Opinion
No. 35057-2-II.
March 11, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-00889-1, Thomas Felnagle, J., entered June 2, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Armstrong and Hunt, JJ.
Timothy Kelly appeals his convictions of first degree burglary; two counts of second degree assault; first degree possession of stolen property; attempted first degree theft; and possession of a controlled substance, methamphetamine. He argues that he should be granted a new trial based on trial court error, ineffective assistance of counsel, prosecutorial misconduct, and cumulative error. In his Statement of Additional Grounds (SAG), he raises additional ineffective assistance of counsel claims. We affirm.
FACTS Crimes
We derive the crime facts from the trial evidence.
On February 18, 2005, Pierce County Sheriff's deputies responded to a report of an interrupted burglary in progress in Gig Harbor. Homeowners Kenneth Richard and his wife Susan Saltmarsh-Richard left their home around 11:30 a.m. for errands and returned home around 1:00 p.m.
The Richards gave the following account of what occurred when they returned home. As they drove up the slope of their driveway, Kenneth engaged the garage door opener and the far left door of their multi-car garage started to open but then reversed and closed. The Richards saw an unknown black Subaru backed into the garage space where they usually park a vehicle. They first thought the vehicle might belong to their neighbors. The Richards' other vehicle, a Ford Explorer sport utility vehicle (SUV), was parked in the other half of the garage.
As the Richards continued up the driveway, Kenneth pressed the garage door opener again and this time the garage door opened fully. They then saw a blur of someone running out of their house and into the garage. Kenneth parked in front of the house, got out of his vehicle, and entered the garage, at which point a male struck in him in the head and face and also hit him with something.
Susan also entered the garage. The suspect ran out a door leading from garage into the Richards' yard, passing by Susan on his way out and striking her in the face. Kenneth chased the suspect outside and the suspect reentered the garage where he struck Susan a second time. The suspect also hit Kenneth again with something, which Kenneth then recognized to be a backpack that was a piece of their luggage.
The suspect got into the Richards' SUV and started the ignition. Susan grabbed hold of the vehicle's driver door and kept the suspect from closing it. Kenneth also grabbed the door and helped Susan pull it open and the suspect fell partway out of the vehicle. Kenneth grabbed the suspect's head and the suspect grabbed Susan's hair and all three fell to the garage floor.
At that point, a melee of punching and kicking ensued and the suspect bit Kenneth's fingers and pulled Susan's hair out. Susan squeezed the suspect's testicles multiple times, subduing him long enough for Kenneth to push his legs under the Subaru to keep him from kicking and pin him on the ground. Susan then ran to get help from neighbors and to call 911. Neighbors arrived to assist. Kenneth and his neighbors bound the suspect with duct tape and coaxial cable that the Richards had in their garage and waited for law enforcement to arrive. When deputies arrived, Kenneth and his neighbors waved them down and directed them to the suspect bound and lying on his side between the vehicles in the Richards' garage.
As a result of the scuffle, Susan sustained significant bruising to her head, suffered an ankle injury, and lost some of her hair. Kenneth sustained bruising and laceration of his fingers where he was bitten and had his hair pulled out and his eyes gouged.
According to the deputies, the man identified himself as Michael David Charvat and, when taken into custody, spontaneously stated, "The car's not mine; I was just walking by." IV Report of Proceedings (RP) at 523. He also told the deputies that he was cutting through a yard as a shortcut when a man chased him down and attacked him. The deputies later identified the suspect as Kelly from a booking photograph. The deputies found a baggie on Kelly's person that later tested positive for methamphetamine.
At the time of his arrest, the deputies noticed that Kelly had a cut on his wrist that was wrapped in an Ace bandage. He wore gloves during his physical altercation with the Richards. The deputies found no one else in the Richards' home.
The deputies recovered the backpack that Kelly had struck Kenneth with; it contained jewelry and watches stolen from the Richards' residence. The Richards' SUV had also been loaded with their household goods; deputies noted that it appeared that Kelly intended to drive the SUV away and leave the Subaru in the garage. The deputies also found burglary-related tools not belonging to the Richards in their residence.
Becky Dawson had reported the black Subaru stolen the day before from her garage, and the keys to the vehicle stolen from her residence.
Kelly testified at trial and gave his account of events on February 18. At around 12:30 or 1:00 a.m., he sought out his friend Lou to obtain methamphetamine. Lou did not have any so Kelly and Lou went to the Knight's Inn at 96th and South Tacoma Way to find a person named Ken; Lou knew Ken but Kelly had never met him. Ken did not have any drugs but stated that he was going to obtain some that afternoon. Ken asked Kelly to help him drop off a vehicle at his family's house. Kelly agreed to help Ken because he wanted to obtain methamphetamine from him. Ken had a black Subaru and a white Honda. Ken drove the Subaru and Kelly drove the Honda.
At around noon, the two stopped at a coffee stand in a grocery store parking lot in Gig Harbor. Kelly drank a latté while Ken left for a few minutes. At around 12 or 12:30 p.m., when Ken returned, he and Kelly smoked a gram of methamphetamine; Kelly presumed Ken had obtained the drug while he was gone. Ken and Kelly then drove to a residential neighborhood in Gig Harbor and Kelly followed Ken's instructions to drop the white Honda off at the base of a hill and get into the black Subaru.
The two then drove up the hill in the Subaru and parked in front of a house. Ken got out of the vehicle, picked up a package from the front porch, unlocked the front door, entered the home, and opened the garage; he then returned and gave Kelly the keys and asked him to park the Subaru in the garage and take bags out of the Subaru and put them into the SUV parked in the garage. Ken also gave Kelly the keys to the SUV. Ken told Kelly that he needed to retrieve some things from the house. While Ken was inside the house, Kelly moved all of the bags from the Subaru to the SUV, got into the vehicle, started the ignition, and waited for Ken.
