Opinion
No. 60099-1-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08033-1, Richard McDermott, J., entered June 1, 2007.
Affirmed by unpublished per curiam opinion.
Stephen Kirk challenges his burglary in the second degree conviction, arguing that he was denied effective assistance of counsel because his attorney disclosed privileged communications without a waiver and that the trial court erred by giving an accomplice liability instruction that was unsupported by substantial evidence. Because Kirk cannot establish ineffective assistance of counsel and any error in the jury instructions was harmless, we affirm.
FACTS
Stephen Kirk was arrested and charged with burglary in the second degree. Witnesses at trial testified to the following events.
On the morning of August 2, 2006, Pamela Hubert and Daniel Lagat, employees of the VIP Tavern in SeaTac, were asleep in their apartment directly above the tavern. Sometime around 6:30 AM, Hubert heard some activity, looked outside, and noticed a two-toned brown recreational vehicle (RV) parked in front of the tavern. She returned to bed, but was awakened shortly after 8 a.m. by the sound of glass breaking. Hubert looked out the window and saw a man dragging the tavern's ATM (automated teller machine) away from the building and loading it into the back of his RV. She saw him get into the RV and start to drive away. Hubert told Lagat that someone was stealing the ATM. While Lagat called 911, Hubert ran downstairs in an attempt to get the RV's license plate number. She saw the RV going northbound on Pacific Highway. She did not see any other people around the tavern at the time of the incident.
Minutes after police were dispatched to the area, King County Sheriff Officer Sergeant Daniel Morrow noticed an RV resembling the description of the suspect vehicle parked in a parking lot about 50 blocks north of the VIP Tavern. Around the same time, a bystander saw an RV drive into the parking lot and heard a loud noise like metal hitting the ground near where it was parked.
Sergeant Morrow made a U-turn and headed back to the parking lot. As he pulled into the parking lot, he was met head-on by the RV. When the driver of the RV saw the approaching police car, he veered away and stopped. Morrow pulled up and saw a man, later identified as Kirk, exiting the open rear door of the RV. Kirk appeared nervous, and he had fresh cuts on his arms and hands. Morrow arrested Kirk.
Police found the stolen ATM, damaged and broken open, approximately 50 to 100 feet from the RV. There were marks on the ATM that appeared to be blood smears, as well as paint transfer that appeared to be from the ATM rubbing against the RV. Police searched the RV and found twelve $20 bills under a pillow on a chair behind the driver's seat.
Hubert was transported to the scene of the arrest, where she positively identified Kirk as the man she saw dragging the ATM from the VIP Tavern. She also recognized Kirk's RV. Back at the tavern, police found a white brick that was used to smash through the front window. Two of the seven fingerprints lifted from the outside of the glass window matched Kirk's.
Kirk admitted to being at the VIP Tavern that morning, but denied any involvement in the burglary. He claimed that he had arranged to meet a man known only as "Ken" outside the tavern to collect payment for work he had performed on Ken's RV. Kirk said that he arrived at the tavern at around 4 a.m., removed a large space heater from his RV, and took a nap. He woke up, walked away from the tavern, and had a brief conversation with a man in a nearby store. When Kirk returned to his RV, he saw a second RV parked adjacent to his. Ken was standing nearby. Kirk said that Ken drove away before Kirk could talk to him. Kirk did not notice anything else out of the norm at the VIP Tavern such as a broken window or a burglar alarm going off. Kirk put the space heater back into his RV and drove off in pursuit. Kirk caught up to Ken in the parking lot. Ken jumped into Kirk's RV, handed him $200, and left quickly. Kirk tried to drive away, but stopped when he felt something hit his RV. He got out and realized that there was a large object leaning against his RV. He pushed it off, started to drive away, felt a second jolt, and stopped again. The police arrived, and Kirk was arrested shortly thereafter.
Trial was scheduled to begin on March 12, 2007, but defense counsel was granted a two-week continuance to investigate Kirk's medical records. On March 27, 2007, the parties appeared for pretrial motions. Defense counsel began by stating, "There is one matter that [Kirk] brought to my attention just this morning where he had asked me to just briefly explain, Your Honor." Report of Proceedings (RP) (Mar. 27, 2007) at 4. Counsel said that he had not yet followed up on Kirk's request to find out whether there were any security cameras in the area where Kirk was apprehended. He noted that Kirk "had expressed a lack of confidence in me as his attorney" and asked for a one-day recess to investigate Kirk's request. Id. The court granted the motion.
