Opinion
No. 25212-4-III.
January 26, 2010.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-00583-2, Jerome J. Leveque, J., entered May 15, 2006.
Affirmed in part and reversed in part by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Brown, J.
This appeal follows a conviction for robbery. The appellant assigns error to a number of the judge's discretionary rulings, including the judge's dismissal of a juror and the court-imposed limitation on further cross-examination of a witness. Both decisions are supported by the record and fall within the judge's discretionary authority. The appellant also maintains that the State failed to prove the crime charged in the information and the judge erroneously imposed prohibitions against alcohol possession and consumption as conditions of community custody. We conclude that the State did not charge one crime and then prove another, so we affirm the conviction. But we agree that the restriction on alcohol possession is not crime related and, therefore, improper. So we reverse that condition of community custody.
FACTS
John T. Hayes was a security guard at a Rite Aid drugstore in Spokane, Washington. He saw William Finley put a box of bandages and an electric razor in his coat and leave the store. Mr. Hayes followed Mr. Finley to a nearby cart corral where his bicycle was locked. Mr. Hayes identified himself as a loss prevention officer and asked Mr. Finley to return with him to the store. Mr. Finley refused and gestured as if to strike Mr. Hayes with his bicycle lock chain. Mr. Hayes and Mr. Finley fought. Mr. Finley struck Mr. Hayes twice with a closed fist before another Rite Aid employee helped to subdue Mr. Finley. Mr. Hayes wound up with cuts on his hand and legs from the scuffle.
The State charged Mr. Finley with first degree robbery. The State's allegation read that
with the intent to commit theft, [Mr. Finley] did unlawfully take and retain personal property, a box of Band Aids and a shaver, from the person and in the presence of JOHN T. HAYES, against such person's will, by use or threatened use of immediate force, violence and fear of injury to JOHN T. HAYES, and in the commission of and immediate flight therefrom, the defendant inflicted bodily injury upon JOHN T. HAYES.
Clerk's Papers (CP) at 12.
The case proceeded to a jury trial where Mr. Finley's lawyer cross-examined Mr. Hayes. The trial court expressed frustration at the slow pace of the direct and cross-examination. The State completed its redirect of the witness and the court then said to the defense lawyer, "You get last shot. There's three minutes left for Recross." Report of Proceedings (RP) (Feb. 7, 2006) at 82.
The next day, during a recess, Juror No. 4 asked the bailiff if he could ask the bailiff a hypothetical question. The bailiff explained that she may not be able to answer the question or might need to interrupt the juror if the question seemed inappropriate. The juror then asked, "[W]hat if we were told that we're going to go back now and discuss matters in 2004, but matters being discussed are 2003?" RP (Feb. 8, 2006) at 6. The bailiff told the juror that she could not respond and told the juror simply that he should "listen to the evidence and make [his] decisions." RP (Feb. 8, 2006) at 6.
The trial court interviewed Juror No. 4 outside the presence of the other jurors. The juror assured the court that his hypothetical question was his alone and that he had not discussed it with other jurors. The juror also said he had not formed an opinion on the merits of the case, but had instead started to form an opinion about a particular piece of evidence. Neither the prosecution nor the defense objected to the juror remaining seated. The court then questioned the other jurors and alternates one at a time and determined that none had paid attention to Juror No. 4's statement, and none had yet discussed or deliberated on the case. The court asked the State and Mr. Finley whether they wished to request that any of the jurors be excused. Both parties declined the invitation. The State then had a change of heart and objected to Juror No. 4 remaining. The judge again heard argument, sustained the State's objection, and excused Juror No. 4.
The jury later found Mr. Finley guilty of first degree robbery. The trial court prohibited Mr. Finley from using or possessing alcohol as a condition of community custody. Mr. Finley now appeals his conviction and sentence.
DISCUSSION
Court's Limits on Cross-Examination
Mr. Finley contends that the court's restrictions on his cross-examination of Mr. Hayes effectively denied his constitutional right to due process of law and his constitutional right to confront the witnesses against him.
Trial judges have great latitude in the day-to-day conduct of trials in their courtrooms, including the extent of cross-examination. State v. Stenson, 132 Wn.2d 668, 756, 940 P.2d 1239 (1997); State v. Kilgore, 107 Wn. App. 160, 184-85, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002); Gordon v. United States, 344 U.S. 414, 420, 73 S. Ct. 369, 97 L. Ed. 447 (1953); see also State v. Darden, 145 Wn.2d 612, 620-21, 41 P.3d 1189 (2002). The standard of review is, therefore, abuse of discretion. State v. Hakimi, 124 Wn. App. 15, 19, 98 P.3d 809 (2004).
The rules of evidence specifically address the problem:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
ER 611(a). Reasonable courtroom management does not generally interfere with constitutionally protected rights of the accused. See Michelson v. United States, 335 U.S. 469, 480-87, 69 S. Ct. 213, 93 L. Ed. 168 (1948); State v. Chapple, 103 Wn. App. 299, 309-10, 12 P.3d 153 (2000), aff'd, 145 Wn.2d 310, 36 P.3d 1025 (2001). And it did not here.