While waiting in the SUV, Kelly said he was attacked by a man who grabbed his head, pulled him out of the vehicle, and began hitting and punching him. A woman was also present. Kelly did not fight back but only tried to cover his head as the man and woman pounded on him and grabbed his testicles. Kelly was knocked unconscious. During the attack, Kelly believed that Ken was still inside the house. After losing consciousness, the next thing Kelly remembered was waking up in jail.
In 2002, Kelly was the victim of an attempted murder and was severely beaten. He remained in a coma for some time. He testified that since that incident, his memory and balance were not the same, he no longer walked normally, he suffered impaired hearing and daily migraines, and he could no longer work. He testified that he began using methamphetamine in January 2003 after his doctor refused to prescribe him more pain medication for his injuries despite the fact that he was having migraines and sleeping 20 hours a day. He testified that he used the drug from that time up until February 18. Part of Kelly's defense to the assault charges in the current case was that he was unlikely to have engaged in an assault because he was physically fragile from his 2002 injuries and would have wanted to protect his head.
At trial, neighbor Lyn Gordon testified about observing a white vehicle with oxidized paint drive up the hill toward the Richards residence and back down again while the deputies were at the residence responding to the burglary call. She did not recognize the vehicle. She testified that a young man with a short dark haircut and fair skin, who was "not a big fellow," was driving the vehicle. V RP at 637. She told deputies at the scene about what she observed and they questioned her about it. She also testified that there were other residences at the top of the hill in addition to the Richards residence, that she never saw the vehicle parked at or coming from the Richards residence, and that she had no information to suggest the vehicle's connection to the activities at the Richards residence.
Earlier on February 18, someone had burglarized the Ang residence in Gig Harbor. Deputy Dan Wulick responded to both the Ang and the Richard burglaries. At the Ang residence, Wulick was investigating a report that the residence's audible alarm had been activated; the Angs were not home at the time. He testified that he observed a broken window with blood on the glass at the Ang residence.
The deputy further testified that he had been investigating at the Ang residence for approximately one hour when he received the call of a burglary in progress at the Richard residence. He testified that it took him approximately nine minutes to drive from the Ang residence to the Richard residence with lights flashing and sirens on.
Deputy Allen Myron testified that the distance between the Ang residence and the Richard residence was approximately nine miles and that it took him approximately 25 minutes to drive from one residence to the other at the same time and day of the week that the burglaries took place. Editha Ang later reported that part of a jewelry box and watches had been stolen from her home. The deputies recovered the Angs' stolen items from one of the vehicles at the Richards residence.
On February 22, the State charged Kelly with first degree burglary, two counts of second degree assault, first degree possession of stolen property, first degree attempted theft, and unlawful possession of a controlled substance for the incident at the Richard residence. The State did not charge Kelly with the Ang burglary.
Trial
The trial court first set the case for a jury trial in April 2005. Thereafter, based on conflicts and withdrawal of counsel and other reasons, the trial court continued the trial multiple times, eventually setting it for April 12, 2006.
On April 12, 2006, defense counsel moved for another continuance, arguing that the Department of Assigned Counsel (DAC) had assigned him three separate cases for Kelly on January 31 and that he had only had his first substantial contact with Kelly on February 9.
Defense counsel stated that he had acquired two different investigators through DAC that had not finished their work but he had now hired a new investigator. He argued that the case had a sophisticated fact pattern and that he had not had time in the two months he had been "meaningfully [sic] representing Mr. Kelly" to prepare an adequate defense or time to investigate witnesses. I RP at 4.
Defense counsel also noted that he had also been working on two of Kelly's other cases that were complex, he had had some contact with prosecutors on all three cases in terms of coming to a resolution, and he believed the cases might interrelate in terms of that resolution but he had not yet done the work needed to determine that. He stated that he needed additional time to obtain and review medical records to determine whether Kelly had any defense based on his 2002 head injury. He noted that although he had asked for two prior continuances and had received two "rather brief continuances," he had been in two other trials since assuming Kelly's cases. I RP at 5.
He further stated that he was not ready to go to trial and would not likely be ready to do so for another couple of months, arguing that it was "a pretty heavy case" because of the potential jail time Kelly faced and that he had never "had so much pressure from the presiding court to go to trial." I RP at 6. He acknowledged that the case had been on the docket for more than a year but stated that for him the case was "about 68 days old" and that he would be ineffective if the case went to trial today or next week. I RP at 6. He also acknowledged that he was under a duty to do his job timely and efficiently but stated, "I think that the record, hopefully, speaks for itself as far as how long I've had this case and what my other obligations have been" and "I don't think I can do a competent job for Mr. Kelly at this point. I'm confident I can down the road, but I just need more time." I RP at 7. Defense counsel also told the trial court that he would be out of town from April 20 to April 30 on a prearranged trip.
Defense counsel informed the trial court that he was going to Ukraine and had purchased the tickets a couple of months before, it was a family-related trip, and it was something he could not change.
The State opposed the continuance, arguing that the case had a very straightforward fact pattern, discovery was not significant, and it did not see a defense in the case because Kelly was found at the scene. It also noted it did not want to be pressured to finish the case in time for defense counsel's trip.
The trial court inquired why defense counsel had not said that he could not take the case when first assigned to him in January. Defense counsel admitted to being presumptive in thinking the cases would not go to trial until June. In response to the trial court's query, defense counsel stated that he anticipated the trial would take four or five days although he was not really at the point of being able to estimate. The trial court examined its schedule and then stated that it was committed to defense counsel's trip but equally committed to the effort to get cases completed. It then proposed as a middle ground to try the case, recess trial for defense counsel's trip, and reconvene when he returned.