Two days later, defense counsel informed the court that "my client expresses a lack of confidence" and that "I want to assure that Mr. Kirk wants to go forward this morning." RP (Mar. 29, 2007) at 3. The trial court asked Kirk to explain and Kirk expressed dissatisfaction with counsel's investigation of the case, particularly his failure to locate an alibi witness who could exonerate him and his counsel's delay in attempting to locate surveillance tapes. Kirk asserted that he had "no frigging confidence whatsoever" in his counsel and that counsel had violated his Sixth Amendment right to a fair trial. Id. at 6-7. The trial court told Kirk that it did not believe in continuing trials after they started and would not continue this one. The court then asked Kirk's counsel to make a record concerning his investigation of the case.
Without revealing the substance of any conversations, Kirk's counsel briefly summarized the history of his contacts with Kirk and the breakdown in plea negotiations. He then named the witnesses he had interviewed, described photographs taken of the area, and noted his attempts to obtain medical records and surveillance tapes. He also described his fruitless search for the witness Kirk described earlier. The court asked Kirk to respond. Kirk provided additional information regarding the identity of the missing witness, and the trial court ordered defense counsel to follow up on the new information. The trial proceeded, and Kirk made no additional motions regarding continuances or counsel's performance.
The State proposed an accomplice liability instruction based on Kirk's testimony regarding "Ken's" involvement in the incident. The trial court initially indicated that the evidence was insufficient to give the instruction because there was no evidence that there was someone involved for whom Kirk was legally responsible. The State continued to argue that the instruction was warranted because a juror could infer that "Ken" broke into the tavern and pushed the ATM out the window and that Kirk took it away. The court ruled that it would not give the instruction, noting that accomplice liability attaches only when the accomplice acts with knowledge of the specific crime that is eventually charged. Defense counsel then asked the court whether he would be permitted to argue that the State failed to prove that Kirk entered the tavern. The court then reluctantly decided to include the accomplice liability instruction so that defense counsel would be free to argue his theory of the case. Defense counsel objected to the instruction and offered not to make that argument if the accomplice liability instruction would not be given. The court retained the instruction.
The jury convicted Kirk as charged, and he appealed.
ANALYSIS
Ineffective Assistance of Counsel
Kirk argues that he received ineffective assistance of counsel because his counsel disclosed privileged communications in the presence of the prosecutor. Kirk contends that this breach created a conflict of interest amounting to a breakdown of the adversarial process and justifying a presumption of prejudice. The State argues that Kirk waived any privilege by raising a claim that defense counsel was inadequately investigating the case and by describing the communications himself. The State further contends that there was no actual conflict and no prejudice.
The federal and state constitutions guarantee the right to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10); State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). To demonstrate ineffective assistance of counsel, a defendant must show (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant in that there is a reasonable probability that the results of the proceeding would have been different without counsel's unprofessional errors. State v. Maurice, 79 Wn. App. 544, 551-52, 903 P.2d 514 (1995); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If the defendant fails to carry his burden on either prong of the test, the inquiry need go no further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Very rarely, "[a] presumption of prejudice arises when the process loses its character as a confrontation between adversaries." State v. Webbe, 122 Wn. App. 683, 694, 94 P.3d 994 (2004). A conflict of interest on the part of defense counsel is a breach of the duty of loyalty in the adversarial process, and no further showing of prejudice is required. Id. The defendant, however, must demonstrate that defense counsel had an "actual conflict," meaning a conflict that adversely affected counsel's performance. State v. Dhaliwal, 150 Wn.2d 559, 570, 79 P.3d 432 (2003).
Washington law protects confidential communications between attorneys and clients. RPC 1.6(a); RCW 5.60.060(2)(a); Webbe, 122 Wn. App. at 691. The client may waive the privilege, although an attorney may not waive it unilaterally on the client's behalf. State v. Marshall, 83 Wn. App. 741, 750 n. 10, 923 P.2d 709 (1996). A client waives the privilege by claiming ineffective assistance of counsel, at least to the extent necessary to permit the attorney to respond to the allegations. 5A Karl B. Tegland, Washington Practice: Evidence § 501.23, at 173 (5th ed. 2007); State v. Cloud, 95 Wn. App. 606, 613 n. 9, 976 P.2d 649 (1999); RPC 1.6(b)(5).
"A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)."
"An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment."
"A lawyer to the extent the lawyer reasonably believes necessary may reveal information relating to the representation of a client to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client."
Kirk, relying heavily on Webbe, argues that his counsel provided ineffective assistance by revealing privileged communications without his consent and that no prejudice need be shown. We disagree. In Webbe, defense counsel offered their own testimony regarding Webbe's competency and ability to assist in his own defense. Webbe, 122 Wn. App. at 687. The court ruled that the prosecutors were entitled to the attorney's unredacted interview notes with Webbe to prepare for the testimony. Id. at 688. Defense counsel provided the notes, but raised concerns about whether Webbe had consented to waive the attorney-client privilege. Id. at 689. The court ordered the prosecutors to return the notes, and Webbe's guardian ad litem stated that both he and Webbe believed it was not in Webbe's best interest to waive his privilege. Id. at 690. Webbe was found competent to stand trial and was convicted on all charges. Id.
