Opinion
65910-3-I
01-17-2012
STATE OF WASHINGTON, Respondent, v. MATTHEW S. HOWEM, Appellant.
UNPUBLISHED OPINION
Leach, A.C.J.
Matthew Howem appeals from his convictions for second degree assault, unlawful imprisonment, felony harassment, and fourth degree assault. He contends that the trial court violated his constitutional right to a public trial by conducting an in-chambers conference with counsel to discuss the jury instructions. Because the selection of jury instructions involves purely legal matters, however, the in-chambers conference did not implicate Howem's public trial rights. And because Howem's proposed instruction on a lesser degree offense did not arise out of the charged act of second degree assault, defense counsel's decision to withdraw the proposed instruction was not deficient performance. We therefore affirm the trial court.
FACTS
The State charged Matthew Howem with one count of second degree assault, one count of unlawful imprisonment, one count of felony harassment, and one count of fourth degree assault following two incidents involving his former girl friend. Only the facts underlying the second degree assault charge are relevant to the issues raised on appeal.
At trial, Brittney Younkin testified that she met Howem in June 2009 and that the two soon began dating. After a month or two, Younkin and Howem moved in with Bennett Tjolker, Howem's longtime friend, who lived in a mobile home. Younkin acknowledged that the couple argued frequently.
One evening in September or October 2009, Younkin returned home and found Howem outside tending a bonfire. Howem suspected that Younkin was cheating on him and asked for her photos of her ex-boyfriend so that he could burn them. Hoping to alleviate Howem's concerns, Younkin retrieved the photos from her parents' home and gave them to Howem.
After Howem threw the photos on the fire, Younkin went inside to the couple's bedroom and lay down on the bed. A short time later, Howem followed Younkin into the bedroom. He appeared to be upset, and the couple soon began arguing. Howem eventually became angry, grabbed a digital picture frame, and threw it onto the floor, breaking it. He then went over to Younkin, who was lying on her back on the bed.
According to Younkin, Howem leaned over her, put his hands around her neck, and began strangling and shaking her. Howem applied enough pressure on Younkin's throat to make it difficult for her to breathe, and she became lightheaded. Unable to push Howem off, Younkin started screaming for Tjolker to help.
Tjolker, who had heard the screaming and knew that something "wasn't right, " tried to open the door but found that it was locked. He heard Younkin yelling for help and started banging on the door, telling the two to "[k]nock it off."
At some point, Howem stopped strangling Younkin and opened the door. Younkin came out of the room crying and ran outside, where she became sick. Tjolker held Howem back for a short time.
Howem eventually went outside and apologized. Younkin did not report the incident to the police at the time because Howem "had smoothed it over to the point where I felt like he wouldn't do it again."
Howem gave a fundamentally different account of the altercation. He acknowledged that he was out by the bonfire when Younkin came home but maintained that it was her idea to burn the photos. Howem claimed that Younkin's ex-boyfriend had called him earlier and said that he was still seeing her. He urged Howem to confirm this by checking Younkin's cell phone log.
Howem then confronted Younkin in the kitchen-dining area of the mobile home. He eventually grabbed the cell phone from Younkin and showed her the record of a call from her ex-boyfriend. During the scuffle, Younkin hit Howem "lightly in the jaw, " and he "kind of pushed her by her shoulder and threw her down on the ground."
After showing Younkin the cell phone log, Howem walked into the bedroom "just to sleep it off and just call it a night." A short time later, Younkin followed Howem into the bedroom. Howem closed the door but did not lock it. Younkin wanted to talk about the situation, but Howem repeatedly told her to leave and that he no longer wanted to be with her. Younkin eventually left the room. Howem flatly denied choking, punching, or slapping her and denied becoming violent.
After the incident in the mobile home, Howem and Younkin moved to a house in Lynden for a few months. The couple eventually broke up but continued to see one another for a time. After Howem allegedly assaulted her again in April 2010, Younkin called the police and reported both assaults.
Before closing argument, the trial court met with counsel in chambers to discuss jury instructions. Initially, the defense requested lesser degree instructions of third degree assault and fourth degree assault for the second degree assault charge. After the in-chambers conference, defense counsel noted for the record that upon further reflection, he had agreed with the trial court that the defendant was not entitled to the instructions and had withdrawn them.
The jury found Howem guilty as charged and determined that all counts were crimes of domestic violence. Based on Howem's offender score of nine, the court imposed concurrent standard range sentences with a maximum term of 84 months.
ANALYSIS
Howem first contends that the trial court violated his constitutional right to a public trial when it conducted an in-chambers, off-the-record conference to select the jury instructions. He argues that his convictions must be reversed because the trial court effectively closed the courtroom without first considering the factors set forth in State v. Bone-Club.
128 Wn.2d 254, 258-59, 906 P.2d 325 (1995); see also State v. Strode, 167 Wn.2d 222, 227-29, 217 P.3d 310 (2009).
Both the Sixth Amendment and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to a public trial. Article I, section 10 of the Washington Constitution further provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision guarantees the public and the press the right to open and accessible judicial proceedings.
State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006).
But not all in-chambers conferences implicate the right to a public trial. The public trial right applies only to "'adversary proceedings, '" including the "presentation of evidence, suppression hearings, and jury selection." The right does not attach where the trial court resolves "'purely ministerial or legal issues that do not require the resolution of disputed facts.'" Whether a trial court procedure violates a criminal defendant's right to a public trial is a question of law that we review de novo.
In re Det. of Ticeson, 159 Wn.App. 374, 384, 246 P.3d 550 (2011) (quoting State v. Koss, 158 Wn.App. 8, 16, 241 P.3d 415 (2010), petition for review filed, No. 85306-1 (Wash. Nov. 16, 2010)).
