Opinion
No. 33176-4-II.
November 7, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-04956-7, Thomas Felnagle, J., entered March 25, 2005.
Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, Po Box 7718, Tacoma, WA, 98417.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Hunt, J.
Anthony Gene Hand appeals two bail jumping convictions. He claims that his counsel rendered ineffective assistance because he failed to 1) retain a handwriting expert to analyze the signature on the November 12, 2003 scheduling order for a November 19, 2003 hearing date, 2) obtain a transcript detailing his counsel telling the court that Hand's absence from the scheduled hearing was due to counsel's miscommunication, and 3) investigate and present an uncontrollable circumstances defense based on Hand's anxiety attacks. Because the decision to retain an expert is a matter of trial strategy, the transcript consisted of inadmissible hearsay, and Hand could not have availed himself of the uncontrollable circumstances defense as he did not return to court as soon as the anxiety attack stopped, we affirm.
FACTS
On November 19, 2003, Hand failed to appear at an omnibus hearing on a charge of unlawful possession of a controlled substance. At the hearing on Hand's motion to quash the resulting bench warrant, Michael Prince substituted for John Chambers, Hand's assigned counsel, who was on jury duty. Prince told the trial court that Chambers had advised him that a communication failure between Chambers and Hand had caused Hand's absence on November 19. Finding that there seemed to have been a miscommunication or misunderstanding, the trial court denied the State's request to increase Hand's bail. The State amended the charges to include one count of bail jumping.
On May 20, the third day of his Criminal Rule 3.5 (CrR 3.5) hearing, Hand abandoned the courthouse during a recess, telling his new attorney, Adrian Pimentel, that he was going to see his mother and take her to the court. While waiting for Hand, Pimentel told the judge that this disappearance was consistent with Hand's behavior throughout the case, as at times Hand was "very lucid," while at other times he could not "process even the most simple question" and did not understand anything his lawyer said. Report of Proceedings (RP) (May 20, 2004) at 187. Hand returned voluntarily on June 1, 2004. The State later added a second count of bail jumping.
The trial court ordered a competency evaluation. Dr. Ronald Hart examined Hand and diagnosed him with methamphetamine dependency, antisocial personality disorder, and hepatitis. Dr. Hart concluded that Hand possessed "the basic and fundamental capacity to rationally participate in his own defense." Plaintiff's Exhibit 2 at 4. The trial court entered an order of competency based on Dr. Hart's report.
After the CrR 3.5 hearing, the State dismissed the unlawful possession charge and the case went to trial on the two counts of bail jumping. Hand denied receiving notice of the November 19 omnibus hearing. When confronted with the scheduling order for that hearing, purportedly signed by him on November 12, he denied that the signature was his and stated that he assumed his attorney signed his name on the order. Hand also testified that Prince had appeared at the hearing to quash the warrant and told the court that Chambers' office failed to notify Hand of the hearing.
In rebuttal, the State called Chambers, who testified that he did not sign Hand's name on the November 12 scheduling order. He also testified that his standard practice was to sign his own name with the notation "will notify the defendant" if he signed a scheduling order outside the presence of his client. RP (Oct. 20, 2004) at 319.
Following Chambers' testimony Hand's trial counsel, Stephen Oelrich, told the court that the transcript of the November 26 quash hearing was "on its way" to him and he might need to recall Chambers after reviewing it. RP (Oct. 20, 2004) at 324. Following a recess, Oelrich informed the court that he had spoken with Chambers, that Chambers did not remember the hearing to quash the warrant, and that there was no point in recalling Chambers. Later, Oelrich told the court that, although he wanted to offer the hearing transcript, it was inadmissible because it contained "hearsay within hearsay within hearsay." RP (Oct. 20, 2004) at 334.
Hand testified that on May 20 he "was kind of having anxiety" and "breaking out in hives" when he left the courtroom with Pimentel. RP (Oct. 19, 2004) at 217. His "heart was racing" and he felt "trapped." RP (Oct. 19, 2004) at 219. When he left the courthouse, he saw his mother driving by, looking for a parking space. He got in her vehicle, and they started driving toward home, but on the way he decided he needed to "man up" and return to court. RP (Oct. 19, 2004) at 220. When they returned to the courthouse, the anxiety symptoms returned, including a feeling that he could not breathe. He left the courthouse again. The anxiety attack ended "about halfway [to his Spanaway] home." RP (Oct. 19, 2004) at 231.
Dr. Hart testified on Hand's behalf that Hand exhibited some anxiety during their meeting. In testifying about the effects of a hypothetical case of social anxiety, he stated that a person with a history of social anxiety might experience an increase in symptoms during an appearance at court, but that the person would be in control of himself, especially if he did something to relieve the symptoms, like going out for air. Dr. Hart did not render an opinion about Hand's mental capacity to commit the charged crimes.
The jury returned verdicts of guilty on both counts of bail jumping.
