Opinion
No. 57420-5-I; 57469-8-I.
August 27, 2007.
UNPUBLISHED
In these consolidated cases, Steven Heddrick appeals his convictions of felony harassment and custodial assault. The trial court did not follow the procedures mandated by statute following the court's determination that Heddrick's competency to stand trial was at issue. Nevertheless, he received the due process to which he was entitled under the circumstances of this case. Moreover, he was not denied the assistance of counsel at that stage of the proceedings. Admission of testimony by police officers regarding the statements Heddrick made to them that resulted in the charge of felony harassment is not reversible as opinion testimony. The testimony was proper to show that Heddrick's statements constituted a true threat. The State properly concedes that the trial court failed to make the relevant findings of fact to support its imposition of community custody conditions requiring Heddrick to submit to involuntary medication and to participate in mental health treatment. Heddrick's other arguments are unpersuasive. We affirm in part, reverse in part, and remand with instructions.
Felony Harassment Case
In May 2004, Department of Corrections Officer Eric Steffes and King County Sheriff's Deputy Mark Wojdyla were transporting Heddrick from Clallam Bay Correctional Facility to King County to face charges for alleged violations of a no-contact order. Heddrick began making threatening statements about his ex-partner, Patricia Anderson, and her mother. Concerned with the nature of the statements, Officer Steffes took notes of Heddrick's comments. Later, Deputy Wojdyla told Anderson about the comments, reading from his report. Anderson reacted with fear. Based upon Heddrick's comments and Anderson's reaction to them, Deputy Wojdyla referred the matter to the prosecutor's office. The State charged Heddrick with felony harassment.
During pre-trial proceedings, Heddrick's counsel questioned his competency to stand trial. Upon agreement by both parties, and based in part upon a report by defense expert Dr. David White, the court found Heddrick incompetent to stand trial. The court referred him to Western State Hospital for 90 days. In January 2005, after his stay at Western State, the trial court reviewed Heddrick's status and found that he had been restored to competency for trial.
Jury selection began in late July 2005. On July 21, newly retained defense counsel raised concerns about Heddrick's competency, based upon his history as well as the fact that he refused to attend his trial. On July 27, defense counsel again expressed her concerns about Heddrick's competency and requested a private evaluation. The superior court judge agreed to "remain in recess" to await a private expert evaluation of his competency by Heddrick's expert. On August 2, 2005, the judge entered an order for pretrial competency evaluation by Western State Hospital.
Clerk's Papers at 38-41 (King Co. No. 04-1-12703-0 SEA).
During an October 6 status conference, defense counsel orally informed the court that the private evaluation was complete, and their expert, Dr. White, had found Heddrick competent to stand trial. Counsel advised the court that she no longer had concerns about her client's competency. She also stated that she had asked the expert not to prepare a written report on his findings because of the expense of taking that additional step.
Based on counsel's representations, the matter proceeded to trial. The jury found Heddrick guilty of felony harassment.
Custodial Assault Case
While Heddrick was in custody for the felony harassment charge, two officers in the King County Jail were assigned to move Heddrick to a different cell. When they attempted to do so, a fight broke out between Heddrick and Officer Steven Spadoni. The officers succeeded in restraining Heddrick. A nurse examined Officer Spadoni and Heddrick, finding that Officer Spadoni had sustained injuries, but Heddrick did not need medical attention.
Heddrick contended that the officer attacked him without cause. The officers disagreed. As a result of this incident, the State charged Heddrick with custodial assault.
Heddrick had separate counsel in the custodial assault case from that in the felony harassment case. On the second day that counsel in the felony harassment case raised questions about Heddrick's competency, the judge in the custodial assault case decided it would be wise to track competency procedures with the felony harassment case. Accordingly, on July 29, 2005, the judge in the custodial assault case also entered an order for pretrial competency evaluation by Western State Hospital.
Clerk's Papers at 4-7 (King Co. No. 05-1-08886-5 SEA).
The custodial assault case was later transferred for trial to the judge who had the felony harassment case. The jury found Heddrick guilty of custodial assault.
These appeals, which we consolidated, followed.
COMPETENCY
Heddrick claims the trial court violated his right to due process by finding him competent to stand trial in both cases without observing adequate procedural safeguards. Specifically, he argues the court proceeded to trial without the evidentiary hearings the statute requires after threshold determinations in both cases that there was reason to doubt his competency. On this record, we hold that in both cases, he received the due process to which he was entitled, notwithstanding the absence of evidentiary hearings.
