No. 49607-7-IThe Court of Appeals of Washington, Division One.
Filed: March 3, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 011031569, Hon. Jeffrey M. Ramsdell, November 1, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Shannon B. Marsh, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Stephen P. Hobbs, Ste 5th, 516 3rd Ave, Seattle, WA 98104.
PER CURIAM.
Gary Schoolcraft appeals his conviction for possession of cocaine, arguing that the trial court improperly denied his motion for a recess to allow him to present his mother as a witness for his unwitting possession defense. But Schoolcraft’s mother was not under subpoena, and the court reasonably concluded she might not appear and testify even if it granted a recess. The court therefore did not abuse its discretion by denying Schoolcraft’s motion. We also reject Schoolcraft’s pro se claims and, accordingly, affirm.
FACTS
Police officers served an arrest warrant for Schoolcraft at his home. During a search incident to the arrest, they found rock cocaine and a pipe in the pocket of the sweatshirt Schoolcraft was wearing. An officer read Schoolcraft his Miranda[1] warnings and asked Schoolcraft where he bought his cocaine. Schoolcraft replied, “I just buy it off the streets all over. I don’t have a big problem. I just smoke it sometimes.”[2]
The State charged Schoolcraft with possession of cocaine. Schoolcraft gave notice at his omnibus hearing of alternative defenses of general denial or unwitting possession. Trial began on Monday, September 17, 2001. During pretrial motions, the court asked if the defense was presenting the unwitting possession defense. Counsel indicated it was possible, and if they did, they might want to call Schoolcraft’s mother[3]
as a witness. Counsel acknowledged that doing so would likely open the door to admissibility of Schoolcraft’s statements.
When pressed by the court, counsel declined to confirm that he would raise the defense. Because defense counsel was unavailable on Tuesday, the court planned to select the jury on Wednesday and instructed the State to present its case on Thursday. The court also instructed the defense to plan on presenting witnesses that day as well, but the court agreed the defense could call an otherwise unavailable defense investigator the following Monday.[4] On Thursday morning, the prosecutor noted that the defense still had not committed to the unwitting possession defense. The State rested before noon. Defense counsel indicated he was not going to call the investigator, but nonetheless asked the court to recess the trial until Monday of the next week so he could bring in Mrs. Schoolcraft to testify for the unwitting possession defense and then could have Schoolcraft testify after his mother. The court denied this request. Over the noon hour, defense counsel reached Mrs. Schoolcraft’s roommate, who said he thought she was on her way to the courthouse. Schoolcraft testified that when the officers knocked on his door, he quickly grabbed a nearby sweatshirt and put it on. He testified that the sweatshirt belonged to someone else and that he did not know there was cocaine in the pocket. On cross-examination, he said the jacket belonged to a friend of his named “Steve,” who sometimes helped him work on cars. He did not know Steve’s last name or address. After Schoolcraft testified, the defense renewed its motion for a recess until Monday. Counsel represented that Schoolcraft’s mother was not available that day after all, but that though it was difficult, she would be there Monday. After learning that Mrs. Schoolcraft was not under subpoena and making further inquiries about counsel’s communications with Mrs. Schoolcraft and her roommate, the court denied the request.
The jury found Schoolcraft guilty. The court denied Schoolcraft’s motion for a new trial and imposed sentence. Schoolcraft appeals.
DECISION
Schoolcraft argues that the trial court erred in denying his motion for a recess over the weekend. We review a trial court’s denial of a recess or continuance for an abuse of discretion.[5] In exercising its discretion, the trial court may consider various factors including diligence, due process, the need for an orderly procedure, the possible effect on the trial, and whether prior continuances were granted.[6]
Whether subpoenas were issued is important because “more than seventy-five years of Washington case law dictate that a continuance is improper when the moving party has failed to exercise due diligence in issuing subpoenas for necessary witnesses.”[7] Denial of the motion will not be disturbed without a showing that the defendant was prejudiced or that the result of the trial would have been different had the motion been granted.[8]
Schoolcraft first argues that the judge’s decision was “based solely upon his desire to keep the jury from waiting any longer.”[9] But Schoolcraft cites only a portion of the judge’s oral ruling. The record shows that the court denied the motion to continue because of many factors:
Schoolcraft’s mother was not under subpoena; the court was not convinced that she would appear and testify on Monday even if the court did grant a recess; and the trial had already been delayed repeatedly due to defense requests. These were valid concerns.
