STATE v. FREDRICK (2004)

PART PUBLISHED OPINION

Debora Fredrick appeals her bail jumping conviction.   We hold that (1) because the knowledge element of bail jumping does not implicate the statutory affirmative defenses to bail jumping, the defenses do not unconstitutionally shift the burden to the defendant;  and (2) without an offer of proof of the defendant's testimony, the record is inadequate for us to evaluate the ineffective assistance of counsel claim.   We affirm.

Washington State Patrol Trooper Kelly Kalmbach responded to a traffic collision on September 10, 2002.   WSP troopers searched Fredrick's car and found drugs, paraphernalia, baggies, and a set of scales.   Neither the search nor the drug convictions are contested, thus we do not address them further.   Our inquiry concerns the charge of bail jumping based on the sequence of events after Fredrick's arrest.

After Fredrick's arrest, she posted $5,500 bail and the court released her pending trial.   On December 23, 2002, Fredrick signed a scheduling order that listed three upcoming court dates, including January 3, 2003 for a rearraignment hearing.   Fredrick failed to appear in court on January 3, and the court issued a bench warrant for her arrest.   The State charged bail jumping in addition to the other charges-five charges for substantive drug offenses and one for DUI.

At trial, Brian Wasankari, a Pierce County deputy prosecutor, testified regarding Fredrick's failure to appear for the January 3 rearraignment hearing.   He explained that the order Fredrick signed, which established conditions of Fredrick's release, contained a paragraph advising her of the consequences if she missed a court date.

The State next introduced the December 23 scheduling order.   Wasankari testified that Fredrick signed this document.   The order listed the following dates:  a January 3 rearraignment date, a January 17 motion date, and a January 21 trial date.

Fredrick presented the testimony of Sherri Adams, her friend.   Adams testified that when she went over to Fredrick's house in the early morning of January 4, Fredrick appeared clammy and, when she attempted to stand up, became sick and had to rush to the bathroom.   Adams further stated that Fredrick had been sick for at least two days prior to her visit.   She testified that when she spoke on the phone with Fredrick, she sounded sick.

After Adams testified, a colloquy occurred between defense counsel and the court.   Defense counsel moved in limine to not allow the State to cross-examine Fredrick on any charge except for the bail jumping charge.   The court told defense counsel to provide it with some law because the court's understanding was that if Fredrick took the stand, the State could cross-examine her on any of the charges.   The court further stated that it did not want to prevent Fredrick from testifying by its preliminary ruling and advised defense counsel to present it with relevant law on the issue.   The court then gave defense counsel 20 minutes to research the issue.   When court reconvened, defense counsel told the court that its interpretation of the evidence rules was correct.   If Fredrick took the stand, it would give the State the opportunity to cross-examine on all other counts.

Deanna Cole, another friend of Fredrick's, also testified that Fredrick was sick on January 4. Cole stated that she accompanied Fredrick a week later when she went to quash the bench warrant.   After Cole's testimony, the State called Melanie Tratnik, a rebuttal witness.   Tratnik worked for the Pierce County prosecutor's office in the drug unit.   She testified that the scheduling order from Fredrick's case showed that as of January 24, a hearing to quash a bench warrant was scheduled for January 30.

Prior to closing argument, the court and the attorneys discussed the jury instructions.   The State presented a jury instruction on bail jumping.   Fredrick did not object to this instruction.   Nor did Fredrick propose an instruction explaining the affirmative defense to the bail jumping instruction.

During closing argument, the State argued that the defense used “red herrings” to divert the jury's attention from the real issue in the case.   Report of Proceedings (RP) (May 14, 2003) at 838.   Fredrick did not object to the State's argument.   In the State's rebuttal argument, the deputy prosecutor commented that the job of defense attorneys is to divert the jury's attention from the evidence.   Again, Fredrick did not object to the State's comments.   The jury found Fredrick guilty on all seven counts.

I. Bail Jumping Instructions

Fredrick argues that the State was unconstitutionally relieved of its burden to disprove her statutory defense to bail jumping.   But, Fredrick did not raise this defense during the trial.   Fredrick contends the court should consider this issue because it presents constitutional issues which can be raised for the first time on appeal.  RAP 2.5(a)(3).  State v. Davis, 60 Wash.App. 813, 822-23, 808 P.2d 167 (1991), aff'd, 119 Wash.2d 657, 835 P.2d 1039 (1992).   Fredrick asserts the State was relieved of its burden to disprove the statutory defense to bail jumping because the defense “ negates” the knowledge element in the offense of bail jumping.   Br. of Appellant at 17.   This argument fails, however, because there is no law supporting the contention that the State has to disprove the affirmative defense to bail jumping.

