State v. Byrd
| Citation | 638 P.2d 601,30 Wn.App. 794 |
| Decision Date | 28 December 1981 |
| Docket Number | No. 7642-6-I,7642-6-I |
| Parties | STATE of Washington, Respondent, v. Arnell George BYRD and David Thomas Miller, Appellants. |
| Court | Court of Appeals of Washington |
Warner, Pierce, Peden & Elliott, Donald Elliott, Seattle, for appellant Arnell Byrd.
Edwards & Barbieri, Charles Wiggins, Seattle, for appellant David Miller.
Norm Maleng, King County Pros. Atty., Rebbecca J. Roe, Deputy Pros. Atty., Seattle, for respondent.
Arnell Byrd and David Miller were charged with first degree rape by kidnapping and forcible compulsion, tried together with the same counsel before a jury and convicted. They separately appeal with Miller also filing a personal restraint petition.
The essential facts not in controversy are that about 2 in the morning, after considerable drinking, Byrd and Miller picked up the prosecuting witness who was hitchhiking on a well-traveled highway. A police officer later stopped the car because of a minor traffic violation, but noted nothing unusual. The three, with the prosecuting witness sitting on the center console, drove to Miller's apartment, went in and engaged in sexual activity. Afterwards the witness was put out in the cold without clothes. Shortly, her garments were supplied, she left and a few minutes later was picked up on the highway in a hysterical condition.
The facts in controversy as testified to by the prosecuting witness are that she was forced into the apartment and coerced through fear to engage in sexual activity. Byrd and Miller claim she consented.
Byrd's assignments of error concern the sufficiency of the evidence, the admissibility of statements under the excited utterance exception to the hearsay rule, alleged prosecutorial misconduct in cross-examination and final argument and the court's instructions defining the elements of the charge.
Byrd first argues that the State did not present sufficient evidence to prove first degree rape. If the jury believed the prosecuting witness, there is sufficient evidence under the test stated in State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980), upon which the jury as a rational trier of fact could have found the elements of first degree rape beyond a reasonable doubt.
Byrd next contends that the trial court erred in admitting the testimony of three witnesses who stated that the prosecuting witness told them she had been raped. All three described her as crying and hysterical when they picked her up on the highway. The testimony was admitted under the res gestae or excited utterance exception to the hearsay rule set forth in Beck v. Dye, 200 Wash. 1, 92 P.2d 1113, 127 A.L.R. 1022 (1939), as codified in ER 803(a)(2). The statements made by the prosecuting witness to the three witnesses shortly after the incident and while she was hysterical meet the criteria stated in Beck v. Dye, supra. The trial court did not abuse its discretion. State v. Downey, 27 Wash.App. 857, 620 P.2d 539 (1980).
Byrd next contends that he was denied a fair trial because of certain actions of the prosecutor during cross-examination and final argument. The State's cross-examination and argument were within permissible bounds. Byrd has not demonstrated misconduct or prejudice.
Byrd challenges instruction 10 concerning the definition of forcible compulsion, contending that it was confusing with regard to the amount of force required to establish rape. This contention cannot be raised for the first time on appeal; it is not a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Johnson, 29 Wash.App. 807, 631 P.2d 413 (1981); State v. Pawling, 23 Wash.App. 226, 597 P.2d 1367 (1979).
Byrd finally argues that the trial court erred in not instructing the jury that when the State relies upon kidnapping to establish the charge of first degree rape, the act of restraint necessary for kidnapping must be separate and distinct from the act of restraint for forcible compulsion. This contention cannot now be raised for the first time on appeal; it is not a manifest error affecting a constitutional right. RAP 2.5(a)(3). State v. Johnson, supra. Further, the instructions when considered as a whole properly defined the elements of first degree rape, and there is sufficient evidence to establish both forcible compulsion as well as the restraint necessary for kidnapping. See State v. Pawling, supra.
Miller's assignments of error concern the court's instructions as to the charge of first degree rape, and ineffective assistance of counsel. Exceptions to the court's instructions not made at trial and not affecting a constitutional right, cannot be raised for the first time on appeal. RAP 2.5(a)(3).
Miller contends he was denied effective assistance of counsel because his trial attorney representing both defendants did not raise the defense of intoxication or attempt to shift the responsibility for the rape to Byrd. A defendant is denied effective assistance of counsel "when his attorney is required to represent a codefendant whose interests are in conflict with his own." State v. Nielsen, 29 Wash.App. 451, 453, 629 P.2d 1333 (1981). Joint representation is not a per se constitutional violation. State v. Peyton, 29 Wash.App. 701, 630 P.2d 1362 (1981). To establish a claim of ineffective assistance of counsel based upon joint representation, a defendant must demonstrate an actual conflict of interest which
exists when an attorney must represent adverse interests. As the court stated in Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979).
If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.
State v. Nielsen, supra, 29 Wash.App. at 454, 629 P.2d 1333.
Miller has not demonstrated that trial counsel owed him a duty to take action which would have been detrimental to Byrd. The testimony of both defendants at trial was consistent,...
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