Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Franklin County. Docket No: 02-1-50413-1. Judgment or order under review. Date filed: 12/04/2003. Judge signing: Hon. Dennis D Yule.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Paige L. Sully, Attorney at Law, 1016 N 4th Ave, Pasco, WA 99301-3706.
David P. Webster was found guilty of second degree assault and solicitation to commit murder in the first degree. On appeal, Mr. Webster contends: (1) being forced to wear a shock belt during pretrial proceedings prejudiced his right to a fair trial and constitutes cruel and unusual punishment; (2) the court erred in issuing an order for a body wire in this case; and (3) the court erred in imposing restitution. We reject these contentions and Mr. Webster's additional grounds for review. We affirm.
On November 6, 2002, Mr. Webster was arrested and charged with the first degree rape of M.G. The information was amended to also charge him with the second degree assault of M.G., related to the alleged rape. On November 15, 2002, Pasco Police Detective Jody Jones applied for an order authorizing the use of a body wire to further an investigation into allegations Mr. Webster attempted to hire an individual to murder M.G. The accompanying affidavit alleged a confidential informant, later identified as Ron Laws, called Franklin County dispatch from jail with information that Mr. Webster was `trying to put out a hit on the victim in his [r]ape case.' Clerk's Papers (CP) at 697. The affidavit related Mr. Webster gave details of the alleged rape to Mr. Laws, which closely followed Mr. Webster's official version of events. The affidavit stated Mr. Webster had asked Mr. Laws if he had `down friends,' and told Mr. Laws, `[T]he girl is the only thing the state has. I need her removed from the picture.' CP at 698. Allegedly, Mr. Webster confirmed to Mr. Laws this meant he wanted M.G. dead, and he would be willing to provide a Cavalier and a white Chrysler New Yorker in exchange. The affidavit further provides that Mr. Webster gave Mr. Laws the victim's birth date, which was later determined to be M.G.'s accurate birth date.
According to the affidavit, Mr. Laws had provided accurate information to law enforcement in the past, which resulted in an arrest. He claimed to be providing this information because `he loves women,' and did not like the way Mr. Webster was bragging about causing M.G.'s injuries. CP at 698. Mr. Laws also indicated a desire to receive substance abuse treatment. The affidavit also outlines the necessity of the body wire: `Other normal investigative methods to obtain evidence of the content of the conversation, such as stationing an officer close enough to overhear the conversation, appears unlikely due to the fact that the suspect is in the corrections facility.' CP at 699-700. The order was granted.
Mr. Webster was charged with solicitation to commit murder in the first degree. The amended information alleged Mr. Webster, `with intent to promote or facilitate the commission of the crime of Murder in the First Degree, did offer to give money and a motor vehicle to another to engage in specific conduct, to wit: the killing of a third party.' CP at 15. At a CrR 3.6 hearing to suppress the evidence obtained from the body wire, Detective Jones testified she found Mr. Laws to be reliable despite his lengthy criminal history, based on the number of details he had provided and his prior assistance to law enforcement. The court denied Mr. Webster's motion to suppress.
Prior to trial, Mr. Webster was required to wear a shock belt in the courtroom. Mr. Webster's hands were unrestrained so he could take notes and communicate with counsel. The court found the shock belt to be appropriate, based on the State's offer of proof that Mr. Webster had indicated an intention to `go off in the courtroom.' Report of Proceedings (RP) (April 1, 2003) at 33. Mr. Webster was assured that communicating with his lawyer would not result in a shock. Mr. Webster behaved disruptively with outbursts during some pretrial hearings, throwing pencils, interrupting, and arguing loudly with his lawyers, but he was never shocked by the device. Mr. Webster did not wear the shock belt at trial or in the presence of the jury, but he was restrained by a straight-leg device that was not visible to the jury.
At trial, the State presented evidence that Mr. Webster had raped and severely beaten M.G. Allegedly, Mr. Webster bit a chunk of flesh from M.G.'s face that included her right eyebrow. The jury viewed M.G.'s videotaped deposition, taken prior to her deportation.