After trial, the court ordered a further psychological evaluation and a competency hearing. Dr. Indra Finch, a licensed psychologist, and Dr. Sarah Leisenring, a psychiatrist, diagnosed Hand with amphetamine dependence, antisocial personality disorder, and a history of hives. They concluded that Hand's mental problems did "not rise to the level that would necessarily interfere with his capacity to understand the nature of the proceedings against him or to assist in his defense, if he elected to do so." Clerk's Papers (CP) at 116. Dr. Hart, Dr. Finch, and Dr. Leisenring all testified that Hand was competent to stand trial.
Dr. Silverio Arenas, a clinical psychologist, evaluated Hand on February 3, 2003, for the Department of Social and Health Services, Division of Disability Determination Services. Dr. Arenas testified that Hand suffered "from a psychological/neuropsychiatric constellation of conditions that impair judgment and his behaviors making him impulsive and unpredictable." RP (Feb. 24, 2005) at 78. Dr. Arenas diagnosed Hand with "cognitive disorder, not otherwise specified," "personality change due to organic brain dysfunction," "mood disorder, not otherwise specified with major depressive features, chronic, severe possibly related to brain dysfunction," and "anxiety disorder, not otherwise specified with generalized features, chronic, severe, possibly related to brain dysfunction." RP (Feb. 24, 2005) at 78-79. Dr. Arenas explained that Hand's anxiety disorder was much more severe than simply being anxious around people. He opined that when Hand is "out of custody he lacks the capacity to reason and understand properly." RP (Feb. 24, 2005) at 82.
Before sentencing, Hand moved for a new trial based on "(1) failure to address the issue of a possibly forged scheduling order and (2) newly discovered evidence in the form of a medical evaluation by Dr. Arenas." CP 124 at 24. The trial court denied the motion. Hand's standard sentencing range for two counts of bail jumping was 51-60 months. The trial court imposed a sentence of 55 months.
ANALYSIS
Hand argues that he received ineffective assistance of counsel because his counsel did not 1) retain a handwriting expert to analyze Hand's signature on the November 12, 2003, scheduling order, 2) obtain the transcript of the November 26, 2003, quash hearing, or 3) investigate and assert the affirmative defense of uncontrollable circumstances.
Effective assistance of counsel is guaranteed under the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove ineffective assistance, Hand must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced him. In the Matter of the Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996)). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In the Matter of the Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great deference to trial counsel's performance and begin with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Hand has not overcome this presumption.
I. Handwriting Expert
Hand faults his counsel for not retaining a handwriting expert to analyze his signature on the November 12 scheduling order. Generally, "whether to call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel." State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995) (citing State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981)). But performance may be deficient if "counsel failed to conduct appropriate investigations to determine what defenses were available, adequately prepare for trial, or subpoena necessary witnesses." Maurice, 79 Wn. App. at 552 (citing State v. Jury, 19 Wn. App. 256, 263-64, 576 P.2d 1302 (1978)). When the courts have held that a failure to investigate or call a potential witness constituted ineffective assistance, the witness has been crucial to the presentation of a legitimate defense. See, e.g., State v. Thomas, 109 Wn.2d 222, 232, 743 P.2d 816 (1987). A handwriting expert here would not rise to that level.
Failure to provide expert testimony has been held deficient only where the expert was necessary to explain something lay witnesses could not. See, e.g., Thomas, 109 Wn.2d at 231 (Once defense determined that expert testimony was necessary, failure to investigate proposed witness's lack of expert qualifications was deficient performance.). In Maurice, the defendant in a vehicular homicide case thought a broken drive shaft or drive line in his vehicle had caused the accident. Maurice, 79 Wn. App. at 547. Because no evidence of mechanical failure was offered at trial, Division Three held that defense counsel's failure to have the vehicle inspected was deficient performance. Maurice, 79 Wn. App. at 552.
Failure to interview or call a witness has been held deficient only where a particular potential witness had knowledge of a fact to which no one testified. See, e.g., Byrd, 30 Wn. App. at 799 (holding performance deficient where defendant charged with first degree rape by kidnapping gave counsel the name of a neighbor who claimed defendant and victim had entered defendant's home "in a jovial mood," and counsel failed to contact this witness). In Jury, the defendant was convicted of malicious mischief for kicking out the window of a police car after a car accident.
Jury, 19 Wn. App. at 258. He claimed that amnesia prevented him from supplying the essential facts. Jury, 19 Wn. App. at 265. But he claimed "to have three lay witnesses all of whom could testify as to his physical and/or mental condition shortly before and after the accident" and that a physician who had examined him several days later "would have supported his contention that he suffered a concussion, dizziness, and nausea caused by the accident." Jury, 19 Wn, App. at 261. Defense counsel was admittedly unprepared for trial. He failed "to adequately acquaint himself with the facts of the case by interviewing witnesses, [failed] to subpoena them, and [failed] to inform the court of the substance of their testimony" when he requested a continuance and a new trial. Jury, 19 Wn. App. at 264. We held counsel's performance deficient. Jury, 19 Wn. App. at 264.