RCW 9A.76.170(1) explains the crime of bail jumping.¹  In RCW 9A.76.170(2), the statute states that where a defendant can prove that uncontrollable circumstances prevented the person from appearing, the defendant has established an affirmative defense to bail jumping.  RCW 9A.76.010(4) defines “[u]ncontrollable circumstances” as:

[A]n act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.

Fredrick contends she presented sufficient evidence to show uncontrollable circumstances.

 At trial, Fredrick presented two defense witnesses that testified they saw her the day after her court date and that she was sick.   Fredrick also provided testimony that she called her attorney two days after her scheduled court date.   This evidence does not meet the statutory definition of “[u]ncontrollable circumstances.”   Fredrick presented no evidence that she was in the hospital because she was sick or any other similar barrier to her attendance.   Further, the bail jumping statute also requires that the defendant appear or surrender as soon as the circumstances cease to exist.   RCW 9A.76.170(2).

A defense witness testified that Fredrick attempted to appear approximately a week after her court date.   But, rebuttal testimony by Melanie Tratnik called defense testimony into question.   Tratnik cited to the scheduling order, which was dated 20 days after Fredrick's original court date.   Fredrick fails to provide substantial evidence to prove the affirmative defense to bail jumping.

II. Affirmative Defense

Fredrick contends that knowledge is an element of the offense of bail jumping and thus the State must prove that element beyond a reasonable doubt.   Fredrick argues that requiring her to prove the affirmative defense of uncontrollable circumstances, which negates the knowledge element, is unconstitutional.   She is mistaken.   We use State v. Lively, 130 Wash.2d 1, 10-11, 921 P.2d 1035 (1996), and its two-tiered test to evaluate whether the State or the defendant has the ultimate burden of proving this defense.

 We have twice addressed this issue.   In State v. Ball, 97 Wash.App. 534, 536-37, 987 P.2d 632 (1999), we held that, under the older version of the statute, knowledge on the specific date of the hearing was not an element of the crime.   Recently, we addressed the knowledge element in the current statute and held that the knowledge requirement is met when the State proves that the defendant has been given notice of the required court dates.  State v. Carver, 122 Wash.App. 300, 93 P.3d 947, 950 (2004).

 The defense provided in the statute relates to the defendant's inability to attend the date to which she has been previously given notice.   Thus, this affirmative defense does not negate the knowledge element of the offense.

Fredrick also claims that under the second test in Lively, the legislature intended that the burden of the defense be placed on the State.   This claim fails.   First, the statute notes that the defense is an “affirmative defense.”  RCW 9A.76.170. Second, nothing in the affirmative defense negates the knowledge requirement of the statute.   The State must prove that the defendant was given notice and knew of the date.   Third, we have held under both the old and new statute that knowledge on the required date is not an element of the offense.   Finally, all of the events listed are ones that are peculiarly within the defendant's ability to assert, not the State's.   Fredrick's reliance on State v. McCullum, 98 Wash.2d 484, 656 P.2d 1064 (1983), is misplaced and inapposite.

III. Insufficient Evidence

Fredrick asserts there was insufficient evidence to support her bail jumping conviction.   We disagree.

 In reviewing a sufficiency of the evidence challenge, this court must determine, after viewing the evidence in the light most favorable to the State, whether any rational trier of fact could have convicted the defendant beyond a reasonable doubt.  State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993) (citing State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980)).   When the defendant claims the evidence is insufficient, the defendant admits the truth of the State's evidence and all inferences that can reasonably be drawn from it.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

Fredrick contends the State failed to prove she “knowingly” failed to appear for court.   Br. of Appellant at 27.   Jury instruction 29 listed the elements of bail jumping the State had to prove beyond a reasonable doubt.   The instruction stated:

To convict the defendant of the crime of bail jumping, as charged in count V, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 3rd day of January, 2003, the defendant knowingly failed to appear before a court;

(2) That the defendant was charged with Unlawful Possession of a Controlled Substance, to wit:  methamphetamine and cocaine, class “C” felonies;

(3) That the defendant had been released by court order or admitted to bail with the requirement of a subsequent personal appearance before that court;  and

(4) That the acts occurred in the State of Washington.

Clerk's Papers (CP) at 115.

