State v. Barnes

• Decision Date: 16 July 1990
• Docket Number: Nos. 22015-2-,24882-1-I,s. 22015-2-
• Citation: 58 Wn.App. 465,794 P.2d 52
• Parties: STATE of Washington, Respondent, v. Jack A. BARNES, Appellant. In the Matter of the Personal Restraint Petition of: Jack A. BARNES, Petitioner.
• Court: Washington Court of Appeals

Page 465

58 Wn.App. 465

794 P.2d 52

STATE of Washington, Respondent, v. Jack A. BARNES, Appellant In the Matter of the Personal Restraint Petition of: Jack A. BARNES, Petitioner.

Nos. 22015-2-I, 24882-1-I.

Court of Appeals of Washington Division 1.

July 16, 1990.

As Changed Aug. 7, 1990.

Washington Appellate Defender, Eric J. Nielsen, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Rebecca Roe, Seattle, for respondent.

WINSOR, Judge.

Jack Barnes challenges a judgment and exceptional sentence for murder in the first degree and first degree assault. He assigns error to the trial court's denial of his pretrial motions for a continuance and a neurological examination, and to imposition of an exceptional sentence. He also contends that the trial judge impermissibly commented on the evidence. In a pro se supplemental brief and a personal restraint petition consolidated with this appeal, Barnes makes numerous additional assignments of error. We affirm the judgment, dismiss the personal restraint petition, and remand for resentencing.

On June 13, 1987, Debbie Barnes called police and reported an assault by her husband, Jack Barnes. Police arrested Barnes, who was held in jail until June 17. While Barnes was in jail, Mrs. Barnes and the couples' two children, 5-year-old Brandi, and her younger sister, Stephanie, moved out of the family home. They temporarily stayed with Mrs. Barnes' cousin, Darcy Underwood, and Underwood's two young children.

On the morning of June 29, 1987, Underwood, Mrs. Barnes, and the four children briefly returned to the family home. Barnes, who knew they were going there, also went to the house. He arrived first. Underwood and the children arrived next. Upon their arrival, Barnes hid in a hallway closet. Mrs. Barnes then arrived.

Shortly after Mrs. Barnes' arrival, Underwood heard a scream. She investigated and found Barnes in the kitchen, sitting on Mrs. Barnes. Barnes had a knife. He grabbed Underwood and stabbed her three times before she escaped. He then stabbed Mrs. Barnes in the back at least 10 times. Barnes walked out of the house, got into his car, and drove away.

All four children were in the house when these events took place. At trial, Brandi testified that she saw Barnes jump out of the closet with a knife in his hand. She and the other children hid under a bed during the actual stabbings. Brandi explained that after Barnes left, "then I get out and cried, and mommy moved her head one time, and then she was out."

Police arrested Barnes in San Diego, California, on July 1, 1987. Barnes was charged with first degree murder and first degree attempted murder. He retained a lawyer, who had Barnes examined by Dr. G. Christian Harris, a psychiatrist, for the purpose of pursuing a diminished capacity defense.

Barnes moved to dismiss his retained lawyer in December 1987. The trial court granted the motion, ordered that a public defender be appointed as substitute counsel, and extended expiration of Barnes' speedy trial date to January 13, 1988. ¹ At that time, the court warned Barnes that any further motion for continuance would not be granted if it appeared that by bringing the motion, Barnes was deliberately attempting to delay trial.

Ralph Hurvitz was appointed to represent Barnes. Barnes became dissatisfied with Hurvitz' efforts and on January 4, 1988, moved to be allowed to proceed pro se. The court granted his motion and ordered Hurvitz to act as Barnes' legal advisor. At the same time, Barnes moved to continue the trial date. The presiding judge declined to rule on the motion, and instead preassigned the matter to another judge to rule on all pretrial matters and preside at trial.

On January 8, a Friday, the pre-assigned judge heard Barnes' motions for discovery, for a continuance, and for a neurological exam. The judge learned that Barnes had just received the defense discovery notebook from Hurvitz. To enable Barnes to determine what discovery materials were already in his possession, the judge continued the discovery motions until January 12, a Tuesday. The judge also continued Barnes' motion for a neurological exam so that Hurvitz could obtain Dr. Harris' opinion as to whether "there may be an organic component" to Barnes' claimed mental problems.

