual for someone of her age. The court refused to allow Dr. Stirling to speculate on the results of such an examination. When the doctor testified, defense counsel made successive objections as to relevance that prompted a second offer of proof. The court ruled that Dr. Stirling could testify about why he might ask for a pelvic exam, that he offered Robyn one, and that she refused it. The doctor so testified.
Thus, contrary to Griffee's current contention, defense counsel did object to the relevance of Dr. Stirling's testimony. Moreover, his testimony that Robyn did not submit to a pelvic examination arguably helped more than prejudiced the defense. Griffee does not succeed in showing that his attorney was deficient in her handling of the State's witnesses.
II. Motion for Mistrial
Griffee contends that the trial court should have granted his motion for a mistrial based on juror misconduct.
Every criminal defendant is entitled to a fair trial by an impartial jury. U.S. Const. amends. VI, XIV § 1; Wash. Const. art I, §§ 3, 21, 22. "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
Griffee faults the trial court for not holding an evidentiary hearing after learning of possible juror misconduct, citing United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981). The seemingly mandatory requirement of an evidentiary hearing set forth in Bagnariol, however, has been modified in subsequent Ninth Circuit holdings. United States v. Saya, 247 F.3d 929, 934 (9th Cir. 2001). In considering the necessity for such a hearing, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. Saya, 247 F.3d at 935. An evidentiary hearing is not necessary where the court knows the exact scope and nature of the alleged misconduct. Saya, 247 F.3d at 935.
Communicating with jurors constitutes misconduct. State v. Murphy, 44 Wn. App. 290, 296, 721 P.2d 30 (1986). Once established, such misconduct gives rise to a presumption of prejudice that the State has the burden of disproving beyond a reasonable doubt. Murphy, 44 Wn. App. at 296. This presumption is not conclusive, however, and may be overcome if the trial court determines that the misconduct was harmless to the defendant. Murphy, 44 Wn. App. at 296. "[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith, 455 U.S. at 217.
Here, the trial court took it upon itself to determine whether the alleged misconduct prejudiced Griffee. The court satisfied itself that the contact was inadvertent and made without any communication or any attempt to communicate by Griffee, and the parties agreed that the court's proposed admonishment was the appropriate course to follow. A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant receives a fair trial. State v. Jungers, 125 Wn. App. 895, 901-02, 106 P.3d 827 (2005). We review the trial court's denial of a motion for a mistrial for abuse of discretion. Jungers, 125 Wn. App. at 902. We see no abuse of discretion here.
III. Community Custody Conditions
Griffee argues that the trial court exceeded its statutory authority when it imposed several community custody conditions not authorized by the Sentencing Reform Act. We review this issue de novo. State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007).
Several statutory provisions govern the applicable community custody conditions. RCW 9.94A.715(2)(a) provides that community custody must include the conditions in RCW 9.94A.700(4) and may include those in RCW 9.94A.700(5). The court also may order the offender "to participate in rehabilitative programs or otherwise perform affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community[.]" RCW 9.94A.715(2)(a).
RCW 9.94A.700(4) outlines the conditions that are mandatory unless waived by the court:
(a) The offender shall report to and be available for contact with the assigned community corrections officer as directed;
(b) The offender shall work at department-approved education, employment, or community restitution, or any combination thereof;
(c) The offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions;
(d) The offender shall pay supervision fees as determined by the department; and
(e) The residence location and living arrangements shall be subject to the prior approval of the department during the period of community placement.
Subsection (5) lists additional conditions that may be included:
(a) The offender shall remain within, or outside of, a specified geographical boundary;
(b) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;
(c) The offender shall participate in crime-related treatment or counseling services;
(d) The offender shall not consume alcohol; or
(e) The offender shall comply with any crime-related prohibitions.
RCW 9.94A.700(5). A "crime-related prohibition" is a court order prohibiting conduct that directly relates to the circumstances of the crime for which the offender is being sentenced. RCW 9.94A.030(13); Motter, 139 Wn. App. at 802.
The State's only response to Griffee's claims of error is an admission that "there are certain areas of the judgment and sentence that need clarification by the trial court" and an acknowledgment that a remand is in order. Br. of Resp't at 14. We will address Griffee's claims in an attempt to prevent further appeals of his community custody conditions.
