No. 22008-7-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
Filed: September 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 03-1-00367-6. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. James P Hutton.
Counsel for Appellant(s), Donald G. Miller, Attorney at Law, 422 W Riverside Ave Ste 518, Spokane, WA 99201-0302.
Counsel for Respondent(s), Ronald Stanton Zirkle, Attorney at Law, Yakima County Courthouse, 128 N 2nd St Rm 329, Yakima, WA 98901-2639.
KURTZ, J.
Jeffrey Rhoades was convicted of residential burglary. On appeal, he contends that he received ineffective assistance of counsel because his attorney introduced evidence of previous burglary convictions that were more than 10 years old. He also contends that the lower court erred by denying his motion to substitute counsel, and by refusing to give his proposed lesser-included jury instruction on criminal trespass. We affirm Mr. Rhoades’s conviction.
FACTS
Henry Cardenas and Jeffrey Rhoades were long-time acquaintances. They shared housing in Yakima and, later, in Denver.[1] After a time, the two went their separate ways when Mr. Cardenas returned to Yakima to live with his daughter and Mr. Rhoades remained in Denver.
After Mr. Cardenas moved to Yakima, he received a number of telephone calls from Mr. Rhoades, asking for money so that Mr. Rhoades could return to Yakima. Mr. Cardenas sent the money and, eventually, Mr. Rhoades returned. Mr. Cardenas testified that Mr. Rhoades called him from the bus station for a ride. When Mr. Cardenas picked up Mr. Rhoades, Mr. Rhoades immediately complained about Mr. Cardenas’s driving and suggested that he be allowed to drive the car. Mr. Cardenas complied. Mr. Rhoades then took Mr. Cardenas home and left with Mr. Cardenas’s car. Mr. Rhoades used this opportunity to drive around Yakima in order to locate drugs. Two weeks later, Mr. Rhoades returned with the car, which was damaged.
On the day of the incident, Mr. Cardenas was alone in the house he shared with his daughter. He heard a knock at the door. Because the knock became more insistent, Mr. Cardenas formed the opinion that the caller was Mr. Rhoades. Fearing that Mr. Rhoades would demand money, Mr. Cardenas did not open the door.
Mr. Cardenas looked outside from a bedroom window and saw a car in the driveway, with a dark-haired person sitting in the passenger seat. He thought he heard someone talking. He took the telephone into the bathroom and called 911 to report a burglary in progress. While he spoke with the operator, he heard a window break in the house.
According to Mr. Cardenas, moments later he was confronted by Mr. Rhoades. Mr. Rhoades told him not to call the police, and struggled to take the phone away from him. Mr. Cardenas backed out of the bathroom and went into the living room. Mr. Rhoades followed, and told Mr. Cardenas to let him out of the house. Mr. Cardenas then unlocked the front door and Mr. Rhoades left. Later, Mr. Cardenas noticed that a 13-inch television and a portable CD player were missing from his grandson’s room.
The police arrived at the house. Mr. Cardenas identified Mr. Rhoades as the intruder to the 911 operator. Deputy Michael Hoffee of the Yakima County Sheriff’s Office stated that Mr. Cardenas’s hands visibly shook after the break-in. Outside, the deputy observed shards of glass on the ground near the broken window.
Procedural History. The State filed an information charging Mr. Rhoades with residential burglary. Approximately one month after his arraignment and assignment of counsel, Mr. Rhoades moved to substitute counsel. He was displeased with his assigned counsel Dale Becker.
In the motion to substitute counsel,[2] Mr. Rhoades complained that he made repeated, unsuccessful attempts to contact Mr. Becker. He said he was informed by Mr. Becker’s staff that Mr. Becker would be visiting him in jail on a Friday, and Mr. Becker failed to appear. He also alleged that Mr. Becker refused to speak on the telephone with him. Mr. Rhoades further alleged Mr. Becker’s staff refused to take messages related to new evidence that would exonerate him, and even refused to take messages related to defense witness identities and contact numbers. Mr. Rhoades concluded that he was without representation.