It noted the solution did not solve defense counsel's problem of ineffective assistance but stated that similar requests for additional time had already been granted and that the case appeared fairly straightforward and did not have "a lot of sophisticated Page 9 evidence," so case management issues remained paramount. I RP at 19.
The jury trial began on April 12 and testimony began on April 17. During motions in limine, the State told the trial court that it might seek to use ER 404(b) evidence of Kelly's other alleged burglaries. Defense counsel requested that the trial court first rule on such evidence outside the presence of the jury and the trial court agreed.
On April 18, the trial court recessed trial and dismissed the jury until May 1. At that time defense counsel requested that he not start his case in chief until May 1. The trial court granted the request, noting that it was reasonable in light of the concerns defense counsel had voiced about needing additional time to prepare. Defense counsel indicated he would be using most of the following day to "shore up" issues related to his expected witnesses and whether he would be pursuing any mental issue defenses. IV RP at 593. When trial resumed on May 1, defense counsel stated that the defense was ready to present its case.
During voir dire, a number of jurors indicated that they had been a victim of a burglary or theft and some said that they had friends or relatives who had been addicted to methamphetamine. One juror stated that media coverage of the incident "just vaguely rings a bell." I RP at 81. Defense counsel exercised one peremptory challenge of the seated jury and one peremptory challenge of an alternate juror.
During cross-examination, the State questioned Kelly about the unavailability of Lou or Ken as witnesses to corroborate his account of the events of February 18. Kelly stated that he had not been able to locate Ken but that he knew where Lou was and had been in touch with him. During closing, defense counsel argued that Ken had burglarized the Richards' residence and assaulted them. In its rebuttal argument, the State argued Ken's unavailability as a witness and that the jury would receive a missing witness instruction.
At trial, the Richards identified Kelly as their attacker.
Defense counsel did not object to the missing witness instruction.
Also during cross-examination, Kelly testified that he cut his wrist with a box knife during a pre-February 18 suicide attempt. He testified that, due to that incident, he was wearing an Ace bandage on his wrist and a glove to keep the bandage on February 18.
The State requested a sidebar and sought to question Kelly about the Ang burglary as impeachment evidence, arguing that the Ang residence was approximately 20 minutes from the Richard residence and had been burgled in the hour or two preceding the Richard burglary; the burglar at the Ang residence gained entry by breaking a window and blood on the window indicated that that the burglar had cut himself during entry; and stolen property from the Ang residence was found in the Subaru at the Richard residence.
Defense counsel objected on the basis that the State was trying to "back door another burglary case" for which Kelly was never charged into the current one, an insufficient foundation for evidence of the Ang burglary had been laid, and there was no DNA evidence that Kelly's blood was on the window at the Ang residence. The trial court determined that the critical inquiry was whether the timing of the Ang burglary could be established to contradict the chronology that Kelly had testified to.
The State then produced evidence that the Richard burglary occurred between 11:30 a.m. and 2:00 p.m. and that at 12:34 p.m. the same day, the audible alarm at the Ang residence in Gig Harbor was activated. It argued that the fact that the Angs' belongings were found in the back seat of the Subaru at the Richard residence was clear evidence that the Subaru was at the Ang residence minutes before it was at the Richard residence, thereby rebutting Kelly's version of events. It argued again that the blood evidence at the Ang residence indicated likely that Kelly injured himself there and also noted that Mr. Ang was a doctor and it was very likely the Angs had Ace bandages at their residence.
The trial court decided that the State had evidence directly contradicting a critical portion of Kelly's testimony, so it could not "see how the State [was] not entitled to bring it up." V RP at 696. It allowed the State to cross-examine Kelly regarding the Ang burglary and to present appropriate rebuttal. During rebuttal, the State presented the testimony of Editha Ang, Deputy Wulick, and Deputy Myron regarding the Ang burglary.
In its closing argument, the State did not refer to the Ang burglary. In the defense closing, counsel argued about Wulick's failure to include in his report that he found blood on the broken glass at the Ang residence. In response, the State discussed the Ang burglary in arguing against Kelly's account of the incident in terms of the timing of events and the evidence of blood on the broken glass and Kelly's wrist injury. It noted that in order for Kelly's account to be true, the Richards would have had to stage a burglary at their house that included stealing a vehicle and stealing property from the Angs and placing it in a vehicle in their garage.
The jury received the following limiting instruction with regard to the Ang burglary: "Evidence has been introduced in this case on the subject of an alleged burglary at another residence for the limited purpose of assessing credibility. You must not consider this evidence for any other purpose." Clerk's Papers (CP) at 46.
On May 3, the jury submitted the following question during deliberations: "In considering the crime of possession of stolen property in the 1st degree (count IV). Is this charge limited to the Subaru only or may other times of stolen property be considered. 1) Property from the Ang residence? 2) The backpack and its contents founds on the back lawn (plaintiff's exhibit # 6)." CP at 81. Before receiving a response to the question, the jury sent out a second notification that it had reached its verdict. The trial court first responded to the jury's question then sent the jury back for further deliberation before taking the verdict. The trial court's response to the jury's question was: "The Subaru vehicle is the subject of the crime of Possessing Stolen Property in the First Degree as charged in Count IV." CP at 83. The jury convicted Kelly on all counts.
Sentencing
At sentencing, the State informed the trial court that, in addition to the Richards, a victim of an uncharged crime was present to address the court and some of that victim's stolen property had been recovered from the Richards residence. It stated that the victim advocate had already told the victim that he would not likely be allowed to address the trial court but that the court might allow it. The State also noted that two individuals were present from the board of directors from the Richards' community to explain how the crime had impacted the neighborhood. The defense objected to anyone who had not been listed as a victim in the case addressing the court. The trial court asked for the State's permission to allow it to listen to individuals who were not victims, law enforcement, or otherwise authorized by statute. In response, the State acknowledged it did not have that authority but noted that the community was a victim due to the nature of the incident and that the court could exercise its discretion in that respect to hear from one of the board members.
