Opinion
No. 37979-1-II.
Filed: September 9, 2009.
Appeal from the Superior Court, Thurston County, No. 08-1-00621-6, Richard A. Strophy, J., entered July 2, 2008.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Houghton, J.
Unpublished Opinion
James Anthony Brown, Jr., appeals his convictions of felony driving under the influence and first degree driving while license revoked, arguing that he received ineffective assistance of counsel and that the trial court denied him due process by failing to inquire into his competency to stand trial. We affirm.
Facts
Washington State Patrol Trooper Thomas Thorpe stopped Brown for speeding, changing lanes without signaling, and cutting off a truck. Thorpe and his partner, Trooper Guy Gill, observed that Brown had watery and bloodshot eyes, slurred speech, and smelled of alcohol. Brown told Thorpe that he had had a few drinks. Thorpe performed three field sobriety tests on Brown to determine whether he had been driving while under the influence of intoxicants: the horizontal gaze nystagmus (HGN) test, the vertical gaze nystagmus (VGN) test, and the walk and turn test. Thorpe also asked Brown to do the one-legged stand, which required him to count up from 1,000 while looking at his raised foot, but Brown declined because he could not do the counting. Based on his observations of Brown's driving, appearance, and performance of the field sobriety tests, Thorpe arrested Brown for driving while intoxicated. When the troopers ran Brown's identification card and discovered that his driver's license had been revoked, they booked him into custody. Brown refused to take a breath test at the jail.
The State charged Brown with felony driving under the influence (DUI) of intoxicating liquor, based on the fact that he had four or more prior DUI convictions within 10 years, and with driving while license revoked in the first degree, based on his status as an habitual traffic offender. The parties agreed to stipulate that Brown had 4 prior DUI convictions within the previous 10 years.
Trooper Thorpe testified about Brown's driving and his performance of the field sobriety tests, explaining that Brown's execution of the tests supported his conclusion that Brown was driving under the influence of alcohol. During his testimony, the State introduced a Department of Licensing report showing that Brown's license had been revoked the previous year because he was an habitual traffic offender, and the court read the stipulation about Brown's prior convictions to the jury.
Trooper Gill also testified about Brown's erratic driving before the stop. Although he could not see Brown's eyes during the nystagmus tests, he could see that Brown had difficulty with the walk and turn test. He also smelled intoxicants on Brown's breath and testified that Brown had bloodshot and watery eyes and slurred speech. He opined that Brown was not able to safely operate his motor vehicle at the time of the stop.
A state patrol toxicologist testified that there was a general consensus in the field of toxicology that the HGN test was a reliable predictor of impairment by drugs or alcohol. He referred to VGN as a subcategory of HGN testing and testified that it was an indicator of a higher level of alcohol impairment.
Brown testified that he was not intoxicated on the night the troopers stopped his car. Indeed, he maintained on cross examination that he had nothing to drink on the day of the stop. He believed he was being arrested for an outstanding warrant and testified that he became upset at the jail when the troopers charged him instead with a DUI.
After the parties rested, the trial court instructed the jury to consider the stipulation only as proof that Brown had been convicted of 4 prior offenses within 10 years and not as proof of his current DUI charge. The prosecuting attorney then summarized the evidence of Brown's intoxication during closing argument: his driving, his appearance and conduct when stopped, and his performance of the field sobriety tests. The prosecutor also mentioned that Brown had refused a breath test despite his testimony that he had nothing to drink on the day of his arrest.
The prosecuting attorney's reference to the VGN test was brief:
And he goes one step further. He does something called a vertical nystagmus. [The toxicologist] indicated that's something, if you see it, is evidence of high-alcohol content, high-alcohol level within a person. And what Trooper Thorpe testified to is not only does he have those six clues [from the HGN test], he has that one, too. It's all there.
II Report of Proceedings at 374. The jury found Brown guilty on both counts.
At sentencing, the State asked for the maximum of 60 months, while defense counsel requested a low-end sentence of 51 months. The court imposed a sentence of 55 months of confinement and 9-18 months of community custody, noting that the combination of confinement and community custody could not exceed 60 months. Approximately 5 weeks later, Brown filed a pro se motion to modify his judgment and sentence, maintaining that his sentence was unlawful because it did not reflect the 51-month sentence that both parties had recommended and that the trial court had actually imposed.
Brown now appeals his convictions.
