Opinion
No. 26055-7-II c/w 28038-8-II
Filed: March 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County Docket No: 95-1-00123-5 Judgment or order under review Date filed: 05/05/2000
Counsel for Appellant(s), Robert W. Jr Huffhines, Attorney at Law, 206 N Pacific Ave, Kelso, WA 98626-3414.
Counsel for Respondent(s), J. Tobin Krauel, Cowlitz Co Prosecutors Office, 312 S.W. 1t Ave, Kelso, WA 98626-1799.
In 1995, a jury convicted William Douglas Burkett of two counts of first degree rape of a child, one count of child molestation, and unlawful possession of methamphetamine. In 2000, Burkett filed a motion for relief from judgment, claiming that he was under the influence of medications administered against his will and that he was unable to defend himself during the trial as a result. He also filed a personal restraint petition (PRP) with this court raising similar claims under cause number 28038-8-II. Because Burkett failed to present any newly discovered evidence warranting review of his motion for relief from judgment, we affirm the trial court and dismiss the PRP.
FACTS
In 1995, William Douglas Burkett was charged by amended information with two counts of first degree rape of a child, one count of first degree child molestation, and unlawful possession of methamphetamine. Burkett was convicted on May 17, 1995, and sentenced to an exceptional sentence of 480 months in prison.
Burkett is also known as Lee Earl Ellingson. While the name Ellingson is used interchangeably with Burkett throughout the record, this opinion will only use the name Burkett.
In 1998, Burkett filed a PRP under cause number 22767-3-II. The petition raised several issues, but none alleging his incompetence due to medications. We dismissed Burkett's PRP on June 22, 1998.
In December 1999, Burkett apparently began to believe that he was not competent when he was tried in 1995 and that the medication that was administered to him during the trial deprived him of the ability to adequately defend himself. Burkett presented these issues in writing to the trial court in a January 27, 2000 motion for relief from judgment. Burkett also asserted that he did not regain the ability to refuse the medication until June 1999, and, therefore, did not regain his full cognitive abilities until December 1999.
The trial court dismissed Burkett's motion on May 5, 2000, ruling that it was untimely, a second collateral attack, and an abuse of the appellate process. Burkett appealed the dismissal order and filed a second PRP with this court. This court consolidated both cases for review.
Burkett's appeal and PRP address similar issues and evidence.
ANALYSIS
Motion for Relief from Judgment
We first address whether Burkett's motion for relief from judgment was timely.
The trial court dismissed Burkett's motion for relief from judgment as time barred by RCW 10.73.090(1). That statute requires that the defendant file a motion for collateral attack within one year of the final judgment. RCW 10.73.090(1). This time bar does not apply to motions based on `newly discovered evidence.' RCW 10.73.100(1).
It is undisputed that the current motion was filed more than one year after the final judgment. Thus, whether the motion was time barred turns on whether Burkett's motion was based on `newly discovered evidence.'
Courts have used a five-factor test to determine whether a new trial is warranted based on newly discovered evidence. State v. Harper, 64 Wn. App. 283, 291, 823 P.2d 1137 (1992). See also In re Personal Restraint of Brown, 143 Wn.2d 431, 454, 21 P.3d 687 (2001) (additional evidence of the same kind to the same point is `cumulative,' not `newly discovered'); State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996) (finding `newly discovered evidence' when a witness recants if the recantation is reliable); State v. Savaria, 82 Wn. App. 832, 837-38, 919 P.2d 1263 (1996) (impeaching evidence of witness can be `newly discovered' if evidence formed a basis of an element of an offense). We apply this same five-factor test to the newly discovered evidence requirement of RCW 10.73.100(1). See, e.g., State v. Brand, 65 Wn. App. 166, 174, 828 P.2d 1 (holding that it is irrational and indefensible to apply different standards to applications for post-conviction relief depending on whether a proceeding is filed in the appellate court or the trial court) rev'd on other grounds, 120 Wn.2d 365 (1992).
To obtain a new trial based on newly discovered evidence, the defendant must prove that the evidence: '(1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching.' Macon, 128 Wn.2d at 800. If any one of the above factors is absent, the motion for a new trial is properly denied. Macon, 128 Wn.2d at 800. When one factor is absent, it is unnecessary to find whether the other factors are present. Macon, 128 Wn.2d at 803-04. Here, at least four factors are absent.
