State Of Washington, V Troy R. Akin ( 2014 )


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  •                                                                                                                                FILED
    U
    i OF APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    ZQRR SEP 23       33
    DIVISION II
    STATE OF WASHINGTON,                                                                         No. 45077 -1 - II
    Respondent,
    v.
    TROY RICHARD AKIN,                                                                  UNPUBLISHED OPINION
    Appellant.
    MELNICK, J.             Troy Akin appeals his conviction for bail jumping. He argues ( 1) the trial
    court   violated        his   constitutional     trial    rights   to   participate      in his defense; ( 2) the trial court
    violated       his     constitutional    right   to   confront      adverse       witnesses; (     3)    he received ineffective
    assistance of counsel because his attorney had an actual conflict; and ( 4) he was denied due
    process     because the        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    court ordered        Akin to   return    to   court on     April 4 for      a readiness      hearing.     Akin failed to
    appear      at   the April 4      hearing   and    a warrant       for his   arrest      issued.   RP     at   36.    The State then
    amended          the   original   charging document          and added      the   bail   jumping        charge.      Subsequently the
    State dismissed the theft             charge and proceeded         to trial solely on the bail          jumping.
    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   he failed to       appear on      that   date. The State also played the video recordings
    from the March 4           and    April 4 hearings.           During      the April 4    hearing,     Akin' s attorney   stated, "   I
    represent [     Akin], but I     can'   t   represent   his   whereabouts."       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       court       room    to   deliberate, Akin became " a little vocal as well as
    demonstrative         of   his   opinion of      this   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
    I.        TRIAL COURT DID NOT VIOLATE AKIN' S CONSTITUTIONAL TRIAL RIGHTS
    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.          State    v.   Irby,      
    170 Wash. 2d 874
    , 880, 
    246 P.3d 796
    ( 2011).                   But the right to be
    present is      not   absolute.          State   v.   Chapple, 
    145 Wash. 2d 310
    , 318, 36. P. 3d 1025 ( 2001). "[                A]
    defendant' s persistent, disruptive conduct can constitute a voluntary waiver of this right."
    
    Chapple, 145 Wash. 2d at 318
    .     Trial judges have wide discretion to manage their courtrooms and
    conduct    trials "    fairly,      expeditiously,      and    impartially." Sanders v. State, 
    169 Wash. 2d 827
    , 851,
    
    240 P.3d 120
    ( 2010) ( quoting State                  v.   Johnson, 
    77 Wash. 2d 423
    , 426, 
    462 P.2d 933
    ( 1969)). "              A
    trial   court   must     have authority to              manage     the       parties   and   proceedings   before it."   State v.
    Gassman, 
    175 Wash. 2d 208
    , 209, 
    283 P.3d 1113
    ( 2012).                                         We review de novo whether the
    defendant' s right to participate in his defense has been violated. 
    Irby, 170 Wash. 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   on appeal.         We need not address this argument because if there was
    error, it did not prejudice Akin.
    We will not review an argument raised for the first time on appeal unless the challenging
    party demonstrates            a manifest constitutional error.                     RAP 2. 5(   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   his   rights at     trial.    State   v.   O' Hara, 
    167 Wash. 2d 91
    , 98, 
    217 P.3d 756
    ( 2009). An error is
    manifest   if it is     so obvious on        the      record     that the      error requires appellate review.          O' 
    Hara, 167 Wash. 2d at 99
    -100.      The defendant must show actual prejudice, meaning the alleged error had
    practical and      identifiable         consequences at          trial.    State v. Gordon, 
    172 Wash. 2d 671
    , 676, 
    260 P.3d 884
    ( 2011).
    The right to confront opposing witnesses is guaranteed by the Sixth Amendment of the
    United States Constitution               and article        1,   section      22   of   the Washington State Constitution.              This
    right "' applies       to   witnesses against         the    accused —        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 Wash. 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 Wash. 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   the    other   from the April 4         hearing     where   Akin failed to     appear.     During the latter
    hearing,    Akin'   s   attorney —the          same     attorney     who    represented    him     at   trial— stated   that he
    represents      Akin but "      can'   t   represent   his   whereabouts."     RP   at   36.   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.         Akin' s counsel' s statement was merely cumulative of other
    significant untainted evidence.                Accordingly, Akin cannot show actual prejudice and we do not
    review this argument.
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    45077 -1 - II
    III.      AKIN WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL
    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
    A.           STANDARD OF REVIEW
    To prove ineffective assistance of counsel, Mayer must overcome the presumption that
    his    counsel was effective.           In re Pers. Restraint of Gomez, 
    180 Wash. 2d 337
    , 348, 
    325 P.3d 142
    2014).     To do this, Akin           must show       that     counsel' s performance was         so deficient that it " fell
    below     an objective        standard    of reasonableness"               and that the deficient performance prejudiced
    him.     State    v.    Thomas, 
    109 Wash. 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)).                                Thus, Akin must
    first   prove    that   his   counsel' s "     acts or omissions were outside the wide range of professionally
    competent assistance."               
    Strickland, 466 U.S. at 690
    .     Performance is not deficient if counsel' s
    conduct can       be    characterized as a        legitimate trial strategy. State v. Kyllo, 
    166 Wash. 2d 856
    , 863,
    