Analysis I. Ineffective Assistance of Counsel
Brown argues first that he received ineffective assistance of counsel when his attorney failed to challenge the admissibility of the VGN testimony and move to bifurcate the trial or to remove evidence of his prior DUI convictions and habitual traffic offender status from the jury during the guilt phase of his trial.
To demonstrate ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficiency was prejudicial. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). An attorney's representation was deficient if it fell below an objective standard of reasonableness. Saunders, 91 Wn. App. at 578. Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Saunders, 91 Wn. App. at 578. The failure to argue a groundless matter does not constitute a denial of effective counsel. State v. Briggins, 11 Wn. App. 687, 692, 524 P.2d 496 (1974).
A. VGN Testimony
Brown asserts that his counsel should have challenged the admissibility of the VGN test results and related testimony. Where a defendant claims ineffective assistance based on counsel's failure to challenge the admission of evidence, he must show an absence of legitimate strategic or tactical reasons supporting the challenged conduct; that an objection to the evidence likely would have been sustained; and that the trial's result would have differed had the evidence not been admitted. Saunders, 91 Wn. App. at 578.
Nystagmus is the involuntary oscillation of the eyeballs that results from the body's attempt to maintain orientation and balance. State v. Baity, 140 Wn.2d 1, 7 n. 3, 991 P.2d 1151 (2000). Horizontal gaze nystagmus (HGN) is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side. Baity, 140 Wn.2d at 7 n. 3. The HGN test measures the extent to which a person's eyes jerk as they follow an object, usually a pen or pencil, moving from one side of the person's field of vision to another. Jim Fraiser, Annotation, Vertical Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 117 A.L.R. 5th 491, 498 (2004).
Vertical gaze nystagmus (VGN) occurs when an object is moved up and down before a suspect. State v. Klawitter, 518 N.W.2d 577, 581-82 (Minn. 1994). The VGN test involves taking measurements by raising an object several inches above an individual's eyes and looking for jerking of the eyes. Fraiser, supra, at 498. During both nystagmus examinations, the officer looks for the presence of jerking, whether the eye can follow a moving object smoothly, the angle of onset of the jerking, and whether the jerking is moderate or distinct. Fraiser, supra, at 498. The consumption of alcohol exaggerates nystagmus to the degree it can be seen by the naked eye, but nystagmus also may be caused by narcotic use, neurological disorders, or brain damage. Quinney v. State, 99 S.W.3d 853, 857, 117 A.L.R. 5th 803 (Tex. App. 2003).
Brown argues that no court in this country has accepted VGN test results as proof of alcohol consumption, and that in the absence of a published opinion accepting VGN testimony in this context, his counsel was deficient in failing to challenge the VGN testimony admitted during his trial.
In Baity, the Washington Supreme Court accepted VGN testing as part of a 12-step drug recognition protocol. Baity, 140 Wn.2d at 16-17. While observing that police officers have been using the HGN test in DUI arrests for decades, the court limited acceptance of the drug recognition protocol, including HGN and VGN testing, to drug cases where all 12 steps of the protocol have been undertaken. Baity, 140 Wn.2d at 13, 17. As Brown asserts, Baity did not refer to VGN testing alone as an indicator of alcohol intoxication.
A few courts have discussed VGN testing as evidence of alcohol impairment. Although the conviction at issue was for driving under the influence of a controlled substance, a Florida court observed that the HGN test (which encompassed the VGN test in the court's discussion) can be a reliable indicator for establishing the presence of alcohol in the blood. Williams v. State, 710 So. 2d 24, 29, 35 (Fla. App. 1998). A Texas appellate court referred to testimony that an officer had administered the VGN test to determine if the defendant had been drinking excessively. Burkett v. State, 179 S.W.3d 18, 23 (Tex. App. 2005). The officer explained to the jury that the VGN test does not establish whether someone is intoxicated but whether a person has consumed an excessive amount of alcohol. Burkett, 710 So. 2d at 23; but see Stovall v. State, 140 S.W.3d 712, 718 (Tex. App. 2004) (no Texas court has assessed reliability of VGN testing). An Oregon appellate court referred to an officer's conclusion, after administering both the HGN and VGN tests, that the suspect had no alcohol in his system. State v. Aman, 194 Or. App. 463, 467, 95 P.3d 244 (2004). It is apparent, however, that VGN testing is not as widely accepted as HGN testing. See Fraiser, supra, at 499 ("Since the HGN has been in use in law enforcement for almost a half century, it has received greater acceptance in the scientific community and the courts than the VGN, which only began receiving intense scrutiny from appellate courts as recently as the early 1990s."); see also State v. Holt, 119 Ohio Misc. 2d 1, 12, 772 N.E.2d 203, 212 (2002) (no authority in Ohio indicates approval of VGN as tool to assess alcohol consumption).