 The evidence showed Fredrick knew she had a court date on January 3. She also knew she failed to appear because she called her attorney two days after missing her court date.   When considering the evidence in the light most favorable to the State, a rational trier of fact could find that the State proved the “knowledge” element beyond a reasonable doubt.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

IV. Right to Trial

Fredrick next contends the trial judge and defense counsel violated her constitutional rights because their advice prevented her from testifying.   She further asserts that because the court and defense counsel prevented her from testifying through coercion, she is entitled to a new trial.   Because the record does not reveal how Fredrick would have testified, her argument fails.

The defendant's right to testify in a criminal trial originates in the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.  Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987).   The Washington Constitution contains the right to testify provision in article 1, section 22.  State v. Hudlow, 99 Wash.2d 1, 14, 659 P.2d 514 (1983) (citing Wash. v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)).

Fredrick bases her argument on an interaction that occurred between the court and defense counsel during trial.   Defense counsel moved in limine to preclude the State from cross-examining Fredrick beyond her testimony regarding the bail jumping charge, unless Fredrick opened the door.   The court ruled that defense counsel needed to provide the court with law to support this assertion.   The court further stated it did not want to make a ruling that would prevent Fredrick from testifying without knowing the appropriate law in the area.   Defense counsel researched the issue and informed the court that it had ruled correctly;  if Fredrick testified, the State could cross-examine her on other counts.

Evidence Rule 611(b) properly decides this issue.   The rule states:

Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.   The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

This rule allows the court broad discretion in its application.   Nothing limits the State during cross-examination of defense witnesses to only those segments of an event favorable to the defense.  State v. Ferguson, 100 Wash.2d 131, 138, 667 P.2d 68 (1983).

The transcripts provide a much different picture from the argument Fredrick put forth.   The trial court did not advise Fredrick not to testify but requested clarification from defense counsel of the correct law.   Fredrick presented the testimonies of Cole and Adams.   Both witnesses testified that Fredrick was sick around the time of her court date.   The assumption can be made that had Fredrick testified, she also would have stated she was home sick on January 3. Defense counsel did not make an offer of proof regarding what Fredrick's testimony would have been if she had testified.

We have previously set forth the requirements that the defendant must show concerning ineffective assistance of counsel:

The one asserting ineffective assistance has the burden of showing it.   To bear that burden, he or she must show, from the record, deficient performance plus prejudice.   To show deficient performance, he or she must show that given all the facts and circumstances, counsel failed to meet an objective standard of reasonableness.   To show prejudice, he or she must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”

State v. Huddleston, 80 Wash.App. 916, 926, 912 P.2d 1068 (emphasis added) (footnotes omitted) (citing State v. McFarland, 127 Wash.2d 322, 334-35, 337, 899 P.2d 1251 (1995);  Strickland v. Wash., 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987)), review denied, 130 Wash.2d 1008 (1996).

Fredrick has not shown by an offer of proof how she would have testified.   Certainly, the scope of cross-examination is generally limited to the subject matter of the direct examination and matters affecting the credibility of the witness, even though it is within the trial court's discretion.   See State v. Etheridge, 74 Wash.2d 102, 443 P.2d 536 (1968);  State v. Olson, 30 Wash.App. 298, 633 P.2d 927 (1981);  ER 611(b).

Fredrick's assertion on appeal is that had she only testified about her illness on the day of her required appearance, it would have been an abuse of discretion to have allowed cross-examination about the drugs.   We are concerned about the nature of this advice.   Had her offer of proof been merely a recitation that she had an illness that prevented her from attending, her argument might be correct, but the trial court's advice was not prejudicial because it was harmless.   But if her testimony was that she was in a coma in her bedroom, Fredrick might be correct that the advice was inappropriate and prejudicial.   On the other hand, had she testified that she had ingested illegal drugs and was prevented from appearing by such use, the advice would have been correct that it would have expanded the breadth of the cross-examination and consequently was not prejudicial.   The record simply does not reveal to us what the purported testimony would have been.   This requires facts that are outside the trial record and the appropriate means of raising such an issue is through a personal restraint petition.  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.   As a further result, Fredrick also fails to show how her trial would have differed had she testified.   Thus, she is not entitled to a new trial or reversal of this conviction.

IV. Prosecutorial Misconduct

Fredrick asserts she was denied the right to a fair trial because of prosecutorial misconduct.   She argues that the deputy prosecutor made improper statements during closing arguments by referring to “red herrings” and that the statements “maligned defense counsel” and accused counsel of twisting the evidence.   Br. of Appellant at 37.   But, Fredrick did not object or request a curative instruction at trial.   Nor is her argument supported by the evidence.