Schoolcraft argues that his counsel’s failure to subpoena his mother did not show a lack of diligence because counsel was reacting to surprise developments in the trial. But Schoolcraft’s counsel mentioned Mrs. Schoolcraft as a potential witness before any external surprise occurred. Moreover, the surprise he refers to was his counsel’s in learning that the State knew that Schoolcraft’s jail property box contained a sweatshirt with a pocket. That sweatshirt had been there since Schoolcraft was arrested four months earlier, and the presence of a sweatshirt was reflected in the jail records. The police reports also reflected that Schoolcraft was wearing a sweatshirt with pockets when he was arrested. Schoolcraft and his counsel should have known that the State might very well be able to corroborate what its witnesses had said since the beginning of the case. This essentially self-created surprise did not excuse counsel from the normal obligation to serve all anticipated witnesses with a subpoena.
Nor is there merit to Schoolcraft’s suggestion that the trial court surprised him by first ruling he could present his mother as a witness on the following Monday and then changing its mind. The record shows that the court was willing to accommodate the defense investigator’s unavailability that week, but not that the court preapproved the defense putting any other witnesses on after the weekend.
We also disagree with Schoolcraft’s claim that the trial court was unreasonable in questioning whether Mrs. Schoolcraft would actually appear and testify if it did grant a recess. On Thursday morning, counsel first told the court Mrs. Schoolcraft was unavailable because she was the caretaker for her roommate. At noon, counsel thought she was on the way to court. After counsel made more phone calls that afternoon, he acknowledged that the roommate had been home alone for several hours and was the one talking on the phone. Moreover, when asked for an offer of proof as to what exactly Mrs. Schoolcraft would say, counsel conceded that he needed to show Mrs. Schoolcraft the sweatshirt so she could tell him “for sure” that it was not Schoolcraft’s.[10] The logical implication was that unless she could verify that the sweatshirt was not Schoolcraft’s, the defense was not going to call her.
In light of the record, we conclude that the trial court had a tenable basis for denying the motion for a recess. Accordingly, the court did not err.
Schoolcraft makes several pro se claims that we also find unpersuasive. He argues that his trial counsel was ineffective. To establish a claim of ineffective assistance of counsel, Schoolcraft must show that counsel’s performance fell below an objective standard of reasonableness and that prejudice resulted from the deficiency.[11]
Schoolcraft’s first claim is that his counsel was ineffective by failing to call him as a witness during the CrR 3.5 hearing to rebut the officer’s version of events surrounding his statements about purchasing cocaine. This argument fails because the court engaged in the proper colloquy with Schoolcraft regarding his right to testify at the hearing,[12] and Schoolcraft fails to present more than a bare allegation that his counsel prevented him from testifying.[13] Schoolcraft also alleges that his attorney was ineffective in failing to issue a subpoena for his mother. Assuming, without deciding, that counsel did render deficient performance in this regard, Schoolcraft still fails to make the requisite showing of prejudice on this record.[14] As noted above, when pressed by the court, counsel essentially conceded that he did not actually know that Mrs. Schoolcraft would say that the pocketed sweatshirt was not Schoolcraft’s. We cannot conclude Schoolcraft has carried his burden based on the speculation of what she would have said. In this regard, we also note that when Schoolcraft moved for a new trial on the alternative ground of the denial of his requested recess, Schoolcraft provided no affidavit from his mother and did not even supplement the incomplete offer of proof that counsel provided at trial.
Finally, Schoolcraft claims that the trial court erred in admitting his statements at trial. “For a statement to be admissible under Miranda, the State must establish by a preponderance of the evidence that the defendant, after being fully advised of his rights, knowingly and intelligently waived them.”[15] Here the record shows that the officer read Schoolcraft his rights and Schoolcraft, who has had substantial experience being arrested, indicated he understood them and answered nonconfrontational questions without threats, promises, or any form of coercion. The court did not err in admitting Schoolcraft’s statements.
Affirmed.
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