State v. Barnett

• Decision Date: 11 January 2001
• Docket Number: No. 18940-6-III.,18940-6-III.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Benjamin Scott BARNETT, Appellant.

16 P.3d 74

104 Wash.App. 191

STATE of Washington, Respondent, v. Benjamin Scott BARNETT, Appellant.

No. 18940-6-III.

Court of Appeals of Washington, Division 3, Panel Eight.

January 11, 2001.

Paul J. Wasson, Spokane, for Appellant.

Michael G. McCarthy, Deputy Pros. Atty., Yakima, for Respondent.

SWEENEY, J.

A jury found Benjamin Barnett guilty of unlawful imprisonment, first degree burglary, second degree rape, second degree malicious mischief, first degree kidnapping, second degree assault, and assault in violation of a protective order, following a vicious attack on his short-term girl friend, Ms. M. The jury also found Mr. Barnett had been armed with a deadly weapon during four of the counts. The court imposed an exceptional sentence upward. Mr. Barnett claims the court erred by (1) denying his request to testify, (2) polling the jury generally rather than individually, (3) answering a question from the jury with a note, (4) instructing the jury on second degree assault as a lesser offense of attempted second degree murder, and (5) imposing an exceptional sentence. We affirm the convictions but reverse the exceptional sentence.

FACTS

Benjamin Barnett began dating Ms. M in September 1998. They dated for about two months. Ms. M tried to end their relationship in November. Mr. Barnett rejected the overture. He met Ms. M in a church parking lot on November 25 armed with a knife. Mr. Barnett forcibly detained her for approximately 45 minutes before she escaped.

Ms. M obtained a restraining order against Mr. Barnett on December 10. The order was served on Mr. Barnett on December 14. Later that day, Mr. Barnett went to Ms. M's home. She refused to let him in. Mr. Barnett climbed through a window. She fled to a second floor bedroom. Mr. Barnett took a knife from the kitchen and chased her. He forced his way into her room.

Mr. Barnett threatened Ms. M until she had sex with him. He then forced her outside at knifepoint. He repeatedly threatened to kill her and her family. Ms. M escaped by jumping over a fence and returned to her home.

Again Mr. Barnett chased her inside. He smashed a phone, a coffee table, and a sliding glass door. Ms. M escaped again and ran to a nearby grocery store. She called 911 and waited for police to arrive. Mr. Barnett caught up with her. He chased her through the parking lot and as she tried to get in a Good Samaritan's car, he pulled her out. Finally, two other men distracted Mr. Barnett until Ms. M could get into the Good Samaritan's car.

Mr. Barnett was arrested. He voluntarily gave a statement.

The State charged him with two counts of unlawful imprisonment; and one count each of harassment, first degree burglary, first degree rape, second degree malicious mischief, first degree kidnapping, assault in violation of a protection order, and attempted second degree murder.

Mr. Barnett chose not to testify. His attorney said his testimony would essentially be the same as Ms. M's except for his intent and recommended that he not testify. The trial court spoke to Mr. Barnett and confirmed that he understood both his right to remain silent and his right to testify. The defense presented no evidence.

The next day, after both parties had rested and after the instructions conference, Mr. Barnett told the court he wanted to testify. His lawyer again told the court he advised against it but left it to the court. Defense counsel did not move to reopen Mr. Barnett's case. The court refused to reopen to allow Mr. Barnett to testify.

During jury deliberations, the jury sent a question to the court: "On Instruction # 17 we want to know if `intent to commit a crime' on item 2 refers to violation of protection order. Does violation of protection order constitute the crime referred to here?" The trial judge discussed it with counsel and answered yes.

The jury found Mr. Barnett guilty of one count of unlawful imprisonment, first degree burglary, second degree rape, second degree malicious mischief, first degree kidnapping, second degree assault, and assault in violation of a protective order. It also found that he was armed with a deadly weapon on four of the counts.

Neither party asked the court to poll the jury. The trial court polled the jury anyway. The court asked the jury as a whole whether each verdict was unanimous and whether it agreed with the presiding juror's statement. The whole jury answered yes. Mr. Barnett spoke at sentencing. He said that had he testified he would have admitted to everything except the rape charge. The court imposed an exceptional sentence of 371 months. The high end of the standard range was 364 months.

DISCUSSION

MR. BARNETT'S REQUEST TO TESTIFY

Mr. Barnett first contends that the trial judge abused his discretion by refusing to reopen the case to allow him to testify.