On January 12, Hurvitz informed the trial court that "Dr. Harris did not think an organic component to the pathology here was likely." Consequently, the trial court denied Barnes' motion for a neurological exam. The court then made rulings on each of Barnes' discovery requests granting some and denying others. Barnes next moved for a daily trial transcript. The court denied the motion, "[a]bsent a showing of some unique need". Finally, Barnesmoved for a 1 -week continuance, based on "the amount of material that hasn't been disclosed yet, [to] assimilate and consider my pleadings, [and] if necessary, I would have some opportunity for a follow-up investigation on it." The trial court denied Barnes' motion, explaining:

It does not appear to me that anything that is going to be produced would effectively delay the process in any way. We'll probably be spending most of tomorrow in the process of jury selection. The State proceeds first in the presentation of their case. This case has been delayed for a substantially long period of time.

. . . . .

There have been attorneys hired and fired. I do not intend that it be delayed further. If there is some overriding reason to do so, I would in the interests of a fair trial for yourself, I would not push you to trial. But I simply see nothing at this time which would justify a further continuance of this trial.

The trial judge and Barnes then discussed each discovery request to determine whether the additional materials sought were so critical as to warrant another trial continuance. The judge again found no basis for a continuance.

The matter proceeded to trial before a jury. Barnes' defense theories were self-defense and diminished capacity. Concerning his self-defense claim, Barnes testified that he stabbed Mrs. Barnes and Underwood because he thought they were getting guns to kill him. Concerning his diminished capacity defense, Barnes testified that he struck his head when police Officer Barth assaulted him after arresting him on June 13, 1987, for the alleged assault of Mrs. Barnes. He claimed that for several months after that assault he suffered from blinding headaches, blackouts, and memory lapses. He seemingly alleged that he stabbed Mrs. Barnes and Underwood during a blackout.

While testifying about the stabbings, Barnes said: "I can only tell you that I believe they went for the guns, and I just went crazy. I don't remember the knife in my hand." The trial judge interrupted and announced:

The defendant has just stated, just a minute sir. The defendant has stated he just went crazy. I will point out to the jury there is no plea of mental irresponsibility in this case.

The jury found Barnes guilty of first degree murder and first degree assault. Barnes moved for a new trial. His motion was denied and the trial court imposed a 45-year exceptional sentence. This appeal and personal restraint petition followed.

I.

Barnes first challenges the trial court's denial of his January 12 motion for a continuance. He argues that because he did not receive any discovery until a week before trial, he was unable to properly prepare for trial.

The grant or denial of a motion for continuance is within the trial court's discretion and will not be disturbed absent a showing that the court abused its discretion and the defendant was prejudiced thereby. State v. Kelly, 32 Wash.App. 112, 114, 645 P.2d 1146, review denied, 97 Wash.2d 1037 (1982); State v. Sutherland, 3 Wash.App. 20, 21, 472 P.2d 584, review denied, 78 Wash.2d 996 (1970). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971); Coggle v. Snow, 56 Wash.App. 499, 504-07, 784 P.2d 554 (1990).

The primary purpose of Barnes' continuance request was to obtain and review additional discovery. The trial court considered each item of discovery still forthcoming and concluded that none was sufficiently important to warrant further delay of trial. This conclusion was not untenable, particularly since at least three continuances had previously been granted in this case. To guard against abuse and to discourage motions made merely for delay, it is generally required that a stronger showing be made in support of subsequent motions for continuance. 12 R. Ferguson, Wash.Prac., Criminal Prac. & Proc. § 1905 (1984); see United States v. Leavitt, 608 F.2d 1290 (9th Cir.1979). Moreover, the trial court had previously warned Barnes that further continuances might not be granted. Nevertheless, Barnes decided to proceed pro se just days before trial. As we said in a case in which a continuance was denied to a defendant who elected to proceed pro se on the day before trial:

We note that [defendant] was so confident about the completeness of his own trial preparation, that he insisted on firing his retained counsel for disagreeing with him on the day before trial. If he truly had believed that his pro se defense would be crippled without a continuance, he need not have dismissed his counsel who was fully prepared to try the case.

State v. Anderson, 23 Wash.App. 445, 449, 597 P.2d 417 (1979).

The trial court did not err in denying Barnes' motion for continuance.

II.

Barnes next contends that the trial court abused its discretion when it refused his request for a neurological exam. He argues that the neurological exam was necessary to his diminished capacity defense.

A defendant is entitled to the assistance of an expert witness only when such services are necessary to an adequate defense. State v. Poulsen, 45 Wash.App. 706, 709, 726 P.2d 1036 (1986); State v. Mines, 35 Wash.App. 932, 935, 671 P.2d 273 (1983), ...