Here, Trooper Thorpe testified that he performed both the HGN and VGN tests and that Brown's eyes exhibited all of the indicators of alcohol impairment possible. A toxicologist described the HGN test, the walk and turn test, and the one-legged stand test as the three standardized tests used in DUI cases. He referred to the VGN test as a subcategory of HGN testing and explained that vertical nystagmus is an indicator of a higher level of alcohol impairment.
We need not resolve whether VGN testing is admissible in Washington to support a DUI conviction. Regardless of the acceptance and admissibility of VGN testing to show high levels of alcohol impairment, Brown cannot show that the trial's result would have differed had the evidence not been admitted. Two troopers testified that Brown drove erratically, smelled of alcohol, and had watery and bloodshot eyes and slurred speech. The HGN test, which Brown does not challenge, showed that Brown was impaired by alcohol, as did the walk and turn test he attempted. Trooper Gill could not see Brown's eyes during the nystagmus testing, but his other observations led him to conclude that Brown's driving was impaired by the consumption of alcohol. The results of the VGN testing, which indicated only a higher level of impairment than was otherwise demonstrated, were not sufficient to alter the outcome of the trial. Consequently, Brown was not prejudiced by his attorney's failure to challenge the admissibility of the VGN test results and related testimony.
B. Failure to Seek Bifurcated Trial or Additional Stipulations
Brown faults his attorney for failing to seek a bifurcated trial or the removal of his prior convictions and habitual traffic offender status from the jury's consideration during the guilt phase of his trial.
He argues initially that his prior convictions and habitual traffic offender status should have been sanitized through stipulations that were not admitted as evidence or even mentioned to the jury. As support, he cites State v. Wolf, 134 Wn. App. 196, 139 P.3d 414 (2006), where the defendant stipulated to an element of the charge and agreed that the stipulation would be included in a jury instruction. When no one read the stipulation to the jury during trial, the defendant argued on appeal that the State had failed to prove the element to which he had stipulated. Wolf, 134 Wn. App. at 198. Division One rejected that argument after citing several federal cases noting that while the preferred practice is to read a stipulation to the jury, the defendant waives the right to require the government to produce any evidence regarding the stipulation even when it is not read to the jury. Wolf, 134 Wn. App. at 199-202. Although the stipulation in Wolf was read to the jury as part of an instruction, the court added in dictum that a trial court could simply tell the jury that certain matters had been the subject of a stipulation and that it did not need to concern itself with such matters. Wolf, 134 Wn. App. at 203.
Division Three held, however, that a defendant was not entitled to a stipulation that removed an element of an offense from the jury's consideration in State v. Gladden, 116 Wn. App. 561, 563, 66 P.3d 1095 (2003). The defendant's felony charge of communicating with a minor for immoral purposes required proof of a prior conviction for a felony sex offense, and Division Three held that he could not stipulate to the deletion of that element so that the jury would not hear any evidence relating to his prior sex offense. Gladden, 116 Wn. App. at 565-66. The court recognized that the prejudicial nature of evidence regarding prior convictions must be balanced against the crucial role that elements, even prior conviction elements, play in the determination of guilt. State v. Roswell, 165 Wn.2d 186, 195, 196 P.3d 705 (2008) (approving Gladden).
Here, Brown's 4 prior DUI convictions within 10 years were an element of his felony DUI charge. The trial court "sanitized" these offenses by introducing them only through the stipulation, and it offered a limiting instruction that required the jury to consider them only as an element and not as evidence of guilt. See Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) (because defendant may be prejudiced by evidence of prior conviction, he may stipulate to fact of that conviction to prevent State from introducing evidence of its details to jury). A stipulation that deleted this element from the jury's consideration would not have been appropriate.
