Opinion
No. 34397-5-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Skamania County, No. 05-1-00107-9, E. Thompson Reynolds, J., entered January 26, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
Mark Taylor stabbed Lester McDonald in the back after a brief late night confrontation in a public park. The State charged Taylor with attempted premeditated murder with a deadly weapon. An additional first degree assault with a deadly weapon charge was added just prior to trial. A jury found Taylor guilty of first degree assault while armed with a deadly weapon. On appeal, Taylor argues that (1) the trial court erred when it permitted the amendment to the information on the morning of trial. Taylor further alleges prosecutorial misconduct for (2) improper questioning of the lead police officer, and (3) improper argument in rebuttal. Additionally, Taylor argues that (4) the State failed to produce sufficient evidence to sustain a conviction for first degree assault. Finally, in his statement of additional grounds (SAG), Taylor argues (5) ineffective assistance of counsel; (6) and a violation of his speedy trial rights. Taylor's claims have no merit and we affirm his conviction.
FACTS
I. The Stabbing
McDonald was released from prison on October 17, 2005. While McDonald was incarcerated his ex-girlfriend, Cynthia Moore, dated Taylor. Upon his release, McDonald received word that Moore wanted to see him. When he returned home from work on October 18, McDonald found Moore asleep on his couch. Instead of waking her, he went for a walk. He walked to a park approximately 100 yards from his home. McDonald was sitting on a park bench when he heard someone approach. It was dark so he asked the person approaching to identify himself. The person did not respond and McDonald stood up as the person walked directly up to him. At that point, McDonald testified that the person approaching exclaimed, "you know who I am. I'm gonna stab you; I'm gonna kill you." 2 Report of Proceedings (RP) at 85. Due to poor lighting, McDonald could not see who it was but recognized the voice as Taylor's.
Initially, McDonald raised his arm to strike Taylor, but then turned around to retreat. As McDonald turned to run, Taylor grabbed the back of his leather coat, and McDonald felt a pinching sensation in his back. After running 100 yards to his home, McDonald still felt the pinching sensation. McDonald discovered he was bleeding and called the paramedics and the Skamania County Sheriff's Office. McDonald testified that he did not see a knife in Taylor's hands during the altercation, but that Taylor's hands were low at his sides, with one arm behind his body.
Sergeant Robison was dispatched to the scene of the assault. He observed McDonald's wound and believed it to be a stab wound. Medical professionals at Skyline Hospital agreed.
After searching for Taylor for nearly three hours, he was located in his travel trailer, crouched down. He was arrested. During questioning, Taylor admitted to Sergeant Robison that he encountered McDonald at the park, yelling ensued and that he then shoved McDonald down and fled. Taylor said that after the altercation, he walked back to his travel trailer.
The State charged Taylor with first degree attempted premeditated murder while armed with a deadly weapon. This was based on the allegation that Taylor threatened McDonald's life prior to the altercation.
Trial was set for December 12, 2005, but that morning the State moved for a continuance under CrR 3.3(f)(2) due to the unavailability of Sergeant Robison, a necessary trial witness. Sergeant Robison had a preplanned vacation where he was to lead a group to New Orleans to assist in Hurricane Katrina relief efforts. The court granted the State's motion, finding that the continuance did not prejudice Taylor. The court then rescheduled Taylor's trial for January 9, 2006, the next available court date. Taylor objected to the continuance arguing that it violated his speedy trial rights.
II. Amendment at Trial
On January 5, 2006, the State filed a motion to allow an amended information adding a count of first degree assault with a deadly weapon, in the alternative, to the first degree attempted premeditated murder charge. The State explained that the late amendment was due to a misunderstanding. Both the State and Taylor's counsel were under the misapprehension that first degree assault was a lesser included offense to attempted murder, when in fact, it was not. Defense counsel objected to the amendment, but in his declaration and memorandum of opposition, counsel confirmed his prior misapprehension that first degree assault was a lesser included offense to the underlying charge. On the morning of trial, the court heard arguments on the issue. The court found that though the late amendment was less than ideal, there was no prejudice to Taylor, and permitted the amendment.
