Opinion
No. 35380-6-II.
November 14, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 03-1-01527-7, James E. Warme, J., entered April 14, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Tyler Eugene Worley appeals his conviction for second degree malicious mischief. He argues that (1) the trial court erred when it admitted certain hearsay evidence; (2) he received ineffective assistance when his trial counsel failed to object to an officer's testimony, which Worley contends was an improper comment on his (Worley's) guilt, and failed to present certain evidence; and (3) the evidence was insufficient to establish that he (Worley) was the person who committed the malicious mischief. Worley also raises several issues in a pro se Statement of Additional Grounds for Review (SAG). Finding no error, we affirm.
RAP 10.10.
FACTS I. Malicious Mischief
On October 27, 2003, Worley and his girlfriend, Jodette Turner, went to Robert Thomas's residence so Thomas could apologize to Turner for allegedly having touched her inappropriately a few days earlier while she was asleep on a couch at a mutual friend's house. The apology was apparently not well taken.
Immediately after Worley and Turner left Thomas's house, a rock crashed through Thomas's living room window. When Thomas and his friend Aaron Adams stepped outside to see what had happened, they saw Worley and Turner standing in the yard. Worley seemed angry and aggressive, and he swore and yelled at Thomas and Adams. After a brief exchange between Worley and Thomas, Worley charged Thomas's front door. Thomas and Adams ran inside, held the door shut against Worley, and called the police. Worley left before the police arrived.
After interviewing Thomas, Adams, and a few other individuals, a police officer eventually located and arrested Worley.
II. Procedure
The State charged Worley with second degree malicious mischief under RCW 9A.48.808(1)(a), alleging that on or about October 27, 2003, he knowingly and maliciously caused property damage in excess of $250 when he broke Thomas's window. Worley pleaded not guilty.
The case went to a jury trial. Thomas, Adams, and Officer Timothy Gower, testified about the incident and the investigation leading up to Worley's arrest.
The State presented other testimony related to the amount of the damages. Worley does not dispute that the evidence was sufficient to establish the damages were over $250, nor does he raise any other issues related to the damages evidence. Accordingly, we do not describe this evidence.
A. Thomas and Adams
Thomas and Adams testified that at approximately 11:30 pm on October 27, 2003, Janet Elf, their friend's mother, called Thomas and told him that (1) Worley and his girlfriend were upset about Thomas's having apparently touched Turner in an inappropriate manner when she was sleeping on Elf's couch a few days earlier, and (2) they wanted Thomas to apologize. Asserting that he had merely brushed Turner's feet aside, Thomas agreed to apologize and told Elf that Worley and Turner could come to his house. Worley and Turner arrived a short time later.
Adams testified that when Worley and Turner first arrived, everything was "all right." Worley and Turner explained why they wanted an apology, and Thomas gave them one. Adams further testified that, at most, Turner seemed a "little bit upset," but that she was fairly calm during their talk. Thomas testified, however, that when Worley and Turner arrived, Worley seemed angry; Turner was initially quiet, but she became angry as he tried to apologize.
Both Adams and Thomas testified that shortly after Worley and Turner left, someone threw a big rock through the living room window. When they opened the door to see what was going on, they saw Worley and Turner standing outside. Thomas testified that (1) he looked at Worley and asked him why he had thrown the rock through the window; and that (2) Worley looked straight at him and responded, "[B]ecause you f'd around with me." Report of Proceedings (RP) at 66. Although Turner was standing near Worley, she did not respond to Thomas's question. Thomas concluded from Worley's response that Worley had thrown the rock. But both Thomas and Adams acknowledged that they did not see who had thrown the rock and that neither Worley nor Turner actually said that either of them had thrown the rock.
Both Thomas and Adams testified that when they confronted Worley outside, he was highly agitated, that he was yelling and screaming obscenities at them, and that he charged the front door. Thomas and Adams ran inside, held the door shut against Worley, and called the police. They also testified that Turner did not do much more than stand near Worley.
B. Officer Gower 1. Investigation and arrest
Officer Timothy Gower testified that when he arrived at Thomas's residence, he saw the broken window, interviewed Thomas and Adams, obtained written statements from them, and then went to Janet Elf's house to "try to find out further information about the suspects." RP at 83-84. After talking with Elf and her son, Gower received another call from Thomas and Adams, who informed him "that they had found out further information about where the suspect lived." RP at 84.
The State then asked Gower whether he was able to find "the suspect" and whether he arrested him. Gower testified that he was able to find and to arrest Worley later that evening. Defense counsel did not object to any of this testimony.
2. Turner's statement
Gower also testified that he had spoken to Turner, who made a verbal statement. On cross examination, defense counsel asked Gower:
Mister Gower, I don't see anywhere in your statement where you asked Ms. Turner if she threw the rock and she denied it. Do you see a place in here where you ask her if she threw the rock and she denied it?
RP at 85. Gower responded, "No. That's not in my report." RP at 85.
On redirect, the State asked Gower, "What did you ask Ms. Turner about the incident?" and the following discussion ensued:
A [Gower] I asked her if she observed Mr. Worley throw a rock through the window. I asked her if she heard glass breaking.
Q [Deputy Prosecutor] Did she say whether she had seen the Defendant throw the rock through the window?
A She said she didn't see him throw it through the window.
Q She did not respond that he didn't throw it through the window?
RP at 85. At this point, defense counsel objected on hearsay grounds. The State asserted that defense counsel had opened the door. The trial court overruled the objection.
The State then continued with this line of questioning:
Q Did she say that he did not throw the rock through the window?
A No.
Q All right. And did — I'm sorry, you said that you asked her about whether she had heard the glass break?
A Correct.
Q And what was her response.
A She said that she was partially deaf, and has to read lips, and hadn't heard anything.
RP at 85-86.
Following this testimony, the State rested. The defense rested without presenting any evidence. The jury found Worley guilty of second degree malicious mischief.
Worley appeals.
ANALYSIS I. Hearsay
Worley first argues that the trial court erred when it admitted Gower's testimony that Turner said she did not see Worley throw the rock but that she did not say that Turner had not thrown the rock. He argues that (1) this was inadmissible hearsay; (2) it was not harmless error; and (3) he did not open the door to this testimony because defense counsel's questions were "to throw doubt on the accuracy of the officer's report, not to elicit inadmissible hearsay that amounted to a denial by the only other person who might have committed the crime charged." Br. of Appellant at 11. We disagree.
"[W]hen a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced." State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (citing State v. Stevens, 69 Wn.2d 906, 421 P.2d 360 (1966)). This rule is aimed at fairness and truth-seeking:
It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths.
Gefeller, 76 Wn.2d at 455.
Here, when defense counsel asked Gower on cross-examination whether he had asked Turner if she had thrown the rock, defense counsel clearly elicited hearsay testimony regarding what Turner had, or had not, told Gower. Even if defense counsel arguably intended to use this testimony to suggest that Gower's investigation was incomplete, based on incorrect assumptions, and wrongly directed, defense counsel nonetheless introduced the issue of what Turner did or did not tell Gower when he interviewed her. It would be unfair to allow Worley to introduce only those portions of Turner's interview that benefited him without also allowing the State to discuss what else Turner had said or did not say during this interview.
We note that in closing argument, defense counsel focused on identity and that no one had testified to having seen Worley throw the rock. Defense counsel emphasized that (1) Thomas had merely assumed that Worley had thrown the rock and (2) Gower's failure to ask Turner if she had thrown the rock was due to Gower's similar assumption that Worley had thrown the rock.
Accordingly, we hold that because Worley opened the door, the trial court committed no error in allowing the State to pursue this testimony on redirect examination.
II. Assistance of Counsel
Worley next argues that his defense counsel provided ineffective assistance when he failed to object to the State's eliciting testimony from Gower: Gower described his investigation and Worley's eventual arrest, which Worley characterizes as an impermissible opinion of his guilt. In his SAG, he also argues that his defense counsel provided ineffective assistance when he failed to present certain evidence. Again, we disagree.
A. Standard of Review
To establish ineffective assistance of counsel, Worley must show that (1) his counsel's performance was deficient, and (2) this deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). There is great judicial deference to counsel's performance. Thus, we begin our analysis with a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
B. Opinion Testimony
Generally, a witness may not offer opinion testimony, whether by direct statement or by inference, regarding the defendant's guilt. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001); State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (citing State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967); State v. Haga, 8 Wn. App. 481, 492, 507 P.2d 159, review denied, 82 Wn.2d 1006 (1973)). Such testimony is impermissible because it "'invad[es] the exclusive province of the finder of fact.'" City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting Black, 109 Wn.2d at 348), review denied, 123 Wn.2d 1011 (1994).
Gower's testimony regarding the investigation and arrest merely described the investigation in general terms and the fact that he ultimately arrested Worley. At no point did Gower comment on whether he personally believed Worley was guilty or on the credibility of the witnesses. This testimony did not amount to a direct statement that Gower believed Worley was guilty, nor did it allow the jury to infer that Gower believed Worley was guilty. Because Gower's testimony did not amount to opinion of guilt testimony, defense counsel's failure to object does not establish deficient performance. Furthermore, defense counsel could have made a tactical decision not to object to this testimony because it could have potentially bolstered the defense. In closing for example, Worley's counsel argued that Gower's investigation had been inadequate.
Moreover, even if this testimony were an opinion of guilt, the admission of this testimony would not have been prejudicial. Gower testified that he interviewed a variety of witnesses, primarily Thomas and Adams, and that he eventually located and arrested Worley. The jury had already heard Thomas's and Adams' testimony suggesting that Worley was the person who had thrown the rock through the window. Thus, because the jury knew that Worley was being tried for this offense, it could have been no surprise to the jury that he had been arrested for the offense. Given the general nature of Gower's testimony and the other evidence present in this case, we cannot say that there was a reasonable probability that this evidence contributed to the guilty verdict or that it otherwise prejudiced Worley's case.
Therefore, we hold that Worley has failed to establish deficient performance, prejudice, or that his counsel's failure to object to Gower's testimony was other than a reasonable tactical decision. Thus, Worley cannot establish ineffective assistance of counsel on this basis.
C. Failure to Present Evidence
Worley also appears to assert that defense counsel provided ineffective assistance of counsel because he failed to present evidence that Thomas and Adams were armed at some point during the incident. There is a written "statement of events" from Worley's girlfriend in the record stating that Thomas and Adams "chased [them] off" with a shotgun and a pistol. But nothing in the record shows that Worley's girlfriend would have been willing to testify to this fact, that her written statement was admissible, or that there was any other testimony or evidence available to defense counsel to support this allegation. Accordingly, Worley does not establish that defense counsel was ineffective on this basis.
III. Requests for New Counsel
In his SAG, Worley, further appears to assert that the trial court erred when it denied his repeated requests for new counsel. This argument also fails.
We review a trial court's denial of request for new court-appointed counsel for abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (citing State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991)). To determine whether a trial court abused its discretion in denying a motion for substitute counsel, we consider the extent of the conflict, the adequacy of the trial court's inquiry regarding the conflict, and the timeliness of the motion. In re Personal Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1 (2001). We find no such abuse here.
The record shows that Worley repeatedly objected to his trial counsel's representation and requested new counsel, primarily because he objected to his trial counsel's strategy and alleged inability to communicate with him. And he did not raise these issues until the day of trial. Furthermore, as we have set forth in our rejection of Worley's ineffective assistance of counsel arguments, we find no substantive reason for the trial court to have granted the motion.
Accordingly, we hold that the trial court was well within its discretion in denying Worley's requests for new appointed counsel.
IV. Sufficiency of Evidence
Worley next argues that the evidence was insufficient to support his conviction because the evidence did not establish that he was the person who threw the rock that broke Thomas's window. Again, this argument fails. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, 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 there from." 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).
Additionally, we will not disrupt a trier of fact's credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Rather, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Here, even though there was no direct eye-witness testimony that Worley threw the rock, taking the evidence in the light most favorable to the State, the following circumstantial evidence was sufficient to establish that Worley was the person who threw the rock through the window: Worley's agitated response to Thomas's apology, including Worley's trying to enter Thomas's home through the front door as Thomas pushed back from inside; Thomas's and Adams' observation of only Worley and Turner outside Thomas's home right after the rock crashed through the window; and Thomas's uncontroverted testimony that when he asked Worley why he had thrown the rock through the window, Worley looked straight at him and responded, "[B]ecause you f'd around with me." RP at 66.
Accordingly, we hold that the evidence was sufficient to allow a rational jury to find that Worley threw the rock and, therefore, to support his conviction.
V. Remaining SAG Issues A. Accuracy of Record
In is SAG, Worley appears to argue that the record before us is inaccurate and asks that we not rely on the report of proceedings but, rather, on audio recordings of the trial and related proceedings. But beyond Worley's bare assertions, we have nothing before us that suggests the record on appeal is not an accurate representation of what occurred at trial. Accordingly, we have considered the record as supplied by the parties on appeal.
B. Jury Instructions
In is SAG, Worley also appears to assert that (1) the trial court did not give the jury the instruction included at page 12 of the clerk's papers (CP), but, instead, provided the jury with a different instruction; and (2) the instructions the trial court gave required the jury to find him guilty even if the evidence did not support such finding. This argument fails.
The instruction at CP 12, which sets out the State's burden and defines reasonable doubt, is a copy of Worley's proposed instruction; contrary to Worley's assertion, this instruction does not purport to be the instruction the trial court actually gave the jury.
On the contrary, the trial court gave Instruction 4, included at CP 21. The report of proceedings shows that the trial court orally advised the jury from this version of the instruction. And nothing in this instruction told the jury that it was to find Worley guilty even if the evidence did not establish his guilt. Accordingly, this argument also fails.
Instruction 4 reads:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If, after such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.
CP at 21.
Affirmed.
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.
BRIDGEWATER, P.J. and Quinn-Brintnall, J., concur.