Mr. Becker explained that Mr. Rhoades was dissatisfied with his representation because he had not been able to meet with Mr. Rhoades as quickly as Mr. Rhoades wanted. Mr. Becker told his staff to inform Mr. Rhoades, when he called, that he would see Mr. Rhoades as soon as he could. He reported that when he went to visit Mr. Rhoades on a Monday, Mr. Rhoades refused to attend the meeting. Mr. Becker had not been able to meet with Mr. Rhoades prior to the substitution hearing.
The court noted that Mr. Becker `is a lawyer who has done a lot of work in the court for a long number of years and he enjoys the confidence of the judges. . . . [M]y observation is that he’s been acting in good faith on behalf of his clients.’ Report of Proceedings (RP) (March 12, 2003) at 14. The court then told Mr. Rhoades that it wanted him to try one more time to have a relationship with Mr. Becker: `If you’re telling me today that you can’t do it, I want you to give it one more try. If you absolutely cannot, now that I have become familiar with these cases, we’ll put this again on for review of that.’ RP (March 12, 2003) at 15. The court instructed Mr. Rhoades to talk to Mr. Becker again, to see if the relationship could work. The court then stated it would put the matter back on the calendar for the following week. At the rescheduled hearing, Mr. Rhoades indicated that he was `happy with the developments so far.’ RP (March 19, 2003) at 4.
On April 10, 2003, a hearing was held related to Mr. Rhoades’s renewed request for substitution of counsel. At this hearing, Mr. Rhoades described his attorney’s representation as `disastrous.’ RP (April 10, 2003) at 3. He complained that Mr. Becker had improperly instructed the investigators to interview witnesses they had not agreed to have interviewed, who gave `opinionated statements to incriminate [Mr. Rhoades].’
RP (April 10, 2003) at 3. Mr. Rhoades stated that he and Mr. Becker had agreed upon a strategy, which Mr. Rhoades did not believe was carried through.
Mr. Becker explained that after he initially spoke with Mr. Rhoades, he gave his investigator general instructions. But when Mr. Becker met with Mr. Rhoades, Mr. Rhoades was upset with the content of the gathered information. As a result of that meeting, Mr. Becker sent his investigator out to re-interview the witnesses. When he went to meet with Mr. Rhoades to provide him with the updated information, Mr. Rhoades again refused to meet with him.
The court hearing the matter noted that Mr. Rhoades’s 60-day speedy trial rights expired four days later, on the following Monday. Mr. Becker stated that he was ready to go to trial on Monday. The court told Mr. Rhoades that he was entitled to go to trial within the 60 days, unless he wanted to request a continuance. Mr. Rhoades did not agree to a continuance.
Ultimately, the court denied the substitution motion, it advised Mr. Rhoades to communicate with Mr. Becker, and set the trial date for the following Monday. Mr. Rhoades objected.
Prior to trial, Mr. Becker moved to admit Mr. Rhoades’s prior convictions. He stated:
. . . We have an interesting issue in this case in that Mr. Rhoades and the alleged victim Henry Cardenas are tied together through the years in that they both share co-defendant burglary convictions for burglaries in 1987 and two in 1988.
They are more than 15 years old. We would at this point seek to introduce those convictions, not for the purpose necessarily of impeachment, but more under a 404(b) issue because it relates to the issue of motive, the intent of Mr. Cardenas in terms of his testimony.
. . . .
. . . I guess our argument to the jury will be that Mr. Cardenas has more than enough in terms of his past background between the two of them in order to have a strong bias, in fact enough to in fact [sic] make up the story about the burglary.
So the ’87 and ’88 convictions, if nothing else, demonstrate to the jury that these two people have been tied together for a long period of time. There’s ample reason to believe that there would be bias on one part or the other between the two.
And we also understand that as a result of this most likely that Mr. Rhoades’ convictions are going to come in from 1987 and 1988, even though they normally would be outside, for impeachment purposes, because they’re more than ten years old. However, under 404(b) we believe that there is an argument to be made that it shows motive for bias, the intent.
