Opinion
No. 62774-1-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06165-5, Christopher A. Washington, J., entered December 16, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Ellington and Schindler, JJ.
Thomas Delanty appeals his conviction and exceptional sentence for 21 counts of first degree theft, one count of attempted first degree theft, and four counts of second degree theft. He argues that the trial court abused its discretion and violated his constitutional rights by refusing to admit certain defense exhibits that he claims were essential to his defense. He also claims that the trial court violated his due process right to a fair and impartial trial by pressuring defense counsel to complete the presentation of his case. The State cross-appeals, arguing that the trial court abused its discretion by granting Delanty's Criminal Rule (CrR) 4.6 motion to depose two prosecution witnesses.
We hold that Delanty fails to show either that the trial court abused its discretion in excluding evidence or that he was unduly prejudiced by these discretionary decisions. We decline to address the State's cross-appeal for the reasons we explain later in this opinion. We affirm.
Tom Delanty met Nancy Elizabeth ("Betty") and Doug Huegli in 1985. Their families became well acquainted over succeeding years.
In 1992, Doug Huegli passed away. Soon after that, Delanty began preparing Betty's tax returns and assisting her with other financial matters. In later years, she became increasingly dependent on him due to her failing health and deteriorating eyesight. She testified by video deposition at trial that she trusted Delanty and felt close to his family.
Betty's children, Jim Huegli and Susan Boyer, knew that Delanty was assisting their mother with her finances. They both testified at trial that they trusted Delanty because of representations that he made to them about his qualifications as a CPA and financial planner.
In October 2005, the relationship between Delanty and Betty deteriorated. Betty testified that on October 25, 2005, Delanty got very upset with her and yelled at her. She reported this to her children. She testified that she was concerned that Delanty had too much control over her finances, that she was afraid of him, and that she wanted to fire him.
In response, Susan and her husband Ralph sent Delanty a letter informing him that they were assisting Betty in making a transition to alternative financial providers. The letter requested that Delanty turn over the keys to Betty's house and safety deposit box, and any files and records belonging to Betty.
Delanty balked. He responded that Betty's accusations were "fiction."
On November 8, 2005, Delanty sent Jim an e-mail containing an invoice for work performed for Betty for the period from January 1, 2004 through October 25, 2005. The invoice total was $93,620. He credited $71,465 to payments previously received for work he claimed to have done for her. He demanded payment by cashier's check for the remaining balance of $22,155. He also demanded "full releases, indemnifications, and hold harmless agreements on behalf of [Betty] and all three trustees."
In November, family members discovered all of Betty's financial records were missing from her home.
After obtaining copies of Betty's financial records from her banks, family members discovered that Delanty had apparently forged Betty's signature to checks drawn against her various accounts. They also discovered that he used checks signed by Betty to pay his federal income taxes, and that he had written other unauthorized checks against her accounts. They retained an attorney to pursue Delanty in a civil case. They also contacted the Bellevue Police Department to investigate possible criminal activity.
In March 2006, detectives from the Bellevue Police Department executed a search warrant at Delanty's home. They discovered Betty's financial records in his basement and seized them along with Delanty's computers and other evidence.
Delanty was ordered to produce an accounting for the November 2005 invoice in the civil case. He responded that he was unable to do so because his records had all been seized and placed into evidence. But he did attach two new invoices to his declaration, among other things.
In response to interrogatories in the civil case, Delanty stated that he possessed no documents regarding his education, qualifications, or credentials as an accounting or finance professional.
The State charged Delanty with 28 counts of first and second degree theft and attempted theft. The charges were based on 28 checks written on accounts owned by Betty. The checks were dated from July 11, 2003, through October 25, 2005. They ranged in amounts from $1,000 to $11,000 and totaled $92,881.00. Each count also included allegations to support the imposition of an aggravated exceptional sentence: the alleged crime was a major economic offense and the victim was particularly vulnerable.
State's Exhibit 1.
Delanty's defense was that he did a great deal of work for Betty, that he billed her for that work, and that the charged checks were in payment of those bills. Based on this, he maintained there were no thefts.
