No. 22162-8-IIIThe Court of Appeals of Washington, Division Three.
Filed: December 9, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Columbia County. Docket No. 02-1-00022-9. Judgment or order under review. Date filed: 05/27/2003. Judge signing: Hon. William D Acey.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), William M. Berg, Attorney at Law, 316 N Second Ave Ste B, Sandpoint, ID 83864-7994.
Colleen G Fenn, Attorney at Law, 308 E Spring St, Dayton, WA 99328-1149.
SWEENEY, A.C.J.
This is an appeal from a conviction for second degree murder and first degree assault. Daniel R. Huwe makes a number of assignments of error, the most significant of which center on the way in which the judge conducted this trial. He objects to the judge’s request, outside the presence of the jury, for more testimony on Mr. Huwe’s proposed intoxication instruction and to the order in which the judge read the instructions. Both of these fall within the discretion of the trial judge. And we find no abuse of discretion in either case. Nor do we find any other reversible error in this trial. We therefore affirm the convictions.
FACTS
Daniel Huwe shot and killed one woman and seriously injured a second. The State charged him with first degree premeditated murder and first degree assault. The jury found him guilty of second degree murder and first degree assault.
Defense counsel told the court it was considering seeking a voluntary intoxication instruction. The State opposed that effort.
Sheriff’s Deputy Jeff Jenkins testified that he had suggested a breath alcohol test at the time of Mr. Huwe’s arrest, but the prosecutor had not been interested so no test was done. Mr. Huwe had smelled of alcohol, but his speech was not slurred. And Deputy Jenkins did not notice any lack of physical coordination, or anything else to suggest that Mr. Huwe was severely intoxicated. Deputy Jenkins did say that Mr. Huwe spilled a cup of coffee.
The judge then retired the jury. And he discussed with counsel the viability of a voluntary intoxication instruction based on Deputy Jenkins’ testimony. Deputy Jenkins remained in the courtroom and heard the discussion.
The court noted that the only evidence so far was that Deputy Jenkins had not seen any sign of severe intoxication. The court wanted to know whether Deputy Jenkins had noticed any intoxication whatsoever. `I am going to ask counsel to please ask a few questions along those lines, develop that for me, please.’ Report of Proceedings (RP) (Vol. 15) at 539.
Defense counsel objected to the suggestion, because the State had already `had their chance’ with the witness. RP (Vol. 15) at 540. Mr. Huwe insisted that returning Deputy Jenkins to the stand would unfairly give the State a second chance to remove any lingering doubt that Mr. Huwe was not intoxicated, whereupon the judge sustained Mr. Huwe’s objection and dismissed the witness.
A defense witness testified that Mr. Huwe smelled of alcohol that night and had said he drank `a couple of fifths.’ RP (Vol. 18) at 718. The surviving victim testified that Mr. Huwe appeared to be about a 7 on an intoxication scale of 10. And with that, the court announced it would give the instruction.
The State then asked to recall Deputy Jenkins to provide a foundation for a video of Mr. Huwe’s custodial interrogation. The defense objected. The court excluded the video. But the court did allow the State to recall Deputy Jenkins to ask what Mr. Huwe had told him about his alcohol consumption. Deputy Jenkins then testified that Mr. Huwe said he consumed `[o]ne-half of a fifth and a couple of beers.’ RP (Vol. 21) at 990. The prosecutor asked how Mr. Huwe had sounded. The defense objected that it was cumulative. The judge overruled. Deputy Jenkins then testified that Mr. Huwe sounded like `his normal self.’ RP (Vol. 21) at 993. He had not exhibited any difficulty understanding Deputy Jenkins or asking for anything. He did not stumble or trip and his statements made sense. Mr. Huwe testified that he drank closer to three-quarters of a fifth of whiskey than one-half. He testified that the last thing he remembered that night was taking his dog down to the river for a swim. He did not recall going to Cathlin Donohue’s house or shooting anybody. The State recalled Deputy Jenkins again. And he rebutted Mr. Huwe’s testimony that he could not remember.
