Opinion
No. 33278-7-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-1-01515-0, D. Gary Steiner, J., entered May 13, 2005.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, University Place, WA.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Tacoma, WA.
Fred C. Wist II, Pierce Co Prosecutors Office, Tacoma, WA.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, JJ.
Carl Edward Jives, Jr., appeals his bench trial conviction of first degree murder and second degree assault, arguing that (1) we erred in allowing the court to enter tardy findings of fact and conclusions of law that prejudiced him and (2) insufficient evidence supports his convictions. Pro se, he argues that the trial court erred in denying his motion for a new trial and in failing to enter findings of fact and conclusions of law as to its reasoning. We affirm.
FACTS
Shortly before midnight on March 25, 2002, Harold Blue, his brother, Zachary McGahee, and several friends traveled to the 72nd Street Pub and Grill in a white van. Inside the pub, Blue got into a heated argument with a man known as "Stone" or "Nut." 2 Report of Proceedings (RP) (Dec. 4, 2003) at 89; 3 RP at 154. Blue went back outside to the van and the argument subsided.
For about the next 15 minutes, Blue stood outside the van talking to his friends, who were seated inside the van. Then Nut walked toward the van with a gun. Nut fired the gun at Blue several times and Blue ran. McGahee jumped out of the van and ran after Nut. As he approached, Nut turned and pointed the gun at McGahee. McGahee ran back toward the van and heard more gunshots behind him. When McGahee returned to the van, he turned and saw Nut getting into a car he described as a silver four-door Lincoln or Buick.
McGahee and his friend, Robert Smith, found Blue and drove him to the hospital. Blue died during surgery. The emergency room staff recovered a slug from Blue's abdomen and turned it over to police. A pathologist performed an autopsy and determined that Blue had been shot at least four times, with three of the bullets striking him from behind. The pathologist found the cause of death to be the gunshot wounds.
Pierce County Sheriff's Detective Kyle Wilson arrived at the hospital and obtained a taped statement about the incident from McGahee. McGahee described the gun as a chrome snub nose.357. McGahee also identified the shooter as Nut.
Sheriff's investigators also responded to the pub, where they recovered a copper jacketed slug from the pub window and another slug from the parking lot. A forensic scientist determined that all three slugs were fired from the same weapon, which was either a .38 special or a .357 magnum. Deputies also discovered a trail of blood leading away from the pub and more blood spatters on a vehicle belonging to a pub customer. The customer had parked next to a white van.
Based on a physical description from eyewitnesses, Wilson identified Nut as Jives. Wilson prepared a photographic montage with Jives' picture and showed it to McGahee two days after the shooting. McGahee immediately identified Jives as the man who shot Blue. Wilson also showed a montage to Chris Parker, who was at the pub when the shooting occurred. Parker immediately identified Jives as the man who had argued with Blue at the pub.
In the course of the investigation, Wilson learned that Nicole Stewart had been at the pub with Jives shortly before the shooting. An eyewitness testified that Stewart drove her mother's blue four-door sedan.
On April 1, 2002, the State charged Jives with first degree murder and first degree assault, later amending the information to add a charge of unlawful possession of a firearm. The murder and assault charges carried firearm enhancements.
Jives agreed to a bench trial. At the December 2003 bench trial, the State presented 13 witnesses, including McGahee, 5 individuals who were at or near the pub on the night of the shooting, and 7 law enforcement employees who worked on the case. Jives called one witness, who testified that he sat outside the pub that night and when he heard shots he looked up to see a heavyset man wearing a ski mask run by. The witness did not see a gun at any time.
The trial court found Jives guilty of first degree murder, second degree assault, and unlawful possession of a firearm. The trial court also found both firearm enhancements. The trial court did not enter findings of fact and conclusions of law pertaining to the verdict.
Before sentencing, Jives filed a motion for a new trial on the basis of newly discovered evidence. The trial court granted a hearing on the motion.
At the hearing, Jives presented testimony from three witnesses who claimed to be present on the night of the shooting. The first witness, Smith, signed two statements indicating he was certain Jives was not the shooter but testified repeatedly that he did not know who the shooter was.
