State v. Ekkert, No. 23753-2-III (Wash. App. 7/20/2006)
| Decision Date | 20 July 2006 |
| Docket Number | No. 23753-2-III,23753-2-III |
| Parties | STATE OF WASHINGTON, Respondent, v. DENIS F. EKKERT, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Spokane County. Docket No: 04-1-01351-9. Judgment or order under review. Date filed: 01/06/2005. Judge signing: Hon. Tari S Eitzen.
Counsel for Appellant(s), Robert Soren Green, Rubinstein Law Offices, 875 140th Ave NE Ste 100, Bellevue, WA 98005-3400.
Boris Rubinstein, Rubinstein Law Office, 875 140th Ave NE Ste 100, Bellevue, WA 98005-3400.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Denis Ekkert appeals his conviction for one count of first degree assault with a deadly weapon. He contends he received ineffective assistance of counsel; the evidence was insufficient to support the conviction; the court erred by admitting eyewitness identification evidence; and cumulative error requires reversal of his conviction. We affirm.
On April 18, 2004, David Felten was driving home when he noticed a car tailgating him. The car pulled up next to Mr. Felten and an occupant of the vehicle gave him `the finger.' Report of Proceedings (RP) at 78. He gave `the finger' back and continued driving home. Mr. Felten then turned onto a side street and saw the other car turning around.
When Mr. Felten arrived home, he parked and opened the car door to get out. The other car approached and stopped in front of his. Mr. Ekkert jumped out of the car and stood in front of Mr. Felten with his hand behind his back. The car's other occupants got out and surrounded Mr. Felten, who then felt a stab to his stomach. Mr. Ekkert and the others quickly got back into their car and left. Mr. Felten looked under his shirt and saw he was bleeding.
When police arrived, Mr. Felten provided a description of Mr. Ekkert and was taken to the hospital by ambulance. Michael B. Moore, M.D., the on-call trauma physician, examined Mr. Felten, who had a 1.5 centimeter long stab wound on his abdomen.
Officer Michelle Madsen brought Mr. Ekkert to the hospital for identification. Mr. Felten positively identified him. Mr. Ekkert was arrested and charged with first degree assault with a deadly weapon.
On December 13, 2004, Mr. Ekkert presented the court with a waiver of jury trial. He told the court he had discussed the waiver with his attorneys and he understood he had the right to a jury trial. He understood that by waiving his right to a jury trial, he was subjecting himself to a bench trial. He acknowledged the waiver was made voluntarily. The court signed the waiver.
The court found Mr. Ekkert guilty as charged. This appeal follows.
Mr. Ekkert claims ineffective assistance of counsel. A defendant alleging ineffective assistance must show not only that counsel's representation was deficient, but also that the deficiency caused prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Even if counsel's representation was deficient, the claim will fail absent a showing of prejudice. Hendrickson, 129 Wn.2d at 78.
Counsel's performance is deficient if it falls `below an objective standard of reasonableness' under prevailing professional norms. In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992); Strickland, 466 U.S. at 687. But there is a strong presumption counsel's performance was reasonable, State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990), and counsel's tactical decisions must be distinguished from ineffectiveness. State v. Brett, 126 Wn.2d 136, 198-99, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). Moreover, counsel's failure to pursue a tactic substantially likely to fail is not evidence of ineffective representation. State v. Adams, 91 Wn.2d 86, 90-91, 586 P.2d 1168 (1978). We view counsel's performance against the entire record, requiring the defendant to demonstrate there was no sound tactical or strategic reason for counsel's actions. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
Mr. Ekkert contends his trial counsel was ineffective for failing to advise him of the risks associated with waiving the right to a jury trial. He argues he was confused and his counsel `brushed aside' his concerns. Appellant's Br. at 17.
During the waiver colloquy, Mr. Ekkert requested an opportunity to speak with defense counsel. After speaking with Mr. Ekkert, counsel told the court: RP at 14. The court then asked Mr. Ekkert whether there was anything he did not fully understand about his right to a jury trial. Mr. Ekkert responded, `I just feel it would be best for me to go in front of the judge instead of a jury.' RP at 15.