Criminal defendants have a fundamental right not to be tried or convicted while incompetent to stand trial. In Washington, "[n]o incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues." A person is incompetent if he "lacks the capacity to understand the nature of the proceedings against him . . . or to assist in his . . . own defense as a result of mental disease or defect." Due process requires that State procedures must be adequate to protect this right, which is essential to a person's right to a fair trial.
Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).
Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).
Drope, 420 U.S. at 172.
RCW 10.77.060 provides one such procedure. If the trial court determines that " there is reason to doubt" the defendant's competency, the statute sets forth the mandatory procedures to follow:
According to the controlling statute, where there is reason to doubt a defendant's competency the trial court must appoint experts and order a formal competency hearing.
. . . .
This competency hearing is mandatory whenever a legitimate question of competency arises.
State v. Marshall, 144 Wn.2d 266, 278-79, 27 P.3d 192 (2001) (emphasis in original); see also RCW 10.77.060.
This statutory scheme is not constitutionally mandated, and may be waived. If this statutory scheme is waived in a given case, a defendant is still entitled to minimal due process, which cannot be waived.
State v. O'Neal, 23 Wn. App. 899, 901-02, 600 P.2d 570 (1979).
See Pate, 383 U.S. at 386 (the defendant's constitutional, not merely statutory, rights were abridged by the trial court's failure to provide him "an adequate hearing on his competence to stand trial").
Due process is a flexible concept and should be applied based on the demands of the particular situation. In general, courts look to three factors in determining what process is due:
Morris v. Blaker, 118 Wn.2d 133, 144, 821 P.2d 482 (1992).
(1) the private interest to be protected; (2) the risk of erroneous deprivation of that interest by the government's procedures; and (3) the government's interest in maintaining the procedures.
Id. at 144-45 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
We may affirm the trial court on any ground supported by the record.
State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007).
Here, the jury trial in Heddrick's felony harassment case was in progress when he refused to attend the July 21, 2005 day of trial. There had been some disturbance in the jail area, and the court recessed the matter until July 27.
On this latter date, his counsel raised concerns about his competency based on her interaction with him the previous week and his prior history of temporary incompetence. In response, the deputy prosecutor stated, "I believe that defense counsel's making an astute observation that probably does need to be followed up on." This comment was apparently based on the prosecutor "having observed some of [Heddrick's] behaviors." Defense counsel requested a competency evaluation by their expert, Dr. White. The court agreed to the examination by the private expert.
Report of Proceedings (July 27, 2005) at 14 (King Co. No. 04-1-12703-0 SEA).
Id.
Thereafter, the deputy prosecutor prepared an order for pretrial competency evaluation by Western State Hospital. That order expressly states that " there being reason to doubt the defendant's fitness to proceed," and expressly finds that "the defendant is in need of forensic mental health evaluation. . . ." Both counsel signed that order, and the judge in the felony harassment case entered it on August 2, 2005.
Clerk's Papers at 38 (King Co. No. 04-1-12703-0 SEA) (emphasis added).
The trial deputy also prepared a substantially similar order for the custodial assault case. It also recites that " there being reason to doubt the defendant's fitness to proceed," and expressly finds that "the defendant is in need of forensic mental health evaluation. . . ." Defense counsel in that case signed that order, and the judge in the custodial assault case entered the order on July 29, 2005.
Clerk's Papers at 4 (King Co. No. 05-1-08886-5 SEA) (emphasis added).
Thereafter, Dr. White examined Heddrick and determined that he was competent to stand trial. Defense counsel in the felony harassment case reported the doctor's finding to the judge in that case and further represented that she had decided that a written report of the doctor's finding was unnecessary. In short, she had no further concerns about her client's competency to stand trial. Based on the representations of counsel, the trial court proceeded to trial on both cases without any further hearings on the question of competency.
The State argues that the trial court had no reason to doubt Heddrick's competency in the felony harassment case. It also argues that the court in the custodial assault case merely deferred to the judge in the felony harassment case, having no independent reason to doubt Heddrick's competency. The record directly contradicts both arguments.
