State v. McCoy, No. 33694-4-II (Wash. App. 12/5/2006)
| Decision Date | 05 December 2006 |
| Docket Number | No. 33694-4-II,33694-4-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CELINE KAYE McCOY, Appellant. |
Appeal from Pierce County Superior Court. Docket No: 03-1-05039-5. Judgment or order under review. Date filed: 07/22/2005. Judge signing: Honorable Beverly G Grant.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, 3800 Bridgeport Way W Ste A23, University Place, WA 98466-4495.
Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Celine K. McCoy appeals her convictions for first and second degree theft. She claims that (1) the trial judge should have recused herself after McCoy alleged they attended the same church and the judge had previously represented her; (2) the trial court should have granted her a continuance to procure the presence of two out-of-state witnesses; (3) juror misconduct resulted in an unfair trial; and (4) there was insufficient evidence of the corpus delicti of the charged crimes. We hold that (1) McCoy presented insufficient evidence of the judge's actual or potential bias; (2) there is no evidence in the record that the out-of-state witnesses were material; (3) the juror she complains of was removed from the jury before deliberations; and (4) McCoy did not raise a corpus delicti objection at trial, thus precluding her raising that issue here.
Accordingly, we affirm.
Smiley Auto office manager, Linda Petty, was reconciling bank statements when she noticed a discrepancy between a reported deposit and her photocopy of the corresponding deposit slip. She called the bank and discovered that the deposit slip had been altered, reducing the amount of the deposit from $976 to $676. As she continued checking the account, she found that two other cash deposits, in the amounts of $2,326.52 and $2,300.01, were missing.
Petty asked another Smiley Auto employee, Celine McCoy, about the missing deposits. McCoy, who did not usually make deposits, had done so "as a favor to [Petty] because [she] was on the way out of town." Report of Proceedings (RP) (May 18, 2005) at 59. McCoy told Petty that she had given the deposit receipts to her, but Petty insisted she did not have them. Later, McCoy changed her explanation and told Petty that the funds were missing because "the manager of the car lot had told her that he was going to lend her some money and that she needed the money." RP (May 18, 2005) at 58. When confronted, McCoy admitted to a police officer and to one of the car lot's owners that she had taken the money.
In October 2003, the State charged McCoy with two counts of first degree theft and two counts of second degree theft based on the missing money. The State dropped one count of second degree theft on the first day of trial. The case was originally scheduled for trial in December 2003 but, before the case finally went to trial in May 2005, the trial court granted eight continuances at McCoy's request. Trial was further delayed by McCoy's failure to appear once and by her five changes of counsel.
On the eve of the May 2005 trial, McCoy made several attempts to further delay the proceedings. On May 11, her counsel unsuccessfully asked for a continuance, claiming that McCoy had recently disclosed the names of two out-of-state witnesses and that he did not yet know the precise testimony of these witnesses or whether their testimony would be material. On May 12, counsel again moved to continue the trial because a half an hour earlier McCoy indicated that she had been a victim of domestic violence and may have suffered brain damage that would render her incompetent or could raise a diminished capacity defense. Because McCoy was able to understand the proceedings and to communicate with her counsel, the trial court denied the motion.
On May 17, the first day of trial, McCoy's counsel asked the trial court for a continuance in order to procure the two missing witnesses, this time stating that their testimony was material to McCoy's consent defense. Because a different judge had denied the same motion the day before, the trial court ordered the trial to proceed. McCoy then claimed that she was not ready for trial because she had suffered a death in the family the preceding night. When the trial court still insisted on proceeding, McCoy asked the trial judge to recuse herself because McCoy and the judge attended the same church and because the judge had represented McCoy in a personal injury case in 1998. McCoy produced no evidence of either claim. The judge stated that she did not recognize McCoy. When McCoy then stated that she wanted to hire new counsel, the trial court stated that "all of these road blocks are just ruses" and insisted that the trial go forward. RP (May 17, 2005) at 19.
After the State rested, McCoy moved for a mistrial on the basis that she believed one of the State's witnesses lied on the stand, but she could not call her intended witnesses to contradict him. The trial court reviewed the lengthy record of continuances and delays and determined that McCoy had been given ample time and notice to complete her investigation and denied the motion. The defense then rested without calling any witnesses.
After the judge instructed the jury, the judicial assistant noticed that Juror No.12 had a book titled, The Hidden Jury: and Other Secret Tactics Lawyers Use to Win, authored by Paul M. Lisnek, with a foreword by Johnnie Cochran. The trial court questioned Juror No. 12 about the book. He stated that he had brought in the book for the first time that day, he had no discussions with any other jurors about the book, but one juror had commented on the title and he had responded, "Yes." RP (May 18, 2005) at 88. The chapter titles,1 as read into the record by the trial court, undermined and demeaned the jury trial process.
The State argued that no harm had been done because the book had nothing to do with McCoy's case and seemed to be about courts in general. McCoy claimed that the book implied a great divide between the appearance and the reality of the court system and moved to strike Juror No.12 for cause and for a mistrial based on juror misconduct.
The trial court granted McCoy's motion to remove Juror No. 12 and examined each of the remaining jurors about their exposure to the book. Seven jurors said they had seen the book. Only one juror described a brief conversation with Juror No.12 about the book. He told Juror No. 12 that it seemed like a "funny book" to have on a jury. RP (May 18, 2005) at 105. The trial judge denied the mistrial motion, stating that "it appears that no one had any conversation about the subject matter or topic or any substance about the book other than that they saw it on the table in the jury room or saw it downstairs, that he was sort of isolated from the others reading a book." RP (May 18, 2005) at 108.
The jury found McCoy guilty on one count of first degree theft and one count of second degree theft, and not guilty on one count of first degree theft.
McCoy first argues that the trial judge violated the appearance of fairness doctrine by refusing to recuse herself when McCoy claimed that she and the judge attended the same church and that the judge had previously represented her. "'Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing.'" State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992)); see also State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996) () (citing In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). But recusal lies within the trial court's sound discretion, Bilal, 77 Wn. App. at 722, and the claimant bears the burden of showing a judge's actual or potential bias. State v. Perala, 132 Wn. App. 98, 113 (citing State v. Post, 118 Wn.2d 596, 619 n.9, 826 P.2d 172, modified by 837 P.2d 599 (1992)). McCoy has not met this burden.
Dominguez is directly on point. There, the judge had previously represented the defendant in a criminal proceeding and had prosecuted the defendant in a later proceeding. Dominguez, 81 Wn. App. at 327-28. The defendant also claimed to have filed a lawsuit or disciplinary complaint against the judge following the case in which the judge had represented him. Dominguez, 81 Wn. App. at 327. Division Three of this court held that the defendant's "bare oral assertion" that he had filed an action against the judge did not meet the evidentiary requirement for showing a violation. Dominguez, 81 Wn. App. at 329.
Moreover, the court held that the fact the judge had acted, in his professional capacity, once for the defendant and once against him, on unrelated cases, did not establish potential bias. Dominguez, 81 Wn. App. at 329.
McCoy presented no evidence beyond her oral assertions that she and the trial judge attended the same church or that the trial judge had previously represented her. Here, no reasonable, disinterested observer would find that the trial judge was biased against McCoy simply on the basis of attending the same church, especially when the judge did not recognize her. Furthermore, her claim that the judge had represented her in a civil action, if true, is weaker evidence of bias than the criminal prosecution and representation in Dominguez.
Accordingly, McCoy has not shown that the appearance of fairness was violated by the trial judge's refusal to recuse herself and McCoy is not entitled to a...
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