IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 75610-9-1
Respondent, DIVISION ONE
V.
TOMMIE LEE DAVIS, PUBLISHED
Appellant. FILED: May 29, 2018
Cox, J. — Tommie Davis appeals his judgment and sentence following his
conviction for unlawful possession of a firearm. He argues that five prior
California burglary convictions were neither legally nor factually comparable to
burglary in Washington and should not have been included in his offender score
at sentencing. We agree.
He also argues that the failure to personally provide him with discovery
and his inability to obtain access to the jail library while awaiting trial deprived
him of due process and the right to consult with counsel in a meaningful manner.
He further claims that he was deprived of effective assistance of counsel in
certain respects. He also argues that the trial court abused its discretion by
No. 75610-9-1/2
denying motions for a continuance, substitution of counsel, and a new trial. We
reject all of these arguments, except one.
In his statement of additional grounds, Davis claims that the taking of his
DNA unconstitutionally compelled him to incriminate himself. He also claims
unconstitutional discovery violations. These arguments are unpersuasive and we
reject them all.
We affirm in part, reverse in part, and remand for resentencing.
Davis got into a fight one night with Linda Wilson. As tensions rose, Davis
drew a handgun. By Wilson's account, he fired the gun at her abdomen. He
claimed that the gun fired accidentally when Wilson grabbed at it.
Davis was arrested as he fled the scene. As he fled, he stashed the gun
under a parked car, where police retrieved it. Forensic analysis found Davis's
DNA on the gun and a ballistic match to the bullet removed from Wilson. But the
analysis showed no evidence of Davis's fingerprints on the gun.
The State charged Davis with one count of first-degree assault with a
firearm allegation, and one count of first-degree unlawful possession of a firearm.
Pretrial, police disclosed to Davis's counsel the lack of Davis's fingerprints on the
gun. At trial, Davis testified that he owned the gun in question. Accordingly, he
conceded that he was guilty of unlawfully possessing a firearm. The jury found
him guilty of this crime but not guilty of first-degree assault.
Davis then moved pro se for a new trial based on the State's alleged
failure to provide adequate discovery. The trial court denied that motion,
2
No. 75610-9-1/3
concluding that Davis lacked an independent right to discovery because he was
represented by counsel through trial.
The trial court duly sentenced Davis. In doing so, the court included in his
offender score of eight five prior burglary convictions in California.
This appeal followed.
COMPARABILITY
Davis argues that the five prior California burglary convictions are neither
legally nor factually comparable to Washington burglary and should not have
been included in his offender score. We agree.
"The offender score is the sum of points accrued as a result of prior
convictions."1 Out-of-state convictions count towards that score if the trial court
determines them to be coniparable.2 The State bears the burden to show that
out-of-state convictions exist and are comparable.3
The comparability analysis has two steps, one legal, and the other factual.
At the legal step, the trial court "compare[s]the elements of the out-of-state
conviction to the relevant Washington crime."4 The conviction counts if its
statutory definition "is identical to or narrower than the Washington statute and
thus contains all the most serious elements of the Washington statute."5 The
1 State v. Olsen, 180 Wn.2d 468, 472, 325 P.3d 187(2014).
2 Id.
3 Id.
4 Id.
5 Id. at 473.
3
No. 75610-9-1/4
foreign statute establishing the offense carries with it the construction placed
upon it by the other jurisdiction's controlling court.6
If the statutory definition of the relevant conviction is broader than its
Washington equivalent, then the trial court proceeds to the factual step.7 It
determines whether the conduct underlying the out-of-state conviction would
have violated the comparable Washington statute.8 In making this determination,
the trial court considers "only facts that were admitted, stipulated to, or proved
beyond a reasonable doubt."9
Thus, the court cannot consider "[f]acts or allegations contained in the
record, if not directly related to the elements of the charged crime,[which] may
not have been sufficiently proven in the trial."16 Accordingly, for example, the
court cannot consider factual allegations in an indictment that were not tested
and proven in tria1.11
This court reviews de novo the trial court's comparability analyses in
calculating a defendant's offender score.12
6 See State v. Carroll, 81 Wn.2d 95, 109, 500 P.2d 115 (1972).
7 Olsen, 180 Wn.2d at 478.
8 Id.
9 Id.
In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837
10
(2005)(quoting State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167(1998)).