First, the plain language of both orders entered by the two judges states " there being reason to doubt the defendant's fitness to proceed," and expressly finds that "the defendant is in need of forensic mental health evaluation. . . ." These express statements in both orders are sufficient to refute the State's argument that the two trial judges did something other than finding that Heddrick's competency was at issue.
Second, the trial deputy's comments at the hearing before the judge in the felony harassment case further undermine the position the State now takes on appeal. The deputy stated during that hearing, "I believe that defense counsel's making an astute observation [that there were concerns about Heddrick's competency] that probably does need to be followed up on." As we stated previously in this opinion, this comment was apparently based on the prosecutor "having observed some of [Heddrick's] behaviors."
Report of Proceedings (July 27, 2005) at 14 (King Co. No. 04-1-12703-0 SEA).
The State cites State v. Hicks, State v. Higa, and State v. Harris to support its argument that the trial court need not hold an evidentiary hearing before deciding that an accused is competent to stand trial under these circumstances. Hicks is inapplicable because in that case, the court actually held an evidentiary hearing to determine the defendant's competency to stand trial. In Higa, Division Two emphasized the trial court's discretion in making the initial determination whether to inquire formally into a defendant's competency. There is nothing in the opinion addressing whether the court must hold an evidentiary hearing once such a determination has been made. Competence was not even at issue on appeal in Harris, so any statements from Division Three regarding the issue are dicta. Moreover, it appears from the facts that the trial court only ordered a competency evaluation based on stipulation by the parties, not based upon its own finding that there was reason to doubt competency.
41 Wn. App. 303, 704 P.2d 1206 (1985).
38 Wn. App. 522, 685 P.2d 1117 (1984).
122 Wn. App. 498, 94 P.3d 379 (2004).
122 Wn. App. at 504 (sole issue on appeal was tolling the speedy trial period).
Finally, the State argues that the trial judges had considerable discretion to decide whether a hearing was required, and Heddrick has not shown that they abused that discretion. The question is not one of discretion. Rather, the question is whether Heddrick received the due process to which he was entitled once there was reason to doubt his competency.
See Marshall, 144 Wn.2d at 279.
We conclude that due process was satisfied. We recognize that Heddrick's right not to be tried while incompetent is fundamental. But the risk of erroneous deprivation of that right was minimal in this case. Heddrick's own expert, Dr. White, examined him for the second time and concluded that he was competent to stand trial. This satisfied defense counsel that Heddrick was competent. Heddrick does not make a compelling argument that an evidentiary hearing would have added anything under the circumstances of this case. No other expert had examined him or come to a different conclusion about his competence at that time. Moreover, the record does not indicate that any issues regarding competency arose during either of the two trials that followed. Balanced against the State's interest in trying Heddrick for his crimes, we hold that an evidentiary hearing was not required under the facts of this case.
Heddrick received the due process to which he was entitled under the circumstances, notwithstanding that the trial court did not follow the statutory procedures of RCW 10.77.060. There was no error in either the felony harassment or the custodial assault cases in not having any further hearings on competency.
CHARACTER EVIDENCE
Heddrick argues that the trial court erred in admitting evidence of his character in the felony harassment case. We disagree.
Evidence of a person's character or trait is generally inadmissible to prove that he acted in conformity with that trait. Decisions as to the admissibility of evidence are within the discretion of the trial court, and are reversible only for an abuse of that discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. An evidentiary error which is not of constitutional magnitude requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial.
ER 404(a)(1).
State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
An objection to evidence must specify the particular ground upon which it is based to preserve the error for review. A party may only appeal the admission of evidence based on the specific ground made at trial.
State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
Id.
Here, Deputy Wojdyla stated, "[H]e is telling us basically that he has a disregard for the law." Defense counsel objected to the statement as "speculation." The trial court sustained the objection, but refused to grant counsel's motion to strike, stating, "I am not going to strike that. I sustained the objection, again, in that it was based on speculation. Go ahead."
Report of Proceedings (October 12, 2005) at 20 (King Co. No. 04-1-12703-0 SEA).
Id.
Id. at 21.
Heddrick objected to the statement only on the basis of "speculation." The trial court properly sustained the objection. He cannot now appeal on the basis that the statement is improper character evidence because that was not the basis of his objection below.
Heddrick has not shown that the trial court abused its discretion in refusing to strike the statement. He now argues that this alleged error affected his constitutional right to a fair trial. But he fails to explain why he should qualify under this narrow exception to permit review on the basis of an argument not raised below. We do not see any basis for him to claim that RAP 2.5(a) applies in this case.