The trial court found that, under RCW 9.94A.500, sentencing would be jeopardized by allowing people who were not specifically named in the statute to address the court and that enlarging the victim community beyond the victims themselves potentially did "violence to the real facts doctrine" and went beyond what it heard at trial. RP (June 2, 2006) at 10-11.
The trial court allowed only the Richards to address the court as victims. In addressing the court, Kenneth stated that he had returned stolen property to 24 families from the items recovered from his residence.
The State recommended high-end sentences to run concurrently, noting that Kelly was well above the maximum offender score for the charges, was a career criminal with an extensive misdemeanor history who had had "a long and very profitable career at the expense of members of the community of Pierce County," and had caused the Richards injury; it also noted that the incident had escalated and resulted in more charges because Kelly fought so hard to maintain the stolen property. RP (June 2, 2006) at 14. The State also argued that the trial court heard much testimony and argument regarding other crimes as ER 404(b) evidence and that Kelly was likely the Ang burglar. Defense counsel did not object.
Kelly had a criminal history of 15 prior offenses including five juvenile offenses.
The trial court heard from Kelly, his mother, sister, and family friend about the impact of his 2002 head injury on his behavior. It noted that it was undeniable that Kelly had "a real setback when he experienced the injury that he had" but also noted that he had a criminal history before the injury. RP (June 2, 2006) at 26. It stated, "I don't doubt that there's been an impact on Mr. Kelly from what's happened to him, but I don't doubt either that Mr. Kelly, unfortunately, for whatever reason or combinations of reasons now represents a significant danger to the community." RP (June 2, 2006) at 26-27. It noted the significant impact that the nature of the crime must have had on the Richards and stated that "the combination of [Kelly's] horrible criminal history and the events involved in this case leads me to my conclusion that I'll grant understanding but not leniency." RP (June 2, 2006) at 27. The trial court imposed high-end sentences to run concurrently.
The State then sought to clarify for the record that the trial court earlier admitted ER 404(b) evidence of the Ang burglary and asked the trial court to conduct the proper balancing of prejudicial effect versus probative value of the evidence. The trial court stated that the State was "throwing [it] for a loop" and would need to provide the court a transcript of the context. RP (June 2, 2006) at 29. It stated that by its ruling it had clearly determined that the probative value of the Ang burglary evidence outweighed the prejudicial effect but that would not "satisfy any court of appeals because they would want [the trial court] to go into it in greater detail." RP (June 2, 2006) at 29. It invited the State to search the record and remind the trial court of the factors at the time. The State said it would do so. No further record was made of the issue. Kelly appeals his convictions.
ANALYSIS Ineffective Assistance of Counsel
Kelly raises numerous arguments based on ineffective assistance of counsel claims. We review an ineffective assistance of counsel claim de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To establish an ineffective assistance of counsel claim, a defendant must show that counsel's (1) deficient performance (2) prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A defendant must make a showing as to the two 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). Counsel's conduct may not serve as the basis of an ineffective assistance of counsel claim where it can be characterized as a legitimate trial strategy or tactic. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
A. Failure to Investigate
Kelly first contends that he received ineffective assistance because defense counsel failed to adequately prepare for trial, as shown by his admission that he was unprepared and had failed to hire an investigator, review medical records, or consult an expert before trial. He asserts that counsel had no defense theory, filed no pretrial motions, and failed to secure the presence of available witnesses. He further argues that defense counsel had evidence to corroborate Kelly's account of events but failed to use it and also failed to strenuously argue a viable defense that no physical evidence linked him to the Ang residence, that the presence of the Ang property in the Subaru only affirmed that Ken burglarized the Ang residence and not him, and that his residual head injury accounted for his comatose condition after being beaten by the Richards.
A review of the record discloses that defense counsel sought and was granted two continuances in preparation for trial before advising the trial court that he was not prepared to go forward. Although defense counsel stated that he was unprepared in arguing for another continuance, the record demonstrates that defense counsel had taken reasonable steps to prepare. Defense counsel made pretrial motions including objecting to any reference of Kelly's booking photograph (suggesting he had been incarcerated on a prior occasion), references to Kelly as a suspect in other and past crimes, certain witnesses, and the characterization of certain parties as victims. He twice secured pretrial investigators; those investigators did not ultimately complete their work was beyond his control. At the conclusion of the CrR 3.5 hearing, defense counsel told the trial court that a new investigator was assigned to the case and was interested in interviewing all neighbors listed on the State's witness list.
Defense counsel also sought and received the trial court's permission to delay the start of his case in chief, using the time to "shore up" issues related to his expected witnesses and testimony and to determine whether he would be pursuing any mental defenses and stating that he was prepared to present his case when trial resumed on May 1. Further, although defense counsel had not yet had an opportunity to review medical records by the start of trial and the trial court initially granted the State's motion in limine to exclude mention of Kelly's prior head injury, defense counsel successfully reserved his ability to revisit the issue and raise a diminished capacity defense if his investigation turned up more information in that regard. After reviewing the records, defense counsel conceded that there were insufficient reasons to establish a diminished capacity defense but argued that the records went to the unlikelihood that Kelly would assault someone because he was physically fragile. The trial court allowed the defense to introduce testimony regarding the 2002 head injury for that purpose and Kelly testified about his head injury, the fact that he was previously in a coma, and the impact the injury had on his life.
Further, defense counsel presented a defense that Ken committed the burglaries, including through Kelly's testimony and Lyn Gordon's testimony that she witnessed a white car leaving the scene, corroborating his testimony. Defense counsel argued this theory during his closing argument by submitting that another person was in the garage when the Richards came home; that Ken burglarized the home and inflicted the injury on the Richards; and that the fact that there was no sign of forced entry was consistent with Kelly's account of events, as was Gordon's testimony.
