Opinion
No. 58623-8-I.
August 27, 2007.
A written jury trial waiver is sufficient where a defendant has been found to be competent. Here, there is no need for an additional colloquy on the record where the record contains evidence of incompetence in the recent past, treatment for that incompetence and a subsequent certification and diagnosis of competency. The judgment and sentence is affirmed.
FACTS
On February 15, 2003, at approximately 2:40 a.m., Trooper C.F. Magallon from the Washington State Patrol noticed a BMW partially pulled over on the Howell on-ramp to southbound I-5. Trooper Magallon approached the vehicle and found Gabrielle Nguyen talking on the cell phone. No one else was in the vehicle. Nguyen told Magallon that she had pulled over to take the cell phone call and would be on her way. During this conversation, Magallon noticed an obvious odor of alcohol and asked Nguyen if she would take a field sobriety test. She agreed.
Because Nguyen was in an unsafe position, Trooper Magallon told Nguyen to drive over to the shoulder across from the on-ramp. Nguyen drove past the area designated by the trooper and continued down the freeway to the Union Street exit and pulled in at a turnout under the Washington State Convention Center. Nguyen exited the vehicle and met the trooper on the sidewalk. As he was explaining the sobriety test, Nguyen told the trooper he was cute and asked if he had a girlfriend.
Nguyen was unable to successfully perform the sobriety tests. A portable breath test given at the scene indicated a 0.08 result. Nguyen continued to act erratically and tried to hug the trooper. Trooper Magallon arrested Nguyen, advised her of her Miranda rights and placed her in his patrol car. The trooper then searched Nguyen's car incidental to the arrest. He found a small baggie containing cocaine in the center console of the car. Next to the baggie was a small cut plastic straw.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Trooper Magallon drove Nguyen to Harborview Hospital for a blood draw. The test indicated a 0.09 blood ethanol level and the presence of cocaine in her system. The bag of white powder found in the car was also tested and found to contain cocaine.
Nguyen was charged with one count of possession of cocaine and one count of driving while under the influence. At a bench trial, a witness for the defense testified that the cocaine was his in the car and that Nguyen did not know it was there. The court found her guilty of possessing cocaine. But the court found insufficient evidence that Nguyen was driving the vehicle and found her guilty of the lesser included offense of physical control of a vehicle under the influence. Nguyen appeals.
ANALYSIS
Waiver of Jury Trial
A criminal defendant has the constitutional right to be tried by a jury. A decision to waive the right to a jury trial must be made knowingly, intelligently, and voluntarily. The right to a jury trial may be waived for tactical reasons "while still preserving to the accused the right to a fair trial." A written waiver of the right to a jury trial constitutes strong evidence that a waiver is valid, particularly when coupled with trial counsel's representations to the court that the right is being waived intelligently and voluntarily.
State v. Stegall, 124 Wn.2d 719, 723, 881 P.2d 979 (1994).
Stegall, 124 Wn.2d at 725.
State v. Likakur, 26 Wn. App. 297, 303, 613 P.2d 156 (1980).
State. v. Brand, 55 Wn. App. 780, 788, 780 P.2d 894 (1989), rev. denied, 114 Wn.2d 1002 (1990).
Nguyen contends that the trial court's failure to canvass Nguyen directly about her waiver of jury trial was error because the court knew or should have known that Nguyen's competency was an issue in the past. This court in State v. Downs rejected an argument that a colloquy between a defendant and trial judge is necessary in addition to a written waiver. The Downs court noted that the determination of a knowing, intelligent, and voluntary waiver depends upon all of the facts and circumstances in existence at the time. In holding that there was not an affirmative duty to engage in colloquy, the court cited State v. Likakur. In Likakur, the court held that where there were no circumstances which raise questions regarding the defendant's capacity — there is no need to conduct an independent inquiry before accepting a defendant's waiver.
36 Wn. App. 143, 145, 672 P.2d 416 (1983).
Downs, 36 Wn. App. at 145.
26 Wn. App. 297, 613 P.2d 156 (1980).
Likakur, 26 Wn. App. at 300-01; Downs, 36 Wn. App. at 145.
The charges were not filed until March 2004. A year prior to the filing of these charges, Nguyen was found incompetent in connection with an unrelated misdemeanor charge. In July 2004, the court in this case ordered a competency evaluation for Nguyen. In March 2005, staff at Western State Hospital again found her incompetent.
Nguyen then hired Dr. Frederick Wise to assess her mental status. In June 2005, Dr. Wise concluded that Nguyen was competent and high functioning. On the basis of his evaluation, Nguyen was found competent and this matter was set for trial.
Trial commenced on March 23, 2006. Nguyen executed a written waiver of her right to a jury trial. Before trial, defense counsel noted that this matter was delayed for a long period because of earlier findings that Nguyen was not competent. Defense counsel averred that there was now no issue with regard to competency. Because the case presented some technical defenses, counsel stated that the matter would be better tried before the bench than a jury and that Nguyen agreed with him.
Nguyen argues that under these circumstances, the trial court should not have accepted the written waiver without making further examination into her waiver of her right to a jury trial. She contends that the previous findings of incompetence should have waived a red flag for the trial judge. Nguyen relies upon United States v. David as support for the proposition that in cases where concerns arise regarding a defendant's current mental health status or competency to stand trial, a trial court should exercise greater caution in ensuring that a jury waiver is valid.
511 F.2d 355 (D.C. Cir. 1975).
But in David, unlike here, there was still an issue of whether the defendant was competent to stand trial. David's own counsel expressed concerns to the trial court about David's competency and his ability to waive his jury trial. The David court held that "counsel's first-hand evaluation of a defendant's ability to consult on his case and to understand the charges and proceedings against him may be as valuable as an expert psychiatric opinion on his competency." Moreover in David, the questions that the trial court did ask the defendant elicited responses that were equivocal and indicated that David may not have understood the nature of his right to a jury trial or even that he was not required to waive that right. David is distinguishable from the present case. Here, Nguyen's counsel clearly stated that he had full confidence in Nguyen's ability to understand the waiver.