JURY INSTRUCTIONS
Heddrick next argues that the "to-convict" jury instruction in the felony harassment case did not contain each essential element of the crime. We disagree.
A "'to convict' instruction must contain all of the elements of the crime because it serves as a 'yardstick' by which the jury measures the evidence to determine guilt or innocence." If it does not, the missing element supplied by other instructions does not cure the defect. Omission of an element relieves the State of its burden to prove every essential element beyond a reasonable doubt. Such an omission requires reversal unless the error is harmless beyond a reasonable doubt. This court reviews de novo the adequacy of a challenged "to convict" jury instruction.
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)).
DeRyke, 149 Wn.2d at 910.
Smith, 131 Wn.2d at 265.
State v. Williams, 158 Wn.2d 904, 917, 148 P.3d 993 (2006).
State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005).
According to statute, a person is guilty of the crime of harassment when two elements are met: (1) "Without lawful authority, the person knowingly threatens" to cause any of certain enumerated types of bodily injury or physical damage; and (2) that person places the victim in "reasonable fear that the threat will be carried out." The person is guilty of a felony if an additional element is met — he has previously been convicted of harassment against the victim or the victim's family, or he threatens to kill the victim.
Here, the to-convict instruction listed six elements: (1) Heddrick knowingly threatened to cause bodily injury to Patricia Anderson on May 13, 2004; (2) the threat placed Anderson in reasonable fear that the threat would be carried out; (3) Heddrick was previously convicted of domestic violence against Anderson; (4) he acted without lawful authority; (5) the threat was a true threat; and (6) the acts occurred in Washington. This instruction properly lists every element in the statute.
Heddrick relies on State v. Kiehl and State v. J.M. to support his argument that an additional element is required. In Kiehl, the court held that the to-convict instruction, which had listed the two statutory elements (plus a sub-element describing the applicable type of injury), was improper because it had listed one individual as the victim of the threat and a different individual as the person placed in fear as a result. The court explained that the same person who was threatened must find out about the threat and be placed in fear. Nothing in the opinion suggests that the to-convict instruction must separately list the requirement that the victim of the threat must learn of it.
128 Wn. App. 88, 92, 113 P.3d 528 (2005), review denied, 156 Wn.2d 1013 (2006).
144 Wn.2d 472, 28 P.3d 720 (2001).
Id. at 93.
Id.
In J.M., the court did not consider jury instructions or specific elements of the crime, but rather interpreted the term "knowing" in the statute. The court concluded that the defendant need not have known that the threat would reach his intended victim, but the victim must actually have found out about the threat. These cases do not support Heddrick's position that there is an additional element to the crime. We reject his arguments.
J.M., 144 Wn.2d at 482.
ASSISTANCE OF COUNSEL DURING CRITICAL STAGE
Heddrick contends he was denied the assistance of counsel during a critical stage of the proceedings in the custodial assault case. We hold that he has failed to show he was deprived of the assistance of counsel at this stage.
The federal and state constitutions guarantee a defendant the right to be represented by counsel at all critical stages of criminal proceedings. It is well established in other jurisdictions that a competency hearing is a critical stage of proceedings. This issue can be raised for the first time on appeal because it is a manifest error affecting a constitutional right.
U.S. Const. amend. VI; Wash. Const. art. I, § 22.
E.g., Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir. 1986).
State v. Holley, 75 Wn. App. 191, 197, 876 P.2d 973 (1994).
Here, the trial judge in the felony harassment case signed the order finding Heddrick competent to stand trial on October 10. The trial judge then apparently applied that ruling to both cases, although the record in the custodial assault case does not reflect this action. There was no separate proceeding in the custodial assault case in which the court found Heddrick competent to stand trial, so there was no hearing constituting a critical stage at which his presence was required.
Moreover, defense counsel in the custodial assault case signed the substantially similar order for a competency evaluation that the State prepared for the felony harassment case. The respective trial judges in each case entered substantially similar orders triggering the statute. There is no showing of prejudice simply because counsel for the custodial assault case was not physically present at the hearing when Tracy Lapps represented that Dr. White, the expert in the felony harassment case, found him competent and ordered that no report be done.
Heddrick was not denied his right to counsel at a critical stage of the proceedings.