Defense counsel's cross-examination of Mr. Hayes focused on potential discrepancies between Mr. Hayes's various accounts of his altercation with Mr. Finley. See RP (Feb. 7, 2006) 69-72, 74-78. In her second cross-examination of Mr. Hayes, she focuses on the discrepancy between his statement during direct examination that Mr. Finley had hit him in the chest and the absence of such a statement in the report he wrote just after the incident. RP (Feb. 7, 2006) at 82-83. Her cross and recross goes on for 20 pages of this transcript. RP (Feb. 7, 2006) at 60-72, 74-78, 82-83. And she appears, again from the transcript, to have had time to make her point in front of the jury.
Mr. Hayes had to leave for Seattle. The trial judge thought that the examination was moving slowly and finally called an end to it. That was well within his discretionary authority. See Chapple, 145 Wn.2d at 322 (the trial judge's decisions about courtroom management are afforded substantial deference because the trial judge bears the responsibility for maintaining order). Moreover, Mr. Finley's counsel does not appear to have used the three minutes the court gave her for recross. She did not ask for more time but instead concluded with "[n]othing further." RP (Feb. 7, 2006) at 83. And left unsaid here on appeal is what lines of inquiry she would have pursued with more time.
For these same reasons, we conclude that the trial judge did not deny Mr. Finley his constitutional right to due process of law. In the case relied on by Mr. Finley, Baxter v. Jones, the trial court terminated cross-examination before counsel could pursue questions related to a key issue in the dispute. 34 Wn. App. 1, 2-4, 658 P.2d 1274 (1983). The court wanted to conclude by the end of the day and immediately announced its ruling at the end of the day. Id. at 2-3. We concluded that the trial court abused its discretion by preventing the Baxters from pursuing their theory of the case and by precluding cross-examination on an issue directly relevant to the disposition of the case. Id. at 4-5. But that did not happen here. There is no abuse of discretion.
Removal of Juror No. 4
Mr. Finley next contends that he was denied his right to a fair and impartial jury when the trial judge dismissed Juror No. 4. He argues that a "holdout juror will not be excused for failing to deliberate or follow the law where there is some evidence that the juror simply disagrees with other jurors about the merits of the State's case." State v. Elmore, 121 Wn. App. 747, 756, 90 P.3d 1110 (2004), aff'd, 155 Wn.2d 758, 123 P.3d 72 (2005).
Again, we review the trial judge's decision to excuse a juror for abuse of discretion. State v. Earl, 142 Wn. App. 768, 774, 177 P.3d 132 (2008). RCW 2.36.110 governs the removal:
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
CrR 6.5 similarly provides, "If at any time before submission of the case to the jury a juror is found unable to perform the duties[,] the court shall order the juror discharged." "RCW 2.36.110 and CrR 6.5 place a continuous obligation on the trial court to excuse any juror who is unfit and unable to perform the duties of a juror." State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000). The trial court instructed the jurors to keep their minds open and attentive and to remain impartial throughout the trial. Juror No. 4 did not do that.
In the midst of the State's case, Juror No. 4 asked the bailiff about an inconsistency he perceived in the testimony. And, although the juror had not discussed his question with other jurors, he had "absolutely" begun to form an opinion as to some of the evidence and to weigh it in relationship to other evidence he had heard. RP (Feb. 8, 2006) at 32. The trial court, therefore, excused the juror from further service pursuant to RCW 2.36.110 and CrR 6.5. That decision is supported by tenable grounds and is again well within the court's discretionary authority. Jorden, 103 Wn. App. at 230.
Crime Charged versus Crime Proved
Mr. Finley next contends that the State failed to prove the crime it charged. He argues that the State charged:
with the intent to commit theft, did unlawfully take and retain personal property, a box of Band Aids and a shaver, from the person and in the presence of JOHN T. HAYES, against such person's will, by use or threatened use of immediate force, violence and fear of injury to JOHN T. HAYES, and in the commission of and immediate flight therefrom, the defendant inflicted bodily injury upon JOHN T. HAYES.
CP at 12 (emphasis added). He notes that the State used the word "and" before "in the presence of." From this, he argues that the State had to show that Mr. Finley took the box of Band Aids and the shaver from Mr. Hayes's person and it did not show that. He says the State only showed that Mr. Hayes watched as Mr. Finley shoplifted the items and then left the store.
Whether the State proved something other than what it charged is a question of law that we will review de novo. State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 234 (2004).
Two statutes read together define first degree robbery. RCW 9A.56.190 defines robbery. And RCW 9A.56.200 sets out the elements for robbery in the first degree, including when the person inflicts bodily injury in the process of committing or fleeing a robbery. RCW 9A.56.200(1)(a)(iii). Mr. Finley admits that the State proved the bodily injury element under RCW 9A.56.200(1)(a)(iii).