RCW 9A.36.011(1)(a) and/or (c), RCW 9.94A.602.
III. Sergeant Robison's Testimony
At trial, Sergeant Robison testified about his observations the night of the altercation. He was the first officer to speak with McDonald and Taylor about the incident the night of the assault. He spoke with Taylor at his travel trailer and later interviewed him at the police station after his arrest. Sergeant Robison testified to the inconsistencies between Taylor's initial interview and the physical evidence, Taylor's trial testimony and prior interviews, and he also attempted to authenticate a video of Taylor's interview at the police station. At trial, Taylor did not object to Sergeant Robison's testimony that he now claims is error on appeal.
IV. Prosecution Rebuttal
During rebuttal argument, the State noted a number of inconsistencies and differences between Taylor's account of the assault, and the accounts of other witnesses. The State argued that in order for the jury to "believe" Taylor's version of events the night of the assault, it would have to "disbelieve" all of the State's witnesses. 3 RP at 344-45.
The jury convicted Taylor of first degree assault with a deadly weapon. Taylor now appeals.
ANALYSIS
I. Amended Information
On the first day of trial, the court granted the State's motion to amend the information to include a first degree assault charge in addition (and in the alternative) to the first degree attempted premeditated murder charge. Taylor objected but did not request a continuance. Taylor now argues that the trial court erred when it permitted the State to amend the information the morning of trial because of prejudice to Taylor. The State argues that there was no prejudice to Taylor and that the trial court ruled properly.
CrR 2.1(d) states: "Amendment. The court may permit any information . . . to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." The defendant has the burden of showing prejudice under this rule, and the fact that the defendant does not request a continuance is persuasive of lack of surprise and prejudice. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982); see also State v. Purdom, 106 Wn.2d 745, 748, 725 P.2d 622 (1986).
Taylor's counsel admitted to the court that he was under the mistaken impression — as was the State — that assault was a lesser included offense of attempted murder. Thus, Taylor had the opportunity to prepare for the issues unique to an assault charge. Taylor even stated to the trial court that he was willing to proceed solely on the first degree assault charge should the State move to dismiss the attempted murder charge. Further, though assault is not a lesser included offense of attempted premeditated murder, attempted second degree murder is, so Taylor should have been prepared to respond to similar accusations where premeditation was not an element. This prejudice claim is not persuasive.
The State's delay in amending the charges was not preferable, but did not prejudice Taylor in this case. The trial court properly permitted the amended information on the day of trial.
II. Taylor's Credibility
At trial, the State questioned Sergeant Robison about whether Taylor's prior statements to police were consistent with his trial testimony. Sergeant Robison testified that much of Taylor's testimony at trial was "new information" not consistent with his prior statements. 3 RP at 257. When Sergeant Robison recounted Taylor's statement at the initial interview, Robison stated that Taylor told him his shirt had been ripped open, but Robison testified that this part if his story did not appear to be "correct" because Taylor's shirt had no missing buttons. 2 RP at 156. The interior of Taylor's jacket was soaked at the initial interview. Taylor explained to Sergeant Robison that his cat dish may have tipped over. Sergeant Robison noted that he found that explanation improbable given the size of the dish and the degree of wetness. Further, when asked if the video of Taylor's interview was in the same condition as when created, Sergeant Robison stated that it was, and that the nice thing about a video is that it "doesn't change at all." 3 RP at 250. The video was not entered into evidence (unrelated grounds). Taylor alleges that Sergeant Robison's testimony and the line of questioning improperly commented on his credibility in front of the jury. Taylor did not object to or move to strike this testimony at trial.
Sergeant Robison testified that:
"both [Taylor's] testimony today and yesterday were decidedly different than both of the interviews that I did with him immediately following the assault. The stepping off the path and sitting down elsewhere and later approaching the suspect, the kicking, all of that is just brand new information that did not come up in any interviews conducted prior to yesterday or today."
