State Of Washington, Respondent V Troy R. Akin, Appellant (Majority)
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FILED U i OF APPEALS IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ZQRR SEP 23 DIVISION II No. 45077 -1 - II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION TROY RICHARD AKIN, Appellant. Troy Akin appeals his conviction for bail jumping. He argues ( 1) the trial MELNICK, J. court violated his violated his constitutional constitutional right trial to rights to confront participate adverse in his defense; ( 2) the trial court witnesses; ( he received ineffective 3) assistance of counsel because his attorney had an actual conflict; and ( 4) he was denied due because the process jury instructions were contradictory. We hold the trial court did not deny Akin his constitutional trial rights, Akin received effective assistance of counsel, and the jury instructions were not contradictory. We affirm Akin' s bail jumping conviction. FACTS The State charged Akin with second degree theft. At a pretrial hearing on March 4, 2013, the trial appear court ordered Akin to return the April 4 hearing and at amended the original to court on a warrant charging document State dismissed the theft April 4 for for his and added charge and proceeded arrest the bail a readiness issued. RP jumping hearing. at 36. charge. to trial solely on the bail Akin failed to The State then Subsequently the jumping. 33 45077 -1 - II At the beginning of trial, the trial judge stated to Akin, " Mr. Akin, I just want to advise you not to have any contact with any of the jurors and when there is testimony or during the voir dire, you are not to show any reaction, responses, or agreement or disagreement with anything." Report of Proceedings ( RP) at 3. During trial, the State called one witness, Angela Benneman, the deputy court clerk who was present at the March 4 and April 4 hearings. She is also a custodian of records for the trial court. Benneman testified that at the March 4 hearing, the court ordered Akin to appear in court on April 4 and that from the March 4 represent [ he failed to and Akin], but I appear on April 4 hearings. can' t represent his that date. The State also played the video recordings During the April 4 whereabouts." hearing, Akin' s attorney stated, " I RP at 36. Akin testified in his defense and admitted that the trial court ordered him to appear in court on April 4, that he knew he had to appear, and that he did not appear. Akin testified that he failed to appear because of a calendaring issue. After the trial court read the jury instructions, the State advised the court that, when the jurors were exiting the demonstrative of his court opinion of room this to deliberate, Akin became " a little vocal as well as entire affair." RP at 83. The trial judge again instructed Akin, Mr. Akin, you may not be in agreement with what has gone on or how it has gone on. I but I have to direct you again that you' re not to be vocal, you' re not to be demonstrative in your nature, especially when a verdict does get returned. I m I' going to tell you, again, you need to sit there quietly and listen and nothing more. RP at 84. The jury found Akin guilty of bail jumping and the trial court sentenced Akin to three months. Akin appeals. 2 45077 -1 - II ANALYSIS TRIAL COURT DID NOT VIOLATE AKIN' S CONSTITUTIONAL TRIAL RIGHTS I. Akin argues the trial court prohibited him from participating in his defense in violation of his constitutional rights to be present, to due process, to confront adverse witnesses, and to appear and defend in person." Appellant' s Br. at 4. Because Akin could and did participate in his trial, we hold the trial did not violate Akin' s constitutional trial rights. A defendant has a constitutional right to be present at all critical stages of the trial proceedings. present is State not v. Irby, 170 Wn.2d 874, 880, 246 P. 3d 796 ( 2011). State absolute. v. But the right to be Chapple, 145 Wn. 2d 310, 318, 36. P. 3d 1025 ( 2001). "[ A] defendant' s persistent, disruptive conduct can constitute a voluntary waiver of this right." Chapple, 145 Wn.2d conduct trials " fairly, at 318. Trial judges have wide discretion to manage their courtrooms and expeditiously, 240 P. 3d 120 ( 2010) ( quoting State trial court must have authority to and v. impartially." Sanders v. State, 169 Wn.2d 827, 851, Johnson, 77 Wn.2d 423, 426, 462 P. 2d 933 ( 1969)). " manage the parties and Gassman, 175 Wn.2d 208, 209, 283 P. 3d 1113 ( 2012). proceedings before it." A State v. We review de novo whether the defendant' s right to participate in his defense has been violated. Irby, 170 Wn.2d at 880. Here, Akin argues the trial judge violated his above -enumerated trial rights by telling him before trial to keep his comments and reactions to himself. But the trial judge' s comments did not prohibit Akin from participating in his defense or speaking with his attorney; the trial judge merely exercised his authority to manage the parties and the proceedings. The record demonstrates that, but for the April 4 hearing, Akin was present during all critical stages of the trial and did testify on his own behalf. We hold the trial court did not violate Akin' s constitutional trial rights. 