State v. Myers

• Decision Date: 05 February 1976
• Docket Number: No. 43531,43531
• Citation: 545 P.2d 538,86 Wn.2d 419
• Parties: STATE of Washington, Respondent, v. Bruce Keith MYERS, Appellant.
• Court: Washington Supreme Court

Page 419

86 Wn.2d 419

545 P.2d 538

STATE of Washington, Respondent, v. Bruce Keith MYERS, Appellant.

No. 43531.

Supreme Court of Washington, En Banc.

Feb. 5, 1976.

Rehearing Denied April 15, 1976.

John A. Strait, Tacoma, for appellant.

Christopher T. Bayley, Pros. Atty., Michael P. Ruark, Seattle, for respondent.

HUNTER, Associate Justice.

The appellant (defendant), Bruce Keith Myers, appeals from a robbery conviction in a nonjury trial. On March 27, 1973, the trial judge imposed a 5-year deferred sentence and put the appellant on probation. At the conclusion of a probation revocation hearing held on February 21, 1974, the trial judge revoked appellant's probation, and entered judgment sentencing him to the Department of Institutions. In addition to his robbery conviction, appellant also appeals the decision rendered in the probation revocation hearing.

The events that led to appellant's robbery conviction took place on the night of November 29, 1972. Appellant and James Adwell, who was appellant's codefendant in the trial below, had spent most of the day together and were in a Seattle cocktail lounge. While at the bar, appellant Myers attempted to converse with one Albert Dahl, who was the robbery victim. Dahl ignored Myers and left the bar after paying his bill. The appellant and Adwell followed him out.

According to Dahl, he accepted a ride to his apartment with the appellant and Adwell. Dahl said he sat in the middle of the front seat between the driver Adwell and the passenger Myers, and upon arriving at the apartment parking lot, he exited the car from the driver's side. As he walked around the car, he was struck on the back of the head and knocked to the ground. He did not see who hit him and his assailant began kicking him once he was on the ground. A voice near the car threatened him, telling him that his assailant had a knife. When the voice inquired about his wallet, the assailant took it and returned to the car. The robbers then drove away.

Dahl contacted the police, a description of the car and the men was broadcast, and shortly thereafter the police picked up Myers and Adwell. Dahl's wallet and social security card were found on the person of appellant. The police also found a credit card belonging to Dahl in the glove compartment of the car.

Both the appellant and Adwell gave statements to the police. Adwell said that the appellant had jumped out of the car and assaulted Dahl when they arrived at the parking lot. Adwell's version of the events had him breaking up the fracas. He stated that he did not know that appellant had taken Dahl's wallet until sometime later when they were back in the car and had left the parking lot.

In his statement, Myers said that he had attacked Dahl only because Dahl had made an offensive grab for him as Dahl left the car. Appellant stated that this conduct by Dahl made him very angry and that his anger was the reason he hit and kicked Dahl. Appellant said that he had no intention of taking the wallet but merely happened to pick it up during the assault when he saw it on the ground.

At the trial, the appellant based his defense on a theory of diminished capacity, contending that the use of alcohol and drugs, along with an underlying psychiatric condition, prevented formation of a specific intent to rob the victim. The appellant maintained that he had no recollection of either the robbery or his subsequent statement to the police. Adwell, the codefendant, relied on his statement to the police that he had broken up the assault but knew nothing about the robbery until sometime later.

Appellant's first contention is that he was denied his constitutional right to confront and cross-examine witnesses because both he and his codefendant, Adwell, shared the same court-appointed counsel. He argues that the joint representation prevented effective confrontation and cross-examination since the attorney was, in effect, forced to represent conflicting interests. We disagree.