The first factor is whether the newly discovered evidence will probably change the result of the trial. Macon, 128 Wn.2d at 803. We first determine which evidence the jury used to find the defendant guilty. State v. Peele, 67 Wn.2d 724, 727, 409 P.2d 663 (1966). Next, we look to see if the newly discovered evidence would probably change the trial's result. Peele, 67 Wn.2d at 730. It is not enough to show that the evidence may change the result; it must show that the evidence will probably change the result. Peele, 67 Wn.2d at 731.
The evidence presented against Burkett at trial included the testimony of the victim, the victim's mother, and the nurse practitioner who treated the victim. All three witnesses provided graphic details of sexual abuse by Burkett. Evidence that Burkett was medicated does not add, change, or refute this testimonial evidence.
In addition, Burkett did not provide any evidence to support his claim that the medication was administered involuntarily. The medication log indicates that it was administered orally. He offered only his own affidavit asserting some five years later that the medications impaired his thought processes in an unspecified manner. Burkett did not include any evidence from a medical expert, the physician who prescribed the medication, or his trial counsel concerning the effects of the medication or indicating that he appeared incompetent. Burkett never raised the issue of competency during his trial, nor did he show that the trial court abused its discretion in not ordering a competency hearing. In support of his motion for relief from judgment, Burkett also failed to (1) provide evidence of the effects of his medication, (2) demonstrate how the trial result would likely have differed had he not been medicated, (3) produce evidence of his medication records to the trial court, or (4) demonstrate why the evidence was not available with due diligence during trial. Thus, there was no newly discovered evidence as a matter of law and the trial court properly denied Burkett's untimely motion for relief from judgment. RCW 10.73.100; CrR 7.8.
If a defendant appears incompetent, a trial court may sua sponte hold a competency hearing based on its observations. State v. Johnston, 84 Wn.2d 572, 577, 527 P.2d 1310 (1974). A trial court's decision on competency, including the decision whether to hold a competency hearing, is reviewed for manifest abuse of discretion. Johnston, 84 Wn.2d at 577; State v. Hanson, 20 Wn. App. 579, 582, 581 P.2d 589 (1978), review denied, 91 Wn.2d 1018 (1979).
Burkett also claims that the trial court did not consider his claims fully (at a hearing) or provide an adequate basis for its decision. Even if the trial court had not found Burkett's motion was time barred, when the supporting affidavits do not establish sufficient grounds to justify relief, a trial court may summarily deny relief without a hearing. CrR 7.8(c)(2); State v. Winston, 105 Wn. App. 318, 323, 19 P.3d 495 (2001).
Personal Restraint Petition
In his PRP, Burkett argues that between April 1995 and June 1999, he was under psychoactive medications that prevented him from participating in his own defense or understanding what was happening to him. Unlike his motion for arrest of judgment, Burkett appended his medication log to the petition for our review. The medication log indicates that Burkett received a dose each night of Doxepin (an anti-anxiety medication), Tagamet (an antacid), and Amitriptyline (Elavil) (an antidepressant) during the months preceding and during trial. The medication log establishes that he was provided these medications and indicates that he ingested them orally. There is no indication that the medications were administered involuntarily or that any negative side effects were observed. More importantly, there is no evidence supporting Burkett's claim that this evidence was newly discovered and unavailable to him before 1999/2000. Burkett failed to establish the `newly discovered evidence' exception to RCW 10.73.100 and both his motion for arrest of judgment and PRP are, therefore, untimely. Thus, we affirm the trial court's denial of Burkett's untimely motion for relief from judgment and deny Burkett's untimely and unfounded PRP.
The State appended only a portion of the medication log to its brief in response. Contrary to the State's suggestion during oral argument, however, Burkett's entire log indicates that he also took Amitriptyline during his trial.
The medications are defined as:
1. Doxepin — treatment of depression and anxiety; `safe and well tolerated.' Physicians Desk Reference 2407 (53rd ed. 1999) (PDR).
2. Vistaril — relief of anxiety; contains hydroxynine; '[s]ide effects . . . usually mild and transitory . . . hydroxynine seldom produce impairment of mental alertness.' PDR at 2430-31.
3. Tagamet — for gastric and duodernal ulcers/gastroesophageal reflux disease, and upper gastrointestinal bleeding. `Reversible confusional states . . . observed on occasion predominantly, but not exclusively, in severely ill patients.' PDR at 3096.
4. Amitriptyline — used as an antidepressant; adverse reactions include seizures, coma, confusion, hallucinations, etc. See PDR at 3418-19.
Burkett's medication log indicates that he was given the following medications on three days (May 15, 16, and 17, 1995): Doxepin, Tagamet, and Amitriptyline.
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 and MORGAN, JJ., concur.