The first condition at issue, which prevents Griffee from residing in a community protection zone if he committed his offense after July 24, 2005, does not apply on its terms because Griffee committed his offense between August 26, 2000, and August 25, 2004. The second condition Griffee challenges requires him to "notify his/her community corrections officer on the next working day when a controlled substance or legend drug has been medically prescribed." CP at 135. There is no indication in the record that drug abuse led to Griffee's offense, and he has not been ordered to submit to urinalysis testing, so this condition is not authorized as affirmative conduct reasonably related to the circumstances of the offense, the offender's risk of reoffending, or the safety of the community. See RCW 9.94A.715(2)(a); Motter, 139 Wn. App. at 805 (upholding same condition where drug abuse led to convictions and where notice of prescription medications needed to accurately assess urinalysis tests).
Griffee next complains of the combined effect of the conditions requiring him to undergo and cooperate with sexual deviancy treatment and to submit to periodic polygraphs to help determine his compliance with his community custody conditions. He acknowledges that treatment is specifically allowed under RCW 9.94A.700(5)(c) and that polygraphs are an integral part of that treatment. See State v. Combs, 102 Wn. App. 949, 952-53, 10 P.3d 1101 (2000). In Combs, the court upheld a community placement condition requiring the defendant to submit to polygraph testing in order to monitor his compliance with the other conditions of community placement. Combs, 102 Wn. App. at 952. The court acknowledged that polygraph testing may be used to monitor compliance with the requirement of making reasonable progress in treatment or with other special conditions of community supervision, but it also recognized that polygraph testing may not be used as a fishing expedition to discover evidence of other crimes, past or present. Combs, 102 Wn. App. at 952-53.
Even though the polygraph condition at issue is worded in compliance with Combs, Griffee argues that it must be read with the requirement that he cooperate with sexual deviancy treatment, which is defined as the need to "follow all treatment directives, accurately report all sexual thoughts, feelings and behaviors in a timely manner and cease all deviant sexual activity." CP at 136. He argues that sexual deviancy treatment requires patients to reveal all prior and current deviant sexual thoughts and acts, and that this requirement read with the polygraph condition will require him to waive his Fifth Amendment right against self-incrimination.
This argument is too hypothetical to address at this point because the extent of the information that Griffee's treatment program will require is not known and no improper polygraph questions have been posed. If the trial court does not modify these conditions on remand to address Griffee's concerns, and if he is subjected to improper questioning during a polygraph examination, he may challenge the conditions at that time. See State v. Riles, 86 Wn. App. 10, 16-17, 936 P.2d 11 (1997), aff'd, 135 Wn.2d 326 (1998).
Griffee next challenges two crime-related conditions listed in an appendix attached to his judgment and sentence. The first prevents him from possessing firearms, ammunition or deadly weapons, and states that the community corrections officer shall determine what constitutes a deadly weapon. We agree with Griffee that while the court has the authority to prevent him from possessing firearms, it does not have the authority to prevent him from possessing deadly weapons, particularly where there is no evidence that his crime was related to such weapons. See Combs, 102 Wn. App. at 954 (no sentencing provision allows court to prohibit the use or possession of weapon other than firearm).
The second crime-related condition at issue requires Griffee to take Antabuse per his community corrections officer's direction. Antabuse is a drug used to treat patients with alcohol dependencies. Although the presentence investigation report indicates that Griffee is a former alcoholic, nothing in the record indicates that he currently has an alcohol problem or that alcohol was in any way involved in his offense. Unless the State produces supporting evidence on remand, the trial court should strike the Antabuse condition.
We affirm Griffee's conviction but remand for revision of the community custody conditions.
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.
Houghton, CJ., concur:
Quinn-Brintnall, J. (concurring in the result).
I agree with the majority's reasoning and wholly concur with the decision affirming Winn Robert Griffee's first degree child molestation conviction. I also agree with the decision to remand to the trial court for clarification of the judgment and sentence entered on Griffee's first degree child molestation conviction. I write separately because I disagree with the majority's analysis of some of the community custody conditions.