The second witness, James Frazier, claimed to have seen the shooter, who was a large man, about six feet three inches tall and 300 pounds, and dressed all in black. He was certain the shooter was not Jives.
The third witness, Kenneth Frazier, testified that he saw a skinny man, weighing about 100 pounds, running toward him in a crouched position. The man appeared to have something in his hand and was pointing it backward. Kenneth Frazier was certain the man he saw was not Jives.
Kenneth Frazier and James Frazier are not related.
Jives' mother also testified that before the trial she printed and handed out flyers seeking information about the shooting. After the trial she placed a newspaper advertisement in the The News Tribune seeking information. Both James Frazier and Kenneth Frazier claimed that they came forward with their information after reading the newspaper ads. In a brief letter ruling, the trial court denied the motion for a new trial, giving no reason. Jives appealed.
When Jives filed his opening brief, the trial court had yet not entered findings of fact or conclusions of law supporting its guilty verdict. At the December 9, 2005 hearing, the State sought to enter findings and conclusions, but the trial court declined to do so because the case was on appeal and the trial court no longer had jurisdiction. RAP 7.2(a).
Accordingly, the State filed a motion with us asking us to allow the trial court to enter findings of fact and conclusions of law. The State cited RAP 9.6, which governs supplementation of the clerk's record on appeal, in support of its motion. A commissioner granted the motion, and Jives sought emergency review by a panel of judges. We denied Jives' motion for review.
Jives unsuccessfully sought discretionary review by our Supreme Court. On March 10, 2006, the trial court entered the findings of fact and conclusions of law. He appeals on various grounds and claims that we erred in allowing the trial court to enter findings and conclusions.
ANALYSIS Entry of Findings and Conclusions
Jives first contends that we should not have allowed the trial court to enter findings and conclusions because the State cited RAP 9.6 as authority to remand for entry. According to Jives, the rule authorizing remand for entry of findings and conclusions is RAP 9.11.
In support of his assignment of error, Jives restates the same arguments, mostly verbatim, that he presented in his motion to modify the commissioner's ruling. We previously considered those arguments and rejected them when we denied the motion to modify.
Jives sought discretionary review of that decision in our Supreme Court under RAP 13.3(c) and 13.5. Our Supreme Court denied review. His current effort to relitigate the same matter is a collateral attack on the order denying his motion. We decline to re-visit an issue already decided.
Tailoring Late Findings
Jives next contends that the findings were tailored to address issues he raised in his opening brief. Our Supreme Court has anticipated that reversal may be required where the defendant can establish actual prejudice resulting from the late entry of findings and conclusions, such as strong indications that the findings were tailored to meet issues raised on appeal. State v. Head, 136 Wn.2d 619, 624-25, 964 P.2d 1187 (1998). The defendant bears the burden of establishing tailored findings and conclusions. Head, 136 Wn.2d at 625.
Jives does not present the "strong indication" of tailoring required to justify reversal. See Head, 136 Wn.2d at 624-25. He argues, without supporting citation to the record or to legal authority, that because the findings refer to him as the shooter the findings implied that McGahee was a credible witness. Thus, he asserts, because McGahee's credibility is a primary issue raised on appeal, the findings are necessarily tailored to address that issue. We disagree.
The findings set forth the version of the shooting the trial court accepted as true based on all the evidence. Nothing in the findings reflects the trial court's or State's effort to bolster McGahee's credibility as a witness. Under Jives' argument, any late entry of findings and conclusions in a bench trial would be necessarily tailored whenever the appellant questioned the sufficiency of the evidence on appeal. This argument fails.
Due Process
Jives further argues that the delay in entering the findings of fact and conclusions of law prejudiced him, violating his due process rights. He argues that he has suffered unnecessary anxiety and concern as well as potential financial liability for increased court costs, and he further argues that the late entry created a substantial possibility of impairing his grounds for appeal.