3 RP at 257.
When asked about the taped interview Sergeant Robison testified:
"[the] interview is pivotal to, you know, understanding what happened. And any interview with either a suspect or a victim, especially in a he-said-she-said kind of case, it's important that I know all of the details. Because I have to go back afterwards and reconstruct both of those statements, tie them with any physical evidence from the scene add anything else that I can collect, to make a determination as to who is telling the correct story, because the two stories are different . . . [a]nd the truth is the truth. Those stories don't change a whole lot."
3RP at 248-249.
A party may assign evidentiary error on appeal only on a specific ground raised at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1208, 89 L. Ed. 2d 321 (1986). The objection during trial gives a trial court the opportunity to prevent or cure error. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976). For example, a trial court may strike testimony or provide a curative instruction to the jury. In this case, Taylor failed to object to Sergeant Robison's testimony, so the trial court had no such opportunity. Taylor failed to preserve the issue for appellate review. Taylor seeks to avoid this preservation requirement by asserting a constitutional basis for the alleged errors.
However, in State v. Kirkman, the Washington Supreme Court held that where the officer does not offer a direct opinion on a witnesses' credibility, there is no manifest error that relieves the defendant of his duty to object. 159 Wn.2d 918, 931, 155 P.3d 125 (2007). Where there is no direct comment on credibility, then the officer's testimony does not carry a "special aura of reliability" beyond that which is conferred upon a witness when a judge swears him or her to tell the truth in front of the jury at trial. Kirkman, 159 Wn.2d at 931; see RCW 5.28.020. A jury must still determine credibility and truthfulness of each witness.
Here, Taylor alleges his trial involved testimony improperly opining on his credibility. Thus, he has raised alleged errors of constitutional dimension (i.e., right to a jury trial). The testimony, however, did not directly address credibility. Even if any of the testimony was improper, it was not objected to, and did not constitute manifest constitutional error reviewable for the first time on appeal.
III. Argument to Jury
Taylor contends the prosecutor's rebuttal argument consisted of improper remarks, constituting prosecutorial misconduct, effectively denying Taylor his constitutional right to a fair trial. Taylor objected three times during rebuttal; however, he did not object to the remarks now claimed as error. Taylor argues that the prosecutor's argument — that in order to "believe" Taylor's version of events, the jury must "not believe" all of the State's witnesses — constitutes reversible error. The State responds that absent objection by defense counsel to the prosecutor's remarks, the issue of prosecutorial misconduct cannot be raised on appeal unless the misconduct is so flagrant and ill-intentioned that no curative instruction could have obviated prejudice to Taylor.
Appellate review is not precluded if the prosecutorial misconduct is so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988); State v. Dunaway, 109 Wn.2d 207, 221, 743 P.2d 1237 (1987); State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978); State v. Case, 49 Wn.2d 66, 74-75, 298 P.2d 500 (1956); State v. Claflin, 38 Wn. App. 847, 849 n. 2, 690 P.2d 1186 (1984). Taylor likens his case to State v. Barrow, which held that the prosecutor committed misconduct where he argued that in order to acquit the defendant, the jury must conclude that the other witnesses were "lying." 60 Wn. App. 869, 875, 809 P.2d 209 (1991). That court found misconduct because the statement was misleading and misstated the jury's role in reaching its verdict in a criminal case (to determine if the State proved all elements beyond a reasonable doubt, not determine which witnesses are lying or telling the truth).
Taylor's reliance is misplaced however, and his case is more similar to State v. Wright, where the court held that the prosecutor's argument was not misconduct when he argued that to believe the defendant's version of events, the jury would need to believe all other witnesses were "mistaken." 76 Wn. App. 811, 824, 888 P.2d 1214 (1995). The prosecutor's comments were not designed to mislead or confuse the jury; rather, the comments were designed to note that Taylor's version of events was different from other witness's. The prosecutor's comments should not be considered misconduct because, as noted in Wright, "[w]here . . . the parties present the jury with conflicting versions of the facts and the credibility of witnesses is a central issue, there is nothing misleading or unfair in stating the obvious: that if the jury accepts one version of the facts, it must necessarily reject the other." Wright, 76 Wn. App. at 825. Taylor's argument has no merit.