3 45077 -1 - II II. TRIAL COURT DID NOT VIOLATE AKIN' S RIGHT To CONFRONT ADVERSE WITNESSES Akin argues the trial court violated his right to confront adverse witnesses by admitting a video -recorded hearing that included a testimonial statement by his defense attorney. Akin raises this issue for the first time We need not address this argument because if there was on appeal. error, it did not prejudice Akin. We will not review an argument raised for the first time on appeal unless the challenging party demonstrates RAP 2. 5( a manifest constitutional error. a)( 3). To satisfy RAP 2. 5( a)( 3), an appellant first must identify a constitutional error and then demonstrate how the alleged error affected manifest Wn.2d his rights at if it is at so obvious on 99 -100. practical and State trial. v. the O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009). An error is that the record error requires appellate review. O' Hara, 167 The defendant must show actual prejudice, meaning the alleged error had identifiable consequences at State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d trial. 884 ( 2011). The right to confront opposing witnesses is guaranteed by the Sixth Amendment of the United States Constitution right "' applies to 1, and article witnesses against the section 22 accused of the Washington State Constitution. This in other words, those who bear testimony... . Testimony, in turn, is typically [ a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. "' State v. Jasper, 174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012) quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004)) alterations in original). Generally, testimonial statements may not be introduced against the defendant at trial unless the proponent of the evidence shows that the declarant witness is unavailable and the defendant had a prior opportunity to cross -examine the declarant witness. Jasper, 174 Wn.2d at 109 ( citing Crawford, 541 U. S. at 68). 4 45077 -1 - II In this case, during the State' s presentation of evidence, the State played two video recordings, one from the March 4 hearing where the court ordered Akin to return to court on April 4 and hearing, the Akin' represents other s from the April 4 attorney the Akin but " can' t same represent hearing attorney his where who Akin failed to represented whereabouts." RP at appear. him 36. at During the latter trial stated that he Akin argues his attorney' s statement violated his right to confront an adverse witness because his attorney could not take the stand to be cross -examined about his statement. The record does not support that this alleged error affected Akin' s rights at trial or that he suffered prejudice. The video -recorded statement from Akin' s counsel at issue was not crucial in the State' s case. Instead, the State relied on the testimony from Benneman, a deputy court clerk, who was present at the March 4 and April 4 hearings. Benneman, who is also a custodian of records for the trial court, relied on her recorded minutes and the videos from the hearings for her testimony that Akin was ordered to appear in court on April 4, that Akin failed to appear on April 4, that the trial was struck, and that a bench warrant was issued. Akin also testified, and admitted that the trial court ordered him to appear in court on April 4, that he knew he had to appear in court on April 4, and that he did not appear in court on April 4 because of a calendaring issue. Further, the State never commented on Akin' s counsel' s statement during the trial and did not discuss it during closing arguments. Instead, the State focused on the testimony from Benneman and Akin. significant untainted evidence. Akin' s counsel' s statement was merely cumulative of other Accordingly, Akin cannot show actual prejudice and we do not review this argument. 5 45077 -1 - II AKIN WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL III. Akin argues he was denied effective assistance of counsel because his attorney had an actual conflict of interest. We disagree and hold that Akin was not denied effective assistance of counsel STANDARD OF REVIEW A. To prove ineffective assistance of counsel, Mayer must overcome the presumption that his counsel was effective. To do this, Akin 2014). below him. an objective State v. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P. 3d 142 must show standard that counsel' s performance was so deficient that it " fell and that the deficient performance prejudiced of reasonableness" Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987) ( quoting Strickland v. Washington, 466 U. S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). first prove that his counsel' s " conduct can be characterized as a deficient at 690. Performance is not deficient if counsel' s legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863, To establish prejudice, the defendant must show a reasonable probability 215 P. 3d 177 ( 2009). that the acts or omissions were outside the wide range of professionally Strickland, 466 U. S. competent assistance." Thus, Akin must the performance affected outcome of the trial. Thomas, 109 Wn.2d at 226. " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U. S. at 694. We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). B. CONFLICTS OF INTEREST Defense counsel has a duty of loyalty to the defendant, and thus the right to effective assistance of counsel includes the citing Strickland, 466 U. S. at right 692). to conflict free counsel." Gomez, 180. Wn.2d at 348 But a conflict of interest is not a per se violation of the 6 45077 -1 - II defendant' to s right effective assistance of counsel. Gomez, 