In Washington, courts determine whether appellate delay amounts to a due process violation by applying a modified version of the four-part test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). State v. Lennon, 94 Wn. App. 573, 577-78, 976 P.2d 121 (1999). This test requires us to examine (1) the length of the delay, (2) the reason for the delay, (3) the defendant's diligence in pursuing the right to appeal, and (4) the prejudice to the defendant. Lennon, 94 Wn. App. at 578.
Jives filed a notice of appeal on May 13, 2005. Although the briefing schedule was delayed approximately seven months as a result of the motions to remand, modify, and for discretionary review, the motions were promptly heard and decided. He points to no violation of timelines established in the Rules of Appellate Procedure.
Furthermore, Jives contributed to the delay by filing the motion to modify and by petitioning for discretionary review in our Supreme Court. Whether the length of the delay is facially unreasonable is considered on a case-by-case basis; however, case law establishes a baseline of about two years to find a delay facially unreasonable. See United States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996). Under these circumstances, the delay in deciding the merits of Jives' appeal is not facially unreasonable. Because we decide that the appeal has been promptly considered and that any delay is not unreasonable, we do not consider the remaining factors regarding delay. Lennon, 94 Wn. App. at 578 (where delay is not unreasonable, the inquiry ends).
Sufficiency of the Evidence
Jives challenges 14 findings of fact entered by the trial court. He argues that insufficient evidence established his identity as the shooter because a witness, McGahee, lacks credibility.
Jives raises the same argument in his Statement of Additional Grounds, RAP10.10.
In support of his argument he asserts that the only evidence supporting the conclusion that he shot Blue was McGahee's testimony and that this testimony lacked credibility. Jives points to inconsistencies between McGahee's testimony and the State's other evidence to undermine McGahee's credibility.
The standard for determining sufficiency of the evidence on appeal is whether, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In challenging the sufficiency of the evidence, the appellant admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. McNeal, 145 Wn.2d 352, 360, 37 P.3d 280 (2002). Circumstantial and direct evidence have equal weight, and criminal intent may be inferred from conduct. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
Following a bench trial, we determine whether substantial evidence supports the trial court's findings of fact and whether the findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Substantial evidence is "evidence sufficient to persuade a fair-minded, rational person of the finding's truth." Stevenson, 128 Wn. App. at 193. Where the findings of fact and conclusions of law are supported by substantial but disputed evidence, we do not disturb the ruling. State v. Aase, 121 Wn. App. 558, 564, 89 P.3d 721 (2004).
We accord a trial court's factual findings great deference because it alone has had the opportunity to view the witness's demeanor and to judge veracity. State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985). It is the fact finder whose role is to resolve conflicting testimony, evaluate the credibility of witnesses, and weigh the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
The State bears the burden of proving all the elements of the crime charged beyond a reasonable doubt. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974 (2004). "In order to determine which facts the prosecution must prove beyond a reasonable doubt, it is necessary to analyze each element of the particular crime." State v. McCullum, 98 Wn.2d 484, 489, 656 P.2d 1064 (1983).
A person commits first degree murder when, with premeditated intent to cause the death of another person, he or she causes the death of such person. RCW 9A.32.030(1)(A); State v. Borrero, 147 Wn.2d 353, 361-62, 58 P.3d 245 (2002). Premeditation is "`the deliberate formation of and reflection upon the intent to take a human life,'" involving "`the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995) (citations omitted). An act is intentional if it is done with the objective or purpose to accomplish a result which constitutes a crime. RCW 9A.08.010(1)(a).
A person is guilty of second degree assault when he assaults another with a deadly weapon. RCW 9A.36.021(1)(c). Washington defines assault by reference to the common law and acknowledges three kinds: "(1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm." State v. Aumick, 126 Wn.2d 422, 426 n. 12, 894 P.2d 1325 (1995) (quoting State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81 (1992)). Proving assault as an attempt to inflict injury requires a showing of specific intent to cause bodily injury. State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996). Proving assault as an attempt to cause fear and apprehension of injury requires a showing of specific intent to create reasonable fear and apprehension of bodily injury, which may be inferred from the defendant's pointing a gun at the victim. Eastmond, 129 Wn.2d at 500.