The jury convicted Delanty of 21 counts of first degree theft, 1 count of attempted first degree theft, and 4 counts of second degree theft. The jury acquitted him of the 2 remaining charges, counts 9 and 16. The trial court imposed concurrent exceptional sentences of 60 months and restitution of $88,256.
Delanty filed a Motion for Arrest of Judgment and for New Trial, claiming that the trial court erred in excluding certain exhibits. The trial court denied the motion.
Delanty appeals. The State cross-appeals. It argues that the trial court abused its discretion in granting Delanty's CrR 4.6 motion to depose Susan and Ralph Boyer.
EVIDENTIARY CHALLENGES
Delanty argues that the trial court abused its discretion by excluding defense exhibits 317, 355, and 376(A), (B), and (C). We disagree.
We review a trial court's decision on the admissibility of evidence for abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. A decision is manifestly unreasonable if it is outside the range of acceptable choices given the facts and the applicable legal standard.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997) (citing State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
Error in excluding evidence that does not prejudice the defendant is not grounds for reversal. Washington uses the "overwhelming untainted evidence" test to determine whether an error is harmless. "Under this test, if the untainted, admitted evidence is so overwhelming as to necessarily lead to a finding of guilt," the error in excluding the offered evidence is harmless.
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
State v. Lord, 161 Wn.2d 276, 295-96, 165 P.3d 1251 (2007).
Id.
Exhibit 317
Delanty contends that the trial court abused its discretion by refusing to admit Exhibit 317. We disagree.
Each of the 28 counts charged theft by two alternative means. First, the State claimed that Delanty wrongfully obtained or exerted control over Betty's property (embezzlement). Second, it charged that he obtained control over her property by color or aid of deception. For example, count six of the Third Amended Information stated in relevant part:
RCW 9A.56.020(1)(a); RCW 9A.56.010(19); State v. Linehan, 147 Wn.2d 638, 644-52, 56 P.3d 542 (2002).
RCW 9A.56.020(1)(b); RCW 9A.56.010(5); Linehan, 147 Wn.2d at 644-52.
That the defendant THOMAS J. DELANTY in King County, Washington on or about February 3, 2004, with intent to deprive another of property, to-wit: check #131 payable to Thomas J. Delanty in the amount of $3,600, and the value thereof, did obtain control over such property belonging to Nancy Huegli, by color and aid of deception, and did wrongfully obtain and exert unauthorized control over such property, and that the value of such property did exceed $1,500;
Contrary to RCW 9A.56.020(1)(a) and (b), 9A.56.030(1)(a), and against the peace and dignity of the state of Washington.
Clerk's Papers at 600.
The 27 remaining counts were similarly worded, stating dates, check numbers, payees, and amounts of each of the checks underlying the charges.
During the defense's case, Delanty testified that he helped Betty with her tax returns and other financial affairs. He also testified that he delivered invoices to her for the work that he performed for her and that she paid those invoices. He further testified that he performed work for her for which she owed him additional money.
In 2002, Betty injured her ankle while visiting her son in Portland. As a result, she had to stay in a rehabilitation center for several weeks after her injury. Delanty testified that during this stay he spoke with her by telephone. According to him, she asked him to make two deposits to cover a check she previously made out and mailed to the county to pay her real estate taxes.
Delanty testified that he followed her instructions by writing a check made payable to her on one of her accounts for $8,000. He then endorsed that check with her name and deposited it into her Washington Mutual account on which the real estate tax check had been drawn. The deposit also included a Social Security check made payable to Betty.
Delanty identified Exhibit 317 as a document comprised of a photocopy of the $8,000 check, a deposit slip for this check and the Social Security check, a photocopy of both checks, and a bank statement. The statement showed the deposit to Betty's Washington Mutual account.
After Delanty testified that he had not received any financial benefit from this transaction, his counsel offered Exhibit 317 for admission into evidence.
These exchanges followed:
Mr. Hansen: I would offer that exhibit, Your Honor. It's No. 317.
Mr. Peterson: I would object on relevance.