    215 P.3d 177
    ( 2009).              To establish prejudice, the defendant must show a reasonable probability
    that the   deficient     performance affected          the    outcome of        the trial.   
    Thomas, 109 Wash. 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 Wash. 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      right   to            free
    conflict -         counsel."    Gomez, 180. Wn.2d at 348
    citing 
    Strickland, 466 U.S. at 692
    ).   But a conflict of interest is not a per se violation of the
    6
    45077 -1 - II
    defendant'      s right   to    effective assistance of counsel.                
    Gomez, 180 Wash. 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         affected"        his   counsel' s performance.              
    Gomez, 180 Wash. 2d at 348
    -49 ( quoting
    Cuyler   v.   Sullivan, 
    446 U.S. 335
    , 350, 
    100 S. Ct. 1708
    , 
    64 L. Ed. 2d 333
    ( 1980)). "                                  Possible or
    theoretical     conflicts of       interest       are `   insufficient to impugn         a criminal conviction. "'        
    Gomez, 180 Wash. 2d at 349
    ( quoting 
    Cuyler, 446 U.S. at 350
    ).    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
    action.'"       State     v.   Dhaliwal, 113 Wn.                 App. 226, 237,         
    53 P. 3d
    ` 65 ( 2002) ( quoting State v.
    Robinson, 79 Wn.               App.   386, 394, 
    902 P.2d 652
    ( 1995) ( internal                quotation marks omitted)).        The
    actual conflict must be readily apparent. 
    Dhaliwal, 113 Wash. 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                    interest.    143 Wn.    App.    at   430.   Here, the trial court did not
    compel      Akin' s     counsel       to   testify. In fact, Akin' s           counsel   did   not   testify. The only statements
    Akin'   s counsel made were                 at   the April 4         hearing. Akin testified consistent with his lawyer' s
    statement.       He told the           jury he did         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
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    45077 -1 - II
    his   counsel' s   interest did      not   diverge regarding         a material     factual    or   legal issue.          Akin cannot
    show     any    actual conflict      of    interest   existed with       his attorney.'       Thus, we hold Akin was not
    denied the effective assistance of counsel.
    IV.       THE JURY INSTRUCTIONS WERE NOT CONTRADICTORY
    Akin     argues    the trial      court     denied him due        process     because the definitional               and "   to
    convict"    bail   jumping jury       instructions        were   contradictory.      Appellant'      s   Br.   at   12.   We disagree
    and hold that the jury instructions were complementary, not contradictory.
    We     review    jury   instructions de          novo    for   errors   of   law.     Anfinson v. FedEx Ground
    Package Sys., Inc.,          
    174 Wash. 2d 851
    ,               860, 
    281 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           party the opportunity to          argue   their     theory     of    the case. "'    State v.
    Ridgley,    141 Wn.       App.    771, 779, 
    174 P.3d 105
    ( 2007) (               quoting State v. Redmond, 
    150 Wash. 2d 489
    , 493, 
    78 P.3d 1001
    ( 2003)).               It is prejudicial error to give irreconcilable instructions upon a
    material   issue in the      case.    Hall v. Corp. of Catholic Archbishop of Seattle, 
    80 Wash. 2d 797
    , 804,
    
    498 P.2d 844
    ( 1972); Smith v. Rodene, 
    69 Wash. 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                 what    effect they may have            on   the   verdict.   
    Hall, 80 Wash. 2d at 804
    .      An instruction essentially in the words of a statute, however, is a proper
    instruction. State v. Levage, 
    23 Wash. App. 33
    , 35, 
    594 P.2d 949
    ( 1979).
    1
    We   also   note     that the State did         notrely on Akin' s counsel' s statement. The State did not
    comment on         the   statement    during     trial. It did not argue the statement to the jury. Instead, the
    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    provides   the   jury   with   a   definition   of   the   crime.   The " to
    convict"       instruction in this case contains all of the elements of the crime as required by law.
    State   v.   Fisher, 
    165 Wash. 2d 727
    , 753, 
    202 P.3d 937
    ( 2009).             It also contained instructions for the
    jury    to    return   a   verdict.   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:
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