First, I disagree with the majority's analysis vacating the requirement that Griffee "notify his/her community corrections officer on the next working day when a controlled substance or legend drug has been medically prescribed." Clerk's Papers at 135. I am aware that some prescription medications for physical conditions are reputed to have unusual side effects. For example, a medication for restless leg syndrome is advertised as having the potential to affect impulse control. A physician who is unaware of Griffee's criminal history might not emphasize such a potential side effect. But, hopefully, Griffee's community corrections officer would.
See Requip.com, http://www.requip.com/requip_side_effects.html (ropinirole manufacturer's web site explaining side effects of "an unusual urge to gamble [and] increased sexual urges and/or behaviors") (last visited Apr. 3, 2008).
Second, I note that, to the extent that Griffee is compelled to cooperate with polygraph examinations, the Fifth Amendment precludes the evidentiary use of statements of Griffee's prior criminal activity in a subsequent prosecution. See State v. Riles, 135 Wn.2d 326, 342, 957 P.2d 655 (1998) (upholding community custody condition of polygraph examinations as "an investigative tool" while noting that "the results of polygraph tests are generally not admissible in a trial."); State v. Renfro, 96 Wn.2d 902, 905, 639 P.2d 737 (citing State v. Sutherland, 94 Wn.2d 527, 529, 617 P.2d 1010 (1980)), cert. denied, 459 U.S. 842 (1982).
Last, I disagree with the majority's ruling that vacates the community custody condition prohibiting Griffee from possessing deadly weapons. Griffee stands convicted of first degree child molestation, a violent crime. See RCW 9A.44.083(2) (penalizing first degree child molestation as a class A felony); former RCW 9.94A.030(41)(a) (1999) (defining "violent offense" to include all class A felonies).
In my opinion, possessing deadly weapons is a crime-related prohibition when the defendant has been convicted of a violent crime. See former RCW 9.94A.120(9)(c)(v) (2000) (authorizing court to impose "crime-related prohibitions" on violent offenders), former RCW 9.94A.030(12) (defining "crime-related prohibition," in relevant part, as a court order "prohibiting conduct that directly relates to the circumstances of the crime for which the offender has been convicted."). If that is so, the trial court properly exercised its sentencing authority when it prohibited Griffee from possessing deadly weapons. Even though Griffee did not use a weapon to commit the violent offense at issue here today, he nevertheless committed a violent offense as a matter of law and the legislature authorized this community custody condition for all violent offenders.
Griffee further argues that a blanket prohibition against possessing deadly weapons prohibits him from possessing kitchen knives, other tools, and bleach and, thus, the trial court's restriction is unreasonable. I disagree. The validity of a community custody condition is not ripe for review until the condition has been enforced or the convict has suffered negative consequences from it. State v. Autrey, 136 Wn. App. 460, 470-71, 150 P.3d 580 (2006); see also State v. Curry, 118 Wn.2d 911, 917, 829 P.2d 166 (1992) (holding that a victim penalty assessment payment's constitutionality is not ripe for review at sentencing, but only at the "point of enforced collection") (quoting State v. Curry, 62 Wn. App. 676, 681-82, 814 P.2d 1252 (1991)); State v. Phillips, 65 Wn. App. 239, 244, 828 P.2d 42 (1992) (holding that the issue of costs is not ripe for review when costs are imposed, but only when the State attempts to collect). Griffee's argument is speculative and not ripe for review.
I would retain the crime-related prohibition against possessing deadly weapons. If necessary, we would review this issue after a court or the Department of Corrections attempted to erroneously enforce the prohibition. If Griffee could show, for example, that a court ruled that he violated the terms and conditions of his sentence simply because he used a butcher knife to cut an apple, then we may properly reverse that ruling. But if a trial court ruled that Griffee used a screw driver or ice pick and intimidated or assaulted a human being, the evidence would clearly demonstrate that he had violated a reasonable crime-related condition of his sentence. I would not vacate a reasonable sentencing condition on the speculative argument that the broad definition of a deadly weapon might be misapplied in the future.
I concur in the decision affirming Griffee's conviction and, based on the State's concession, agree that the matter should be remanded for clarification of the community custody conditions.