`In a non-capital criminal case, the accused may waive his right to a trial by jury.' State v. Thomas, 71 Wn.2d 470, 471, 429 P.2d 231 (1967). Waiving the right to a jury trial can be a tactical decision. State v. Likakur, 26 Wn. App. 297, 303, 613 P.2d 156 (1980). Counsel's advice on waiver is deemed `within the area of judgment and trial strategy and as such rests exclusively in trial counsel.' Thomas, 71 Wn.2d at 471.
Here, the record reveals Mr. Ekkert voluntarily waived his right to a jury trial. The court questioned him about his waiver and he acknowledged it was voluntary. The court asked Mr. Ekkert if he had discussed the waiver with his attorney. He stated counsel had explained the issue to him well. There is no indication counsel failed to advise him concerning the risks of waiving a jury trial or disregarded his concerns. Mr. Ekkert himself recognized the waiver of his right to a jury trial was a tactical decision. Counsel was not ineffective.
Mr. Ekkert next contends his counsel was ineffective for failing to discuss with him the impact of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). He argues he should have been advised that his right to a jury trial extended to sentencing enhancements.
In Blakely, 542 U.S. at 303, the U.S. Supreme Court held that a defendant has a constitutional right to have a jury determine whether the factors permitting an exceptional sentence have been proven beyond a reasonable doubt.
Here, there is no indication in the record whether counsel discussed Blakely with Mr. Ekkert. Nonetheless, even if counsel did not discuss the issue with him, he waived his right to a jury trial and chose the judge to be the factfinder. See Blakely, 542 U.S. at 310 (). Counsel thus was not ineffective for failing to discuss Blakely with his client.
Mr. Ekkert next contends he was denied effective assistance when his counsel failed to object to the testimony of juvenile probation officer, Tina Miller-Ayres. At the CrR 3.5 hearing, he sought to suppress statements made to the arresting officer. He argued he was unable to make a knowing and intelligent waiver of his Miranda1 rights because of his inability to understand the English language. In rebuttal, the State called Ms. Miller-Ayres. She testified she did not speak Russian, but had spoken with Mr. Ekkert a few times both in person and on the telephone. She felt she was able to communicate with Mr. Ekkert on those occasions.
He argues defense counsel was ineffective for failing to object to this testimony under ER 404(b), providing that evidence of a defendant's other crimes or bad acts is not admissible to prove his character as a ground for suggesting his conduct on a particular occasion was in conformity with it. But such evidence may be admissible to show `proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b).
The State did not seek to use this evidence to establish Mr. Ekkert's prior misconduct. The testimony was used to rebut his assertion he did not understand the English language. Moreover, it is well established that a trial court is `not bound by the Rules of Evidence' when it determines questions concerning the admissibility of evidence. ER 104(a); see also ER 1101(c)(1), (3). Defense counsel was not ineffective for failing to object to the testimony on ER 404(b) grounds.
Mr. Ekkert also contends counsel was ineffective for failing to properly brief cases for the court during closing argument. But he does not address this issue in his brief so it is deemed waived. See RAP 10.3(a)(5); Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986) ().
Mr. Ekkert also contends defense counsel was ineffective for failing to argue self-defense. `A claim of self-defense . . . is available only if the defendant first offers credible evidence tending to prove that theory or defense.' State v. Haydel, 122 Wn. App. 365, 370, 95 P.3d 760 (2004); State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). Counsel's decision not to claim self-defense when there is no evidence supporting it is not ineffective assistance. See State v. Johnson, 113 Wn. App. 482, 493, 54 P.3d 155 (2002), review denied, 149 Wn.2d 1016 (2003).
Mr. Ekkert argues counsel should have developed this defense from the testimony of Mikhail Vorontsov and Semen Kutsar. But there is no evidence in the record that Mr. Ekkert had a viable self-defense claim. Mr. Vorontsov testified he heard loud voices and an exchange of punches between Mr. Ekkert and Mr. Felten. At one point, he saw Mr. Felten bent over and holding his stomach. Mr. Kutsar testified he saw somebody push Mr. Ekkert. He said Mr. Ekkert went `towards him' and got into the car. RP ...
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