Brown's status as an habitual traffic offender was an element of his second charge of driving while license revoked in the first degree. The Department of Licensing report admitted at trial simply informed the jury that Brown's license had been revoked because he was an habitual traffic offender. It is difficult to see how a stipulation could have further sanitized this information and, once again, it would have been inappropriate to completely remove this element from the jury's consideration by stipulation.
Brown also contends that his trial should have been bifurcated so that the jury did not hear evidence of his prior convictions or habitual traffic offender status during the guilt phase of his trial. The state Supreme Court considered a similar argument in Roswell. There, as in Gladden, the defendant was charged with communicating with a minor for immoral purposes, which became a felony if the State proved that he had a prior conviction of a felony sexual offense. Roswell, 165 Wn.2d at 192. The defendant argued that his trial should be bifurcated so that the jury would decide whether there had been communications with a minor for immoral purposes, but the judge would make a determination on the prior conviction element. Roswell, 165 Wn.2d at 190. The State responded that bifurcation should be denied so that it could prove all elements to the jury. Roswell, 165 Wn.2d at 191. The Supreme Court upheld the trial court's denial of the motion to bifurcate, holding that it was a matter left to the trial court's discretion. Roswell, 165 Wn.2d at 198-99.
Bifurcation is inappropriate if a unitary trial would not significantly prejudice the defendant or if there is a substantial overlap between evidence relevant to the proposed separate proceedings. State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006), review denied, 159 Wn.2d 1010, cert. denied, 128 S. Ct. 83 (2007). Given the overwhelming evidence that Brown was driving under the influence of alcohol, we do not find that a unitary trial in which he stipulated that he had 4 prior DUI convictions within 10 years was unduly prejudicial. Nor do we believe that introducing Brown's habitual offender status, a necessary element of the driving while license revoked charge, was unduly prejudicial in light of the evidence presented. Brown's attorney was not deficient in failing to seek further stipulations, and Brown was not prejudiced by his attorney's failure to seek a bifurcated trial. Consequently, Brown did not receive ineffective assistance of counsel.
II. Competency to Stand Trial
Brown also argues that the trial court violated his right to due process when it failed to inquire into his competency to stand trial.
The Fourteenth Amendment's due process clause prohibits the conviction of a person who is not competent to stand trial. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001). The constitutional standard for competency to stand trial is whether the accused has the ability to consult with his lawyer with a reasonable degree of understanding and to assist in his defense with a rational and factual understanding of the proceedings against him. Fleming, 142 Wn.2d at 861-62 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)).
Washington law affords even greater protection by providing that no incompetent person may be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues. Fleming, 142 Wn.2d at 862 (citing RCW 10.77.050). The test for legal competency in Washington is whether the defendant understands the nature of the charges and is capable of assisting in his defense. State v. Hahn, 106 Wn.2d 885, 894, 726 P.2d 25 (1986). Whether a person is competent is a mixed question of law and fact. State v. Marshall, 144 Wn.2d 266, 281, 27 P.3d 192 (2001).
Brown argues that the trial court should have inquired into his competency for the following reasons: he had not progressed beyond the eighth grade in school; he told Trooper Thorpe he had difficulty counting; he testified that his arrest was for a misdemeanor warrant even though no such warrant existed; and his motion to modify alleged, contrary to the record, that both parties had recommended and the court had imposed a 51-month sentence.
We agree with the State that neither a lack of education nor a difficulty in counting demonstrates incompetency to stand trial. Brown did not inform the troopers that he believed he was being arrested on a misdemeanor warrant, and his testimony to that effect appears to have been an attempt to discredit them. Even if Brown could not accurately recall the details of his arrest, an inaccurate memory alone does not demonstrate incompetency. See McMurtrey v. Ryan, 539 F.3d 1112, 1125 (9th Cir. 2008) (evidence regarding defendant's behavior, medications, and memory problems was sufficient to raise reasonable doubt as to his competency). Finally, any misunderstanding Brown expressed concerning the length of his sentence was not before the court at the time of trial.
During both his trial and sentencing, Brown appeared to understand the proceedings against him. He testified on his own behalf and exercised his right to allocution at sentencing. Neither his testimony nor his statement exhibited signs of incompetency or any reason to doubt Brown's competence. Rather, the record shows that Brown understood the charges against him, the questions he was asked, and the five-year sentence he faced. The trial court did not deny Brown due process by failing to inquire into his competency to stand trial.
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.
HOUGHTON, J. and PENOYAR, A.C.J., concur.