The court read most of the instructions on the law to the jury. It then lectured the jury on overnight accommodations, use of TV, newspapers and other amenities, security arrangements, transportation and meal schedules, use of cell phones, and how to conduct the deliberations. The court then read an instruction on the need for a separate verdict on the use of a firearm. Then the judge reminded the jurors always to wear their badges and admonished the gallery not to communicate with the jury, including no smiling or waving. Finally, the court gave the instruction on voluntary intoxication.
The State closed by arguing to the jury that `[a]lcoholism is not an acceptable defense to voluntary intoxication. When you drink, you pay the consequences.’ RP (Vol. 22) at 1061. And, `Mr. Huwe wouldn’t be excused for endangering your life on the road, and he shouldn’t be excused by his alcoholism for endangering the lives of people in their home.’ RP (Vol. 22) at 1061. And `[t]he law says that if you get voluntarily drunk, you suffer the consequences of your actions.’ RP (Vol. 22) at 1072.
The jury found Mr. Huwe guilty of second degree murder and first degree assault.
DISCUSSION Appearance of Fairness
Mr. Huwe first contends the court violated due process and assumed the role of advocate for the State when it attempted to direct the examination of Deputy Jenkins at sidebar. The court also abused its discretion by allowing the State to recall this witness having once sustained a defense objection to additional testimony from him.
We review constitutional challenges de novo. State v. Silva, 119 Wn. App. 422, 428, 81 P.3d 889 (2003). Evidentiary rulings are reviewed for abuse of discretion. State v. Davis, 141 Wn.2d 798, 854, 10 P.3d 977 (2000). A ruling constitutes an abuse of discretion if it is manifestly unreasonable or based on untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Absent an affirmative showing of error, the trial court’s ruling is presumed to be correct and will be sustained. Id.
Criminal defendants have a due process right to a fair trial by an impartial judge. Wash. Const. art. I, sec. 22; U.S. Const. amends. VI, XIV. Impartial means the absence of bias, either actual or apparent. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). “The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.” State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8 Wn. App. 61, 70, 504 P.2d 1156
(1972)). Public confidence in the administration of justice requires the appearance of fairness just as much as actual fairness. State v. Dugan, 96 Wn. App. 346, 354, 979 P.2d 885
(1999).
But the perceived bias must result from an actual personal interest in the outcome. Post, 118 Wn.2d at 619. The personal interest must be real; it is the resulting bias that can be merely perceived. See, e.g., id at 618. (sentence based on report prepared by department of corrections’ employee defendant had sued); Dugan, 96 Wn. App. at 354; Madry, 8 Wn. App. at 68-69. An appearance of fairness claim is without merit without some evidence of actual or potential bias on the part of the judge. Post, 118 Wn.2d at 619. Mr. Huwe does not contend the judge had an actual interest in the outcome of the trial that interfered with his ability to be impartial. The sole basis for his complaint is that the judge suggested a line of questioning of a witness and made an evidentiary ruling that Mr. Huwe argues benefited the State. But every evidentiary ruling benefits one side or the other. So that alone does not implicate the appearance of fairness doctrine. Here, as in Moreno, the judge had no personal interest in the outcome and no investigatory role. Moreno, 147 Wn.2d at 511-12.
The judge must see to it that the evidence is fully developed for the jury and to resolve as far as possible any ambiguities or conflicts in the evidence. Id. at 509. And to this end, the rules permit the court to interrogate witnesses. Id. at 506. If a jury is present, the judge must take care to avoid any appearance of commenting on the evidence. ER 614(b).