Defense counsel did not call Lou as a witness although it appears from the record that he was available. We do not review that decision because it is a tactical one and his reasons for not doing so are beyond the record. See In the Matter of the Per. Restraint of Stenson, 142 Wn.2d 710, 736, 16 P.3d 1 (2001) (noting that under the American Bar Association guidelines, the decision on what witnesses to call is made by counsel after consultation with the client); McFarland, 127 Wn.2d at 335-36 (noting that a reviewing court will not consider matters outside the trial record on direct appeal and a defendant must show in the record that an absence of legitimate strategic or tactical reasons supported counsel's challenged conduct). Also, the record shows that defense counsel may have chosen not to call Lou as a witness because Kelly directed him not to. On direct examination, the State asked Kelly if he thought of having Lou testify on his behalf; Kelly stated, "My attorney would like that, yes." V RP at 704.
We also note that the record contains other indications of counsel's competent performance, particularly in light of the strength of the State's case. For example, in his cross-examination of Deputy Wulick, defense counsel elicited that Wulick neglected to include in his report that he found blood on the glass at the Ang residence. In closing argument, defense counsel referred to that failure as well as the failure of deputies to photograph Kelly's injuries or fingerprint the scene. Defense counsel also submitted a voluntary intoxication jury instruction regarding Kelly's methamphetamine use at the time of the incident, which the trial court ultimately denied on the basis that "totally lacking was the evidence of any effect that those drugs had on Mr. Kelly's ability to form the requisite intent." VI RP at 742.
In sum, the record shows that defense counsel filed pretrial motions, reviewed records, investigated, and presented a theory of the defense. The State had a very strong case and Kelly makes no showing as to what additional theories he would have pursued or evidence he would have presented had defense counsel had additional time to prepare or investigate. Thus, Kelly's ineffective assistance of counsel claims on these assertions fail under either prong of Strickland, 466 U.S. at 687.
B. Voir Dire
Kelly next argues that defense counsel was ineffective for failing to exercise peremptory challenges during voir dire when there was no legitimate tactical reason to do so. He argues that counsel left many unsuitable jurors on the case, including someone who vaguely remembered the case from the media, several who had negative views about methamphetamine users, and one whose son had been a victim of a home invasion robbery and had been injured during the incident.
A failure to challenge a juror is not deficient performance if there is a legitimate tactical or strategic decision not to do so. State v. Alires, 92 Wn. App. 931, 939, 966 P.2d 935 (1998). It is also a legitimate trial tactic not to pursue certain matters during voir dire to avoid antagonizing potential jurors. Alires, 92 Wn. App. at 939.
Here, the trial court first conducted its own voir dire and elicited information that more than 20 potential jurors had been victims of similar crimes or had some life experience that might arguably bias them in this matter; in each case, the trial court questioned that juror as to whether he or she could be fair and in all cases save one, the juror answered in the affirmative. The trial court excused juror 43, who stated he could not be fair because his son was a methamphetamine user.
Juror 1 stated that the case "vaguely rings a bell" but could not recall any specifics or details at all about the case. I RP at 81. The trial court questioned juror 1 extensively and the juror affirmed the ability to be fair and impartial; the trial court also instructed juror 1 to alert counsel immediately if any details came to mind. The trial court also provided the jury pool with some additional details about the case from the media reports and inquired whether anyone's memory was triggered; juror 1 did not respond nor did any other juror.
During defense counsel's voir dire, he followed up the trial court's questions by questioning numerous jurors more extensively, including juror 1, as to the recollection of the media report and juror 7, who had experience with brain injury patients. He questioned juror 13 in detail about a son who was the victim of a home invasion crime, juror 15 about the juror's experience with past thefts, juror 18 about an ex-daughter-in-law with drug issues, jurors 27 and 31 about past burglaries, and juror 40 about a daughter's methamphetamine use. In all cases, the jurors confirmed their ability to be fair.
The record shows that defense counsel's performance during voir dire was reasonable and that he appropriately investigated issues of potential bias in the jury pool, particularly so in light of the facts that the trial court had already preliminarily explored those issues and that the vast majority of the jury pool had some experience that arguably might result in bias in the current case. The simple fact that defense counsel declined to use all peremptory challenges alone is insufficient to demonstrate an objectively unreasonable performance or that the decision to do so was not tactical. Kelly's claim of ineffective assistance of counsel on this assertion also fails.
C. Missing Witness Instruction
Kelly next contends that counsel was ineffective for failing to object to the missing witness instruction because the State failed to establish the necessary foundation for the instruction. He asserts that there was no showing that he, who was incarcerated and relying on defense counsel's effort to locate witnesses, was the only one who could make Lou and Ken available. He argues that defense counsel also failed to argue that the instruction was not warranted because Lou or Ken would have had to put themselves in potential legal jeopardy if they testified because they would have had to admit to methamphetamine use.
The jury received the following missing witness instruction:
If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party and as a matter of reasonable probability it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.
CP at 47.
Under the missing witness doctrine, when a defendant attempts to establish his theory of the case by putting forward the corroborating testimony of an uncalled witness, the State may comment on the defendant's failure to call that witness. State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990). The State may do so as long as it is clear that the defendant was able to produce the witness and the defendant's testimony unequivocally suggests that the absent witness could corroborate his theory of the case. Contreras, 57 Wn. App. at 476. See also State v. Russell, 125 Wn.2d 24, 90, 882 P.2d 747 (1994) (where a party fails to call logical witnesses within his control, the jury may draw an unfavorable inference regarding the missing witnesses' potential testimony).