Undercover Detective Terry Boehmler testified he wore a body wire and met with Mr. Webster, posing as an individual who would execute a hit on M.G. He testified Mr. Webster told him he needed M.G. `shut up,' and that he wanted to `ice the bitch.' RP (Sept. 19, 2003) at 1245. He also testified that Mr. Webster offered to pay him $4,000 and a car in exchange for killing M.G.
Mr. Webster testified that on the night of the alleged rape and assault, he provided M.G. with crack cocaine in exchange for consensual sex in the back seat of his car. He testified M.G. assaulted him when he accused her of stealing his wallet, and his actions were in self-defense. Mr. Webster denied he conspired to have M.G. killed, and related he merely wanted someone to entice M.G. with drugs to get her to admit she had lied about the rape and assault.
Mr. Webster was found guilty of second degree assault and solicitation to commit murder in the first degree. At the restitution hearing, Mr. Webster argued he should not have to pay restitution because the State's affidavits, detailing M.G's medical costs paid by the State, did not sufficiently distinguish between the costs associated with the assault and the costs associated with the rape, for which he was found not guilty. Mr. Webster further argued the affidavits violated his confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Mr. Webster was ordered to pay $12,196.45 in restitution, which excluded rape kit expenses. He appealed.
ANALYSIS A. Shock Belt
The issue is whether the court erred in allowing jail personnel to require Mr. Webster to wear a shock belt during pretrial proceedings.
Generally, a criminal defendant is entitled to be free from obvious manacles or bonds during trial. State v. Flieger, 91 Wn. App. 236, 240, 955 P.2d 872 (1998); see also State v. Williams, 18 Wash. 47, 51, 50 P. 580 (1897) (interpreting article I, section 22 of the Washington State Constitution to protect a defendant's right not to appear in front of a jury in restraints). `This right is based upon the legal principle that a person accused of a crime is presumed innocent until his guilt has been established beyond a reasonable doubt.' Id. (citing United States v. Samuel, 431 F.2d 610 (4th Cir. 1970)). Wearing obvious restraints in front of a jury undermines this `indicia of innocence' by unnecessarily marking `the defendant as dangerous or guilty.' Id.
Here, Mr. Webster was required to wear a shock belt during pretrial proceedings, based on the State's offer of proof that he would `go off' in the courtroom. RP (April 1, 2003) at 33. Mr. Webster was not required to wear the shock belt at trial. Mr. Webster provides no authority for his contention that his fair trial right is impaired because he wore a shock belt during pretrial proceedings. The prohibitions on requiring a defendant to appear in restraints are designed to protect a defendant's appearance of innocence in front of the jury. See Flieger, 91 Wn. App. at 240. The trial court has considerable discretion setting security arrangements in pretrial hearings. In passing, we note we have not considered Mr. Webster's references not provided to the trial court and theoretical arguments generally attacking shock belt use, based upon a prior ruling by our commissioner.
Mr. Webster was consistently disruptive, argumentative, and he vocally objected to comments and witness testimony throughout the pretrial proceedings. Mr. Webster testified in both pretrial and trial hearings without apparent reluctance. Mr. Webster was never shocked. This is a case where the trial court did not fail to exercise its discretion by declining to review a jail policy. Here, the trial court was faced with evidence of actual disruption, not just potential disruption, and acted reasonably to minimize the impact of further outbursts and provide for the safety of the pretrial participants. State v. Turner, 143 Wn.2d 715, 726, 23 P.3d 499 (2001).
We need not address Mr. Webster's speculative arguments that he might have been intimidated by the shock belt. Mr. Webster failed to submit any authority or analysis for the proposition that cruel and unusual punishment principles apply in the context of these facts. And, our commissioner denied supplementation of the record. In sum, the court did not abuse its discretion in allowing the State to require Mr. Webster to wear a shock belt during pretrial proceedings.