Here, the judge did not even interrogate the witness. The court simply excused the jury and suggested that counsel develop the evidence necessary to support his proposed instruction. And he explained his reasons for doing so. The defense objected and the judge sustained his objection and moved on. Mr. Huwe speculates that without broad hints from the judge the prosecutor would never have grasped the implications of the developing intoxication defense. But how do we, or anyone else for that matter, know that? Moreover, the defense established the intoxication defense. The court concluded that the evidence was sufficient after all to support the proposed instruction. At that point, the State was certainly entitled to offer evidence in rebuttal. See, e.g., State v. Stambach, 76 Wn.2d 298, 300, 456 P.2d 362 (1969). Rebuttal evidence becomes relevant (and admissible) once the affirmative defense is raised. Id. Testimony from Deputy Jenkins as to Mr. Huwe’s appearance and demeanor may well have been objectionable on relevance grounds earlier. But those observations became very relevant after the defense presented Mr. Huwe’s case. We find no error.
The court exercised its discretion appropriately. This record does not support a claim of bias. And the prosecutor’s questions were not cumulative. Earlier, Deputy Jenkins was asked for his personal impressions based on his visual observations. On recall, Deputy Jenkins was asked about Mr. Huwe’s answers to specific questions on the subject of his consumption of intoxicants. But in any event that also is a matter within the discretion of the trial judge.
Order of Jury Instructions
Mr. Huwe next complains about the order in which the trial judge read his instructions to the jury. He argues that the impact of the intoxication instruction was diluted because of the order in which it came in the judge’s reading of the instructions. It followed the judge’s lengthy discussion of sequestration arrangements, other isolated substantive instructions, and then yet more general instructions about the conduct of the jury and the gallery during deliberations. He submits that the net effect of all of this was that his instructions did not receive the same weight in the jury’s mind as the State’s instructions.
And while we can find no authority directly on this question, it is well settled in this state that the business of jury instructions is by and large another matter vested in the sound discretion of the trial judge. State ex rel. Taylor v. Reay, 61 Wn. App. 141, 146, 810 P.2d 512 (1991). The trial judge has discretion on whether to give further instructions after jury deliberations have already started. State v. Ransom, 56 Wn. App. 712, 714, 785 P.2d 469 (1990). The number and wording of instructions is discretionary with the trial judge. State v. McReynolds, 104 Wn. App. 560, 580-81, 17 P.3d 608 (2000). The necessity for and specificity of clarifying instructions are matters vested in the discretion of the trial court. Safeway, Inc. v. Martin, 76 Wn. App. 329, 335, 885 P.2d 842 (1994). So we are hard pressed to accept Mr. Huwe’s argument that the placement of the instructions or the order in which they are read is a matter subject to de novo review of this court. We conclude to the contrary. It is not.
The cardinal rule is that jury instructions satisfy the demands of a fair trial if, when read as a whole, they correctly tell the jury of the applicable law, are not misleading, and permit the defendant to present his theory of the case. State v. Eaker, 113 Wn. App. 111, 117, 53 P.3d 37 (2002), review denied, 149 Wn.2d 1003 (2003).
Mr. Huwe argues that these instructions were not read as a whole. But he misconstrues the term `read as a whole.’ We view the court’s instructions to the jury in their entirety. We do not parse out a single instruction and examine it in isolation. The expression, `taken as a whole,’ is frequently used in this context. See, e.g., Eaker, 113 Wn. App. at 117. It does not mean that the judge must read the instructions in any particular order. And, as we have held, he or she need not. Mr. Huwe does not contend that the intoxication instruction or, indeed, any of the instructions even when taken as a whole misstate the law. His objection is solely to the manner in which they were read. And while the trial court’s reading of the instructions here certainly does not follow the pattern we are accustomed to seeing, we find no abuse of discretion in the way that the court read them.
Moreover, the court here instructed the jury that the sequence of the instructions bore no relation to their relative importance, and the judge also disclaimed any intent to comment on the evidence by the manner in which he read the instructions. We presume, as we must, that the jury followed these instructions. State v. Studebaker, 67 Wn.2d 980, 983-84, 410 P.2d 913 (1966).
Prosecutorial Misconduct
The court gave a correct instruction on voluntary intoxication: `No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether or not the defendant acted with premeditation and/or specific intent.’ Clerk’s Papers (CP) at 277.