“The prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.”   State v. Stenson, 132 Wash.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).   Where, as here, defense counsel did not object, this court reverses the conviction only if the evidence was material to the trial's outcome and a curative instruction could not have remedied its prejudice.  State v. Suarez-Bravo, 72 Wash.App. 359, 367, 864 P.2d 426 (1994).   The alleged misconduct must have been “so flagrant and ill-intentioned that a curative instruction could not have obviated the resulting prejudice.”  Suarez-Bravo, 72 Wash.App. at 367, 864 P.2d 426.   To determine whether the misconduct warrants reversal, we consider its prejudicial nature and its cumulative effect.  Suarez-Bravo, 72 Wash.App. at 367, 864 P.2d 426.

The deputy prosecutor's comments regarding “red herrings,” were in response to defense counsel's attempts during trial to distract the jury from important evidence.   For example, Fredrick presented testimony of a witness that said Fredrick returned to court a week after her missed court appearance to quash a bench warrant.   The State then presented testimony from a witness that the motion to quash actually occurred three weeks after the original hearing date.   The State attempted to point out in closing that the offered testimony by the witnesses was not relevant to the charge of bail jumping.   What was relevant was that Fredrick failed to appear in court on January 3.

The State also argued in rebuttal that many defense attorneys attempt to divert the jury's attention from the evidence.   This statement was also not a direct attack on defense counsel.   The State made this statement in an effort to get the jury to focus on the pertinent evidence in the case.   During defense counsel's closing argument, he referred to several theories regarding testimony of State witnesses and also evidence.   The State explained to the jury that it was the job of the defense counsel to take the evidence and make “subtle changes” to it in order to present its case.   RP (May 14, 2003) at 898.   This explanation of the job of defense counsel was not prosecutorial misconduct.

Fredrick cited three cases to support her claim of prosecutorial misconduct.   But none of the cases is analogous to the comments in this case.   In State v. Reed, 102 Wash.2d 140, 143-45, 684 P.2d 699 (1984), the deputy prosecutor referred to the defendant as a liar at least four times.   He also told the jury that defense counsel did not have a case.  Reed, 102 Wash.2d at 145, 684 P.2d 699.   Further, he implied that the defense witnesses were not credible because they were from the city and drove Mercedes Benzes.  Reed, 102 Wash.2d at 143, 684 P.2d 699.   Also in Reed, the defendant objected during trial several times to the deputy prosecutor's comments, moved to strike, and moved for a mistrial.  Reed, 102 Wash.2d at 144, 684 P.2d 699.   Fredrick did none of these things.   The deputy prosecutor's comments in this case were not of the same nature as those described in Reed.

Another case Fredrick cited was Bruno v. Rushen, 721 F.2d 1193 (1983), cert. denied sub nom.  McCarthy v. Bruno, 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984).   In Bruno, the deputy prosecutor's comments during opening and closing argument accused defense counsel of witness tampering and fabricating a defense for money.  Bruno, 721 F.2d at 1194-95.   In fact, the deputy prosecutor compared defense counsel to the biblical Judas.  Bruno, 721 F.2d at 1194-95.   The comments in Bruno were a direct attack on defense counsel.   That situation did not exist in the present case where the deputy prosecutor pointed out to the jury that defense counsel presented different scenarios during the trial in an attempt to distract the jury away from the important evidence in the case.

Finally, Fredrick cited to Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), as a further example of prosecutorial misconduct that led to a reversal.   Similar to the other cases, the statements made by the deputy prosecutor in Berger were egregious violations.   The statements included:  misstating the facts of the case during cross-examinations;  putting words into the mouths of witnesses;  suggesting by his questions that people had made out-of-court statements to him personally, but offering no proof to support his suggestions;  pretending to understand that a witness said something that was not said and then proceeding to cross-examine the witness on that basis;  assuming facts not in evidence;  bullying and arguing with witnesses;  and simply conducting himself in an inappropriate manner.   Berger, 295 U.S. at 84, 55 S.Ct. 629.   The comments at issue in this case do not compare to the deputy prosecutor's statements in Berger.

Here, taking the deputy prosecutor's comments as required, “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury,” State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998), the deputy prosecutor's comments simply did not have a substantial likelihood of affecting the verdict.   Additionally, the strong evidence in the case makes it highly unlikely that the jury would have returned a different verdict if the court had struck the deputy prosecutor's comments.