Wright was superseded by statute on grounds not relevant to this.
IV. Insufficient Evidence
Taylor argues that the State failed to prove his intent to cause great bodily harm, as required by a first degree assault charge and that his conviction should be reversed and this matter dismissed. RCW 9A.04.110(4)(c). Taylor argues that at most he showed indifference to the level of harm caused to McDonald, a mens rea insufficient to satisfy the charge. The State argues that viewed in the light most favorable to it, sufficient evidence was presented to prove Taylor guilty of first degree assault.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The State presented evidence that could lead a rational trier of fact to find Taylor guilty of first degree assault. Lynea Moat, an acquaintance of the parties, testified that Taylor told her of his intent to shoot both McDonald and Moore if Moore returned to a relationship with McDonald upon his release from prison. Further, McDonald testified that when Taylor first approached him, he said "I'm gonna stab you; I'm gonna kill you." 2 RP at 85. Forest Hofer, the physician's assistant who treated McDonald on the night of the stabbing, testified that had the knife penetrated a part of the body not protected by ribs, the stabbing would have caused a great deal more damage to McDonald. Taken in the light most favorable to the State, the testimony provided sufficient evidence for the jury to find that Taylor intended to cause McDonald great bodily harm thus satisfying the intent element of first degree assault.
V. Ineffective Assistance of Counsel
Taylor alleges ineffective assistance of counsel in his SAG and claims his attorney previously represented McDonald on another matter. There is nothing in the record indicating his attorney's prior clients, and Taylor attaches no documentation to his SAG.
Matters not in the record cannot be considered on appeal. RAP 9.2(b). The appellant has the burden to provide adequate record to review issues raised; the trial court's decision must stand if this burden is not met. RAP 9.2; see State v. Rienks, 46 Wn. App. 537, 545, 731 P.2d 1116 (1987); State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575 (1990)) (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)). See also State v. Cerrillo, 122 Wn. App. 341, 347, 93 P.3d 960 (2004) (finding that even when a party alleges a manifest error affecting a constitutional right, the appellate court will not review a newly raised argument if the facts necessary to adjudicate the alleged error are not in the record.)
Nowhere in the record does Taylor's attorney mention prior representation of McDonald. Taylor provides no additional evidence to prove his allegation. Taylor has the right to effective counsel, but nothing in the record substantiates his allegations of harm. We will not consider his appeal on this ground.
VI. Speedy Trial
In his SAG, Taylor alleges a violation of his right to a speedy trial because the trial court granted a continuance to the State due to the unavailability of a necessary witness. Taylor was arraigned on October 27, 2005. On December 12, the original trial date, the State moved for a continuance, citing Sergeant Robison's scheduled vacation. The trial court granted the State's continuance motion and rescheduled the trial for January 9, 2006, the next available court date and the date on which trial began.
The right to a speedy trial attaches, under both the federal and state constitutions, with the formal filing of an information or indictment. State v. Chavez, 111 Wn.2d 548, 558, 761 P.2d 607 (1988). CrR 3.3(b) provides that a criminal defendant detained in jail must be brought to trial within 60 days. A trial court can continue the trial in the administration of justice if the continuance will not prejudice the defendant. CrR 3.3(f)(2). "[T]he decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). "We will not disturb the trial court's decision unless the appellant or petitioner makes 'a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Downing, 151 Wn.2d at 272 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). If a defendant's CrR 3.3(b) time-for-trial right conflicts with an investigating officer's scheduled vacation, the trial court may grant a discretionary continuance. State v. Grilley, 67 Wn. App. 795, 799, 840 P.2d 903 (1992).
Sergeant Robison's vacation was pre-planned and the State could not proceed without his testimony. The trial court exercised proper discretion by granting a continuance based on Sergeant Robison's scheduled vacation and therefore did not violate Taylor's CrR 3.3(b) time-for-trial speedy trial rights.
We affirm Taylor's convictions.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, C.J., and Bridgewater, J., concur.