On appeal, this court held that the disclosure was error, noting that it was "undisputed that Webbe did not waive his privilege, and that his attorneys did not have authority to do so on his behalf." Id. at 691-92. The court acknowledged that Webbe's attorneys committed an error of judgment in presuming that Webbe would waive his privilege once they advised him that their strategy required it, but that there was no conflict or violation of the duty of loyalty that created a presumption of prejudice. Id. at 696-99. Because Webbe failed to demonstrate prejudice, despite the "unsettling" nature of the disclosure, the court affirmed the convictions. Id. at 698-99.
Here, in contrast, the disclosures were prompted by Kirk's allegations — made in open court — concerning the inadequacy of defense counsel's representation and his alleged failure to investigate key aspects of the case. Thus, Kirk impliedly waived any privilege claim to the extent necessary to permit defense counsel to respond to the trial court's inquiry regarding what he had done to investigate the case. Nor did the disclosures create an "actual conflict" between Kirk and defense counsel giving rise to a presumption of prejudice. In responding to the court's inquiry, defense counsel did not adopt a position adverse to Kirk. He merely summarized the actions he had taken to investigate the case, candidly admitted that he had not done everything Kirk had asked him to, and explained why. Kirk concedes that the disclosures were "few and relatively minor." Br. of Appellant at 12. Defense counsel vigorously and diligently defended Kirk's interests. This incident did not create a breakdown in the adversarial process justifying a presumption of prejudice.
Accomplice Liability Instruction
Kirk argues that the trial court erred by instructing the jury on accomplice liability where there was no evidence to support giving the instruction. The State contends that Kirk's own testimony that another man was present at the scene of the burglary introduced the prospect of accomplice liability. The State further notes that fingerprints of people other than Kirk's were found at the scene and that Kirk testified that he could not lift heavy objects. Therefore, the jury might believe that "Ken" broke into the tavern and removed the ATM and that Kirk took it away.
We review the decision whether to give a particular jury instruction for an abuse of discretion. State v. Chase, 134 Wn. App. 792, 803, 142 P.3d 630 (2006), review denied, 160 Wn.2d 1022 (2007). Jury instructions are sufficient when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). "It is error for a trial court to give an instruction which is not supported by the evidence." State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995). The appellate court views the supporting evidence in the light most favorable to the party that requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).
As the trial court correctly acknowledged in its initial ruling, there is little or no evidence to support an instruction on accomplice liability. There was no testimony that "Ken" ever entered the tavern, only that Kirk saw him standing outside. Nor was there evidence that Kirk had the requisite mens rea for accomplice liability, which is knowledge of the specific crime that is eventually charged, not knowledge of a different crime or generalized knowledge of criminal activity. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51, at 157 (2d ed. 2008). The trial court reluctantly changed its ruling and allowed the instruction so defense counsel could argue that the State failed to prove that Kirk entered the tavern. But defense counsel did not want an accomplice liability instruction; rather, the State sought it as a fallback position just in case the jury did not believe that Kirk broke the window and removed the ATM. The instruction was not necessary for defense counsel to argue that the State failed to prove that Kirk entered the tavern, nor was it necessary for the State to argue that Kirk's version of events was untenable and that there was overwhelming evidence of Kirk's guilt as principal.
However, any error in giving an accomplice liability instruction was undoubtedly harmless. "Instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless." State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001). An erroneous accomplice liability instruction is harmless if, under the facts of the case, the appellate court can "`conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
Kirk contends that the accomplice liability instruction was prejudicial because it is impossible to determine whether the jury convicted him as an accomplice or principal. But accomplice and principal liability are not alternative means of committing the same crime. State v. McDonald, 138 Wn.2d 680, 687, 981 P.2d 443 (1999). If sufficient evidence exists to show that the defendant was guilty as a principal, an erroneous accomplice liability instruction is harmless. State v. Thomas, 150 Wn.2d 821, 844-45, 83 P.3d 970 (2004). The State offered overwhelming evidence supporting Kirk's guilt as principal. Hubert was certain that Kirk was the man she saw dragging the ATM away from the tavern and loading it into his RV. She did not see anyone else in the area. Kirk's fingerprints were found at the point of entry. Minutes later, Kirk was found in the same parking lot as the broken ATM. He had fresh cuts on his hands and arms and twelve $20 bills in his RV. Kirk's version of events lacked corroborating evidence and was not tenable.
We affirm.