. . . .
. . . [T]he fact that this is in fact a residential burglary charge, and one is accusing the other of residential burglary, and the fact that they both have prior burglary convictions that are joint convictions is a relevant and important fact as far as we’re concerned.
RP (April 14, 2003) at 3-6.
The court then questioned Mr. Rhoades about this motion:
THE COURT: Mr. Rhoades, you are proposing, then, that we let the jury know about your criminal conviction and Mr. Cardenas’ criminal conviction for burglary some 15 — 15 years ago, 16 years ago in one case. Is that right?
DEFENDANT: That’s correct.
THE COURT: And you’re choosing to do that as a tactical decision in this case, basically; is that right?
DEFENDANT: I just feel that it should — just like Mr. Hanson said, it should come out, you know, as we’re both on equal ground, and it’s the same matter. I feel the same way —
THE COURT: You understand that the jury may — one or more of the jurors may infer from this that you — because you have a criminal history that you more likely than not committed the crime of which you’re accused in this case, even though we may instruct them differently than that? But you understand that’s a risk?
DEFENDANT: Yes, I do.
THE COURT: Okay. And knowing all those risks, and having discussed this with Mr. Becker, and having thought about it, you want to go ahead and put these records of judgment and conviction in front of the jury?
DEFENDANT: That’s what I’d like to do.
THE COURT: Okay.
RP (April 14, 2003) at 10-11.
During the trial, the jury heard a recording of Mr. Cardenas’s 911 call. However, the substance of the call does not appear in the record. The dispatcher from the sheriff’s office who spoke with Mr. Cardenas during that call testified that it sounded to her like a struggle was ensuing between the person on the phone and the other person who was in the house.
Mr. Rhoades denied that he broke into Mr. Cardenas’s house. He denied that he was at the house on that day and, instead, testified that he was at his sister-in-law’s house that day. He claimed that Mr. Cardenas had been in love with him for years, and he told Mr. Rhoades that he was going to say that Mr. Rhoades burglarized his home in order to `fix’ him. RP at 190. He stated that Mr. Cardenas was angry with him for returning Mr. Cardenas’s car in a damaged condition.
Mr. Rhoades proposed two jury instructions related to first degree criminal trespass. The court denied both. The court reasoned that the two-prong test necessary for lesser-included offenses was not met. Specifically, the court stated that no evidence existed from which the jury could infer that, if Mr. Rhoades entered the house, he did so for some other purpose than to steal property from the house. Additionally, the court noted that Mr. Rhoades’s defense consisted of denying he was at the residence. As such, no evidence existed to support the instruction that he entered the house under any circumstances.
Mr. Rhoades was convicted of residential burglary. He appeals.
ANALYSIS
Ineffective Assistance Of Counsel. Mr. Rhoades contends that he received ineffective assistance of counsel because his attorney sought to introduce evidence of his past burglaries that were inadmissible.
On appeal, the court indulges in a strong presumption that defense counsel’s performance is within the broad range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The test for ineffective assistance of counsel is whether: (1) defense counsel’s performance fell below the objective standard of reasonableness; and (2) this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice results when it is reasonably probable that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694).
As the State points out, Mr. Rhoades’s defense strategy was substantially based upon discrediting the State’s primary witness, Mr. Cardenas. In an effort to discredit Mr. Cardenas, trial counsel sought to expose that Mr. Cardenas was involved in previous burglaries, as Mr. Rhoades’s partner in crime. Additionally, Mr. Rhoades sought to prove, through their past experiences together, that Mr. Cardenas had motive to want to harm Mr. Rhoades.
While it was a rather unusual strategic decision, the fact remains that the decision to introduce these past convictions was purely strategic. The record reflects that Mr. Becker was keenly aware that these convictions were otherwise inadmissible, and he had obviously explained this fact to his client. As the inquiry between the court and Mr. Rhoades illustrates, Mr. Rhoades agreed with this strategy, was aware of the particular risks, and yet wanted to proceed.