Here, Hand was able to testify that the signature was not his and that he did not sign the document. A handwriting expert would have served only to corroborate or dispute facts to which Hand testified. Counsel's failure to retain a handwriting expert did not deprive Hand of the ability to raise a lack-of-notice defense or of the ability to present testimony in support of that defense. While a handwriting expert may have corroborated this claim, expert testimony was not necessary to raise it. And the decision not to consult an expert may have been tactical because the expert might have confirmed that Hand's signature was on the scheduling order, in which case counsel could not assert Hand's claim. See RPC 3.3(4) (A lawyer shall not knowingly offer false evidence.). Hand now claims that he would have abandoned the claim if an expert determined that Hand signed the order and that this would have saved him the trial court's ire at sentencing. But this is precisely the type of hindsight that the presumption of effective counsel is intended to avoid. See Strickland, 466 U.S. at 689.
Furthermore, even if we agreed that counsel's performance was deficient, Hand has not shown prejudice. To do so, he would have to present evidence that a handwriting expert would have testified that the signature was not his. When an incomplete record is due to counsel's ineffectiveness, "we cannot determine whether this incompleteness is actually prejudicial unless we are credibly informed as to the substance of the missing evidence. Jury, 19 Wn. App. at 265. The proper procedure for raising an ineffective assistance claim based on matters outside the record is a personal restraint petition. Byrd, 30 Wn. App. at 800. In Jury, we held that actual prejudice was not shown "solely because defense counsel neglected to interview and subpoena witnesses who might have helped the defense." Jury, 19 Wn. App. at 265. In both Maurice and Byrd, the defendants raised the missing witness issues in personal restraint petitions. Maurice, 79 Wn. App. at 550; Byrd, 30 Wn. App. at 799. And the proposed witnesses submitted affidavits showing the substance of their testimony in support of the petitions. See Maurice, 79 Wn. App. at 551; Byrd, 30 Wn. App. at 800. Hand's counsel was not ineffective for failing to retain a handwriting expert to review the November 12 scheduling order.
II. Transcript of Quash Hearing
Hand also faults his counsel's failure to obtain the transcript of Prince's comments at the November 26 quash hearing because it was central to Hand's defense.
But Hand has not explained how this failure prejudiced him. His trial counsel conceded that the transcript contained "hearsay upon hearsay upon hearsay that nobody can testify to to [sic] get the defense in." RP (Oct. 20, 2004) at 334. Hand has not argued that his attorney was incorrect in this analysis. Because he has not shown that the transcript or Prince's testimony about what Chambers told Prince was admissible, he has not demonstrated that he was prejudiced by his counsel's failure to acquire the transcript.
III. Uncontrollable Circumstances Defense
Finally, Hand faults his counsel for failing to investigate and assert an uncontrollable circumstances defense to the May 20 bail jumping charge. His argument centers on Dr. Arenas's report and testimony, which Hand claims would have supported a claim that his mental impairments prevented him from returning to the courtroom that day. Hand asserts that he was deprived of a potential defense because his counsel did not obtain the report until after trial.
It is an affirmative defense to a charge of bail jumping "that uncontrollable circumstances prevented the person from appearing or surrendering, and that the person did not contribute to the creation of such circumstances in reckless disregard of the requirement to appear or surrender, and that the person appeared or surrendered as soon as such circumstances ceased to exist." RCW 9A.76.170(2). Uncontrollable circumstances are defined as:
an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
To avail himself of this defense, Hand must show that he did not return to the courtroom after the recess because a medical condition required immediate hospitalization or treatment and that he returned to the court as soon as this condition passed. Hand described the condition that caused him to abandon the court as "anxiety." RP (Oct. 19, 2004) at 217. Although he testified that the anxiety attack ended when he was "about halfway home" that day, he did not return to court until June 1, twelve days later. RP (Oct. 19, 2004) at 231.
Accordingly, even assuming that the anxiety attack constituted an uncontrollable circumstance on May 20, Hand cannot reasonably contend that he "appeared or surrendered as soon as such circumstances ceased to exist." RCW 9A.76.170(2). He argues that Dr. Arenas's testimony would have supported an uncontrollable circumstance defense because it showed Hand's mental impairments are permanent. But Hand appeared voluntarily in court several times during proceedings related to these charges. Thus, the evidence shows that Hand's mental impairments do not prevent him from resort to the courts. See RCW 9A.76.010(4).
Moreover, Dr. Arenas had not seen Hand since February 3, 2003. He could not testify about any specific, exacerbated conditions from which Hand suffered on May 20, 2004, that prevented him from returning to court for nearly two weeks. And Hand has not pointed to anything in Arenas's report or testimony that would differentiate May 20 from the days that Hand appeared in court despite the conditions that Arenas testified impair his judgment and behavior.
The jury heard Hand's testimony about his anxiety generally and how an anxiety attack caused him to abandon the courtroom on May 20, 2004; the defense called an expert who discussed the effect of anxiety, and the trial court instructed the jury on the uncontrollable circumstances defense at Hand's request. Hand has not shown that the jury's verdict would have differed if it heard Dr. Arenas's testimony. Thus, the record does not support Hand's contention that he was prejudiced by his attorney's failure to obtain Arenas's report before trial.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and HUNT, J., concur.