State v. Cobb

Decision Date21 December 1978
Docket NumberNo. 2986-II,2986-II
Citation589 P.2d 297,22 Wn.App. 221
PartiesThe STATE of Washington, Respondent, v. Willard Ray COBB, Appellant.
CourtWashington Court of Appeals

Jack E. Tanner, Tanner, McGavick, Felker, Fleming, Burgess & Lazares, Tacoma, for appellant.

C. Dan Clem, Pros. Atty., Richard L. Peterson, Chief Criminal Deputy Pros. Atty., Port Orchard, for respondent.

SOULE, Judge.

Defendant appeals from a judgment of conviction for second-degree assault while armed with a deadly weapon. The assignments of error present three issues: (1) whether the knife used by the defendant was a deadly weapon; (2) whether evidence of failure to appear upon the trial date originally scheduled was admissible on the issue of guilt; (3) whether the defendant was denied constitutional due process and a fair trial because he did not have the effective assistance of counsel.

KNIFE AS A DEADLY WEAPON

The knife was a heavy Boy Scout-type jackknife with a blade length of 23/8 inches. The victim suffered three wounds: a cut in the forehead, a cut in the chest over the sternum, and a cut in the muscle structure under the left arm. A treating physician characterized them as stab wounds, all of which required sutures. The wound to the left arm bled profusely and initially was suspected of having penetrated the chest cavity, although upon further examination it was determined that it did not. None of the wounds were in fact life threatening.

Under RCW 9.95.040, a knife with a blade longer than 3 inches is a deadly weapon as a matter of law. However, in State v. Thompson, 88 Wash.2d 546, 564 P.2d 323 (1977), the court recognized that a pocket knife with a blade Less than 3 inches may be a deadly weapon depending on the circumstances of its use. If the blade is less than 3 inches, the question merely becomes one of fact rather than of law. State v. Braun, 11 Wash.App. 882, 526 P.2d 1230 (1974); State v. Rolax, 7 Wash.App. 937, 503 P.2d 1093 (1972); State v. Sorenson, 6 Wash.App. 269, 492 P.2d 233 (1972).

While recognizing that the question is one of fact, defendant argues that the jury's verdict was not supported by substantial evidence because the wounds were superficial and not in fact life threatening. Such an argument begs the question. The test is not the extent of the wounds actually inflicted. Rather, the test is whether the knife was Capable of inflicting life threatening injuries Under the circumstances of its use. State v. Thompson, supra.

The wounds inflicted were stabbing, not slashing, wounds to the head and chest. While perhaps a stab directly to the forehead may be unlikely to penetrate the skull, a blow with equal force directed to the throat area can easily reach major blood vessels. Likewise, a stab to the chest, but for the fortuitous striking of the sternum or a rib, can inflict a penetrating wound to the chest cavity and endanger major structures. Similarly, a blow to the area of the underarm musculature can, with a slight change of direction, sever a major blood vessel. For these reasons, we conclude that there is substantial evidence from which the jury could have properly concluded that this knife was, under the circumstances of its use, a deadly weapon in fact. United States v. Enos, 453 F.2d 342 (9th Cir. 1972).

FAILURE TO APPEAR FOR TRIAL AS EVIDENCE OF GUILT

Defendant assigns error to the action of the trial court in allowing testimony concerning defendant's nonappearance in court on another day and to the resulting bail forfeiture and bench warrant. Defendant's attack characterizes the court's action as admitting evidence of unrelated offenses and therefore asserts that the admission was error under State v. Goebel, 40 Wash.2d 18, 240 P.2d 251 (1952).

The argument is misleading because the court proceedings referred to did not involve Another offense. It is to be remembered that this offense occurred on March 4, the arraignment and trial setting was on March 11, and the trial date set was May 18, all in 1976. The nonappearance involved failure to appear for trial on This particular offense and there was further testimony that defendant was not apprehended until nearly a year later.

In State v. Jefferson, 11 Wash.App. 566, 524 P.2d 248 (1974), the court recognized that failure to appear at trial is admissible as circumstantial evidence of guilt. The court declined to limit evidence of flight to that flight intended to avoid immediate arrest. In so doing, it stated:

Jefferson further contends that not only was it improper for the prosecutor to equate his failure to appear with his being a dishonest and untruthful person but that it was a fundamental error to equate his "non-appearance" with "flight." He points out that although in several Washington cases escape from custody prior to trial has been equated with "flight," in no case has the failure to appear at trial been so treated. He cites State v. Wilson, 26 Wash.2d 468, 482, 174 P.2d 553 (1946), for the statement that:

The prevailing rule on the subject in this country is that the flight of a person After the commission of a crime and before his arrest is a circumstance to be considered with the other circumstances of the case in determining his guilt or innocence. See 25 A.L.R. 886 Et seq., where the cases are collated. That is the rule in this jurisdiction.

(Italics Jefferson's.) We are satisfied, however, that the "prevailing rule" is not as constricted as the quoted language of Wilson implies.

The rationale which justifies the admission of evidence of "flight" is that, when unexplained, it is a circumstance which indicates a reaction to a consciousness of guilt. 29 Am.Jur.2d Evidence § 280 (1967); 1 C. Torcia, Wharton's Criminal Evidence § 214, at 450 (13th ed. 1972). In many cases, the justification for evidence of flight is that it is a manifestation of an instinctive or impulsive reaction. A decision to avoid trial, although not an impulsive reaction, is nevertheless a circumstance which, If unexplained, might reasonably be considered to be the act of one who is conscious of his guilt.

(Emphasis added.)

Our search of the report of proceedings has failed to reveal any testimony by the defendant even attempting to explain his failure to appear on the date originally scheduled, or to account for his long absence thereafter. Therefore, the evidence was admissible as circumstantial evidence of guilty knowledge. It also served the legitimate secondary function of explaining to the jury why the case was so long in coming to trial. We note, with approval, that no instruction was given on the subject of flight. State v. Bruton, 66 Wash.2d 111, 401 P.2d 340 (1965).

EFFECTIVENESS OF COUNSEL

Although defendant challenges the effectiveness of counsel and in substance claims that certain inaction demonstrates counsel's incompetence, he nevertheless recognizes that the test of competency is that enunciated in State v. Thomas, 71 Wash.2d 470, 471, 429 P.2d 231, 232 (1967): "After considering the Entire record, can it be said that the accused was afforded an Effective representation and a Fair and Impartial trial?" See also State v. Johnson, 74 Wash.2d 567, 570, 445 P.2d 726 (1968). Other cases applying this rule are noted in State v. Jury, 19 Wash.App. 256, 576 P.2d 1302 (1978).

Defendant has a weighty burden of proving: first, that in view of the entire record he was denied effective representation; and second, that he was prejudiced thereby. State v. Jury, supra. As Jury further explains, counsel is not expected to perform flawlessly or with the highest degree of skill. It is only when his performance is such that no reasonably competent attorney would have so conducted himself, that a client has grounds for complaint and the court a...

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