But a missing witness inference should not be given where circumstances have not established that the witness would have been called as a matter of reasonable probability, the witness is unimportant, the witness's testimony would be cumulative, the witness's absence can be satisfactorily explained, the witness is not competent to testify or a privilege protects the witness's testimony, or the witness's testimony would necessarily be self-incriminatory. State v. Blair, 117 Wn.2d 479, 488-90, 816 P.2d 718 (1991). Nor may the inference be drawn where it would infringe on a defendant's constitutional rights, such as the right to remain silent. Blair, 117 Wn.2d at 491.
Here, Kelly testified that Lou introduced him to Ken and that Ken was the one who burglarized the Richards residence. This defense theory unequivocally suggested that, assuming the truth of Kelly's account, testimony by Lou and/or Ken would have corroborated his defense. Neither Lou nor Ken testified. During its cross-examination of Kelly, the State inquired whether Kelly had made an effort to reach Lou in the last year. Kelly stated that he had spoken to him a couple of times and had written him a letter. The State asked Kelly if he thought of calling Lou as a witness and Kelly replied that he had. The State asked whether Lou was available to Kelly and he replied that he had not been able to speak to Lou in the preceding couple of days. The State inquired whether Lou had been able to locate Ken for the trial; Kelly replied that Lou had been looking for Ken "quite adamantly" but that Ken had disappeared since the day in question. V RP at 684. The State asked again if Kelly had thought of having Lou testify on his behalf and Kelly replied, "My attorney would like that, yes." V RP at 704. The State then inquired where Lou was and Kelly stated, "Probably at home with his children," thus confirming that he knew where Lou might be. V RP at 704-05.
Here, Kelly's testimony was such that Lou's testimony would have corroborated his theory of the defense and the State established that Kelly was able to produce Lou as a witness since Lou was available and Kelly knew where he was. None of the exceptions to the missing witness doctrine applied because the circumstances showed that Kelly would have called Lou as a matter of reasonable probability, Lou was an important witness, his testimony was not cumulative of other testimony, his absence could not be satisfactorily explained, and there was no showing that he was not competent to testify or that any privilege attached to the testimony. Blair, 117 Wn.2d at 487-90. Kelly's argument that Lou's testimony would necessarily be self-incriminating is not persuasive because under Kelly's version of events, although Lou may have had to testify to some knowledge of methamphetamine use or dealing, he did little more than introduce Kelly to Ken and he played no role in any of the crimes at issue. State v. Davis, 12 Wn. App. 288, 291, 529 P.2d 1157 (1974) ("Application of the missing witness presumption turns upon the facts of each case.")
In sum, because giving the missing witness instruction was warranted, Kelly's ineffective assistance of counsel claim on this assertion likewise fails.
D. Evidence of Uncharged Crime
Kelly next contends that defense counsel failed to object to the prosecutor's impermissible use of the Ang burglary as ER 404(b) evidence rather than as impeachment evidence, in contravention to the trial court's order. He asserts that defense counsel failed to grasp the import of the evidence and insisted on the State's compliance with the trial court's limitation because he had not reviewed the crime reports and other materials related to the Ang burglary. He argues that the purpose of the evidence confused the jury, as shown by its question during deliberations asking whether it could consider that evidence as part of the first degree possession of stolen property charge.
The record shows that defense counsel initially objected to the introduction of the Ang burglary evidence on the bases that Kelly was never charged in the burglary, there was a lack of foundation on relevance, and no DNA evidence placed Kelly's blood on the window at the Ang residence. The trial court overruled defense counsel's objection on the basis that the State's evidence directly contradicted a critical portion of Kelly's testimony.
The State then called Editha Ang and limited her testimony to whether her home was burglarized and to identification of photos of her stolen property. The State also called Deputy Wulick who testified about his two burglary investigations and the time and distance between them. Finally, the State called Deputy Myron who testified that the Angs' stolen property was found at the Richard residence, the distance between the two residences was approximately nine miles and a 25-minute drive, and Kelly was conscious when Myron found him at the Richard residence. When the State began to ask Myron if he observed any injuries on Kelly, defense counsel promptly objected to the question as beyond the scope of rebuttal. The trial court overruled the objection.
The record demonstrates that defense counsel properly objected to the Ang burglary evidence. We note that where the trial court overruled defense counsel's objection, it also suggests it would have overruled any earlier objection as the testimony preceding the objection was only more directly related to an impeachment purpose. Thus, this ineffective assistance of counsel claim also fails.
E. Real Facts Doctrine
Kelly next contends that defense counsel was deficient for failing to object to impermissible information adduced by the State at sentencing. He asserts that, as a result, the trial court considered the information in imposing a high-end sentence.
Under the real facts doctrine, a defendant's sentence may be based only on the current crime of which he is convicted, his criminal history, and the circumstances surrounding the crime. State v. Houf, 120 Wn.2d 327, 333, 841 P.2d 42 (1992). A defendant may not be held accountable for uncharged crimes. State v. McAlpin, 108 Wn.2d 458, 466, 740 P.2d 824 (1987).
At sentencing, defense counsel properly objected to the State's request that witnesses not listed as victims to the charged crimes be allowed to address the trial court, and the court did not allow those witnesses to address it. Kelly's argument fails with respect to those witnesses.
Defense counsel did not object to Kenneth's statement that he returned stolen property to 24 families or to the State's reference that the trial court heard "a great deal of testimony and argument regarding other crimes, 404(b) evidence" and that Kelly was likely the Ang burglar. RP (June 2, 2006) at 14. Even assuming for the sake of argument that evidence of the Ang burglary or other burglaries did not constitute circumstances surrounding the crimes, such that defense counsel was deficient for failing to object to the statements, Kelly cannot demonstrate prejudice given the evidence against him.