B. Body Wire
The issue is whether the court erred in issuing an order for a body wire.
A judge issuing this type of order has considerable discretion. State v. Lopez, 70 Wn. App. 259, 266, 856 P.2d 390 (1993). In reviewing an application for a body wire, this court's role is `not to review the application's sufficiency de novo, but `to decide if the facts set forth in the application were minimally adequate to support the determination that was made." Id.
The tape was not played to the jury because of its poor audio quality and it prejudicially referred to Mr. Webster's potential life sentence. Instead, the State called Detective Boehmler to testify to his conversation with Mr. Webster.
Washington's privacy act, chapter 9.73 RCW, requires all parties to consent before a private conversation is recorded. RCW 9.73.030(1)(b). An exception exists to the mutual consent requirement for police investigating a felony at RCW 9.73.090(2). Under the exception, law enforcement can `intercept, transmit, or record a conversation when one party consents thereto and a judge or magistrate authorized the interception, transmission, transmission or recording upon a finding of probable cause to believe that the non-consenting party has committed, is engaged in, or is about to commit a felony.' Lopez, 70 Wn. App. at 263. The exception applies here.
When probable cause is based on information provided by a confidential informant, `the application affidavit must contain information from which the court can determine (1) the reliability of the informant's information, i.e., the basis of the informant's knowledge, and (2) the credibility or veracity of the informant.' Id. Although Mr. Webster contends otherwise, the affidavit provided more than minimally adequate information about Mr. Laws' reliability and veracity.
The affidavit revealed Mr. Laws knew many details of the alleged rape and assault of M.G., which he claimed he learned from several conversations with Mr. Webster. Mr. Laws accurately gave M.G.'s birth date, as provided by Mr. Webster. Thus, the affidavit formed a reliable basis for Mr. Laws' personal knowledge of the asserted facts.
Mr. Laws' prior successful assistance to the police established a record of veracity. See Lopez, 70 Wn. App. at 264. Officer Jones testified she found Mr. Laws to be credible. She believed he was motivated by his disapproval of Mr. Webster's conduct and no promises were made to him. Although Mr. Webster contends the court should have been advised of Mr. Laws' lengthy criminal history in order to make a determination about his reliability, a similar contention was rejected in Lopez. See id. at 264-65. We decline to reject Lopez as urged by Mr. Webster. Overall, the affidavit was sufficient to show Mr. Laws' reliability and veracity. Mr. Webster also argues the body wire was unnecessary. RCW 9.73.130 provides:
Each application for an authorization to record communications or conversations pursuant to RCW 9.73.090 . . . shall be made in writing upon oath or affirmation and shall state:
. . . .
(f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.
Here, the affidavit satisfactorily recited other investigative methods, such as stationing an officer close enough to overhear the conversation, would not be feasible due to the fact that Mr. Webster was in jail. Because Mr. Webster was incarcerated, it was reasonable to assume other options for obtaining similar information would fail. Mr. Webster argues the body wire was unnecessary because it was worn by an investigating officer, who could simply testify in court to the conversations. This argument has been rejected by Washington courts because using a wire avoids a `one-on-one swearing contest.' See State v. Platz, 33 Wn. App. 345, 350, 655 P.2d 710 (1983). Mr. Webster's reliance on State v. Porter, 98 Wn. App. 631, 990 P.2d 460 (1999) is also inapt. In Porter, the court declined to find the State demonstrated a particularized need, because there was `no indication the . . . police tried, or even considered, other investigative techniques.' Porter, 98 Wn. App. at 636. Law enforcement is not required to show absolute necessity under RCW 9.73.130(3)(f). "Police officials need not exhaust all alternatives, but must seriously consider other techniques, and the authorizing court must be informed of the reasons the alternatives have been or will likely be inadequate." State v. Cisneros, 63 Wn. App. 724, 729, 821 P.2d 1262 (1992) (quoting State v. Knight, 54 Wn. App. 143, 150, 772 P.2d 1042 (1989)). Here, the affidavit reflected consideration of alternatives and explained why they were inadequate.