By contrast, if Mr. Becker had been unaware that these convictions were inadmissible, or if he had failed to analyze and explain the risks to his client, perhaps this issue would have merit. In the absence of such evidence, and in light of the explanations on the record justifying this unusual, but carefully considered decision, we find that this decision was a purely tactical decision and thus it will not support a finding of ineffective assistance.
Motion to Substitute Counsel. Mr. Rhoades next complains that the trial court erred by denying his motion to substitute counsel. `A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate.’ State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). Whether a defendant’s dissatisfaction with his court-appointed counsel justifies the appointment of new counsel is a matter within the trial court’s discretion. Id.
A defendant who is dissatisfied with appointed counsel must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication. Id. at 734. In presenting the motion for substitute counsel, the defendant must give specific reasons for his dissatisfaction and adequately support them with evidence. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
`Attorney-client conflicts justify the grant of a substitution motion only when counsel and defendant are so at odds as to prevent presentation of an adequate defense.’ Stenson, 132 Wn.2d at 734. The general loss of confidence or trust alone is insufficient to substitute new counsel. Id. Factors to be considered are (1) the reasons given for the dissatisfaction, (2) the court’s own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings when determining whether or not to appoint substitute counsel. Id. (citing State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987)).
In this case, it appears Mr. Rhoades’s initial dissatisfaction arose because he had difficulty communicating with Mr. Becker. Subsequent to the first hearing, however, it appears the two men met and agreed on a strategy for defending the case. Mr. Becker explained that he attempted to accomplish what he thought was agreed upon, and Mr. Rhoades indicated his dissatisfaction. Significantly, Mr. Becker then tried to rectify the situation and follow Mr. Rhoades’s additional instructions, but Mr. Rhoades refused to meet with him to discuss the follow-up investigation that had taken place.
Mr. Rhoades’s dissatisfaction, it appears, was caused by a miscommunication between him and Mr. Becker. It also appears that Mr. Rhoades did not appreciate hearing the damaging information that Mr. Becker discovered about Mr. Rhoades, and he accused Mr. Becker of purposely searching for such information. Neither of these reasons support the substitution of counsel. The lack of communication between a client and counsel occurs frequently, and the important fact is that Mr. Becker took steps to try to satisfy Mr. Rhoades’s concerns. Moreover, Mr. Becker’s uncovering harmful information about Mr. Rhoades, while unpleasant to Mr. Rhoades, was necessary to prepare to defend the case.
The court evaluated Mr. Becker as enjoying a good reputation with the court, and as a lawyer who was well prepared. Additionally, the court noted that Mr. Rhoades was four days away from his speedy trial 60-day period, and it was unreasonable to expect to appoint new counsel and have that counsel prepared to try the case in that time period. We conclude Mr. Rhoades failed to show good cause to warrant substitution of counsel. The record does not support Mr. Rhoades’s dissatisfaction with his counsel. Accordingly, we conclude the court did not abuse its discretion in refusing to substitute counsel.
First Degree Criminal Trespass. Mr. Rhoades next contends that the trial court erred by refusing to give the jury his proposed instruction on criminal trespass. We review a trial court’s refusal to give a jury instruction for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998) (citing State v. Pesta, 87 Wn. App. 515, 524, 942 P.2d 1013 (1997)). A party is entitled to an instruction where there is evidence to support it, but it is error to give an instruction which is not supported by the evidence. State v. Hoffman, 116 Wn.2d 51, 110-11, 804 P.2d 577 (1991). Refusing an instruction is reversible error only if it prejudiced the defendant; that is, the refusal is reversible error only if, within reasonable probabilities, the outcome would have been different had the instruction been given. State v. Thomas, 110 Wn.2d 859, 862, 757 P.2d 512 (1988).
