Nos. 18868-0-III, 19367-5-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: August 14, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Yakima County, No. 99-1-01434-6, Hon. James P. Hutton, October 25, 1999, Judgment or order under review.
Counsel for Appellant(s), Suzanne L. Elliott, Attorney At Law, Suite 1300 Hoge Building, 705 Second Avenue, Seattle, WA 98104.
Counsel for Respondent(s), Kevin G. Eilmes, Yakima County Prosecutors Office, 211 County Courthouse, 128 N 2nd St, Yakima, WA 98901.
FRANK L. KURTZ, C.J.
Reginald Lynn Riggins was convicted of second degree robbery, first degree criminal trespass, and violation of a no-contact order. The trial court denied his motion for a new trial. On appeal, Mr. Riggins contends his constitutional rights were violated because he was not present at the hearing on the motion for a new trial. We affirm Mr. Riggins’s convictions.
FACTS
In August 1999, Reginald Riggins was charged with first degree burglary, assault in violation of a no-contact order, and second degree robbery. Mr. Riggins waived his right to a jury trial.
Tanya Commet testified that on August 5, 1999, she was asleep in her apartment when she heard the doorbell ring. By the time Ms. Commet got up to answer the door, Reginald Riggins had entered the apartment and was standing in the living room. Ms. Commet was not expecting Mr. Riggins and asked him to leave. Ms. Commet was acquainted with Mr. Riggins, but the couple had been involved in a domestic situation and a no-contact order had been entered.
When Mr. Riggins refused to leave, Ms. Commet tried to call the police, but Mr. Riggins blocked her access to the phone. Kaniesta Burns was staying in the apartment with Ms. Commet. Ms. Commet asked Ms. Burns to call the police. Mr. Riggins told Ms. Commet that he would take her purse if she called the police. Mr. Riggins then grabbed her purse — which contained about $70 — and ran out the door. Ms. Commet testified that she followed him outside and grabbed his arm, but that she lost her balance, and fell, when he yanked his arm away. Ms. Burns testified that she was sleeping on a couch in Ms. Commet’s living room when she was awakened by the sound of the doorbell and Ms. Commet’s voice saying `Oh, my God.’ Report of Proceedings (RP) at 30. When Ms. Burns opened her eyes, Mr. Riggins was standing in the living room between the couch and the window. According to Ms. Burns, the window had been open all night with the screen off. Ms. Burns corroborated Ms. Commet’s story that she had asked Mr. Riggins to leave, that Mr. Riggins prevented Ms. Commet from getting to the phone, and that Mr. Riggins grabbed Ms. Commet’s purse and ran out the door when Ms. Burns called the police. Ms. Burns did not observe any of the events that transpired outside the apartment after Mr. Riggins left the apartment. Officer James Levno testified that he was dispatched to Ms. Commet’s apartment after a call was received indicating that a violation of a no-contact order was in progress. When the officer contacted Ms. Commet and Ms. Burns, both women were upset and excited, and Ms. Commet looked as though she had been crying. Officer Levno checked Ms. Commet for injuries and checked the premises noting that the screen from the front window was lying on the ground. After hearing the testimony, the trial court found that Mr. Riggins (1) contacted Ms. Commet on August 5, 1999, after signing a receipt for a no-contact order; (2) entered the apartment without permission and refused to leave when asked to do so; and (3) took Ms. Commet’s purse and used force to retain it. Although Mr. Riggins had been charged with assault in violation of a no-contact order, first degree burglary, and second degree robbery, the trial court found him guilty of second degree robbery and the lesser offenses of first degree criminal trespass and violation of a no-contact order. On October 25, 1999, Mr. Riggins was sentenced within the presumptive range.
A notice of appeal was filed and defense counsel filed an Anders[1]
brief and the State filed a motion to dismiss. This motion was stayed when Mr. Riggins filed a motion for a new trial.