David, 511 F.2d at 360.
David, 511 F.2d at 362.
Furthermore, it is not a history of incompetence that warrants additional inquiry by the trial court. Instead, it is whether or not a defendant is mentally ill at the time of the waiver. In the context of a waiver of the right to counsel, this court recently held that "in determining the 'knowing' waiver of a right to counsel [it] is the state of mind and knowledge of the defendant at the time the waiver is made."
Brand, 55 Wn. App. at 787.
State v. Modica, 136 Wn. App. 434, 445, 149 P.3d 446 (2006) (quoting United States v. Erskine, 355 F.3d 1161, 1169-79 (9th Cir. 2004)).
In addition to the written waiver, Nguyen's counsel asserted that he "personally [had] no belief of any kind that Ms. Nguyen is incompetent." He further stated:
I think that she has recovered fully. She went through mental health court, which was very successful. So, I don't have any issue now with competency, which I think I should probably put on the record. Also, we believe that there are some technical defenses in this case, which would be much better tried to a court than to a jury. Ms. Nguyen agrees with me. We have executed a waiver of jury trial.
Additionally, in response to a query by the court about whether further inquiry needed to be made, counsel stated:
I think, your Honor, and for the record, I should indicate that I went over that with my client in detail, and I told her she had an absolute right, a constitutional right, to a jury trial. And she is voluntarily giving that up. And I think the reasons make sense.
An examination of the record revealed the technical defenses that Nguyen's counsel sought to introduce. The trial court was correct in relying upon the written waiver of jury trial. Nguyen does not argue that she was incompetent to waive her right to jury trial, but only that such waiver should have been subject to a colloquy because she was previously found to be incompetent. The decision of whether a person waived their right to a jury trial is whether under the circumstances of the particular case, that waiver was knowingly, voluntarily and intelligently waived.
Stegall, 124 Wn.2d 725 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)).
Lesser Included Offense
Nguyen argues that physical control of an automobile while under the influence is not a lesser included offense of driving while under the influence. This court has already decided this question in McGuire v. Seattle. There, the court held that being under the influence while in physical control of an automobile is a lesser included offense of driving while intoxicated.
31 Wn. App. 438, 642 P.2d 765 (1982), overruled in part on other grounds by State v. Votava, 149 Wn.2d 178,188-89, 66 P.3d 1050 (2003) (overruling McGuire's holding that a defendant who has been charged with being in physical control of a vehicle while under the influence is entitled to the defense of safe driving even if the defendant did not personally drive the vehicle off the roadway).
McGuire, 31 Wn. App. at 444.
Nguyen cites State v. Weber as support for the position that crimes that contain the same penalty can never be lesser included offenses. Nguyen's reliance upon Weber is misplaced. Weber held that for purposes of double jeopardy the "lesser" crime is the conviction that carries the lesser punishment. Weber did not address the question of whether one crime can be a lesser included offense of another.
159 Wn.2d 252, 265-69, 149 P.3d 646 (2006).
Weber, 159 Wn.2d at 269.
The trial court properly ruled that physical control is a lesser included offense of driving under the influence.
Due Process
Nguyen argues that strict liability for possession of a controlled substance violates her due process.
The statute prohibiting possession of a controlled substance does not contain a mens rea element. Possession is a strict liability crime. The State is not required to prove either knowledge or intent to possess, nor the knowledge as to the nature of the substance. A defendant may, however, raise the judicially created affirmative defense of unwitting possession. Unwitting possession can excuse the defendant's behavior, notwithstanding the fact that the defendant has violated the letter of the statute.
RCW 69.50.401; State v. Cleppe, 96 Wn.2d 373, 635 P.2d 436 (1981).
State v. Hernandez, 95 Wn. App. 480, 484, 976 P.2d 165 (1999) (citing State v. Vike, 125 Wn.2d 407, 412, 885 P.2d 824 (1994)).
State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502 (1994); State v. Pierce, 134 Wn. App. 763, 774, 142 P.3d 610 (2006).
State v. Knapp, 54 Wn. App. 314, 317-18, 773 P.2d 134, rev. denied, 113 Wn.2d 1022 (1989).
The Supreme Court in State v. Bradshaw recognized the legislature's authority to create a crime without a mens rea element. Nevertheless, Nguyen argues that Bradshaw was decided on principles of statutory construction and is not controlling on the question of whether the lack of a mens rea for possession coupled with the imposition of the affirmative defense of unwitting possession violates due process.
State v. Bradshaw, 152 Wn.2d 528, 532, 98 P.3d 1190 (2004), cert. denied, 544 U.S. 922 (2005).
The State has the burden of proving the elements of unlawful possession of a controlled substance as defined in the statute — the nature of the substance and the fact of possession. A defendant then can argue that such possession was unwitting.
Nguyen argues that the due process clause as expounded on in Morissette v. United States, United States v. Dotterweich, Staples v. United States, United States v. Ballint, and Clark v. Arizona, prohibits the enactment of a strict liability offense. But none of those cases held that a legislature cannot constitutionally create a crime with no mens rea. Rather, each of those cases was devoted to determining whether congress had in fact done so. Each is consistent with Bradshaw.
Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952).
United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134, 88 L. Ed. 48 (1943).
Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994).
United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L. Ed. 604 (1922).
Clark v. Arizona, ___U.S.___,126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006).
The judgment and sentence is affirmed.
WE CONCUR: