No. 34546-3-II.The Court of Appeals of Washington, Division Two.
May 22, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02210-0, Serjio Armijo, J., entered February 17, 2006.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Penoyar, JJ.
HOUGHTON, C.J.
Aaron Westby appeals from an order denying his motion for a new trial. He argues that the trial court should have granted the motion because it improperly responded to a question from the jury during deliberations. He also argues that his attorney provided ineffective assistance in failing to file a timely motion for a new trial. We affirm.
FACTS
As part of a forgery investigation, police officers stopped a car that Westby was driving. When he learned that the police planned to arrest his passenger, he sped from the scene.
An officer approaching the area saw Westby drive toward his vehicle and avoid a collision by swerving away at the last instant. The officer pursued him and other officers joined. Westby drove his car at two other officers, who were forced to drive on the sidewalk to avoid a collision. Eventually, the officers caused him to lose control of his vehicle and Westby fled on foot.
With the help of a trained canine, the officers caught Westby and arrested him. He resisted violently, pulling one officer by the hair and biting another.
The State charged Westby with three counts of second degree assault, one count of third degree assault, one count of attempting to elude a police vehicle, and one count of resisting arrest. A jury trial ensued.
During deliberations, the jury sent a written question to the judge asking if they could look at the police reports. The trial judge did not notify counsel of the question and answered no. The jury later asked if instruction 10, which set forth the elements of one of the second degree assault charges, only applied to a specific incident or the entire chase. The trial court did not respond.
Shortly afterwards, the jury reached a verdict. Before reading the verdict, the trial court informed counsel about the jury’s questions and its single answer. Defense counsel reviewed the questions and did not raise any objections. The jury convicted Westby of all counts.
More than a month after the verdict, Westby filed a motion for a new trial based on the trial court responding to the jury’s question without notifying the parties. After a hearing, the trial court denied the motion. Westby appeals.
ANALYSIS Motion for New Trial
Westby first contends that the trial court erred in denying his motion for a new trial based on procedural irregularity. He argues that the trial court violated CrR 7.5 and his constitutional rights by responding to the jury’s question without notifying him and providing an opportunity to comment.
A trial court may grant a new trial due to irregularity in the proceedings that prevented the defendant from having a fair trial. CrR 7.5(a)(5). We will not disturb a ruling on a motion for a new trial absent an abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994). A court abuses its discretion only when no reasonable person would take the position that the trial court adopted. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
The trial court may not communicate with the jury if the defendant is not present. State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983). The right to be present during all stages of the proceeding is of constitutional magnitude; therefore, if there is error, the State must prove beyond a reasonable doubt that the error is harmless. State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d 79 (2004). But the defendant must first show the possibility of prejudice Caliguri, 99 Wn.2d at 508.
CrR 6.15(f)(1) sets forth the procedure for responding to questions from the jury during deliberations:
The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court’s response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing.
Here, the trial court erred because it did not notify counsel before responding to the jury’s question. It also violated CrR 6.15(f)(1) by failing to respond to the jury in open court or in writing.
Nonetheless, any error was harmless. The trial court’s response to the first question, while not the proper practice, was appropriate in that the requested reports were not admitted into evidence and the jury could not consider them. Westby has not suggested any alternate response that he would have preferred, nor is it likely that a different response would have affected the verdict. Further, the trial court did not have a duty to answer the second question. State v. Langdon, 42 Wn. App. 715, 718, 713 P.2d 120 (1986). The trial court did not abuse its discretion in concluding that its error did not warrant a new trial.
Ineffective Assistance of Counsel
Westby also argues that his attorney was ineffective for failing to timely file the motion for a new trial.
To establish ineffective assistance of counsel, a defendant must show both that the attorney’s performance was deficient and that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An attorney’s performance is deficient when it falls below an objective standard of reasonableness. State v. Garrett, 124 Wn.2d 504, 517, 881 P.2d 185 (1994). Once deficient performance is shown, the defendant must demonstrate a reasonable probability that but for counsel’s errors, the outcome of the trial would have differed. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Under CrR 7.5(b), the motion for a new trial must be filed and served within 10 days of the verdict. But the trial court has discretion to extend the time. CrR 7.5(b).
Here, even assuming deficient performance, Westby fails to show that the trial court’s ruling would have differed if he had filed the motion within the 10-day period. The trial court heard argument on the motion despite the late filing, which suggests it denied the motion on its merits, not untimeliness.
Moreover, because Westby has not shown that the irregular response to the jury’s question caused any prejudice, the trial court probably would not have granted the motion even if it were timely filed. Because he has not shown that any deficiency in his attorney’s performance affected the outcome, the ineffective assistance argument fails.
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.
QUINN-BRINTNALL, J. and PENOYAR, J., concur.
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