RIGHT TO CONFRONTATION/HEARSAY
Heddrick argues that the trial court in the custodial assault case violated his right to confrontation under the Sixth Amendment and abused its discretion in admitting hearsay testimony. We disagree.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible unless an exception applies. We review a trial court's evidentiary rulings for an abuse of discretion.
ER 801(c).
ER 802.
City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004).
The Confrontation Clause of the Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." To enforce this right, Crawford v. Washington dictates that out-of-court testimonial statements are inadmissible against a defendant unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Non-testimonial statements do not implicate the Confrontation Clause.
U.S. Const. amend. VI.
541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87, cert. denied, 127 S. Ct. 553 (2006) (citing Crawford, 541 U.S. at 68).
The United States Supreme Court did not provide a precise definition of "testimonial," but stated that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." The most important factor in determining whether a statement is testimonial is the witness' purpose in initiating police contact and making the statement. A statement is only testimonial if the declarant would reasonably expect his or her statement to be used at a later trial.
Id.
State v. Mason, 127 Wn. App. 554, 563, 126 P.3d 34 (2005), aff'd, No. 77507-9, 2007 WL 2051541 (July 19, 2007).
Whether a statement is testimonial and covered by Crawford is an issue of law we review de novo. So long as it had "practical and identifiable consequences," it may be raised for the first time on appeal because a violation of the Confrontation Clause is a manifest error affecting the defendant's Sixth Amendment right.
State v. Mohamed, 132 Wn. App. 58, 63-64, 130 P.3d 401, review denied, 158 Wn.2d 1021 (2006).
State v. Price, 158 Wn.2d 630, 638-39 n. 3, 146 P.3d 1183 (2006) (citing State v. Clark, 139 Wn.2d 152, 156, 985 P.2d 377 (1999)).
Heddrick challenges statements made by Officer Alan Braden at trial when he was describing the nurse's medical examination of Heddrick after the alleged assault.
Officer Braden stated that after the nurse examined Heddrick for two or three minutes, Heddrick "was cleared to go back [to his cell]." When asked what that meant, Officer Braden responded, "It means medical staff felt that he didn't have enough injuries. . . ." Heddrick objected on the basis of hearsay. The court stated that it would allow the question and the answer to stand, but directed the witness to carefully listen to the question and how it was posed. The court further directed the prosecutor to rephrase the question. The prosecutor then asked:
Q. (By Ms. Miller) Can you describe for the jury, when you say someone gets cleared by medical staff, can you give a general definition of what that means?
A. If it's not substantial injuries of [sic] broken bones, life threatening or something of that nature, they are cleared to go to their assigned cell.
Q. So if they have something that needs to be treated, they're not cleared; if they don't, they are, is that accurate?
A. Yes, ma'am.
Report of Proceedings (October 13, 2005, Vol. II) at 56-57 (King Co. No. 05-1-08886-5 SEA).
Heddrick did not object.
Heddrick appears to argue that the nurse's statement that he was cleared to return to his cell is testimonial hearsay, excludable as a violation of the Confrontation Clause.
Assuming, without deciding, that the nurse's statement was hearsay, it was not testimonial and therefore does not implicate the Confrontation Clause. Her purpose in making the statements was to provide medical attention and treatment, not to make a formal statement or further a prosecution. Her process of clearing patients is not of the type Crawford was concerned with — prior testimony, answers to police interrogation, and the like. Thus, it was not testimonial and the trial court did not violate Heddrick's Sixth Amendment right in admitting Officer Braden's testimony.
See Mason, 127 Wn. App. at 564 (declarant's statement while seeking police protection is not testimonial because the purpose is to get help, not to "make a formal statement" or prove a fact to "further a prosecution").
Even if we concluded that the officer's trial testimony relating the nurse's statement was hearsay, the admission of the testimony was harmless. The trial court directed the State to rephrase the question, and Heddrick did not object to the new questions or the answers. Moreover, the officer's testimony was also cumulative of other evidence that Heddrick was returned to his cell without further medical attention.
OPINION TESTIMONY
Heddrick challenges statements in both cases as improper opinion testimony regarding his veracity or guilt. We conclude that the testimony, to which he made no objections, was properly admitted.