Jives had a full and fair opportunity at trial to cross-examine McGahee and impeach his credibility. We will not second-guess the trial court's evaluation of McGahee's credibility. Moreover, physical evidence and other witnesses's testimony corroborated McGahee's. Although McGahee was the only witness who testified that he saw Jives fire the shots that ultimately killed Blue, McGahee's version of the shooting was substantially similar to the version offered by Parker. Parker, who testified that he knew Jives "through the streets" for about 10 years, stated that Blue was standing outside the van when Jives approached the front of the van from the pub, argued with Blue, and then "[s]hots rang out." 3 RP at 154, 174.
Similarly, McGahee testified that Blue as stood outside the open van doors, Jives came across the front of the van to the right side and shot Blue. Both McGahee and Parker identified Jives' picture from a photographic montage as the person involved in the incident. As such, Jives' assertion that "[t]he link between `Nut' and the shooter comes from Mr. McGahee alone" is incorrect. Appellant's Br. at 25. It appears rather that, as the trial court noted, "overwhelming" evidence established Jives as the shooter. 6 RP at 501.
Sufficient evidence established that Jives committed first degree murder and second degree assault. A reasonable person could infer from the number of shots fired and the deliberate pursuit of Blue that Jives intended to kill Blue. Further, that Blue was shot three times from behind and that Jives approached the van with a weapon sufficiently support an inference of a premeditated killing. See Gentry, 125 Wn.2d at 598. McGahee's testimony that Jives pointed a gun at him sufficiently shows that Jives committed second degree assault by intentionally placing McGahee in fear of substantial bodily harm. Consequently, sufficient evidence supports Jives' convictions.
Statement of Additional Grounds, RAP 10.10
In his Statement of Additional Grounds, Jives contends that the trial court abused its discretion in denying his motion for a new trial. A trial court may vacate a verdict and grant a new trial on the basis of newly discovered evidence when the new evidence (1) will probably change the result of the trial, (2) was discovered after the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996); see CrR 7.5(a)(3). The absence of any one of the five factors requires denial of the motion. State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981).
To determine whether the newly discovered evidence would probably change the outcome of the trial, the trial court must determine the credibility, significance, and cogency of the proffered evidence. State v. Castro, 32 Wn. App. 559, 565, 648 P.2d 485 (1982). The trial court has broad discretion to grant or deny the motion for a new trial based on newly discovered evidence, and we will not reverse absent a manifest abuse of that discretion. Castro, 32 Wn. App. at 565. A court abuses its discretion when its decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. In re Pers. Restraint of Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004).
In support of his motion for a new trial, Jives presented two witnesses who claimed to be present at the pub at the time of the shooting and testified that the shooter was not Jives, but both offered conflicting descriptions of the shooter. Both also admitted to knowing Jives and socializing with him on occasion. Jives also presented a third witness who was present at the shooting, but claimed to be unable to identify the shooter and repeatedly refused to either identify or disassociate Jives.
Jives also contends that the fifth, sixth, and fourteenth amendments to the United States Constitution require that the trial court enter findings of fact and conclusions of law detailing why it denied his motion for a new trial. He asserts that the trial court's failure to set forth findings of fact and conclusions of law in support of its denial violates his due process rights.
The question ultimately posed by this issue is whether the omission of the trial court's reasoning forecloses appellate review. We begin by noting that CrR 7.5(d) requires trial courts to give a statement of reasons only when granting a motion for a new trial. A contrary holding will impose additional procedural requirements on trial courts that are not apparent in the rule's text.
Due process does not require the trial court to enter findings of fact and conclusions of law when denying a motion for a new trial. Because the trial court's ruling on such a motion is subject to abuse of discretion review, the reviewing court considers the record and determines whether a reasonable person could reach the same outcome. It is not necessary to inquire into the trial court's reasoning process to conduct effective appellate review because we need only determine from the record whether a reasonable person could reach the same result. Jives' argument fails.
Affirmed.
A majorityofthe 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.
HUNT and DEREN, JJ., concur.