11 Olsen, 180 Wn.2d at 475-76.
12 Id. at 472.
4
No. 75610-9-1/5
Legal Prong
The first step in our analysis is to determine whether burglary in California
is legally comparable to burglary in Washington. They are not legally
cornparable.
RCW 9A.52.030(1) defines burglary in the second degree in Washington
as follows:
A person is guilty of burglary in the second degree if, with intent to
commit a crime against a person or property therein, he or she
enters or remains unlawfully in a building other than a vehicle or
a dwelling.
Burglary in California is defined by Cal. Penal Code § 459, in relevant part,
as follows:
Every person who enters any house, room, apartment, tenement,
shop, warehouse, store, mill, barn, stable, outhouse or other
building, tent, vessel... or mine or any underground portion
thereof, with intent to commit grand or petit larceny or any felony is
guilty of burglary.
A straightforward reading of the plain words of the two statutes shows that
they are not legally comparable. First, the Washington burglary statute requires
proof that the "entry" itself must be independently "unlawful."13 In contrast, the
plain words of the California statute only require an "ent[ry]." The words of the
statute do not require that the entry itself be independently unlawful.
Second, the Washington second degree burglary statute is confined to
entry of "buildings," as that term is used in Washington. In contrast,§ 459 has a
13 State v. Thomas, 135 Wn. App. 474, 486, 144 P.3d 1178 (2006).
5
No. 75610-9-1/6
broader scope. For example, it includes "mine[s] or any underground portion
thereof." This is beyond the scope of "buildings," as used in Washington.
The State concedes in its briefing that the scope of the California statute is
broader than that of Washington. But it does so solely on the basis that the
California statute does not confine its scope to "buildings," as does Washington's
burglary statute.14
The State further argues that the California statute "[i]mposes [a]
[c]ommon Maw [r]equirement [o]f[u]nlawful [e]ntry."15 Because this is not
supported by a close reading of relevant authorities, we disagree.
We are guided in our analysis of whether "unlawful entry" is an element of
§ 459 by the decision of the United States Supreme Court in Descamps v. United
States.16 There, the Court considered whether Michael Descamps's prior
California convictions for burglary and other crimes could be used to enhance his
sentence under the Armed Career Criminal Act(ACCA). He argued that the
burglary convictions could not count under federal law. As in this case, he had
pleaded guilty to violating § 459.
He also argued that the text of § 459 broadly states the elements of
burglary in California by providing that "a person who enters' certain locations
'with intent to commit grand or petit larceny or any felony is guilty of burglary.'"17
14 Brief of Respondent at 9.
15 Id. at 8-9.
16 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).
17 Id. at 258-59 (quoting Cal. Penal Code § 459).
6
No. 75610-9-1/7
Citing its earlier decision in Taylor v. United States, the Court started its
analysis of whether a prior conviction for burglary could be used to enhance an
ACCA sentence:
But if the statute sweeps more broadly than the generic crime, a
conviction under that law cannot count as an ACCA predicate, even
if the defendant actually committed the offense in its generic form.
The key, we emphasized, is elements, not facts. So,for example,
we held that a defendant can receive an ACCA enhancement for
burglary only if he was convicted of a crime having 'the basic
elements' of generic burglary—i.e.,'unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to commit a
crime.' And indeed, we indicated that the very statute at issue
here, § 459, does not fit that bill because "California defines
'burglary' so broadly as to include shoplifting.1[18]
Had the Supreme Court viewed § 459 to include "unlawful entry," it would
have said so. But it concluded that the scope of the statute exceeded the scope
of what it called "generic burglary—Le., unlawful or unprivileged entry" into a
building with the requisite intent to commit a crime.
Applying this principle to the statutes before us, the Washington burglary
statute encompasses what the Supreme Court calls "generic burglary" because it
requires unlawful entry as an independent element. The California burglary
statute, on the other hand, does not require unlawful entry as an element. It is
broader. For example, as the Descamps court observed, it includes shoplifting.
The two statutes do not have comparable legal elements.
18 Id. at 261 (quoting Taylor v. United States, 495 U.S. 575, 591, 599, 110
S. Ct. 2143, 109 L. Ed. 2d 607(1990))(emphasis added).
7
Z"
No. 75610-9-1/8
The State principally relies on People v. Davis,19 a California Supreme
Court case, to support its argument that the crime of burglary in California
includes the element of unlawful entry. That reliance is misplaced.