It is improper for a witness to testify in opinion form regarding the guilt or veracity of a defendant. A lay person's testimony as to another's credibility is not helpful because the jury is better able to assess credibility, and an expert may not opine as to another's credibility because there is no scientific basis for such an opinion. But testimony that is not a direct comment on the defendant's guilt or veracity, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper. This is true even if that testimony reaches ultimate issues of fact. Likewise, a witness may testify about his direct knowledge of facts and inferences therefrom, even if those facts support a finding of guilt.
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995).
City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
Id.; ER 704.
State v. Saunders, 120 Wn. App. 800, 812-13, 86 P.3d 232 (2004), review denied, 156 Wn.2d 1034 (2006).
To determine whether testimony constitutes an impermissible opinion on guilt or veracity, or a permissible opinion on an ultimate issue, a court should consider the totality of the circumstances, including the type of witness, the nature of the testimony and charges against the accused, the type of defense, and the other evidence. The jury may especially be likely to be influenced by opinion testimony from a police officer, whose opinion may carry a special aura of reliability.
Demery, 144 Wn.2d at 759.
Id. at 762.
Improper opinion as to the veracity of a defendant may be raised for the first time on appeal if it is a manifest error affecting the defendant's constitutional right to a jury trial. To show a manifest error, "[t]he defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial." Recently, the state supreme court held,
See RAP 2.5(a)(3).
State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
"Manifest error" requires a nearly explicit statement by the witness that the witness believed the accusing victim. Requiring an explicit or almost explicit witness statement on an ultimate issue of fact is consistent with our precedent holding the manifest error exception is narrow.
Id. at 936; accord State v. Warren, 134 Wn. App. 44, 55, 138 P.3d 1081 (2006) ("[W]hen a witness does not expressly state his or her belief of the victim's account, the testimony does not constitute manifest constitutional error.").
In the felony harassment case, Deputy Wojdyla directly opined on Heddrick's veracity, but Heddrick did not object:
Q. And did you take that threat seriously when he said it?
A. I did.
Report of Proceedings (October 12, 2005) at 21 (King Co. No. 04-1-12703-0 SEA).
Q. When you were in the car on the 13th, did you have any question about the sincerity of Mr. Heddrick's threats?
A. I believed that he was sincere in what he was saying. He definitely seemed agitated.
Q. Did you ever ask him if he was sincere in what he was saying?
A. I believe there was a question that was asked. I can't remember if I asked it or if Officer Steffes did, and Mr. Heddrick
said he wasn't serious. But he said it with such conviction when he was talking that he was agitated enough, it left no doubt in my mind that he was sincere about the comments that he had made as to the Anderson family.
Id. at 25.
Officer Steffes likewise stated that he believed Heddrick's alleged threats, but did not believe Heddrick when he said he had been joking:
Q. What was your reaction to that comment?
A. I took it seriously based on the tone of his voice and the conviction of his words. I took it seriously. I took it as a threat.
Id. at 36.
. . . .
Q. Did you take him as being serious? A. I took him, I definitely took him as being serious. Yes.
. . . .
Q. When he told you he wasn't serious about the things he was saying, what was your reaction to that?
. . . .
[Q.] Did you take him as being sincere in his comment?
A. No, I did not.
Id. at 40.
Because the statements were direct statements regarding Heddrick's veracity, we consider this issue on appeal even though Heddrick did not object below.
Under the specific circumstances of this case, however, we conclude that it was not error for the trial court to allow the officers' statements. The State was required to prove beyond a reasonable doubt that the statements Heddrick made to the officers constituted a "true threat." A "true threat" is "a statement made in a context or under such circumstances where a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to carry out the threat." In this case, Deputy Wojdyla and Officer Steffes were the only ones who heard Heddrick make the alleged threats, and thus the only ones who could speak to their serious nature. In order to meet its burden of proof, therefore, the State elicited specific testimony from the officers that they were witnesses to a true threat.
Clerk's Papers at 52 (King Co. No. 04-1-12703-0 SEA) (Jury Instruction No. 6).
The jury was instructed that it was the sole judge of the credibility of the witnesses. We presume the jury followed its instructions. We will not presume that the officers' testimony in this case caused the jury to depart from following these instructions.
Whether testimony is impermissible opinion on veracity depends on the specific circumstances of each case. Under the specific circumstances of this case, we conclude that the admission of the testimony to which Heddrick now objects on appeal was proper to allow the State to meet its burden of proof.
Heatley, 70 Wn. App. at 579.
