No. 36815-3-II.The Court of Appeals of Washington, Division Two.
November 25, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-01121-1, Christine A. Pomeroy, J., entered September 20, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Armstrong, JJ.
HUNT, J.
Joseph Daniel Walker appeals his convictions for second degree assault with a deadly weapon enhancement, unlawful possession of a controlled substance, and third degree theft. He argues that (1) the evidence was insufficient to support the deadly weapon enhancement, and (2) the trial court erred when it denied his motion to substitute counsel. In a pro se Statement of Additional Grounds for Review[1] (SAG), he also argues that the jury was shown portions of a video tape that the trial court had excluded. We affirm.
FACTS I. The Crimes
On June 19, 2007, Target loss preventions officers Matthew Beckman and Greg Norman stopped Joseph Walker as he attempted to leave the store without paying for a portable DVD player. Beckman and Norman removed Walker to the store’s security office and tried to handcuff him. Walker resisted. During the ensuing struggle, Walker pulled a closed folding knife[2] out of his pocket, attempted to manipulate it with both hands, and bit Norman’s chest. Beckman and Norman took the knife from Walker before Walker opened it. After restraining Walker, Beckman and Norman also found a second knife or “leveling tool,” clipped in Walker’s left pocket. In addition to the bite, Norman also suffered scratches or abrasions to his left forearm. This security office incident was video taped.
Law enforcement officers arrested Walker, searched him incident to his arrest, and found a vial of methamphetamine on his person. Walker told officers that (1) he had intended to trade or pawn the DVD player to obtain drugs; (2) he had pulled the knife when he realized he was going to be arrested; and (3) he intended to use the knife to intimidate the security officers so he could escape.
II. Procedure
The State charged Walker with (1) second degree assault while armed with a deadly weapon, a knife; (2) first degree trafficking in stolen property; (3) unlawful possession of a controlled substance, methamphetamine; and (4) third degree theft. Walker pleaded not guilty.
A. Motion for Substitute Counsel
On the first day of trial, Walker’s appointed defense counsel informed the trial court that (1) he wished to withdraw from the case due to a “breakdown in communication with Mr. Walker”; (2) the day before, he (counsel) had been to the jail twice hoping to discuss trial strategy with Walker and to show Walker the video evidence but Walker refused to see him; (3) he had interviewed witnesses and prepared the corpus delicti motion the trial court was to consider that day; (4) he felt he was unable to prepare for opening argument because Walker had refused to talk to him and he did not know if Walker was going to testify at trial; and (5) Walker had just informed him (defense counsel) that he (Walker) no longer wanted defense counsel’s assistance and that he had filed a bar complaint.
Walker confirmed that he sent a grievance to the State Bar Association and a motion to substitute counsel to the trial court a week earlier. RP at 6-7. When the trial court indicated that it had not received Walker’s motion, Walker summarized the motion, stating that he had asserted defense counsel had “failed to assist [him] by granting [him] access to video and evidence that would be presented against [him] after he said he would, Brady v. Maryland.“[3] When the trial court pointed out that defense counsel had attempted to show him this very evidence the day before and was unable to do so only because Walker refused to meet with him, Walker responded that he had refused to see defense counsel because he did not think this last minute visit was sufficient to allow them establish their trial strategy.
Walker then asserted that (1) defense counsel had failed to respond to his voicemails and “kites,”[4] (2) defense counsel was prejudiced against him because defense counsel had represented him in his last case and he (Walker) had tried to “fire [defense counsel] twice,”[5] and (3) he had refused to meet with defense counsel the day before because he (Walker) had already filed his motion to substitute counsel and he was “done with [defense counsel].”
Defense counsel told the trial court that although he had not seen Walker for approximately ten days, (1) he had met with Walker at least twice; (2) Walker was inaccurate in asserting that defense counsel had spent less than 10 minutes with him; (3) Walker had made it clear from the beginning of defense counsel’s representation that he (Walker) wanted to go to trial; (4) defense counsel had been preparing for trial; (5) nevertheless, defense counsel could no longer adequately represent Walker because Walker had made it clear he would not cooperate.