V. Ineffective Assistance of Counsel

Fredrick contends she received ineffective assistance of counsel.   She concedes there was overwhelming evidence of the drug charges to prove those convictions.   Fredrick only raises this argument in the event we find any of the above issues waived because of defense counsel's failure to preserve the issues.   If that situation arises, she asserts she received ineffective assistance of counsel that warrants reversal and a new trial on her DUI conviction and her bail jumping conviction.

To establish that counsel was ineffective, Fredrick must show (1) counsel's performance was deficient;  and (2) the deficient performance prejudiced her.   Strickland, 466 U.S. at 687, 104 S.Ct. 2052.  Thomas, 109 Wash.2d at 225-26, 743 P.2d 816.   We find counsel to be ineffective if his representation fell below an objective standard of reasonableness.  Stenson, 132 Wash.2d at 705, 940 P.2d 1239.   A defendant is prejudiced where there is a reasonable probability that but for the deficient performance, the outcome of the case would have differed.  In re Pers. Restraint Petition of Pirtle, 136 Wash.2d 467, 487, 965 P.2d 593 (1998).   We presume counsel was effective.   Strickland, 466 U.S. at 689, 104 S.Ct. 2052.  McFarland, 127 Wash.2d at 335, 899 P.2d 1251.   A defendant must prove both prongs of the test in order to prove ineffective assistance of counsel.  State v. Kruger, 116 Wash.App. 685, 693, 67 P.3d 1147 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052), review denied, 150 Wash.2d 1024, 81 P.3d 120 (2003).

On appeal, Fredrick raises three instances of alleged ineffective assistance:  (1) counsel failed to research the applicable law and prepare for trial;  (2) counsel failed to object to the State's proposed bail jumping instruction;  and (3) counsel failed to object to the deputy prosecutor's comments during closing arguments.   Fredrick fails to prove both prongs of the ineffective assistance of counsel test for any of her three arguments.

With regard to Fredrick's first argument, we have previously indicated that counsel's advice regarding ER 611(b) is not adequately addressed in the record and may be raised in a personal restraint petition, if appropriate.

Second, defense counsel was not deficient for failing to propose an affirmative defense instruction to the charge of bail jumping.   Fredrick contends she presented substantial evidence of an affirmative defense.   But as discussed earlier, simply being ill is not considered an uncontrollable circumstance as defined in RCW 9A.76.010(4).   There was no evidence to justify giving the instruction.

Finally, defense counsel was not deficient for not objecting to the deputy prosecutor's comments during closing arguments.   The comments by the deputy prosecutor did not rise to a level of misconduct.   Fredrick does not establish ineffective assistance of counsel on any of her arguments and this claim is meritless.

VI. Statement of Additional Grounds for Review

In Fredrick's statement of additional grounds for review, she requests a sentence under the Special Drug Offenders' Sentencing Alternative (DOSA) on the grounds her attorney misinformed her of her standard range sentence.

RCW 9.94A.660 grants discretion to the sentencing court to sentence offenders using the DOSA option.   A defendant is eligible for DOSA if they meet the following requirements:

(a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533(3) or (4);

(b) The offender has no current or prior convictions for a sex offense or violent offense in this state, another state, or the United States;

(c) For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance;  and

(d) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence.

RCW 9.94A.660(1).   Generally, a court's decision to impose a standard range sentence, and not to apply DOSA, is not reviewable.  State v. Conners, 90 Wash.App. 48, 53, 950 P.2d 519, review denied, 136 Wash.2d 1004, 966 P.2d 901 (1998).

Here, Fredrick asserts that her attorney never informed her she was eligible for DOSA. This statement is incorrect as evidenced by the transcripts.   On the day of sentencing, Fredrick's counsel requested a DOSA sentence.   Moreover, although defense counsel argued to the court that Fredrick was a good candidate for DOSA, Fredrick interrupted and said she did not want DOSA. At that time, the court proceeded to sentence her.   The trial court sentenced Fredrick to a standard range sentence.   As such, Fredrick's sentence is not reviewable.   Conners, 90 Wash.App. at 53, 950 P.2d 519.

Affirmed.

FOOTNOTES

1.   RCWA 9A.76.170(1) states in part:  “Any person having been released by court order or admitted to bail with knowledge of the requirement of a subsequent personal appearance before any court of this state ․ and who fails to appear ․ as required is guilty of bail jumping.”

BRIDGEWATER, J.