Next, Heddrick claims that the witnesses' reference to Heddrick's statements as "threats," was improper opinion testimony of his guilt. Pre-trial, the court asked the parties not to refer to the statements as "threats" other than to explain why the officers decided to tell Ms. Anderson about them. Of the several times at trial the officers and the prosecutor used the word "threat," Heddrick only objected once. The court sustained the objection, and Heddrick did not move to strike.
A "threat" is an element of the crime of harassment, but it is also a commonly used word in the English language. This is to be contrasted with a "true threat," which is a term of art and also a separate element of the crime of harassment. Assuming without deciding that the use of this word was an error, we conclude that it was not prejudicial. Even though Heddrick may have had a standing objection given his pre-trial motion, he failed to make a motion to strike or request a curative instruction. Simple use of the word "threat" is not sufficiently flagrant or inflammatory that a curative instruction would have been ineffective.
See State v. Kilburn, 151 Wn.2d 36, 41-43, 84 P.3d 1215 (2004).
In the custodial assault case, Heddrick challenges Officer Braden's testimony that the nurse "felt" that Heddrick did not sustain serious injuries. This is not an opinion on Heddrick's guilt or veracity. It is a summary of the medical assessment the nurse made of Heddrick immediately after the alleged assault. She concluded that he was well enough to go back to his cell, and he did so. Officer Braden's explanation of what occurred is not improper opinion.
See State v. Sanders, 66 Wn. App. 380, 388-89, 832 P.2d 1326 (1992) (officer's conclusion based on the physical evidence and his experience in investigating drug crimes was not improper opinion testimony regarding guilt).
PROSECUTORIAL MISCONDUCT
Heddrick alleges several instances of prosecutorial misconduct in both cases. We conclude that any error did not prejudice his trials.
A prosecutor's comment deprived a defendant of a fair trial if: (1) the statement was improper, and (2) there is a substantial likelihood that the statement prejudiced the jury by affecting its verdict. We review a trial court's ruling on prosecutorial misconduct for an abuse of discretion.
State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).
State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999).
Appealing to the jury's "passion and prejudice" through the use of inflammatory rhetoric is misconduct. Similarly, prejudicial allusions to matters outside the evidence are improper because they encourage the jury to render a verdict based on something other than admitted evidence. For the same reasons, referring to the "golden rule" by name, or urging the jury to put themselves into the shoes of a party in order to grant the kind of relief they would want in those circumstances, constitutes misconduct. Finally, it is misconduct for a prosecutor to argue that in order to acquit a defendant, or "in order to believe a defendant, a jury must find that the State's witnesses are lying."
State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988).
Id.
Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139-40, 750 P.2d 1257 (1988).
State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (1995) (emphasis in original), superseded by statute on other grounds by, RCW 9.94A.364(6).
In determining whether prejudice has occurred, a court must examine the context in which the statements were made, including defense counsel's own statements. Prejudice exists if there is a "substantial likelihood" that the misconduct affected the jury's verdict. A defendant may only raise the issue of prosecutorial misconduct for the first time on appeal if the improper remark is so "flagrant and ill intentioned" that it causes prejudice that could not have been cured through a jury instruction.
State v. Ramirez, 49 Wn. App. 332, 337, 742 P.2d 726 (1987) (citing United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)).
Reed, 102 Wn.2d at 145.
State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
In the felony harassment case, there was no misconduct. In closing argument, the prosecutor did not refer to matters outside the evidence in summarizing all of Heddrick's alleged threats contained in the officers' reports. Although by the time of trial Ms. Anderson may not have remembered each and every alleged threat, she and Deputy Wojdyla testified that the deputy read Heddrick's statements to Ms. Anderson from the report the day after they were made. Thus, evidence supports the arguments.
Heddrick also argues that the prosecutor's use of the word "threat" and elicitation of testimony of Heddrick's guilt and veracity amounted to prosecutorial misconduct. We reject these arguments for the reasons already discussed.
Likewise, the State did not commit misconduct in asking the jurors to put themselves in Heddrick's and Anderson's positions in order to ascertain whether his conduct and her fear were reasonable. The prosecutor did not ask the jurors to render a verdict based upon what they would want if they were in Heddrick's or Anderson's positions, which would have been a violation of the "golden rule" prohibition. The State did not encourage the jury to render a verdict based upon sympathies, but only to analyze whether the reasonable person standard had been met. This was not misconduct.
