State v. Beliveau, No. 30247-1-II (WA 8/3/2004)
| Decision Date | 03 August 2004 |
| Docket Number | No. 30247-1-II,30247-1-II |
| Parties | STATE OF WASHINGTON, Respondent, v. STEPHEN M. BELIVEAU, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Pierce County. Docket No. 02-1-04015-4. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. Thomas P Larkin.
Counsel for Appellant(s), Geoffrey Colburn Cross, Attorney at Law, 252 Broadway, Tacoma, WA 98402-4005.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Stephen Maurice Beliveau appeals his jury conviction for vehicular homicide and failure to remain at the scene of an accident. He argues that the trial court should have given his proposed intervening cause instruction and should not have admitted evidence of his statements to the police about insurance. He also contends that the State failed to prove its case and that his counsel was ineffective. Finding no error, we affirm.
Stephen Maurice Beliveau drove his truck and trailer across the highway center line and struck and killed Desere Mitchell. Mitchell had just exited a club and was walking across the street to her car. Witnesses testified that Beliveau was driving 10-15 miles per hour in excess of the posted 35 miles per hour speed limit. Beliveau's blood alcohol level was 0.20.
Beliveau stopped after hitting Mitchell, but he then turned his headlights off and drove away. A witness followed him as he drove to his home and saw him run a stop light on the way. Police officers arrived a short time later, arrested Beliveau, and took him to the hospital for a blood draw. The police observed that his speech was slurred, he stumbled when he walked, he smelled strongly of liquor, and his eyes were red and watery. Beliveau's truck was dented and a headlight was damaged. Police found a lipstick smudge in the dented area, and teeth impressions in the metal. Beliveau was belligerent toward the officers.
To demonstrate Beliveau's belligerence and level of intoxication at the time the police questioned him, the State asked an officer how Beliveau had responded when the police requested evidence of his auto liability insurance. Beliveau argued the testimony was irrelevant and overly prejudicial. Finding that the testimony was relevant to show that Beliveau was intoxicated, the court allowed the witness to answer, but it instructed the jury that the statement was not offered as proof of the matter asserted. The officer testified that Beliveau had said `No' several times and then asked, Before the officer could respond, Beliveau again said Report of Proceedings (RP) at 450-51.
Beliveau took exception to the jury instructions regarding proximate cause because they differed from his proposed instructions. And he argued that the court should give his proposed instruction the defined superceding cause.
The jury found Beliveau guilty of vehicular homicide and failure to remain at the scene of an accident resulting in death.
Beliveau faults his attorney for not making appropriate objections or putting forth his best effort.
To show ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs if the outcome would have differed but for the deficient performance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give considerable deference to counsel's choice of tactics and presume that he or she was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is not deficient if counsel merely exercises a legitimate strategic or tactical choice. In re Pers. Restraint of Jeffries, 110 Wn.2d 326, 333, 752 P.2d 1338 (1988).
State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (citing Strickland, 466 U.S. 668).
Beliveau argues that counsel should have objected to three specific instances of leading questioning. First, he argues that counsel should have objected when the State asked a witness if she remembered telling a deputy that the truck was traveling about 40 to 50 miles per hour. But the question was not leading. The State had just asked the witness if she knew how fast Beliveau's truck was traveling. She said she did not. In an attempt to refresh her memory, the prosecutor then asked if she remembered telling the police officer that the truck was going 40 to 50 miles per hour. The witness said she did not. Thus, rather than suggesting the answer, the question directed the witness's attention to a specific statement she may have made to the police.
Next, Beliveau argues counsel should have objected when the State asked a witness, `Were the tires squealing or was it some other noise?' Br. of Appellant at 4; RP at 378. The State asked this question after the witness said he `could hear the tires.' RP at 378. The question is not leading because it does not suggest the answer, but merely offers two alternative answers.
Beliveau also contends that his attorney should have objected when a witness was `led' about statements Beliveau made when he was arrested. Br. of Appellant at 5. But Beliveau's attorney asked the question on cross-examination. And because he was cross examining the witness, it was appropriate for him to ask a leading question.
Beliveau argues that his counsel should have objected when the prosecutor asked an officer about Beliveau's statement that he had no automobile insurance. The State asked Deputy Allen how Beliveau responded when asked if he had insurance. Beliveau concedes that his attorney objected to the question and that the court discussed the matter with the attorneys but ultimately overruled the objection. But Beliveau objects because `{w}hen the State resumed questioning after the jury returned{,} counsel failed to renew his objection for the record.' Br. of Appellant at 9.
Beliveau cites no authority that an attorney must renew an unsuccessful objection. The argument is without merit.
Finally, Beliveau argues that counsel did not put forth his `best efforts' in part because he did not present evidence that the decedent's blood-alcohol level was 0.07. But Beliveau cites nothing in the record showing that decedent's blood-alcohol level was ever tested. And we do not consider matters outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (citing State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991)).
Beliveau has failed to demonstrate that his counsel was ineffective.
Beliveau argues that the trial court erred by admitting testimony that he did not have automobile insurance, reasoning that his lack of insurance was irrelevant.
We review a trial court's decision to admit or deny evidence for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds. Stenson, 132 Wn.2d at 701 (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
The testimony, in particular Beliveau's rambling, repetitive response, was relevant to the purpose for which the court admitted it—as evidence that Beliveau was intoxicated. And the court instructed the jury that it could not consider the evidence for the truth of the statements but only on the question of whether Beliveau was intoxicated when he made the statements. We presume that the jury follows the court's instructions. State v. Cunningham, 51 Wn.2d 502, 505, 319 P.2d 847 (1958) (citing Traverso v. Pupo, 51 Wn.2d 149, 152, 316 P.2d 462 (1957)).
The court did not err in admitting the testimony.
Beliveau argues that the court abused its discretion by refusing to use his proposed jury instructions and by opting instead to use its own instructions, which he contends did not appropriately define what constitutes a superceding event.
We review a trial court's decision to give or reject proposed jury instructions for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998) (citing State v. Pesta, 87 Wn. App. 515, 524, 942 P.2d 1013 (1997)). Jury instructions are sufficient if they permit each party to argue his theory of the case, are not misleading, and properly inform the jury of the applicable law. Picard, 90 Wn. App. at 902 (citing Pesta, 87 Wn. App. at 524). A trial court is not required to instruct on a theory the evidence does not support. Savage v. State, 127 Wn.2d 434, 448, 899 P.2d 1270 (1995) (citing Cooper's Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321, 327, 617 P.2d 415 (1980)).
Beliveau proposed two pattern jury instructions:
To constitute vehicular homicide, there must be a causal connection between the death of a human being and the criminal conduct of a defendant so that the act done was a proximate cause of the resulting death.
The term `proximate cause' means a cause which, in a direct sequence, unbroken by any new independent cause, produces the death, and without which the death would not have happened.
There may be more than one proximate cause of a death.
Br. of Appellant at 16; WPIC 25.02.
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