Mr. Hansen: He's been accused him [sic] of stealing money, Your Honor.
The Court: Well, not every exhibit comes in. I think the testimony would be sufficient.
Mr. Peterson: He's not charged with that $8,000. I want that clear for the record.
Mr. Hansen: Well, she accused him under oath of stealing the money.
The Court: I would find that this testimony is relevant, but needless to say we're not going to put every piece of paper that is being testified to into evidence for the jury's perusal during deliberations.
Report of Proceedings (Nov. 12, 2008) at 24-25.
The above exchanges show that the purpose of this exhibit was to rebut part of Betty's trial testimony by video deposition. Specifically, she testified that she did not fill out or sign the April 1, 2002 check for $8,000 drawn on her Schwab account and did not know what happened to the money. She further testified that she thought that Delanty probably stole the money.
Ex. 48 at 43-44.
Ex. 49 at 152-54.
The $8,000 check was not among the checks specified in any of the charged counts, as the State made clear when it objected at trial to the admission of this exhibit. The trial court refused to admit the exhibit on the basis that Delanty's testimony about the transaction was relevant, but that "we're not going to put every piece of paper that is being testified to into evidence."
Another judge may have admitted this five page exhibit to supplement Delanty's testimony. But that is not the test for whether the court abused its discretion in this case. Here, the court allowed Delanty to testify extensively about the transaction concerning the $8,000 check to refute the claim that he stole that money. It also allowed him to describe to the jury the content of the excluded exhibit. We cannot say that exclusion of this exhibit was an abuse of discretion.
Even if the trial court abused its discretion by refusing to admit Exhibit 317, Delanty fails to show prejudice. He expressly denied receiving any financial gain from the transaction that Betty testified at trial by video deposition was a theft of $8,000. The jury was able to observe the demeanor of both witnesses and make its credibility determinations about the testimony of each. Moreover, the State made clear to the jury by its objection on the record that this transaction was not among those that it charged. Likewise, the $8,000 check is not among the checks specified in the 28 count amended information. Finally, Margaret Brouns-Eaton, Delanty's forensic expert, testified that after examining various invoices and checks provided to her that it was her opinion that he did not receive any of the $8,000. Thus, Delanty fails to show that the jury was misled to believe that the alleged theft of $8,000 was part of the charges that they were to decide. In short, any claim of prejudice by the exclusion of this exhibit is entirely speculative.
Ex. 1; Ex. 2.
Exhibit 355
Delanty also contends that the trial court abused its discretion by refusing to admit Exhibit 355. We again disagree.
During the defense's case, counsel marked this exhibit for identification and handed it to Delanty. He then testified that it contained all of the invoices to Betty that he could locate. We note that this exhibit contains copies of invoices dated November 8, 1997 through November 8, 2005. It also contains copies of checks dated through April 15, 2003 that appear to correspond to these invoices.
Report of Proceedings (Nov. 12, 2008) at 25.
Ex. 355.
Delanty testified, in detail, about three checks in this exhibit. Each was a check drawn on Betty's accounts, purporting to bear her signature, and made payable to the Internal Revenue Service. Delanty testified that these checks represented payments Betty made to him to settle various invoices that were also in the exhibit. The checks were made payable to the IRS rather than directly to him, according to Delanty, to facilitate payment of his quarterly estimated taxes. He testified that Betty understood these transactions and that he had her permission to pay his taxes from her accounts. He also read into the record for the jury the content of the invoices in the exhibit.
Report of Proceedings (Nov. 12, 2008) at 26-40.
Id.
Id.
Id.
Id.
Id.
When counsel offered Exhibit 355 for admission into evidence, the following exchange occurred:
Mr. Hansen: Your Honor, I would like to offer the exhibit [355], but I'm afraid I'll get the same response.
The Court: You will. You can offer it for the purpose of the record. It's been testified to. My decision is to try to keep the paperwork for the jury at a minimum.
Mr. Hansen: I totally understand, Your Honor.
Id. at 40.