In sum, the court did not err in issuing the body wire order. The application affidavit established the basis and veracity of the confidential informant's information. The State sufficiently alleged the necessity. Overall, the affidavit was `minimally adequate' to support the court's order.
The issue is whether the court erred in requiring Mr. Webster to pay $12,196.45 in restitution relating to M.G.'s medical bills.
We review a restitution order for abuse of discretion. State v. Hahn, 100 Wn. App. 391, 398, 996 P.2d 1125, review granted, 141 Wn.2d 1025, 11 P.3d 825 (2000). `A trial court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds, or imposed for untenable reasons.' Id.
Mr. Webster argues his confrontation rights were impinged under Crawford v. Washington, 124 U.S. 36 (2004). However, Crawford concerns the application of the Confrontation Clause at trial. The rule does not apply at a restitution hearing where a defendant does not face a loss of liberty. See id. Evidence rules do not apply to restitution hearings. State v. Kisor, 68 Wn. App. 610, 620, 844 P.2d 1038 (1993); ER 1101(c)(3).
`Evidence admitted at a sentencing hearing must nevertheless meet due process requirements, such as providing the defendant an opportunity to refute the evidence presented, and requiring that the evidence be reliable.' State v. Pollard, 66 Wn. App. 779, 784-85, 834 P.2d 51 (1992). `Restitution ordered by a court pursuant to a criminal conviction shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.' RCW 9.94A.753(3). `Evidence of damages is sufficient if it provides the trial court with a reasonable basis for estimating losses and requires no speculation or conjecture.' Hahn, 100 Wn. App. at 399. The amount of damages must be proven by a preponderance of the evidence. Id.
We decline to review Mr. Webster's argument that the restitution affidavit information is inadequate without the affidavit in our record. See RAP 9.6; Rhinevault v. Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687 (1998).
D. Additional Grounds for Review
Ineffective Assistance of Counsel: Mr. Webster asserts ineffective assistance of counsel. He must show both deficient performance, that falls below an objective standard of reasonableness, and resulting prejudice to Mr. Webster. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Deficient performance is not shown by matters going to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Prejudice results if a reasonable probability exists that the deficient performance had an effect on the outcome of the case. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We presume performance was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Mr. Webster argues his counsel was ineffective by not objecting to `prosecutorial misconduct,' because Detective Boehmler shredded his handwritten notes. The State has a duty to preserve exculpatory evidence for use by the defense. State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994). However, failure to preserve evidence that is merely potentially useful does not constitute a denial of due process absent a showing that the State acted in bad faith. State v. Copeland, 130 Wn.2d 244, 280, 922 P.2d 1304 (1996). Mr. Webster merely speculates that Detective Boehmler gave false testimony. No evidence shows he destroyed these notes in bad faith. And, the detective was cross-examined before the jury. Thus, the jury could consider his skills, experience, and credibility.
Mr. Webster next argues his counsel should have moved to dismiss because the prosecutor played a role in the investigation of his case, claiming this was an ethical breach. However, a prosecutor's participation in this type of investigation is generally accepted practice. The record reveals nothing improper about the prosecutor's role.
Mr. Webster claims his counsel was ineffective for not calling the confidential informant, and failing to call a voice expert to interpret the body wire tape and failing to play the audiotape for the jury. However, substantial testimony shows the contents of the tape were not favorable toward Mr. Webster's position and the tape contained prejudicial references to this being Mr. Webster's third strike. It was legitimate trial strategy not to call a voice expert or play the audiotape for the jury. See Hendrickson, 129 Wn.2d at 77-78. Counsel's decision not to call the confidential informant was also legitimate trial strategy because the informant could have given potentially damaging testimony against Mr. Webster. See id. Similarly, we cannot fault defense counsel for not having had tests performed of the victim's blood or the crack pipe or objecting to certain questions directed to the undercover officer, as these are also tactical decisions. Finally, Mr. Webster argues his counsel was ineffective for failing to explain to him the difference between a jury trial and bench trial. However, this is beyond the scope of the record on review, and may be more appropriately addressed in a personal restraint petition. See McFarland, 127 Wn.2d at 338.