See Adkins, 110 Wn.2d at 139-40.
In the custodial assault case, the prosecutor's comments were improper. She argued that in order to believe Heddrick, the jury would have to conclude the State's witnesses were being dishonest:
[C]ontemplate whether or not these [officers] are guys who are getting up on the stand schmoozing and making up facts, and because that's what you'd have to accept and believe if you accept the defendant's version to be true.
Report of Proceedings (October 13, 2005, Vol. II) at 73 (King Co. No. 05-1-08886-5 SEA).
Heddrick did not object to these statements. They were not so flagrant that a jury instruction would have been ineffective in curing any prejudice.
See State v. Barrow, 60 Wn. App. 869, 876, 809 P.2d 209 (1991) (a curative instruction "particularly" could have obviated prejudice caused by a remark that in order to acquit defendant, the jury would have had to find that the testifying officers were lying).
Accordingly, there is no basis to reverse.
INEFFECTIVE ASSISTANCE OF COUNSEL
Heddrick argues that his counsel was ineffective in both cases. We disagree.
To prevail on a claim of ineffective assistance of counsel a defendant must first establish that his counsel's representation was deficient. To show deficient performance, he has the "heavy burden of showing that his attorneys 'made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" He may meet this burden by establishing that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. Deficient performance is not shown by matters that reflect trial strategy or tactics. Deciding whether and when to object to the admission of evidence is "a classic example of trial tactics." Only in egregious cases where the evidence is central to the State's case will the failure to object constitute deficient performance under this standard. This court employs a strong presumption that counsel's representation was effective.
State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996).
Hendrickson, 129 Wn.2d at 77-78.
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
Id.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Second, he must show that the deficient performance resulted in prejudice that, with reasonable probability, affected the outcome of the trial.
Hendrickson, 129 Wn.2d at 78.
Heddrick received the due process to which he was entitled. Thus, he cannot show any prejudice by any actions of his counsel.
In both cases, Heddrick claims his counsel was also ineffective for failing to object to all of the alleged errors discussed above that were not properly preserved for review. Whether to object to evidence is usually a matter of trial tactic, and Heddrick has not shown that this is an egregious case in which any of the objectionable testimony was either central or otherwise prejudicial.
CUMULATIVE ERROR
Heddrick argues that cumulative error denied him a fair trial in both cases. We disagree.
Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects of the errors denied the defendant a fair trial. We ask whether the errors combined materially affected the outcome of the trial. We may exercise discretion and consider the cumulative effect of both preserved and unpreserved errors.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
State v. Johnson, 90 Wn. App. 54, 74, 950 P.2d 981 (1998).
State v. Alexander, 64 Wn. App. 147, 151, 822 P.2d 1250 (1992).
In the felony harassment case, there was no error. In the custodial assault case, the only error is the prosecutor's arguments that in order to believe Heddrick, the jury would have to conclude the State's witnesses are lying. Thus, the cumulative error doctrine does not apply to these cases.
INVOLUNTARY MENTAL HEALTH TREATMENT
Heddrick contends that the trial court in the custodial assault case violated its statutory requirement to enter particular findings of fact before requiring a defendant to undergo mental health treatment as a condition of community custody. The State properly concedes this sentencing error. Thus, the only remaining question is the nature of the remedy to be applied.
RCW 9.94A.505(9) provides that a court may require mental health treatment as a condition of community custody only "if the court finds that reasonable grounds exist to believe the offender is a mentally ill person as defined in RCW 71.24.025, and that this condition is likely to have influenced the offense." The finding "must be based on" a pre-sentence report as well as mental evaluations if available.
The State concedes that the trial court did not make the required findings or obtain a pre-sentence report or evaluation. But it argues that the court on remand should have the opportunity to make the required findings.
We question whether the trial court can make the required finding of fact in retrospect. There are "inherent difficulties" in making a determination about a defendant's mental competence at some earlier date "under the most favorable circumstances." We nevertheless remand the case to the trial court for further proceedings. On remand, the trial court should take the steps it believes are appropriate under the circumstances.
See Pate, 383 U.S. at 386-87.
See Drope, 420 U.S. at 183.
We affirm the judgment and sentence in the felony harassment case. We affirm the conviction in the custodial assault case, reverse the part of the judgment and sentence to which the State properly concedes error, and remand for further proceedings.