On appeal, Delanty now argues that Exhibit 355 was necessary to prove that he earned the money that he was paid by the charged checks. He also argues that this exhibit was necessary to corroborate his testimony that Betty had given him permission to pay his taxes from her accounts to compensate him for his work. Finally, he contends that a jury question during deliberations illustrates the importance of this exhibit to his defense.
Appellant's Opening Brief at 25.
Id.
Id. at 24.
First, the above exchange shows that it was unclear what purpose this exhibit served when offered. There was no mention below of the significance of the exhibit to show that he invoiced Betty for work completed or to show that Betty authorized him to pay his taxes from her accounts. In any event, with respect to the latter claim, Delanty testified prior to the time this exhibit was offered into evidence that she authorized him to pay his taxes from her accounts and why.
Second, to the extent that Exhibit 355 was offered to show that Delanty earned the money that he was paid and that the invoices he provided to Betty corroborate that work, the State's Exhibit 30 fills that need. Exhibit 30 duplicates all of the invoices that are contained in Exhibit 355, with the exception of four. Further, Delanty's accounting expert, Eaton, testified extensively about all of the invoices contained in Exhibit 355 using a PowerPoint presentation to illustrate her testimony. Although neither the PowerPoint, nor her accompanying report, were offered into evidence, her testimony thoroughly describes her analysis of each of the invoices, including the four invoices that were not included in Exhibit 30.
Third, at the time this exhibit was offered into evidence, the question of whether the jury wished to see all or any part of this exhibit was not before the court. Thus, the jury's later request during deliberations to see two of the invoices in Exhibit 355 that were not contained in Exhibit 30, does not affect the analysis of whether the court abused its discretion in excluding this exhibit when it was offered.
Clerk's Papers at 746 ("In what exhibit is the invoice dated 1/23/05 in reference to count 17? Do we have it? Do we have the invoice of 11/29/04 in reference to count 16?").
Based on the record at the time Delanty offered this exhibit into evidence, we cannot say that the court abused its discretion in excluding this document. We reach this conclusion without commenting on the court's stated basis for excluding the document: "to try to keep the paperwork for the jury at a minimum."
Further, even if the court abused its discretion by excluding this exhibit, Delanty again fails to show prejudice. As we have explained above, Delanty and his expert witness testified extensively about all of the invoices and the three checks made payable to the IRS that were contained in Exhibit 355. It also appears that much, if not all, of the content of Exhibit 355 was displayed to the jury during the PowerPoint presentation that accompanied Eaton's testimony.
Delanty's reliance on the jury's request during deliberations to see two of the invoices not admitted into evidence does not demonstrate that the exclusion of Exhibit 355 was prejudicial. The trial court responded by telling the jury that it would have to rely on the evidence that was admitted. Given the extensive testimony about these two invoices, it is difficult to see how the jury's question during deliberations shows prejudice. Exhibit 355 duplicated the entire contents of Exhibit 30, adding four new invoices to the 11 already entered by the State. The only other items in Exhibit 355 that are distinct from Exhibit 30 are 13 cancelled checks that are dated prior to the charging period. In short, there is no prejudice from the exclusion of this exhibit.
Exhibit 376(A), (B), and (C)
Delanty contends that the trial court abused its discretion in refusing to admit Exhibit 376(A), (B), and (C). These are three notebooks containing a total of what he claims are approximately 4,600 pages of materials used to support Delanty's PowerPoint presentation during trial. We hold that he fails to show either an abuse of discretion or prejudice by the exclusion of these notebooks.
Appellant's Opening Brief at 18.
Defense expert Dan Ring laid the foundation for admission of these notebooks. He testified that he compiled the exhibit to cover the January 1, 2004, through October 26, 2005, time period in Exhibit 10, Delanty's final November 8, 2005, invoice to Betty. The notebooks consist of chronologically organized and summarized documents that Delanty claims document the work that he performed for Betty. Specifically, phone records, bank statements, copies of cancelled checks, e-mails, calendar entries, and other material are in the notebooks.