But Mr. Huwe maintains that the prosecutor’s closing argument departed from the law as set forth in the court’s instructions. And the prosecutor misled the jury by telling it, essentially, that voluntary intoxication is not a defense.
The general rule is that the failure to object to a prosecutor’s improper remarks constitutes a waiver of the error. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995). We will not review a claim of misconduct in closing argument not objected to at trial unless it is `so flagrant and ill-intentioned that it created prejudice incurable by an instruction.’ State v. French, 101 Wn. App. 380, 387, 4 P.3d 857
(2000). And we review alleged misconduct de novo in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
Mr. Huwe does not contend the prosecutor’s argument was flagrant or ill-intentioned or that it could not have been cured by a timely objection and an instruction. And defense counsel addressed any juror confusion in his own closing argument:
this repeated theme that kept com[ing] out in the prosecutor’s closing about a man who is too intoxicated to take responsibility for his actions. [Mr. Huwe] is here to take responsibility for his actions. That jury instruction tells you intoxication is not a defense to a crime. It’s not less criminal, because you happened to be drunk. What it does have to do with is the ability of your mind at that time to formulate intent, or to premeditate a specific design or plan.
RP (Vol. 22) at 1077-78.
Finally, defense counsel conceded that Mr. Huwe intended to pull the trigger and pointed the gun in the direction of the victims. He asked the jury to find that this did not prove an intent to kill, effectively asking the jury to find second degree, unpremeditated murder or manslaughter and second degree assault. And the defense got the verdict it asked for.
There is no error here.
CrR 3.5 Hearing
On recall, Deputy Jenkins testified that he asked Mr. Huwe how much alcohol he had consumed that day and that Mr. Huwe replied, `[o]ne-half of a fifth and a couple of beers.’ RP (Vol. 21) at 990. Mr. Huwe also told Deputy Jenkins he had not taken any drugs. RP (Vol. 21) at 991. The record is silent as to any pretrial discussion about the admissibility of these statements.
Mr. Huwe contends that a CrR 3.5 motion requires the judge, at the time of the omnibus hearing, to hold or schedule a hearing on the admissibility of any statements by the accused. The record does not reflect any such hearing nor does it show that Mr. Huwe received any Miranda[1] warnings. And there was ample evidence that he was drunk.
But the lack of a CrR 3.5 hearing does not affect the admissibility of a statement unless some issue of its voluntariness appears in the record. State v. McKeown, 23 Wn. App. 582, 586, 596 P.2d 1100 (1979); State v. Kidd, 36 Wn. App. 503, 509, 674 P.2d 674 (1983). And a defendant may knowingly and intentionally waive the right to a CrR 3.5 hearing. State v. Myers, 86 Wn.2d 419, 425-26, 545 P.2d 538 (1976).
There is no issue of voluntariness here. Mr. Huwe was fully advised of his right to a hearing and knowingly and intentionally waived that right.
Mr. Huwe argues additional grounds for review.
Motion in Limine
Certain evidence was excluded in a pretrial motion. In leading up to this testimony before the jury, the prosecutor reminded the witness not to mention `anything you have been instructed about.’ RP (Vol. 18) at 727. Mr. Huwe complains that this oblique reference to the existence of inadmissible evidence prejudiced him.
But no objection was made to the form of the question at issue. And we will not address it for the first time on appeal. RAP 2.5(a). Compliance with the court’s in limine rulings may require a nudge and a wink to a witness before an area of inquiry is opened. The jury received the standard instruction not to concern themselves with the reasons underlying any evidentiary rulings. CP at 248.
We find no error.
Mistrial
In response to defense questions, the surviving victim was unable to recall certain statements she had reportedly made to the police. Counsel asked whether she had given any other official statements, oral or written, and learned for the first time that she had given a written statement to the police. Defense counsel demanded a mistrial.
The prosecutor conceded the statement was inadvertently not mailed to the defense. But she argued that the statement contained nothing new or prejudicial. The court agreed there were no `tremendous inconsistencies’ between the written statement and the testimony. RP (Vol. 19) at 834. The defense argued that producing a key witness’s written statement after the State’s direct examination was prejudicial per se.