The prosecutor responded that (1) the State was prepared to go to trial; (2) Walker was intentionally creating a conflict; (3) the state had worked with defense counsel to obtain and to examine evidence and on the pending corpus delicti motion; (4) the state believed defense counsel was prepared for trial; and (5) a mere disagreement with Walker did not justify allowing defense counsel to withdraw this late in the proceedings. The State acknowledged, however, that Walker’s refusal to communicate with defense counsel was “probably a little bit problematic.” But the State contended that, given Walker’s extensive criminal history, his current refusal to participate was likely a “typical last-minute attempt by an in-custody defendant to delay his trial.” Report of Proceedings at 12.
Walker denied attempting to delay his trial, asserting that he was only attempting to obtain a fair trial. He attributed the delay in filing his motion to substitute counsel, his lack of access to the law library, and communication problems within the jail.[6]
Considering only Walker’s oral motion, the trial court denied Walker’s motion to dismiss defense counsel. The trial court acknowledged Walker’s claim that defense counsel had failed to provide him with various documents or access to the video; the court further recognized that Walker’s potential lack of participation with counsel could make it difficult to represent him. Nonetheless, the trial court found that (1) it was Walker’s refusal to see defense counsel that had caused the problem, (2) defense counsel was otherwise adequately prepared to try the case, and (3) defense counsel’s previous representation of Walker did not create a conflict. The trial court then allowed Walker and his counsel additional time before the trial started to review the video and to discuss other issues, such as whether Walker would testify.
There is no indication in the record that Walker did not cooperate with defense counsel thereafter. On the contrary, the record shows that although Walker initially said he would not participate, he ultimately met with defense counsel and reviewed the video. Moreover, Walker did not renew his motion to substitute counsel during the ensuing trial.
B. Trial
At trial, Norman and Beckman testified about the security office scuffle with Walker as described above. The jury also viewed portions of the video tape of the scuffle in the security office.
In addition, Officer Davey Scott of the Lacey Police Department, one of the officers who had responded to the incident, testified about handling the folding knife and demonstrated how the knife worked. Scott could not recall whether the knife was locked when he first handled it. But when he demonstrated how the knife worked, he noted that he needed to flip a switch with his thumb to open the blade and that he had to depress a different button on the side of the knife to close the blade. He also identified what appeared to be another switch on the knife that locked and unlocked the blade. Scott commented, however, that the knife was “a simple knife to open.”
Walker presented no witnesses. The jury found him guilty of second degree assault armed with a deadly weapon, third degree theft, and unlawful possession of a controlled substance.[7]
Walker appeals.
ANALYSIS I. Sufficiency of the Evidence: Deadly Weapon Enhancement
Walker first argues that the evidence was insufficient to support the deadly weapon sentencing enhancement in that the State failed to prove that the knives he possessed were easily accessible and readily available for either offensive or defensive purposes. We disagree.
A. Standard of Review
We review a challenge to sufficiency of the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). In doing so, we defer to the fact finder’s resolution of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
B. Sufficient Evidence
To establish that Walker was armed with a deadly weapon, the State had to prove beyond a reasonable doubt that the weapon was easily accessible and readily available for offensive or defensive use.[8] The record supports such a finding.
During the course of the assault, Walker pulled the first knife from his pocket and was attempting to manipulate it with both hands. Although Norman and Beckman successfully restrained Walker before he opened the knife, (1) the knife was on Walker’s person, (2) the knife was easily within his reach, (3) according to Scott, it was “a simple knife to open,” and (4) there was no evidence that Walker would not have been able to open the knife quickly and easily if Norman and Beckman had not intervened when they did. We hold that this evidence was sufficient to establish that Walker’s knife was easily accessible and readily available him and to support the deadly weapon sentencing enhancement.
II. Denial of Motion for New Counsel
Walker next argues that the trial court erred when it denied his motion for new counsel. Again, we disagree.
A. Standard of Review
We review a trial court’s denial of a motion to substitute counsel for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239
(1997), cert. denied, 523 U.S. 1008 (1998). To determine whether the trial court abused its discretion in denying a defendant’s request for substitute counsel, we consider the (1) extent of the alleged conflict, (2) adequacy of the trial court’s inquiry, and (3) timeliness of the request. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 723-24, 16 P.3d 1
(2001).
