STATE v. BEAN, 50957-8-I (Wash.App. 7-28-2003)

No. 50957-8-IThe Court of Appeals of Washington, Division One.
Filed: July 28, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County Docket No: 99-1-01520-1 Judgment or order under review Date filed: 07/12/2002

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Kathryn A. Russell Selk, Attorney at Law, P.O. Box 30124, Seattle, WA 98103-0124.

Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.

SCHINDLER, J.

Janie L. Bean appeals her conviction for 13 counts of forgery. She claims the trial court should have admitted later discovered evidence of criminal drug activity to support her defense of duress and that her lawyer should have renewed her request to introduce this evidence during trial. Bean also argues that the trial court abused its discretion in admitting her prior forgery conviction as a named prior conviction rather than as a `crime of dishonesty.’[1] We affirm.

FACTS
In January 1999, Charles Barnard agreed that Bean and her boyfriend could move Bean’s motor home onto his wooded five-acre parcel of land in Snohomish County. Barnard lived and operated his business, B-Five Laminators, on the property.[2] Later that same month, Kim Brown and her boyfriend moved onto the property. In March, with Barnard’s approval, Bean’s friend John Bullock also moved his trailer home onto the property. Bullock testified that there was a fair amount of drinking and drug use among Barnard, Brown and Brown’s boyfriend. Bullock suggested that Bean should leave, but because Bean’s motor home was disabled and she had already paid rent she stayed.

In May 1999, Barnard’s son, Manny Barnard,[3] along with about five or six of his friends, moved onto the property. According to Bean and Bullock, after Manny moved onto the property the drug use intensified. While Manny and his friends were there, they brought stolen cars, along with electronic equipment in boxes and things that looked like they had been taken out of cars, onto the property. Manny and his friends seemed out of control, shooting weapons into the air, the ground and tree stumps. Bullock confirmed that Manny was constantly drunk and carried a gun around all the time, waving it around and firing it. Barnard possessed several handguns and a few rifles, and, like Manny, carried a gun most of the time.

In early July 1999, Barnard noticed that the checking account balance for his business was approximately $3000 less than it should have been. Barnard contacted the bank about the discrepancy and obtained 13 unauthorized checks, made out to either Snohomish Bingo or Lion’s Bingo. Barnard reported the checks stolen. Barnard was the sole authorized signer on the account and he kept the checks in his office on the property that was often left unlocked. He claimed Bean might be involved and that he had not authorized her to sign on his account. An assistant manager at Snohomish Bingo remembered cashing at least one of the checks for a woman who frequented the bingo games at Snohomish Bingo.

The description of the woman matched Bean.

When Bean was arrested on Barnard’s property, she was read her rights, waived them and said,’? I cashed the checks.”[4] As Bean was leaving Barnard asked her about the money she owed him. Bean responded that she intended to pay him back. Bean was charged by amended information with 13 counts of forgery. At trial, Bean admitted cashing some of the checks[5]
but claimed she did so only under duress. In support of her duress defense, Bean testified that she was followed whenever she left the property by people who were living there because of her knowledge of the criminal activity on the property. According to Bean, Barnard said he was keeping an eye on her to make sure she was not `snitching’ about what was going on. Bean said that Manny, Barnard and Brown each told her that if she talked to police about the illegal activity on the property, she would be killed. Bean testified that Manny and Barnard frequently fought about money and that she had seen Manny assault his father. Bean said that in mid-May 1999, Manny told her to cash a check from his father’s business account that was already written out to Snohomish Bingo[6] or he would hurt her. After Bean cashed the check at Snohomish Bingo, Manny and Brown took the money. Bullock saw Manny at the bingo parlor that day, even though Manny did not usually go there, and confirmed that Bean was being followed. According to Bean, Manny forced her to cash additional checks at Snohomish Bingo and at another nearby bingo parlor, Lion’s Bingo. After the second or third check, Bean said that she went to talk to Barnard to make sure he knew what was going on. According to Bean, when she told Barnard that Manny was making her cash the checks and threatening her, Barnard called her a liar and pulled a gun on her.[7]
Bean told him she wanted to leave and Barnard told her that if she tried, `we’ll just shoot you and bury you on the property, and nobody will know the difference.’[8] A jury found Bean guilty of forgery on all 13 counts. Bean appeals.

