State v. Whalen
| Decision Date | 19 July 2011 |
| Docket Number | No. 40482-6-II,40482-6-II |
| Parties | STATE OF WASHINGTON, Respondent, v. VICTOR ALBERT LYLE WHALEN, Appellant. |
| Court | Washington Court of Appeals |
Van Deren, J. — Victor Albert Lyle Whalen appeals his conviction for possession of a controlled substance (heroin). He argues that he was denied a fair trial because the trial court denied (1) his continuance motion based on his desire to secure the presence of a witness and (2) his request to show his arms to the jury to refute the arresting officer's testimony. We affirm.
At 12:30 am on August 23, 2009, Washington State Patrol Trooper Sherri Murphy was searching for three suspects in an attempted robbery in Chehalis. Murphy observed a man watching her from a black Ford pickup truck's driver's seat parked on the road's shoulder. As Murphy drove by, the man exited the truck and waved and shouted to attract her attention. He approached her, asked Murphy if she was "looking for three guys," and informed her that they were in the nearby bushes. Report of Proceedings (RP) at 37. Although the man told Murphy hisname was Rusty, Murphy recognized him as Whalen and informed him that she knew that he had an outstanding arrest warrant. Murphy detained Whalen, confirmed the outstanding warrant, and placed him under arrest. Murphy searched Whalen incident to his arrest and found a plastic bag in his wallet that she believed contained heroin residue. Murphy looked inside the truck's window and observed a belt used for heroin injections. She also recovered a hypodermic needle from inside the truck.
The State charged Whalen with one count of possession of a controlled substance: to wit, heroin. The day Whalen's jury trial was scheduled to begin, Whalen's attorney informed the trial court that Whalen had told him only the day before that Whalen had received from his aunt the bag Murphy found in his wallet with a silver coin1 in it. Whalen wanted his aunt to testify to support his unwitting possession defense regarding the heroin residue in the bag.
The trial court and Whalen's defense attorney discussed on the record that, if the aunt were to testify, she could plead the Fifth Amendment2 or deny Whalen's version of events and that, without a trial continuance, any subpoena would be untimely. The trial court denied Whalen's continuance motion but granted Whalen a short recess to give his attorney time to go to the aunt's residence a few blocks from the courthouse. When Whalen's attorney returned, he indicated that he could not locate the aunt and that he learned the woman was not really Whalen's aunt.3
At trial, Murphy testified as described above. Dunn testified that the bag found in Whalen's wallet contained heroin residue. Whalen testified that (1) his nickname was Rusty; (2) the needle and belt found in his truck belonged to someone who had borrowed his truck; (3) he did not have track marks on his arms; (4) his aunt gave him the bag with a silver dollar in it because he collected coins; (5) although his aunt was not technically his aunt any longer, she was his aunt by marriage at one time; and (6) he did not know the bag contained heroin. Whalen asked to "publish his arms to the jury," the State objected, and the trial court sustained the objection. RP at 52.
The jury found Whalen guilty as charged and the trial court sentenced Whalen to 16 months' confinement.
Whalen first argues that the trial court erred in denying his continuance motion. We review the trial court's denial of a continuance motion for abuse of discretion. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
The trial court's decision on a continuance request will "be disturbed only upon a showing that the accused has been prejudiced and/or that the result of the trial would likely have been different had the continuance not been denied." State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974). The trial court must consider the totality of the circumstances, including diligence, materiality, due process, the possible impact on the trial, and the need for orderly procedure. State v. Early, 70 Wn. App. 452, 458, 853 P.2d 964 (1993). "[T]here are no mechanical tests for deciding when the denial of a continuance violates due process, inhibits a defense, or conceivably projects a different result; and, that the answer must be found in the circumstances present in the particular case." Eller, 84 Wn.2d at 96.
When a defendant moves to continue a proceeding he must show that he has exercised due diligence to assure the witness's attendance, that the witness would offer material evidence, and that the witness can probably be found if the trial court grants the continuance. State v. Lane, 56 Wn. App. 286, 296, 786 P.2d 277 (1989). A defendant's mere expectation that a witness would testify favorably to him "does not satisfy the materiality requirement; [the defendant] must present specific facts to which the witnesses would testify." State v. Wimbish, 100 Wn. App. 78, 85, 995 P.2d 626 (2000). "The unavailability of a material state witness is a valid ground for continuing acriminal trial where [(1)] there is a valid reason for the unavailability, [(2)] the witness will become available within a reasonable time, and [(3)] there is no substantial prejudice to the defendant." State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993).
Here, Whalen requested a continuance on January 8, 2010, the day trial was scheduled to begin. The State was available and ready to proceed. The State filed the information charging Whalen with heroin possession on August 24, 2009; thus, Whalen had over four months to locate his aunt between the filing of the information and the trial date.
Whalen did not inform his attorney of his aunt's existence until the day before trial. But Whalen either knew or should have known at the time the information was filed that his aunt had given him the bag containing the coin and the heroin and he should have further known whether she would testify on his behalf. He did not, however, inform his attorney about the aunt so she could be located or subpoenaed to trial. Furthermore, Whalen produced no evidence that his aunt would be willing to testify against her penal interest in admitting that she had possessed the bag with the heroin and that it had heroin in it before she gave it to Whalen. Without presenting the trial court with specific facts to which his aunt would testify, he did not meet the materiality requirement for continuing his trial to attempt to secure her presence. And, as Whalen's attorney noted, unless the court continued the trial and issued a subpoena to compel Whalen's aunt to testify, a subpoena would be untimely.
The trial court noted the tardiness of the motion and commented that Whalen should have made an "effort to notify his counsel of potential witnesses sometime other than the day before trial." RP at 12. Moreover, the trial court noted that Whalen had not demonstrated that his aunt had actually given or sold the bag to him and there was no showing that his aunt would testifyconsistent with Whalen's version of events.
The transcript of the discussion on the record between the trial court and Whalen's counsel supports the trial court's decision. Whalen's counsel informed the trial court that RP at 6. There was also no reason to...
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