The State alleged that Mr. Finley committed first degree robbery when "with the intent to commit theft, [he] did unlawfully take and retain personal property, a box of Band Aids and a shaver, from the person and in the presence of [John Hayes]." CP at 12 (emphasis added). Robbery requires an unlawful taking of personal property "from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone." RCW 9A.56.190. So the crime can be committed either by unlawfully taking property from the person of another or in the presence of another. RCW 9A.56.190. The State charged Mr. Finley with committing robbery by taking property both from the person of Mr. Hayes and in the presence of Mr. Hayes. CP at 12.
Both the amended information, CP at 12, and the original information, CP at 1, contain "and."
The court instructed the jury with instruction 8 that "[a] person commits the crime of robbery when he . . . takes personal property from the person of another against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person." CP at 112 (emphasis added). The elements instruction mirrors RCW 9A.56.190 and instructs the jury that, to convict Mr. Finley of first degree robbery, it must find "the following elements of the crime [to be] proved beyond a reasonable doubt: . . . [t]hat [Mr. Finley] unlawfully took personal property from the person or in the presence of another." CP at 113.
The State showed that Mr. Finley took the bandages and razor from the store in Mr. Hayes's presence "by the use or threatened use of . . . fear of injury to [Mr. Hayes] or his property or the person or property of anyone." RCW 9A.56.190; see RP (Feb. 7, 2006) at 21-25. The State did not show that Mr. Finley took personal property from the person of Mr. Hayes, as described in the amended information and in the definition of robbery in the jury instructions. And "[t]he manner of committing a crime is an element and the defendant must be informed of this element in the information in order to prepare a proper defense." State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988); see State v. Carothers, 84 Wn.2d 256, 263, 525 P.2d 731 (1974). Mr. Finley relies on our case of State v. Goldsmith for the proposition that the State did not prove what it charged. 147 Wn. App. 317, 195 P.3d 98 (2008).
In Goldsmith, we held that double jeopardy prohibited further prosecution for child molestation based on the same events where the trial court vacated a conviction after the State charged one means of committing child molestation but proved another means of committing the crime. Id. at 326. The State must prove the crime it charged even when through inadvertence it charges one crime but proves another. Id. at 325.
This case is distinguishable from Goldsmith. The State did not charge one means and prove another. The State did not charge Mr. Finley with solely taking property from Mr. Hayes's person. In Goldsmith, the State first charged Mr. Goldsmith only with committing child molestation by one of two alternative means. Id. at 322.
Where a criminal statute describes acts in the alternative or disjunctive, the State may use the conjunctive to charge the defendant. State v. Ford, 33 Wn. App. 788, 789, 658 P.2d 36 (1983); State v. Dixon, 78 Wn.2d 796, 802, 479 P.2d 931 (1971). The State here was required only to prove either that Mr. Finley took property from Mr. Hayes's person or in his presence, even though the information used the conjunctive "and." Ford, 33 Wn. App. at 789-90.
Sentencing — Prohibition against the Use of Alcohol
Mr. Finley argues that the court erred by prohibiting his use of alcohol as part of his sentence because the prohibition bears no relationship to the crime. Former RCW 9.94A.030(12) (2003). The State agrees but maintains that the trial court had authority to prohibit Mr. Finley from consuming alcohol under former RCW 9.94A.700(5)(d) (2003). And it maintains that no connection between the use of alcohol and the crime is required. State v. Jones, 118 Wn. App. 199, 206-07, 76 P.3d 258 (2003).
Whether the prohibition against the use of alcohol is accommodated by the statutory scheme here is a question of law that we will review de novo. State v. Williams, 158 Wn.2d 904, 908, 148 P.3d 993 (2006).
Former RCW 9.94A.700(5)(d) authorizes the sentencing court to impose a prohibition against alcohol consumption as a term of community custody. However, as the State concedes, the trial court had no statutory authorization to prohibit Mr. Finley from possessing alcohol. Such a prohibition is not authorized by former RCW 9.94A.700(5)(d). Nor is it authorized by the general sentencing statute of the Sentencing Reform Act of 1981, chapter 9.94A RCW, which authorizes sentencing courts to impose crime-related prohibitions. RCW 9.94A.505(8). A prohibition is "crime-related" if it directly relates to the circumstances of the crime. Former RCW 9.94A.030(12) (defining "crime-related prohibition"). There is nothing in the record to indicate that alcohol was directly related to Mr. Finley's robbery at the drugstore. We then reverse this condition of community custody.
The law in effect at the time a criminal offense is committed controls disposition of the case. State v. Schmidt, 143 Wn.2d 658, 673-74, 23 P.3d 462 (2001). Former RCW 9.94A.700 was recodified as RCW 9.94B.050 by Laws of 2008, ch. 231, § 56, effective August 1, 2009.
RCW 9.94A.505 was modified by Laws of 2009, ch. 389, § 1, effective August 1, 2009. However, subsection (8) remains the same.
We affirm the conviction for robbery but reverse the prohibition against the use of alcohol as a condition of community custody.
A majority of the panel has determined that 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.
KULIK, C.J. and BROWN, J., concur.