The court ruled that the statement dealt primarily with excluded material, and that its suppression was inadvertent and did not benefit the State. Moreover, the court ruled that any error was cured when the court offered the defense unlimited time to interview the witness and obtain any additional witnesses the statement might suggest. The defense declined this offer. Absent prosecutorial misconduct or prejudice, the court concluded the omission did not warrant a mistrial.
Mr. Huwe implies that he is in possession of other versions of this witness’s story that contradict the statement at issue. He disagrees with the court’s assessment of the relevance of the evidence and the value of the court’s proposed curative continuance. He questions the effectiveness of his counsel’s assistance in handling this.
The superior court criminal rules require the State to turn over to the defense, no later than the omnibus hearing, the names and addresses of its witnesses, `together with any written or recorded statements and the substance of any oral statements of such witnesses.’ CrR 4.7(a)(1)(i). If the State does not do so, the rule leaves it to the discretion of the court whether to order compliance, grant a continuance, dismiss the action, or enter whatever orders it deems just under the circumstances. CrR 4.7(h)(7)(i). If the court finds the noncompliance was willful, it may impose appropriate sanctions. CrR 4.7(h)(7)(ii).
The State failed to turn over the transcription of Ms. Donohue’s recollection of the events tape recorded by the police at the hospital on the night of the crime. CP at 3-15. When this came to light during the trial, Mr. Huwe asked for a mistrial.
The trial court has broad discretion in ruling on discovery violations and motions for a new trial. Absent a showing of abuse of discretion, we will not disturb the ruling on appeal. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). We ask whether the defendant was denied the opportunity to fully prepare for trial or whether the fairness of the trial was otherwise impacted in such a way as to undermine confidence in the verdict. State v. Dunivin, 65 Wn. App. 728, 731-32, 829 P.2d 799 (1992). Here, the trial judge recognized the gravity of the State’s discovery violation and its potential impact on the defense. The court conducted a hearing to determine any adverse impact on the defense. The record supports the court’s conclusion that the violation did not result in any unfair surprise. The written statement was essentially the same as the live testimony. The defense had full access to the witness during trial preparation. The omitted discovery was not exculpatory.
It cannot be said on this record that the court abused its discretion in concluding that a continuance, rather than a dismissal, was the appropriate remedy.
We find no error.
Ineffective Assistance of Counsel
Mr. Huwe suggests that his trial counsel was ineffective in several aspects of the trial, including the response to the discovery violation and letting the defendant take the stand. Mr. Huwe also contends counsel should have pushed more vigorously for a change of venue. Defense counsel did ask for a change of venue, but the court decided to go ahead and try to seat an impartial jury. If the defense was not satisfied, the court was open to a renewed motion. RP (Vol. 5) at 38. Apparently the jury was acceptable. Counsel did not renew the motion. Mr. Huwe believes it is impossible to seat an impartial jury in such a small community, and that any juror who admits to having read news reports of the crime cannot possibly be neutral. Every defendant is entitled to the effective assistance of counsel. State v. Adams, 91 Wn.2d 86, 89-90, 586 P.2d 1168 (1978). Trial counsel’s performance is deficient if it falls below a minimum objective reasonable standard. State v. Kruger, 116 Wn. App. 685, 693, 67 P.3d 1147, review denied, 150 Wn.2d 1024 (2003). To establish ineffective assistance as grounds to reverse, the appellant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987).
In evaluating the deficiency prong of Strickland, the court indulges a strong presumption that counsel performed reasonably. Thomas, 109 Wn.2d at 226. Even if unsuccessful, conduct that can legitimately be characterized as trial strategy or tactics is not ineffective assistance. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Mr. Huwe fails to establish the Strickland deficiency prong. None of the conduct complained of can be characterized as anything other than trial strategy.
We affirm the convictions.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KURTZ, J. and BROWN, J., concur.