Ticeson, 159 Wn.App. at 384 (internal quotation marks omitted) (quoting Koss, 158 Wn.App. at 17).
State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).
In State v. Koss, the court rejected a comparable challenge to an in-chambers discussion in which the parties agreed to remove accomplice language from the burglary instruction. The court concluded that because the discussion of jury instructions was a "ministerial legal matter" that did not include the resolution of disputed facts, the in-chambers conference did not implicate the defendant's public trial right.
158 Wn.App. 8, 241 P.3d 415 (2010).
Koss, 158 Wn.App. at 17; see also In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994) (because the settling of pretrial instructions involved only discussion of legal matters, defendant had no constitutional right to be present).
Howem contends that Koss is both distinguishable and wrongly decided. He argues that the selection of jury instructions may be a highly adversarial process, with parties disagreeing about the applicable law and facts, including whether or not the evidence supports an instruction on a lesser degree or lesser included offense. But he cites no authority suggesting that such circumstances change the overall nature of the court's resolution of the choice and wording of jury instructions.
Whether jury instructions correctly state the applicable law is a question of law. When determining whether the evidence supports the giving of an instruction, including a lesser included or lesser degree instruction, the trial court must consider the evidence in the light most favorable to the requesting party.Although its analysis may be based on disputed facts, the trial court does not make credibility assessments or otherwise resolve those disputed facts. And Howem does not suggest that the trial court made any factual determinations in settling the instructions in this case. Because the selection of jury instructions is a fundamentally legal determination, the in-chambers conference here did not implicate Howem's right to a public trial. We decline Howem's invitation to reject the analysis in Koss.
State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002).
See State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
See Ticeson, 159 Wn.App. at 386 (in-chambers conference on the admissibility of deposition testimony does not implicate the public's right to open proceedings); State v. Sublett, 156 Wn.App. 160, 182, 231 P.3d 231, review granted, 170 Wn.2d 1016, 245 P.3d 775 (2010) (in-chambers conference to address a jury question about instruction did not implicate the public trial right).
Howem next contends that he received ineffective assistance when defense counsel withdrew the proposed instruction on the lesser degree offense of fourth degree assault. He argues that because he denied choking Younkin but admitted pushing her to the ground, the evidence supported an inference that he committed only a simple assault and that he was therefore entitled to an instruction on the lesser degree offense. But because Howem's admission did not relate to the charged incident, he was not entitled to an instruction on fourth degree assault.
To prevail on his claim of ineffective assistance, Howem must show both (1) that defense counsel's representation fell below an objective standard of reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. A defendant must overcome the "strong presumption" that counsel's performance was reasonable. We review ineffective assistance claims de novo.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
A criminal defendant is entitled to an instruction on an inferior degree offense if
"(1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense."
Fernandez-Medina, 141 Wn.2d at 454 (internal quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)); RCW 10.61.003.
It is undisputed that the legal prong of this test was satisfied here. The assault statutes proscribe the single offense of assault, and fourth degree assault is an inferior degree offense of first and second degree assault.
See RCW 9A.36.011, .021, .041; see also Fernandez-Medina, 141 Wn.2d at 455.
In State v. Porter, our Supreme Court noted that application of the lesser included or lesser degree offense analysis necessarily rests on an independent threshold requirement that "the lesser crime be based on the same criminal transaction supporting the charged offense."
150 Wn.2d 732, 739, 82 P.3d 234 (2004).
The Workman test has, in fact, no role to play in making this essential threshold determination; the court need consider only whether the allegedly included offense arises from the same act or transaction supporting the charged crime. Only upon concluding that the threshold requirement has been met should the court proceed to apply the two-pronged Workman test.
State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
Porter, 150 Wn.2d at 739-40.
In Porter, the defendant was charged with selling cocaine to an undercover officer. At trial, he denied selling cocaine to the undercover officer but claimed that he attempted to purchase cocaine from another person who was also present during the transaction. But because the lesser included offense of attempted possession of cocaine "was not based on the same criminal act or transaction giving rise to the charged crime of delivery of cocaine, " the defendant was not entitled to have the jury instructed "on his alternative criminal conduct."
Porter, 150 Wn.2d at 740.
Here, the State charged Howem with a single act of second degree assault based on strangulation. The evidence at trial established only a single, discrete act of strangulation that occurred in the couple's bedroom. Howem's testimony described an unrelated simple assault that occurred at a different time and in a different location. By Howem's own account, that incident had ended before both Howem and Younkin went into the bedroom. Howem flatly denied strangling Younkin or committing any act of assault in the bedroom.
State v. Lyon, cited by Howem, is distinguishable. In Lyon, the court held that a felony murder defendant was entitled to a lesser included assault instruction based on evidence that the victim's death resulted from a later, unrelated assault by another person. But the State in Lyon conceded that the factual prong of the Workman test was met, and the court focused its analysis on the legal prong. The court had no occasion to consider the threshold requirement for the Workman test set forth in Porter.
96 Wn.App. 447, 979 P.2d 926 (1999).
Lyon, 96 Wn.App. at 450-51. In In re Personal Restraint of Andress, 147 Wn.2d 602, 616, 56 P.3d 981 (2002), our Supreme Court held that under the then current statute, second degree assault could not serve as the predicate felony for second degree felony murder, effectively overruling Lyon.
Under the circumstances, Howem's admission of criminal conduct was not based on the same act or transaction giving rise to the charged act of assault. Accordingly, he was not entitled to an instruction on a lesser degree offense, and defense counsel's withdrawal of the proposed instruction was not deficient performance. Howem has therefore failed to demonstrate ineffective assistance of counsel.
CONCLUSION
Affirmed.