DISCUSSION
Later discovered evidence of criminal drug activity Barnard’s property was foreclosed on sometime around November 1999. After the new owner took possession he discovered evidence of drug activities on the property. The prosecutor sought to exclude evidence of criminal drug activity that Bean was not aware of and that was discovered after Barnard moved off the property. The defense opposed exclusion of this evidence and made an offer of proof. The new owner would testify that he found drug paraphernalia, including `between thousands and tens of thousands of hypodermic needles and other drug-smoking devices,’[9] evidence of a marijuana grow operation and remnants of a methamphetamine lab that required clean up by a hazardous materials team. The new property owner would also testify that, for months after he moved onto the property, people continued to come onto the property seeking to buy drugs from `Charlie.’ The trial court granted the State’s motion to exclude on the ground that this evidence was not relevant because Bean was not aware of it when she cashed the checks. The trial court said:

The court reserved ruling on whether evidence of drug paraphernalia and production facilities on the property could be used for impeachment purposes if there was testimony that there was no drug use on the property. Bean claims that the exclusion of this evidence violated her constitutional rights to present a defense and to confrontation.[11]
Bean also argues that trial counsel should have asked the court to reconsider its decision to exclude the later discovered evidence of drug activity on the property when drug activity on the property was denied and when Barnard’s character was put into evidence, and that its failure to do so constituted ineffective assistance.

Both the federal and Washington constitutions guarantee two separate rights: the right to confrontation, which includes the right to cross- examine adverse witnesses, and the right to present evidence relevant and material to one’s defense. U.S. Const. Amend. VI; Wash. Const. Art. I, §22; see Rock v. Arkansas, 483 U.S. 44, 52-55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Davis v. Alaska, 415 U.S. 308, 315-318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). Although the rights to present a defense and to confrontation are of constitutional magnitude, they are subject to the following limitations:

‘(1) the evidence sought to be admitted must be relevant; and (2) the defendant’s right to introduce relevant evidence must be balanced against the State’s interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process.’ State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996); citing Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 1921-22, 18 L.Ed.2d 1019 (1967); State v. Hudlow, 99 Wn.2d at 15. ‘[A] criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.’ State v. Hudlow, 99 Wn.2d at 15. .

We review a trial court’s decision to exclude evidence for an abuse of discretion. State v. Greathouse, 113 Wn. App. 889, 918, 56 P.3d 569
(2002), rev. denied, 149 Wn.2d 1014 (2003). To prove duress the defendant must show by a preponderance of the evidence that she (a) participated in the crime under compulsion by another who by threat or use of force created an apprehension in her mind that in case of refusal she or another would be liable to immediate death or grievous bodily injury; (b) such apprehension was reasonable; and (c) that she would not have participated in the crime except for the duress involved. RCW 9A.16.060, State v. Riker, 123 Wn.2d 351, 366-69, 869 P.2d 43 (1994). A defendant may not support a duress defense with evidence that was not known to the defendant at the time she was allegedly under duress. State v. Hixon, 94 Wn. App. 862, 867-868, 973 P.2d 496 (1999).

There is no dispute that Bean did not know about the later discovered criminal activity. We agree with the trial court that this evidence was not relevant to Bean’s duress defense. The trial court did not abuse its discretion in excluding this evidence.

Washington has adopted the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for determining whether counsel was ineffective. State v. Leavitt, 111 Wn.2d 66, 758 P.2d 982 (1988). To establish ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Deficient performance is shown if counsel’s conduct fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). The prejudice prong test requires the defendant to show a `reasonable probability’ that but for counsel’s error, the result of the trial would have been different. State v. West, 139 Wn.2d 37, 42, 983 P.2d 617
(1999). `A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland, 466 U.S. at 694.