Delanty offered the exhibit to establish "the various activities he did to validate his bills and the amount of money he was paid." The State objected on the basis that the exhibit contained inadmissible hearsay in the form of e-mails from Delanty to the Hueglis'. Extended colloquy between the court and counsel followed. The court then ruled as follows:
I'm going to allow the witness to testify about what it is that he did and if there's a particular document that the person refers to I will allow it to be shown to or displayed for the jury. I will reserve ruling [on Exhibit 376] with the observation that my tendency is not to allow the physical documents to go back to the jury because it would become just too much information for them.
Report of Proceedings (Nov. 10, 2008) at 21.
Thereafter, Delanty clarified that he offered the three notebooks for illustrative purposes pursuant to ER 803, exceptions 1, 3, and 5.
Id. at 23.
Delanty now argues on appeal that the trial court abused its discretion in refusing to admit Exhibit 376, claiming that the "the trial judge later changed his mind and excluded the exhibit because of time constraints." He also claims that this was "the first exhibit requested by the jury a mere hour into deliberations."
Appellant's Opening Brief at 21.
Id.
Delanty's first claim is not supported by any citation to the record, as RAP 10.3(a)(5) requires. Nevertheless, our review of the record leads us to several conclusions. First, page 22 of the Exhibit List does not accurately reflect the trial court's apparent preliminary ruling that "particular document[s]" from the notebooks would be admitted for illustrative purposes, subject to a later ruling on whether the notebooks would go to the jury room. Furthermore, this list does not indicate whether the trial court made any later ruling, either for or against permitting the notebooks to go to the jury room.
Clerk's Papers at 988.
Id.
Second, we find nothing in our independent review of the record to substantiate the claim that the trial court refused to allow these notebooks to go to the jury room "because of time constraints." In fact, it does not appear that the exhibit was ever reoffered on the record.
Third, at oral argument in this appeal, both counsel appeared to agree that the court did not allow the notebooks to go to the jury room, but there was no agreement as to why. Thus, we are left with a claim of trial court error that is, at best, unclear from this record.
The question now is whether the trial court abused its discretion in deciding not to allow the three notebooks to go to the jury room, notwithstanding Delanty's use of the corresponding PowerPoint presentation. We conclude that the trial court did not abuse its discretion.
ER 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Many of the documents contained in Exhibit 376 were either not probative of any material issue or were inadmissible under ER 403. These included numerous checks that were not the subject of this prosecution, account statements, tax and licensing records, insurance documents, and receipts without corresponding explanation. Many other documents contained in Exhibit 376, including Delanty's pocket calendars, telephone records, a gift letter to his daughter, an amendment to Betty's trust, and many of the checks, were cumulative because they were admitted into evidence during the State's case.
At the hearing on Delanty's Motion for Arrest of Judgment and for New Trial, the judge articulated that he was concerned about admitting Exhibit 376 for a number of the reasons stated in ER 403.
My concern was that they were just too much information to give to the jury. I allowed all the testimony in terms of the PowerPoint presentation that was made and there was no restriction as to testimony about anything that existed in any of the PowerPoint presentation or any of the items that were contained therein. My concern was simply giving the jury some 4,000 plus pages of documents without any guidance as to what they were or what they should do with them.
Report of Proceedings (Dec. 11, 2008) at 7-8.
The trial court has broad discretion to determine the admissibility of evidence, balancing the probative value against any potential prejudicial effect. Because of the court's expressed concerns and because the jury heard testimony by PowerPoint on this exhibit, we cannot say that the trial court abused its discretion by declining to allow these notebooks to go to the jury room.
ER 403.
Even if the court abused its considerable discretion by not allowing the notebooks to go to the jury room, Delanty fails to show prejudice.
He asserts that the jury's first question during deliberations shows that he was prejudiced by the absence of the notebooks from the jury room. But the jury's question was limited to a request for "[c]opies of checks Mr. Delanty filled out for Mrs. Hueglis household expenses (utilities) 2004-2005." Notebooks containing 4,600 pages of materials far exceed the jury's substantially more limited request. In any event, the material in the notebooks was the subject of extensive testimony by PowerPoint presentation during the defense's case. We see no undue prejudice in this respect.