Furthermore, the record shows that the trial court carefully limited its consideration at sentencing to information allowed under RCW 9.94A.500, and also expressly stated that its decision to impose a high-end sentence was based on the combination of Kelly's "horrible criminal history" and the significant impact that his crimes had on the Richards. RP (June 2, 2006) at 27. Because nothing shows that the trial court considered Kenneth's statement regarding evidence of Page 27 other burglaries or the prosecutor's statement regarding the Ang burglary or ER 404(b) evidence of uncharged crimes, Kelly's claim of ineffective assistance of counsel based on the real facts doctrine fails.
RCW 9.94A.500(1) states in part that in imposing a sentence, the trial court "shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed."
The trial court stated: "I can't imagine what it's like to come home and find somebody has invaded your most personal space, your home, your garage, and unexpectedly you are forced into . . . a physical confrontation with somebody that you've never seen before in your life. This is a significant impact." RP (June 2, 2006) at 27.
F. Trial Testimony
Kelly next argues that defense counsel was deficient in eliciting his testimony that Kelly had been incarcerated since his arrest. He asserts that no legitimate tactical reason supported doing this.
On direct examination, defense counsel asked Kelly about his account of the events of February 18 and inquired whether he knew where Ken went after the Richards restrained him. Kelly stated that he had no idea. Defense counsel then asked, "Have you seen Ken since this day?" and Kelly replied, "I've been incarcerated." V RP at 652. Defense counsel immediately moved to his next question on an unrelated topic. It is clear that defense counsel's question was intended to elicit only a "yes" or "no" response from Kelly and not the response that he gave. In light of Kelly's unexpected response, defense counsel acted properly. This claim of ineffective assistance fails, as all of Kelly's claims based on counsel's conduct.
Request for Continuance
Kelly next contends that the trial court abused its discretion by failing to grant his request for a continuance at the start of trial. He asserts that the trial court should have continued the case when defense counsel said that he was not prepared and had not sufficiently investigated the case.
We review the decision whether to grant or deny a motion for a continuance in a criminal case for an abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). A trial court abuses its discretion when it exercises it based on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We will disturb the trial court's decision to deny a continuance only on a showing that the defendant was prejudiced or that the result of the trial would likely have been different had the trial court not denied the motion. State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974). We evaluate whether a trial court's failure to grant a continuance deprives a defendant of a fair trial on a case-by-case basis. Downing, 151 Wn.2d at 274-75. In exercising its discretion, the trial court may consider factors such as "surprise, diligence, materiality, redundancy, due process, and the maintenance of orderly procedures." Eller, 84 Wn.2d at 95.
Here, the trial court had previously granted defense counsel two continuances and had indicated it would grant no more. The trial court made appropriate inquiries into defense counsel's need for a continuance and proposed a middle ground that accommodated the trial court's and counsels' schedules, as well as the need to move a case forward that had been pending for more than a year. The trial court thus appropriately considered multiple factors in denying defense counsel's motion for a continuance. Its decision to do so was not manifestly unreasonable in light of the facts, and it did not abuse its discretion in doing so.
Kelly also fails to make a showing how a continuance would have changed the outcome of the trial in light of the fact that defense counsel ultimately determined that he could not establish a diminished capacity defense and also chose not to call Lou as witness.
Missing Witness Instruction
Kelly also contends that the trial court erred by giving the missing witness instruction because the State failed to establish the necessary foundation and the missing witness's testimony would have been self-incriminatory.
We review the decision whether to give a jury instruction for abuse of discretion. State v. Chase, 134 Wn. App. 792, 803, 142 P.3d 630 (2006), review denied, 160 Wn.2d 1022 (2007). Where a defendant fails to object to a jury instruction at trial, the error may be raised on appeal where the instruction invades a fundamental right. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
Defense counsel failed to object to the missing witness instruction at trial. The giving of a missing witness instruction can impact a fundamental right of the accused, such as where it infringes on a defendant's constitutional right to remain silent. Russell, 125 Wn.2d at 90. But "any comment referring to a defendant's failure to produce [a] witnesses" does not necessarily constitute an impermissible shifting of the burden of proof such that a defendant is forced to present proof of his innocence; the State is entitled to argue a reasonable inference from the evidence presented. Blair, 117 Wn.2d at 491. Even assuming that Kelly did not waive the error, his argument fails because the trial court did not abuse its discretion in giving it.
Kelly testified and provided his account of the incident. His testimony established that he could have produced Lou as a witness and that Lou's testimony would have corroborated his theory of the case. See Contreras, 57 Wn. App. at 476. As already discussed, none of the factors that would have rendered a missing witness instruction impermissible were present here. Because the missing witness instruction was otherwise proper, the trial court did not abuse its discretion in giving it.
Prosecutorial Misconduct
Kelly next contends that the State committed misconduct by violating the trial court's order to restrict evidence of the Ang burglary to impeachment and instead using it as ER 404(b) evidence to prove that Kelly committed the Ang burglary. He asserts that it is clear the State's use of the evidence confused the jury, as shown by the jury's question during deliberation whether it could rely on the Ang burglary evidence to convict him of first degree possession of stolen property. He also argues that the prosecutor committed misconduct at sentencing by emphasizing victims and evidence related to uncharged crimes and by failing to produce potential Brady evidence of Kelly's 2002 head injury. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Here, Kelly argues that because the State tried the 2002 attempted murder case where he was the victim, it likely had in its possession his medical records and was obliged to provide them to the defense as potential exculpatory evidence. At trial, defense counsel stated that he suspected the State possessed this documentation because the case was charged as an attempted murder in 2002, so the criminal file likely contained information regarding Kelly's injury and related medical evidence. When trial resumed on May 1, defense counsel informed the trial court that he had reviewed Kelly's medical records and that, although he had not had an opportunity to give the court or the State copies of the medical documentation, it was not "such an overwhelming amount of paper" that they would not be able to review it. V RP at 600.