Washington courts presume that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). If counsel’s conduct can be characterized as legitimate trial strategy, it cannot provide a basis for an ineffective assistance of counsel claim. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). Bean contends that the later discovered evidence of illegal drug activity should have been admitted for impeachment purposes when Barnard `denied knowing anything about any criminal activity on the property’ or when a law enforcement officer’s testimony suggested that there was no marijuana or methamphetamine lab operation on the premises.[12] The only question counsel asked Barnard about drugs on the property was whether he was aware of his son’s involvement in `all sorts of illegal activity, including drugs and stolen cars and forcing — and forging your checks from the business account.’[13] Barnard’s negative response to this question does not represent testimony that there was no drug use on the property. The officer testified that he had not seen or smelled `any indication of extensive drug activity’ on the property between March and July 1999.[14] But this testimony does not amount to a denial of drug usage on the property, either. Trial counsel’s decision not to renew her request was legitimate trial strategy and not the basis for an ineffective assistance claim. Furthermore, Bean was not prejudiced by the exclusion of later discovered evidence of illegal drug use on the property because ample evidence of drug use on the property was introduced in Bean and Bullock’s testimony and thus there is no reasonable probability that the outcome would have been any different if the later discovered evidence had been admitted. Bean also argues that her lawyer should have renewed her request to introduce the later discovered evidence because there was testimony about Barnard’s character. But the only place in the record Bean points to in support of this argument is the prosecution’s closing argument. In closing the prosecutor stated[15]
that Barnard was `not some criminal mastermind.’[16] The prosecutor never said that Barnard was law-abiding or that he was not involved in any criminal activity. Defense counsel was not deficient in not renewing her effort to introduce evidence to impeach Barnard’s character. Admissibility of prior conviction Bean argues that the trial court abused its discretion in admitting her prior forgery conviction as a named offense. Admissibility of prior convictions is governed by ER 609, which reads:

For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

ER 609(a). Forgery is a crime involving dishonesty, State v. Burton, 101 Wn.2d 1, 7, 676 P.2d 975 (1984), rev’d on other grounds, State v. Ray, 116 Wn.2d 531, 806 P.2d 1220 (1991). Under ER 609(a)(2), a prior conviction for a crime involving dishonesty is per se admissible. State v. King, 75 Wn. App. 899, 904, 878 P.2d 466 (1994). The issue here is whether Bean’s prior forgery conviction should have been admitted as a `crime of dishonesty’ rather than being named and whether the trial court abused its discretion in not doing so.

The trial court admitted the prior forgery conviction under 609(a)(2):

I’m going to allow the State to bring it in, basically under the analysis that subsection (a)(1) allows me to weigh probative value versus prejudice, (b) doesn’t. I’m looking at Tegland.[17] It doesn’t address it, you know, directly, but talks about sanitizing the prior conviction. The opening line to that section says that `in cases in which the admissibility has been arguable under the balancing requirements of Rule 609, the courts have occasionally been persuaded to admit the conviction after the proponent agreed to refer to it only as [a] prior felony, without going into further details. This practice, commonly known as sanitizing the conviction, is permitted under the Rule 609, and is a factor that can be considered in the process of balancing probative value versus prejudice.’ The problem with this particular conviction, there’s no balancing, it doesn’t fall under the balancing section, so I’m going to permit it.[18]

Rulings made by a trial court under ER 609 are reviewed for abuse of discretion. State v. Rivers, 129 Wn.2d 697, 704-705, 921 P.2d 495
(1996).

The trial court was correct that there is no balancing for prior convictions under 609(a)(2).[19] State v. Brown, 113 Wn.2d 520, 533, 782 P.2d 1013 (1989). The court did not abuse its discretion in admitting Bean’s prior forgery conviction as a named offense. But the trial court may exercise its discretion to not name a felony under ER 609(a)(2) in an appropriate case.

Bean’s conviction is affirmed.

APPELWICK and AGID, JJ., concur.