An indigent defendant does not have the absolute right to choose his court-appointed defense counsel and must show good cause before the trial court will allow substitution of counsel. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004); Stenson, 132 Wn.2d at 733-34. Additionally, “scrutiny of counsel’s performance is highly deferential and courts will indulge in a strong presumption of reasonableness.” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). When determining whether good cause exists, the trial court will look for significant issues, such as conflict of interest, irreconcilable conflict, or complete breakdown of communication between attorney and client. Stenson, 132 Wn.2d at 734. But a general loss of confidence or trust or a failure to attain “a certain `rapport'” with counsel, without more, is not sufficient to substitute new counsel. Stenson, 142 Wn.2d at 725 (quoting Frazer v. United States, 18 F.3d 778, 783 (9th Cir. 1994)); Stenson, 132 Wn.2d at 734.
B. Extent of Alleged Conflict
The extent of the alleged conflict here was limited. Walker asserted that (1) he had not spent enough time with his defense counsel; (2) defense counsel had not shown him security office video; (3) he (Walker) had filed a grievance against defense counsel, apparently for not showing him the video; and (4) he (Walker) had previously tried to fire defense counsel during counsel’s prior representation in an earlier criminal proceeding.
But comments by defense counsel and the prosecutor indicated that, other than the lack of opportunity for defense counsel to ask Walker if he wanted to testify, defense counsel was prepared for trial. Furthermore, defense counsel had clearly attempted to give Walker an opportunity before trial to review the video and to discuss whether he would or would not testify. But Walker had interfered with these attempts.
Moreover, the trial court gave Walker the opportunity to review the video and to discuss the remaining tactical issues with defense counsel before trial began, which Walker apparently did. It is also significant that, after viewing the video, Walker did not renew his motion for new counsel. Finally, although Walker may have had earlier issues with defense counsel and may have filed a bar complaint, Walker did not say how these earlier issues or the complaint interfered with defense counsel’s current ability to represent him; nor does the record suggest that defense counsel’s current performance was influenced in any way by his previous representation or the fact Walker had filed a complaint.[9]
C. Adequacy of Trial Court’s Inquiry
Further, the record demonstrates that the trial court’s inquiry into the matter was adequate. To the extent Walker articulated any specific concerns, the trial court questioned him about these concerns and fashioned appropriate solutions, primarily by giving Walker and his trial counsel additional time to review the video before starting the trial.
D. Timeliness of Request
Finally, although Walker apparently attempted to file a motion to substitute counsel a week before trial, that motion was never properly served on the State. Thus, he effectively brought his motion on the first day of trial. At that point, the State was prepared to go to trial; defense counsel’s only concerns were that Walker had not yet seen the video and that he had been unable to determine whether Walker wanted to testify. Responding to these concerns, the trial court gave defense counsel time to resolve these issues with Walker before the trial started.
Walker essentially brought his motion for substitute counsel on the day of trial, when both the State and defense counsel were ready to proceed. Substituting new defense counsel at this point would have caused significant delay, which clearly outweighed any benefit that might have been gained. We hold, therefore, that the trial court did not abuse its discretion when it denied Walker’s motion to substitute counsel.
III. SAG Issue
In his pro se SAG, Walker argues that the jury was allowed to see portions of the video that the trial court had excluded. The record does not support this assertion
During trial, the parties discussed the admissibility of security room video. In the course of this discussion, the parties appeared to have agreed that the jury should not see the portion of the video showing what had happened after the security officers restrained Walker, which included the law enforcement officers’ arriving and arresting Walker. During the course of the trial, the video was played to the jury twice, but there is no indication in the record that the jury viewed the entire tape, including the excluded portions.
Walker appears to assert that the jury also viewed the entire tape again after four hours of deliberations. The record does not support this assertion. And to the extent that the asserted facts related to this claim are outside the record, we cannot consider them on direct appeal State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) (“a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record”). Accordingly, Walker’s SAG argument fails.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.
(1963).