Where a defendant argues a prosecutor's argument was improper, he bears the burden of establishing both the impropriety of the comments and their prejudicial effect. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). We reverse a conviction on prosecutorial misconduct grounds only if there is a substantial likelihood that the misconduct affected the verdict. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). In the absence of defense counsel's request for a curative instruction on the prosecutor's argument, it will not constitute reversible error unless it constituted such flagrant misconduct that no instruction could have cured it. State v. Basford, 76 Wn.2d 522, 531, 457 P.2d 1010 (1969).
The trial court admitted evidence of the Ang burglary for the sole purpose of impeaching Kelly's testimony as to his chronology of events on February 18. The State presented rebuttal testimony of three witnesses, Editha Ang, Deputy Wulick, and Deputy Myron. That testimony established that the Ang residence was burglarized the same day as the Richard residence and within a close time frame, items stolen from the Ang residence were found at the Richard residence, the distance between the two residences could be driven in approximately 25 minutes, there was blood on a broken window at the Ang residence, and Kelly was conscious when he was taken into custody.
Defense counsel made no objection on the basis of prosecutorial misconduct, so we must find the conduct flagrant in order to find reversible error. Basford, 76 Wn.2d at 531. We decline to do so. The prosecutor's rebuttal evidence was within the scope of the impeachment purpose for which it was admitted, and Kelly fails to establish the impropriety of the testimony or that it constituted flagrant misconduct.
At the end of the sentencing hearing, the State asked the trial court to clarify that it had admitted ER 404(b) evidence of the Ang burglary and to make a ruling on the record balancing the prejudicial effect versus the probative value of the evidence. The trial court could not recall the record and asked the State to provide it with a transcript or to remind it of the factors considered at the time, although it acknowledged that by its ruling it clearly determined the probative value of the evidence outweighed the prejudicial effect. The record demonstrates that the trial court only admitted the evidence for the purpose of impeachment, which comes under ER 607 stating that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness" and ER 613 for prior statements of witnesses. See also CP at 46 (jury instruction limiting evidence to purpose of assessing credibility). It appears the State attempted to have the trial court make an after-the-fact ruling that the evidence was admissible under ER 404(b) to prevent a possible appeal, because at the time it sought to enter the evidence it did so strictly to show that Kelly was being untruthful and to contradict his version of events. Although the evidence arguably fell within an ER 404(b) purpose, it was not sought or entered for that purpose and was within the range of impeachment evidence, so there is no error for us to address here.
Furthermore, the trial court gave the jury a limiting instruction to cure any possible improper use of the evidence. Kelly's argument that the jury's question during deliberation demonstrated its confusion does not persuade us because the question only appears to demonstrate that the jury wondered whether it could consider other items of stolen property found at the Richard residence in addition to the Subaru. The trial court instructed that the jury could consider the Subaru only on the first degree possession of stolen property charge. Thus, even assuming any prosecutorial misconduct, Kelly cannot demonstrate a substantial likelihood that it affected the verdict.
Kelly likewise cannot show flagrant prosecutorial misconduct at sentencing because the State only requested that additional witnesses address the trial court, which the trial court denied. Kelly cannot demonstrate prejudice because the trial court did not allow the witnesses to address the court and did not rely on evidence of uncharged crimes in its sentencing decision.
Finally, Kelly's argument that the State withheld Brady evidence of medical records of his 2002 head injury is entirely speculative and beyond the record. McFarland, 127 Wn.2d at 338 n. 5. Nevertheless, the record discloses that defense counsel obtained and reviewed the medical records. See In the Matter of the Pers. Restraint of Benn, 134 Wn.2d 868, 916-17, 952 P.2d 116 (1998) (noting that there is no Brady violation where the State fails to provide documentation that defense counsel could have obtained through reasonable diligence). Kelly's argument fails.
Real Facts Doctrine
Kelly next argues that violation of the real facts doctrine at sentencing mandates resentencing before a different judge. Kelly also asserts that the trial court's finding that he posed a significant danger to the community lacked factual support in the record and is analogous to a finding of future dangerousness in a sex offense case, requiring a finding of a history of similar offenses and lack of amenability to treatment.
As already addressed, it is clear from the record that the trial court relied only on Kelly's criminal history and the impact on the Richards in imposing the sentence and did not rely on facts outside the charged crimes. It did not err in doing so.
Likewise, Kelly's argument that the trial court's finding of future dangerousness was analogous to a sex crime case lacks merit. In that scenario, a trial court must make findings regarding criminal history and a lack of amenability to treatment in order to support the imposition of an exceptional sentence, not to impose any sentence within the standard range. State v. Pryor, 115 Wn.2d 445, 450, 453-54, 799 P.2d 244 (1990). The trial court's statement merely reflected its belief that Kelly was a dangerous person based on the facts of this case. Kelly's argument based on the real facts doctrine fails.
Cumulative Error
Kelly next argues that the cumulative errors of defense counsel, prosecutorial misconduct, and trial court error entitle him to a new trial. Under the cumulative error doctrine, reversal may be warranted where multiple nonprejudicial errors, when considered as a whole, combine to deny a defendant his right to a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because we find no individual errors, Kelly's cumulative error claim fails.
Statement of Additional Grounds
Finally, in his SAG, Kelly argues that defense counsel (1) did not share discovery with him, (2) knew Lou's location but recommended not to call him as a witness, and (3) failed to hire an investigator until halfway through his case. He argues, therefore, that defense counsel could not explore additional avenues for his defense.
RAP 10.10.
Kelly's arguments regarding discovery and witness recommendations are beyond the record and we do not address them. McFarland, 127 Wn.2d at 338 n. 5. But again, we note that legitimate trial tactics such as these may not form the basis of an ineffective assistance of counsel claim. Adams, 91 Wn.2d at 90. And as we have already addressed Kelly's other claims regarding counsel's lack of preparedness on direct appeal and find no error, we do not address them again.
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.