180 Wn.2d at 348. To substantiate his argument, Akin must show ( a) an actual conflict of interest and ( b) that the " actual conflict of interest adversely Cuyler v. counsel' s performance. Gomez, 180 Wn.2d at 348 -49 ( quoting Sullivan, 446 U. S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 ( 1980)). " theoretical Wn.2d his affected" at conflicts of interest are ` insufficient to impugn 349 ( quoting Cuyler, 446 U.S. at 350). a criminal conviction. "' Possible or Gomez, 180 If Akin shows an actual conflict of interest . existed and that it adversely affected his counsel' s performance, then the court presumes prejudice. See Gomez, 325 P. 3d at 148. Therefore, we first consider whether an actual conflict of interest existed. We conclude no actual conflict of interest existed. An actual conflict of interest " is evidenced ` if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of State action.'" v. Robinson, 79 Wn. Dhaliwal, 113 Wn. App. App. 226, 237, 53 P. 3d` 65 ( 2002) ( quoting State v. 386, 394, 902 P. 2d 652 ( 1995) ( internal quotation marks omitted)). The actual conflict must be readily apparent. Dhaliwal, 113 Wn. App. at 237. Relying on State v. Regan, 143 Wn. App. 419, 177 P. 3d 783 ( 2008), Akin argues his counsel' s video- recorded statement that he did not know Akin' s whereabouts on April 4 created an actual conflict of interest. We disagree. Regan is distinguishable from the present case. In Regan, the trial court compelled the defendant' s attorney to testify which, the court on appeal held, created an actual conflict of compel Akin' Akin' s counsel to He told the 143 Wn. testify. In fact, Akin' s s counsel made were statement. interest. at the April 4 jury he did App. counsel at 430. did not Here, the trial court did not testify. The only statements hearing. Akin testified consistent with his lawyer' s not appear in court because of a calendaring issue. Akin therefore conceded he knew he had to attend the April 4 readiness hearing but did not. Akin and 7 45077 -1 - II his counsel' s show any interest did not actual conflict diverge regarding interest of a material existed with factual his attorney.' or legal issue. Akin cannot Thus, we hold Akin was not denied the effective assistance of counsel. THE JURY INSTRUCTIONS WERE NOT CONTRADICTORY IV. Akin argues bail convict" the trial jumping jury court denied him due instructions were process contradictory. because the definitional Appellant' s Br. at 12. and " to We disagree and hold that the jury instructions were complementary, not contradictory. We review jury Package Sys., Inc., instructions de 174 Wn.2d 851, novo for 860, 281 errors of law. Anfinson v. FedEx Ground P. 3d 289 ( 2012). "' Parties are entitled to instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not misleading, and allow each 141 Wn. Ridgley, App. party the opportunity to 771, 779, 174 P. 3d 105 ( 2007) ( 489, 493, 78 P. 3d 1001 ( 2003)). issue in the material argue case. their theory of the case. "' State v. quoting State v. Redmond, 150 Wn.2d It is prejudicial error to give irreconcilable instructions upon a Hall v. Corp. of Catholic Archbishop of Seattle, 80 Wn.2d 797, 804, 498 P. 2d 844 ( 1972); Smith v. Rodene, 69 Wn.2d 482, 486, 418 P. 2d 741, 423 P. 2d 934 ( 1966). Where instructions are inconsistent or contradictory on a given material point, their use is prejudicial because it is impossible to know Wn.2d 804. at what effect they may have on the verdict. Hall, 80 An instruction essentially in the words of a statute, however, is a proper instruction. State v. Levage, 23 Wn. App. 33, 35, 594 P. 2d 949 ( 1979). 1 We also note comment on the that the State did statement during rely on Akin' s counsel' s statement. The State did not trial. It did not argue the statement to the jury. Instead, the not State relied on the deputy court clerk' s testimony that on March 4, Akin was ordered to return to court on April 4 for a readiness hearing and Akin failed to appear on April 4. Because the State did not use Akin' s counsel' s statement as evidence of bail jumping, no actual conflict of interest existed. 45077 -1 - II Akin argues that the " to convict" instruction required the jury to have proof that Akin had been charged with second degree theft, but that the definitional instruction did not include this essential element. Akin contends this seeming discrepancy created prejudicial error because it is impossible to speculate which instruction the jury relied on when it convicted him. The definitional instruction convict" State jury v. to provides the jury with a definition of the crime. The " to instruction in this case contains all of the elements of the crime as required by law. Fisher, 165 Wn.2d 727, 753, 202 P. 3d 937 ( 2009). return a verdict. It also contained instructions for the In this case the trial court properly instructed the jury in both instructions. We conclude that the definitional and " to convict" instructions are complementary, not contradictory. Akin has failed to show how the jury instructions are misleading or how the jury could have found him guilty of bail jumping without finding that he was charged with second degree theft. We hold the jury instructions were not contradictory. We affirm Akin' s bail jumping conviction. 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 in accordance with RCW 2. 06. 040, it is so ordered. We concur: 9- 9
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