In April 2000, Mr. Riggins filed a motion for a new trial alleging that Ms. Commet was recanting a portion of her testimony and that substantial justice had not been done because no psychological examination had been performed to explain any mental disability that may have affected her ability to perceive and recall events accurately. Ms. Commet filed an affidavit stating that she suffered from a `bi-polar disorder’ that required her to take lithium twice a day. Clerk’s Papers (CP) at 7. She stated that she was not taking her prescribed medicine the day of the trial and was confused and unable to answer questions correctly. Ms. Commet wanted to correct her testimony to state that: `I was not pushed by Mr. Riggins nor was there any force or threat of force used by him against me. Mr. Riggins took my purse and ran off with it. When I ran after him I fell to the ground.’ CP at 7. Mr. Riggins was not present at the hearing on the motion for a new trial. No testimony was offered and no evidence was taken at the hearing on the motion. The trial court denied the motion.
Mr. Riggins appeals.
ANALYSIS
A defendant has the constitutional right to be present at all critical stages of the proceedings. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). A defendant has a right to be present when evidence is presented or whenever the defendant’s presence has a reasonably substantial relation to the opportunity to defend against the charge. In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994). A defendant does not have the right to be present if legal matters are at issue rather than the resolution of facts. Id.
Mr. Riggins contends his presence was required because the trial court conducted a hearing and took testimony in the form of Ms. Commet’s affidavit. First, Ms. Commet’s affidavit was not submitted at the hearing on May 15, 2000; Ms. Commet’s affidavit was submitted on April 28, 2000, as part of Mr. Riggins’s motion for a new trial. Second, Mr. Riggins’s argument is unpersuasive to the extent he suggests that his presence was necessary so that he could help his attorney respond to evidence uncovered at the hearing. The case relied upon by Mr. Riggins, United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), is distinguishable. Mr. Hayman filed a motion to set aside a sentence imposed for forging government checks and other violations of federal law. Id. at 208. The district court denied the motion after receiving three days of testimony in connection with issues of fact raised by the motion. Id. The United States Supreme Court held that the district court had erred by determining factual issues without notice to Mr. Hayman and without his presence. Id. at 223-24. In contrast, here, no new evidence was taken at the hearing on the motion for a new trial.
More importantly, the purpose of the hearing here was to give the trial court the opportunity to consider the legal issues raised by Mr. Riggins’s motion for a new trial. When considering this motion, the court evaluated the facts established at trial against the newly discovered evidence contained in the affidavit of Ms. Commet, a recanting witness. However, during the trial, there had been independent corroborating evidence supporting the testimony of the recanting witness as to the elements of each conviction. `[W]hen there is independent corroborating evidence supporting the prior testimony of the recanting witness, the trial court has discretion to grant or deny the new trial.’ State v. Macon, 128 Wn.2d 784, 800, 911 P.2d 1004 (1996).
At the hearing, the court considered Ms. Commet’s affidavit, but then concluded that (1) Ms. Commet’s demeanor and conduct at trial indicated that her mental abilities were not impaired, and (2) Ms. Commet’s attempt to minimize the force used during the robbery was immaterial because the evidence presented was sufficient to prove the elements of the robbery. However, in the order, the court stated that Ms. Commet’s demeanor and conduct at trial indicated that her mental abilities were not impaired and that her affidavit was not credible.
Even though the court’s order seems to imply that evidence was accepted and evaluated at the hearing, this evaluation was performed against the backdrop of the testimony heard at trial. The court did not abuse its decision in granting the motion for a new trial because there was independent corroborating evidence supporting the prior testimony of the recanting witness and the evidence contained in Ms. Commet’s affidavit was immaterial. Hence, although evidence was considered at the motion for a new trial, the evidence was considered as part of the resolution of a legal issue and the defendant’s presence was not required.
We affirm Mr. Riggins’s 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.
WE CONCUR: SWEENEY, J., KATO, J.
(1967).