Severance: Mr. Webster appears to contend that if a new trial is granted, the counts should be severed. Because we do not grant a new trial, no analysis of the severance issue is required.
Quashing Subpoena: Mr. Webster contends the court erred in quashing the subpoena requiring prosecutor Steve Lowe to testify regarding his investigation of the solicitation charge. `A trial court's order granting or denying a motion to quash a subpoena is reviewed for an abuse of discretion.' Hammond v. Braden, 16 Wn. App. 773, 776, 559 P.2d 1357 (1977). Here, the court quashed the subpoena because the information could be obtained through the testimony of Detectives Boehmler and Jones, and the court discussed other legitimate reasons for not having the lead prosecutor testify. Thus, the court did not abuse its discretion.
Inconsistent Verdicts: Mr. Webster contends he was subject to inconsistent verdicts because of certain statements by jurors in the Tri-Cities Herald. However, matters outside our record are better addressed in a personal restraint petition. See McFarland, 127 Wn.2d at 338.
Right of Confrontation: Mr. Webster contends he was denied the right to confront and cross-examine M.G., the alleged victim in this case, because she testified by videotaped deposition. However, Mr. Webster had the opportunity to confront M.G. and cross-examine her at the deposition and, at the time of trial, she had been deported. Under these circumstances, his right to confrontation was not infringed. See RCW 10.52.060 (deposition testimony is admissible when taken by a magistrate in the presence of defendant and counsel, if the witness is absent for trial). Court's Instructions, re: Spanish Interpreter: Mr. Webster contends the court erred in instructing the jury to consider the Spanish interpreter's translation of M.G.'s deposition testimony when the video was played at trial. However, the court merely instructed any jurors who spoke Spanish to focus on the interpreter's statements so that all of the jurors would be considering the same testimony. The court did not err.
Insufficient Evidence: Mr. Webster contends the evidence was insufficient for his conviction of solicitation to commit murder in the first degree mainly because the undercover officer's notes were destroyed, the tape was `tampered with,' and the officer contradicted himself.
In a criminal case evidence sufficiency challenge, all State evidence is treated as true, and all reasonable inferences from that evidence are drawn in favor of the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The conviction will not be overturned if that evidence would support a rational trier of fact in finding the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). Further, this court will defer to the trier of fact to weigh evidence and resolve conflicting testimony. State v. Bryant, 89 Wn. App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996)).
A conviction for solicitation to commit murder in the first degree required the State to prove: (1) that Mr. Webster offered to give value to another to engage in specific conduct; (2) that the offer was made with the intent to promote or facilitate the crime of murder in the first degree; (3) that the conduct would constitute murder in the first degree; and (4) the acts occurred in Washington. See RCW 9A.28.030. Murder in the first degree is defined as causing the death of another with premeditated intent to cause that death. RCW 9A.32.030(1)(a).
Here, Detective Boehmler testified he met with Mr. Webster and posed as an individual who would execute a hit on M.G. He testified Mr. Webster told him he needed M.G. `shut up.' RP (Sept. 19, 2003) at 1245. Eventually, Mr. Webster indicated he wanted to `ice the bitch.' RP (Sept. 19, 2003) at 1245. He testified Mr. Webster offered to pay him for killing M.G. When taken as true, the evidence is sufficient to support Mr. Webster's conspiracy conviction.
Sixth Amendment Violation: Finally, Mr. Webster obscurely contends he was denied the right to counsel at some juncture. But, it appears from the record that Mr. Webster was represented by counsel at all critical stages of trial. If Mr. Webster has a more specific objection, it may be better articulated in a personal restraint petition.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, JJ., Concur.