State v. Garrett, 61046-1

CourtUnited States State Supreme Court of Washington
Citation124 Wn.2d 504,881 P.2d 185
Decision Date09 September 1994
Docket NumberNo. 61046-1,61046-1
PartiesSTATE of Washington, Petitioner, v. Samuel C. GARRETT, Respondent.

David R. Needy, Skagit County Prosecutor, K. Garl Long, Chief Crim. Deputy, Mount Vernon, for petitioner.

Washington Appellate Defender Ass'n, Rita J. Griffith, Seattle, for respondent.

SMITH, Justice.

The State of Washington seeks review of a decision of the Court of Appeals, Division One, which reversed and remanded for further proceedings Respondent Samuel C. Garrett's second degree child molestation conviction in the Skagit County Superior Court for ineffective assistance of counsel because of misconduct of counsel which, in combination with the trial court's apparent response to antagonistic behavior by defense counsel, prejudiced Respondent's right to a fair trial. We reverse the Court of Appeals.

STATEMENT OF FACTS

On February 22, 1991, Respondent Samuel C. Garrett was charged by information in the Skagit County Superior Court with one count of second degree child molestation in violation of RCW 9A.44.086 based upon an incident at the Respondent retained as counsel Lowell J. Ashbach, Jr., who was joined at trial by Michael W. Smith as co-counsel. Trial began on April 1, 1991 before the Honorable Stanley K. Bruhn. The court heard several motions during an in-chambers conference. Counsel discussed evidentiary and discovery issues. 2 The judge expressed some "irritation" that these matters were first being raised moments before trial. 3 When defense counsel Smith expressed concern that his client would be prejudiced if escorted into the courtroom in chains and a prison uniform, 4 the court remarked:

Cascade Mall involving a 13-year-old male person on January 24, 1991. 1

What is irritating me Mr. Smith, is the fact that we have got possible screw-ups now. This stuff should have been handled previously. I haven't got time to deal with these things at the last minute, unless there is an awfully critical problem, that could not have been handled previously. 5

Defense counsel Smith made a motion to exclude witnesses. The prosecuting attorney, did not object. 6 Judge Bruhn again expressed concern that the motion was being raised for the first time moments before trial. 7 Defense counsel Smith responded that he only had an interest in getting a fair trial. Judge Bruhn then replied, "[t]he implication is that I don't?" 8

After a brief recess, the trial resumed in open court and jury selection was begun. The court allowed examination of The trial then resumed in open court and voir dire examination continued. During examination of one prospective juror, defense counsel Smith asked him where he parked when he went to the Cascade Mall. 10 The prosecuting attorney objected and asked for a side bar conference. 11 After the side bar conference, Judge Bruhn sustained the objection and advised defense counsel Smith he could state his objection to the ruling on the record at a later time. 12

one prospective juror in chambers with all counsel present. Upon completion of the examination the court denied a defense challenge to that juror for cause. 9

When his turn came to conduct voir dire examination of three remaining prospective jurors, defense counsel Smith said he had no further questions. 13 After the State accepted the panel as constituted, the defense exercised one peremptory challenge against the juror who had been examined in chambers. 14 Another prospective juror was seated and the defense declined to examine. 15 The State again accepted the jury and defense counsel Smith accepted the jury, stating "Mr. Garrett informs me that he is satisfied with the 12 people on the jury to try his case." 16

The prosecuting attorney made his opening statement to the jury and defense counsel Smith elected to follow with his opening statement. 17 During his opening statement, Mr. Smith said the defendant would be testifying. 18 He attempted in his statement to refer to the criminal history of Out of the presence of the jury, the court asked defense counsel for legal authority to support their argument that evidence of the juvenile alleged victim's criminal history would be admissible. Defense counsel Smith told the court he could find "no more than the comments that are at the end of the evidence rules" and that to him "the element is so clear that it needs no briefing." He then stated "[i]f I come in here with every evidence rule and everything there is with a brief, I might as well just bring my whole law library in here." 21 Defense counsel Smith complained about the court's "control" of the trial. The court attempted to respond, 22 after which Mr. Smith stated, "[e]verything is 'why didn't we,' 'why didn't we,' 'why didn't the defendant?' Why didn't the defendant? The prosecuting attorney has had this defendant in jail ever since he was arrested. Mr. Ashbach made one good record at the omnibus when he tried to get these things, and all we get at this point, up until now is nothing, and you see what happened. Nothing is provided." 23 Judge Bruhn then agreed to review the transcript from the omnibus hearing and recessed court.