The right of cross-examination is guaranteed by the confrontation clause of the sixth amendment to the United States Constitution. See Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In Bruton v. United States, supra, the codefendant refused to take the witness stand at trial after the introduction into evidence of his pretrial statement, which seriously implicated the defendant. The Supreme Court held that the right to confrontation was denied thereby because the defendant thus was unable to cross-examine his codefendant. See Bruton v. United States,supra, 391 U.S. at 127--28, 88 S.Ct. 1620; See, e.g., State v. Craig, 82 Wash.2d 777, 788, 514 P.2d 151 (1973); State v. Braun, 82 Wash.2d 157, 163, 509 P.2d 742 (1973). The crucial factor in the right to confrontation of witnesses is the prevention of cross-examination that occurs when a codefendant whose statement has been introduced into evidence refuses to take the stand. See California v. Green, 399 U.S. 149, 153, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

In the present case both the appellant and his codefendant Adwell testified at the trial. The appellant therefore was not denied his right to confront and cross-examine the witnesses against him. See State v. McIntyre,3 Wash.App. 799, 803, 478 P.2d 265 (1970). In addition, the substance of codefendant Adwell's statement directly implicated the appellant in only the assault and not the robbery. In fact, Adwell maintained in his statement that he knew nothing at all about the wallet until after he and appellant had left the scene of the incident. Because the statement of Adwell was not incriminatory on its face with respect to the robbery, there is no reason to apply the principles of Bruton v. United States, supra, even if Adwell had not testified at the trial. See State v. Ferguson, 3 Wash.App. 898, 905, 479 P.2d 114 (1970), citing State v. Gibson, 3 Wash.App. 596, 601, 476 P.2d 727 (1970). Moreover, independent of the statement of Adwell, there was substantial evidence of appellant's guilt, including appellant's own incriminating statement, and thus the protections established in Bruton v. United States, supra, were not required. See State v. Todd, 78 Wash.2d 362, 368, 474 P.2d 542 (1970), citing State v. Aiken, 75 Wash.2d 421, 452 P.2d 232 (1969). Consequently, we hold that Bruton does not apply to the facts of this case. Appellant's constitutional right to confront and cross-examine witnesses was not denied because he shared court-appointed counsel with his codefendant.

Appellant's second contention with regard to the trial is that he was denied his constitutional right to the effective assistance of counsel. Like the issue discussed above, this argument is based on the fact that the same court-appointed counsel represented both the appellant and his codefendant. Appellant asserts that his interests conflicted with those of his codefendant Adwell, and, as a result, he was denied the effective assistance of counsel to his prejudice. We do not agree.

The right to effective assistance of counsel is a fundamental one, guaranteed by the sixth amendment to the United States Constitution. In the absence of a clear waiver, the right to effective assistance of counsel requires assistance that is unimpaired by the simultaneous representation of conflicting interests. See Glasser v. United States, 315 U.S. 60, 69, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Bible,77 Wash.2d 69, 71, 459 P.2d 646 (1969). It is well established, however, that there must be some prejudice to a defendant before a denial of the effective assistance of counsel based on joint representation will be found. Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243, 246 (1967). The test for determining whether a defendant has been denied the effective assistance of counsel is as follows: "After considering the Entire record, can it be said that the accused was afforded an Effective representation and a Fair and Impartial trial?" State v. Johnson, 74 Wash.2d 567, 570, 445 P.2d 726, 728 (1968), quoting State v. Thomas, 71 Wash.2d 470, 471, 429 P.2d 231 (1967). See State v. Kennedy, 8 Wash.App. 633, 638, 508 P.2d 1386 (1973). Applying this standard to the facts of the present case, we find there is nothing in the record indicating even a possibility that the appellant may have been actually prejudiced because he and his codefendant, Adwell, shared the same court-appointed attorney. The defense theories of the appellant and Adwell were totally compatible--they did not conflict in any way whatsoever.

Appellant asserts that his possible total innocence was never explored because it would have required cross-examination of Adwell with respect to his participation in the robbery, I.e., an attack on codefendant Adwell's statement that he had no knowledge of the robbery. Appellant contends that this conflict prevented counsel from pursuing this approach and thereby prejudiced his case. A review of the record, however, shows that on the contrary, the failure of defense counsel to cross-examine the codefendant Adwell as to the extent of his participation in the robbery was not possibly prejudicial to Myers. His suggestion that such an attack on his codefendant's defense could have helped shift the blame from appellant is without merit because he, in effect, admitted the physical acts that constitute the crime of robbery when he based his defense on an absence of the requisite intent. Adwell's participation or nonparticipation in the robbery could have no effect on the question of appellant's guilt. We do not see how the destruction of Adwell's defense via cross-examination would have altered the facts and circumstances giving rise to the case against the appellant. Consequently, we hold, under the rules stated above, that sharing a court-appointed...