Delanty claims that the exhibit was crucial to his defense because it contained documentary evidence to support his November 8, 2005 invoice. He also argues that the exhibit was necessary to address testimony from the State's witnesses about the importance of documentary records to corroborate testimony. The answer to each of these claims is that the PowerPoint presentation and extensive testimony by witnesses using this exhibit refutes each point. It appears the jury saw many of these documents during the PowerPoint presentation. The trial court was not required to allow these documents into the jury room for the reasons outlined above.
Delanty also argues with respect to all three of these excluded notebooks that his constitutional right to present exculpatory evidence should override the rules of evidence, even if they would ordinarily support exclusion. We disagree.
Brief of Appellant at 30 (citing Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983); State v. Young, 48 Wn. App. 406, 739 P.2d 1170 (1987); State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996); State v. King, 71 Wn.2d 573, 429 P.2d 914 (1967).
Specifically, Delanty argues that State v. Young, State v. King, and State v. Maupin require reversal. These cases are distinguishable.
48 Wn. App. 406, 739 P.2d 1170 (1987).
71 Wn.2d 573, 429 P.2d 914 (1967).
128 Wn.2d 918, 913 P.2d 808 (1996).
In Young, the court concluded that the trial court erred in excluding certain evidence under ER 403, finding that it was relevant under ER 404(b) to prove the identity of the person responsible for the accident and that this probative value outweighed the dangers of confusion or prejudice. In discussing its conclusion that the evidence was erroneously excluded, the court stated that "ER 403 does not extend to the exclusion of crucial evidence relevant to the central contention of a valid defense."
Young, 48 Wn. App. at 413.
Id. at 414.
The same considerations are not at issue here. First, Exhibit 376 was not excluded as unfairly prejudicial under ER 403. Rather, it appears that it was excluded because it contained inadmissible hearsay, was duplicative, and because of concern that it would confuse the jury. Further, as discussed in detail above, Exhibit 376 or portions of it was admitted for illustrative purposes during the testimony of Delanty and his expert witnesses. Much of the material contained in Exhibit 376 was admitted in other exhibits. Given this, Delanty has not demonstrated that the court's decision not to allow Exhibit 376 to go back to the jury prevented him from presenting a central contention of his defense.
Neither King nor Maupin demands a different result. As discussed above, Delanty has not demonstrated that the court's refusal to allow Exhibit 376 to go back to the jury prevented him from presenting his defense.
King, 71 Wn.2d 573 (concluding that trial court improperly excluded defense exhibit); Maupin, 128 Wn.2d 918 (concluding that trial court improperly excluded exculpatory testimony from a defense witness).
We also note that the State charged Delanty with 28 counts of theft for writing checks to himself, his businesses, his daughter, and the IRS from Betty's bank accounts. He was charged with committing the crimes by alternative means: (1) embezzlement, and (2) color or aid of deception. His defense at trial, and upon which his arguments on appeal rely, was that he performed all of the services for which he was paid.
Given the statutory definitions of theft contained in RCW 9A.56.010 and .020, it is questionable whether his defense was sufficient to raise reasonable doubt on the charges for which he was convicted. As the State argued during closing, Delanty may have been entitled to payment for some level of work for Betty, but there is a proper method for seeking payment. Delanty was not entitled to help himself to her money just because he had access to it.
At trial, the Washington State Patrol Crime Laboratory compared the signatures on the 28 checks charged as thefts with examples of Betty's known signature. Its representative concluded that it was highly probable that the signatures on 18 of the 28 checks were not made by Betty.
Delanty did not challenge the State's evidence that he forged Betty's signature on most of the charged checks and wrote them without her permission. Moreover, the extent of the work for which he validly billed her was the subject of substantial dispute below. The jury acquitted him of two charges, but found him guilty of the remaining charges. Thus, it was able to distinguish between those charges for which it believed the State had made its case and those for which it had not.
For these reasons, we conclude that Delanty fails to show that he was unduly prejudiced by the exclusion of this exhibit.
CONSTITUTIONAL CLAIMS
Delanty next argues that the trial court commented on the evidence, violated the appearance of fairness, and violated his right to due process by its actions. We disagree.