In this case, Mr. Rhoades argues that criminal trespass is a lesser-included offense of residential burglary, and he was entitled to the instruction under the facts. A defendant is entitled to a lesser-included offense instruction when (1) each element of the lesser offense is a necessary element of the offense charged (the legal test), and (2) the evidence supports an inference that the lesser offense was committed (the factual test). State v. Aumick, 126 Wn.2d 422, 426, 894 P.2d 1325 (1995); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The evidence must support an inference that the defendant committed the lesser offense instead of the greater one. State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992).
RCW 9A.52.025 defines residential burglary in part as:
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
Criminal trespass in the first degree is partly defined as:
(1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building.
RCW 9A.52.070.
Here, the State concedes that the legal test for allowing the instruction on criminal trespass is met. However, the State argues that the factual test was not met and, therefore, the court did not abuse its discretion in refusing to give the proposed instructions. Specifically, the State argues that Mr. Rhoades’s defense consisted of a denial that he ever entered Mr. Cardenas’s house and, therefore, no evidence exists from which to infer he committed the lesser crime of criminal trespass.
The State is correct. Mr. Rhoades’s defense consisted of a general denial, along with an alibi, that he was not at Mr. Cardenas’s house and that these charges were fabricated. As a result, as the trial court noted, no evidence existed from which a jury could reasonably infer that Mr. Rhoades entered Mr. Cardenas’s house for any reason, much less a reason other than to take property from the house. The court did not err by failing to give the lesser-included instruction.
Pro Se Issues. Mr. Rhoades, pro se, contends that he did not receive a fair trial when the court denied two separate proposed jury instructions related to:
(1) limiting the consideration of the admission of the prior convictions; and
(2) accomplice liability.
Limiting Instruction. Mr. Rhoades argues that under ER 404(b), if the court allows evidence of improper acts, and the evidence is granted under a limited purpose, the court is then bound to provide a cautionary instruction. Mr. Rhoades argues that the court refused to give such an instruction.
The court explained:
THE COURT: Okay. Also, just so it’s clear, I inquired of Mr. Becker whether he wanted to try to give — or, whether he thought an instruction should be given regarding this evidence of these long-ago convictions for burglary, 15 years ago plus, and Mr. Becker I think correctly pointed out that the pattern instructions, 5.05 and 5.06, say that unless — being used — these convictions are being used for impeachment that no instruction should be given. That’s not really the purpose for which that evidence was introduced in this case, so I’m satisfied that we should not give an instruction of any kind as to the convictions.
Okay. Is there anything else regarding the instructions or the verdict form counsel want to take up before we bring the jury back in?
MR. BECKER: No, your Honor.
MR. HANSEN: No, your Honor.
RP (April 15, 2003) at 207.
As is revealed by this explanation, Mr. Rhoades’s counsel informed the court that no instruction was necessary. As such, Mr. Rhoades is precluded on appeal from contending this was error, under the invited error doctrine. `That doctrine prohibits a party from creating an error at trial and then complaining of it on appeal. The doctrine applies even when the error is of constitutional magnitude.’ State v. McLoyd, 87 Wn. App. 66, 69, 939 P.2d 1255 (1997), aff’d, State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999). We decline to review this issue.
Accomplice Liability. Mr. Rhoades contends that the trial court erred by refusing to give his proposed jury instruction related to accomplice liability. However, the record reveals that the instruction was actually proposed by the State, and the State withdrew the instruction from consideration:
THE COURT: . . . Mr. Hansen, if the evidence remains as it is are you still asking for the accomplice instruction that you proposed yesterday, I think it was?
MR. HANSEN: I don’t think so, your Honor. Because I think even under Henry’s account, that the only person that was inside was the defendant. . . . If the front door was open then I think an accomplice issue might be there, but as it is I don’t think an accomplice — I’m not going to argue an accomplice theory —
RP (April 15, 2003) at 203.
Mr. Rhoades neither proposed the instruction nor objected to its withdrawal. As a result, he has failed to preserve the issue for appeal. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988).
We affirm Mr. Rhoades’s conviction.
The majority of the panel has determined 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.
SWEENEY, A.C.J., BROWN, J., concur.