                the juvenile alleged victim.  The court sustained an objection, but apparently off the record since Mr. Smith continued to demand a ruling on the record.  The court went back on the record, admonished the jury to not discuss the case and to not visit Cascade Mall to gather evidence, and then recessed.  The court later reconvened and, out of the presence of the jury, Mr. Smith stated his objection on the record. 19  When reminded by the court to be careful what he said, Mr. Smith replied "you can't tell me what to say." 20
                

When court reconvened the next morning on April 2, 1991 for the in-chambers conference, the clerk of the court, both defense counsel and the prosecuting attorney were present.

                Discussion began with the question of admissibility of the juvenile alleged victim's criminal history and the prosecuting attorney's failure to provide defense counsel with that history.  When the court indicated it did not know what was ordered in the omnibus proceeding, Mr. Smith then stated, "I don't see how you could even rule on anything when you don't know what you are ruling on.  Sir, what if the kid had the exact same thing happen three other times?   Can you state right now he doesn't?   What if he did this three other times? " 24
                

The court then asked defense counsel Smith for "proof ... to establish evidence of character and reputation." Mr. Smith replied, "[r]ead 608." The court responded, "[t]hat doesn't tell you how you establish it in court." Mr. Smith then responded, "[y]eah, it does. Read 608. It says it can be done." 25

Judge Bruhn asked the prosecuting attorney why he had not provided defense counsel with information concerning the juvenile alleged victim's criminal history. The prosecutor replied that they ran a computer check and there was no criminal history. He repeated that defense counsel Ashbach was told by the juvenile alleged victim that he had a criminal history, and Mr. Ashbach indicated to the prosecutor they had subpoenaed the probation officer who could testify concerning the history. 26 Defense counsel Smith accused the prosecuting attorney of trying to hide evidence, but the prosecutor responded that Mr. Ashbach specifically did not want to interview the probation officer until the day of trial. Mr. Ashbach then stated to the prosecuting attorney, "You are a bald faced liar. I want the record to reflect Garl Long is a bald faced liar. He is a liar and I'm not going to participate in this." 27

The court brought the probation officer into the in-chambers conference to testify under oath. 28 The court granted In his opening statement defense counsel Smith commented about the juvenile alleged victim's criminal history. Out of the presence of the jury, the court stated agreement with the prosecuting attorney that it is unethical and unprofessional for a lawyer to make a statement when the lawyer does not know what the record shows. Whereupon Mr. Smith responded to the court, "[a] pretty good idea isn't good enough? I'm not going to let him hide stuff." 30

the defense a printout of the juvenile alleged victim's criminal history, but cautioned that the information remained confidential and privileged. 29

The court then remarked that counsel does not "go out and taint a jury with information that isn't accurate or you don't even know about. That is unethical." Mr. Smith then responded, "[i]f we are unethical, let me tell you about judicial misconduct. This is in answer to a question that was asked awhile ago. In a way I thought you might have been kidding when you said, 'Why isn't this a guilty plea?' That is what you said yesterday morning when we were all in this thing." 31

The court recessed and reconvened in open court with the jury present. Mr. Smith was asked to complete his opening statement, whereupon he began with the statement to the jury that, "[t]he court has directed me not to go into this man's--." 32 Several objections were made to this and other statements by Mr. Smith. The court sustained them, stating to Mr. Smith, "[t]hey are improper. This is merely an opening statement and that is all." Mr. Smith then said to the court, "[d]o you want to make it for me? I have a witness, Mel Mocabee, who is going to testify the lot is lit up with 1,000 watt bulbs. Do you not want to hear that either? " 33 Defense counsel Smith concluded his opening statement. The jury was excused during proceedings on another preliminary matter. 34 The jury was returned to the courtroom and the State began presentation of its case. During testimony by the juvenile alleged victim, and in the presence of the jury, Judge Bruhn asked whether the police report was consistent with the young man's testimony. Mr. Smith then stated to the court, "I don't like that, whether...

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