A judicial proceeding is valid only if it has an appearance of impartiality, such that a reasonably prudent and disinterested person would conclude that all parties obtained a fair, impartial, and neutral hearing. Evidence of a judge's actual or potential bias is required to find a violation of the "appearance of fairness" doctrine.
State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995).
State v. Post, 118 Wn.2d 596, 618-19, 826 P.2d 172 (1992).
Article 4, section 16 of the Washington Constitution provides that "'[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement." A court's conduct violates the constitution only if its attitudes are "reasonably inferable from the nature or manner of the court's statements."
State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (quoting Wash. Const. art. IV, §§ 16).
State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999) (citing State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731 (1974)).
Trial judges have wide discretion to manage their courtrooms and conduct trials fairly, expeditiously, and impartially. This court, therefore, reviews a trial judge's courtroom management decisions for abuse of discretion.
State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969).
Peluso v. Barton Auto Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d 978 (2007).
At the outset of the trial, the court advised the jury that the case would be completed by Friday, November 14, 2008. After the State presented its case for seven court days, Delanty was left with only three and a half court days to present his case. The trial court and both attorneys were aware of this time constraint, and at times the judge urged the defense to move along in its presentation of evidence. Delanty claims on appeal that these comments by the judge constitute a comment on the evidence because they indicate a bias toward the State.
See, e.g., Report of Proceedings (Nov. 12, 2008) at 209 ("Ladies and gentlemen, we do intend to conclude testimony tomorrow. . . . I say that to remind counsel."), 160 ("How much longer do you have?"), 195 ("go on to the next subject"); Report of Proceedings (Nov. 13, 2008) at 37 ("Mr. Delanty, we are going to get through this a lot faster if you just answer the question. You don't need to explain yourself."), 58 ("How much longer do you think you'll be?"), 62 ("We do have to be mindful of time."), 111 ("[h]ow many more questions? . . . I'm committed as long as it works out to actually finish this case, the testimony, the instructions and argument today. . . . So we have to finish today, over the lunch hour if need be.").
Review of the record does not support this claim. Rather, the record shows that the trial judge dealt with all parties in a way that was reasonably designed to secure a fair, expeditious, and impartial trial. The trial judge's comments and decisions were calculated to move the trial along, but they also promoted the jury's consideration of relevant evidence.
We note that Delanty does not appear to have raised this issue with the trial court. He neither requested more time to present his case nor requested that the trial be extended for additional time. In sum, the trial judge here properly exercised his discretionary authority to manage the trial.
Delanty argues that the trial court violated the "appearance of fairness" by hurrying the defense through the presentation of its case. He contends that the judge's comments "gave the appearance of collusion between the prosecution and the court to ration the time permitted for the defendant to present his case." But, for the same reasons we discussed above, this is not supported by the record. All parties were aware before the trial began that it was scheduled to conclude by November 14, 2008. Defense counsel did not request extra time. And the judge's comments were professional and designed to effectively manage the time scheduled for the trial.
Finally, Delanty argues that the trial court's comments constitute a comment on the evidence. They do not.
The court's statements regarding the time remaining for trial cannot reasonably be interpreted as a statement evidencing "the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue." Thus, this argument is not persuasive.
Lane, 125 Wn.2d at 838 (quoting Wash. Const. art. IV, §§ 16).
CrR 4.6
On cross-appeal, the State argues that the trial court abused its discretion when it ordered the depositions of Ralph and Susan Boyer pursuant to CrR 4.6. We decline to address this issue.
Generally, we will dismiss an appeal if the question presented is moot and effective relief can no longer be provided, unless the issue is both capable of evading review and has substantial public importance. Here, this claim is now moot. Although it may be of substantial public interest, we are not convinced that we should address it here. The issue is now pending before another division of this court. In short, this issue will not evade review. For these reasons and because there is no other adverse consequence to the State in this case, we decline to address this claim.
DeFunis v. Odegaard, 84 Wn.2d 617, 627-28, 529 P.2d 438 (1974).
We affirm the judgment and sentence.