A defendant has a fundamental right to testify. State v. Thomas, 128 Wash.2d 553, 558, 910 P.2d 475 (1996); Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). And only the defendant can decide whether or not to testify. Thomas, 128 Wash.2d at 558, 910 P.2d 475. But a defendant may waive the right to testify. Id. That waiver must, however, be knowing, voluntary, and intelligent. Id. Mr. Barnett's was.

Here, the court explained to Mr. Barnett that he had a right to testify and a right not to testify—to remain silent. Mr. Barnett asked to speak privately with his attorney. He then returned to the courtroom and said: "My requirement to testify, I plead the fifth, discriminate myself. I don't want to get up on my stand, plead my fifth amendment in front of you, so I don't want to not mess with going up, because I don't want to screw everything up. It's already—I don't want to get up there." The defense then rested. The court recessed.

But the next morning Mr. Barnett had the following exchange with the court:

THE COURT: All right. Mr. Barnett.

[MR. BARNETT]: Yeah. I would like to know, yesterday we talked about the fact when we're doing the closing arguments, resting the state and defense, I talked about not testifying, but I got a lot of emotions inside. I have a lot of things inside that I'd like to relay some. The fact that I'm pretty bothered about the way they came in and talked about the relationship. I think I should tell my point about the relationship before the jurors know— before they come back about the whole relationship and everything. That's what bothers me, in case I want to explain the reason why all this is happening while I'm up there. I would like to testify, if it's all right with you. I know I gave my right up yesterday to testify, but I would still like to testify.

I have no witnesses. I have nothing on my defense except me. I would like to know if I could testify before it all ends, just to feel a lot better, because, Your Honor, I got a lot of stuff inside of me I want to release, it's hard for me to hold onto. I've been up all night thinking about it. It's hard for me to sleep. It bothered me yesterday when I left and didn't testify. It ate my heart out. I felt everybody else had testified, I have a right to. I didn't understand. The reason I didn't testify was I was so emotionally stressed from all the stuff that happened, I just wasn't ready to. I'm asking today if you'd let me please testify, if it's all right.

THE COURT: Mr. Gonzales.

MR. GONZALES [Defense Counsel]: Your Honor, I would defer to the court's decision in that matter. If Mr. Barnett testifies, he is testifying against counsel's advice. He is, by his own admission, he's somewhat unstable, and it is my considered belief that all he could do is damage himself. However, I can't, certainly, prevent him from damaging himself.

THE COURT: What's the court's role in that, Mr. Keller, in your view?

MR. KELLER [Prosecutor]: Your Honor, it's not an issue I looked at. The state would be opposing it. The decision was made. A record was made of his decision not to testify. If, however, he is allowed to testify, the state would request we recess, and I have time to go back and prepare for that.

THE COURT: I'm going to deny your request, Mr. Barnett. This matter was thoroughly explored yesterday, and I think that's when you effectively made up your mind and declared what you wished to do. I'm not prepared to accept a vascillation, which I consider this to be.

Further, you are proposing that you only testify as to a limited issue in this case, that is, what you perceive to be the relationship between yourself and the young lady, and you can't do that. The whole matter is before the jury or not in terms of cross-examination. So therefore, I'm going to deny your request.

Simply put, Mr. Barnett changed his mind. But he did so too late. The defense had rested. The decision to reopen a proceeding to introduce additional evidence is one left to the sound discretion of the trial court. State v. Brinkley, 66 Wash.App. 844, 848, 837 P.2d 20 (1992); State v. Sanchez, 60 Wash.App. 687, 696, 806 P.2d 782 (1991). A trial court's decision on whether or not to reopen a case will not be reversed absent a "showing of manifest abuse of discretion and prejudice resulting to the complaining party." Brinkley, 66 Wash.App. at 848, 837 P.2d 20. A court abuses its discretion when it bases a decision on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

Had Mr. Barnett asked to testify before the defense rested, there would be no question of his right to testify. But he did not. And so he waived his right to testify. The defense then rested. The court then recessed for the evening. When all returned the next morning, the court was prepared to instruct the jury and move forward with closing argument. The court's decision not to disrupt the trial schedule to accommodate Mr. Barnett's testimony—testimony which arguably would have hurt Mr. Barnett's case—appears to be a sound one. On this record, we can hardly say that the trial judge abused his...