There, Michael Wayne Davis was convicted of burglary and other
crimes.20 He had presented a forged check to the teller at a check-cashing
business by placing a check at a chute in a walk-up window.21 On appeal, he
challenged the sufficiency of the evidence to convict him of burglary because his
use of the chute at a check cashing walk-up window could not reasonably be
termed an entry into a building for purposes of § 459.22
The focus of the California Supreme Court's analysis was the word "entry,"
which is not defined by statute. The court ultimately held that the placement of a
forged check in the chute of a walk-up window of the check cashing facility did
not constitute "entry" for purposes of the statute.23
In reaching its conclusion, the court surveyed a number of California
cases. It cited a prior case that had stated that "[t]he crime of burglary consists
of an act-unlawful entry-accompanied by the 'intent to commit grand or petit
19 18 Cal. 4th 712, 958 P.2d 1083(1998).
20 Id. at 714.
21 Id.
22 Id. at 715.
23 Id. at 724.
8
No. 75610-9-1/9
larceny or any felony.'"24 Other than quoting § 459, that case did not explain why
this is so. And it made no mention of the State's argument in the case before us,
that this statute incorporates the common law element of unlawful entry.
In any event, we do not read this statement regarding unlawful entry in
Davis as the holding in that case. The word "unlawful" does not appear to have
been at issue there. So, we are unpersuaded by the State's argument here that
the California statute incorporates the common law element of unlawful entry.
Likewise, we are unpersuaded by the State's argument that the use of the
word "unlawful" in the California charging documents in the record before us
illustrates that § 459 incorporates this common law element. Why the charging
documents before us include that language is unexplained in the record. We will
not speculate why the documents include this usage.
For these reasons, we hold that § 459 is not legally comparable to the
Washington second degree burglary statute, RCW 9A.52.030(1). Unlawful entry
is not an element of that statute. And the statute is legally broader than
Washington's burglary statute because it includes entry into places beyond the
scope of "building," as that term is used in Washington's burglary statute.
Factual Prong
Davis next argues that the State fails to meet its burden to show that the
factual prong of comparability analysis is satisfied. We agree.
24People v. Montoya, 7 Cal. 4th 1027, 1041, 874 P.2d 903(1994)(quoting
Cal. Penal Code § 459).
9
No. 75610-9-1/10
Again, we are guided in our analysis by the United States Supreme
Court's decision in Descamps.25 In State v. Olsen, our state supreme court
concluded that the federal framework of analysis for analyzing foreign convictions
under the ACCA, as discussed in Descamps,"is consistent with the [In re
Personal Restraint of] Lavery framework, which limits our consideration of facts
that might have supported a prior conviction to only those facts that were clearly
charged and then clearly proved beyond a reasonable doubt to a jury or admitted
by the defendant."26 Underlying the analysis of prior convictions in these two
cases is the Constitutional protection that "judicial determinations will not usurp
the role of the jury in violation of the Sixth Amendment," as explained by
Apprendi v. New Jersey and its progeny.27
In Descamps, the Supreme Court stated:
[The dispute] involves a simple discrepancy between generic
burglary and the crime established in § 459. The former requires
an unlawful entry along the lines of breaking and entering. The
latter does not, and indeed covers simple shoplifting, as even the
Government acknowledges. In Taylor's words, then, § 459
`define[s] burglary more broadly' than the generic offense. And
because that is true—because California, to get a conviction, need
not prove that Descamps broke and entered—a § 459 violation
cannot serve as an ACCA predicate. Whether Descamps did
25 570 U.S. 254.
26 180 Wn.2d468, 476, 325 P.3d 187(2014); see In re Pers. Restraint of
Lavery, 154 Wn.2d 249, 111 P.3d 837(2005).
27 Id. at 477; see also Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435(2000).
10
No. 75610-9-1/11
break and enter makes no difference. And likewise, whether
he ever admitted to breaking and entering is irrelevant.[281
The question here is whether the State has met its burden to prove that
the five prior convictions for burglary under § 459 are factually comparable to
burglary in Washington, given that they are not legally comparable.
In State v. Thomas, this court performed a factual comparability analysis
to determine whether prior California burglary convictions under § 459 were
comparable to Washington burglary.29 There, the State conceded that § 459 is
not legally comparable to Washington burglary.39 But the State urged that the
record in that case showed that the charging documents,judgments, and the
clerk's notation of the jury verdict established that Thomas had admitted that he
entered a Sears store "unlawfully."31
In analyzing for factual comparability, this court stated:
The key inquiry is whether, under the Washington statute, the
defendant could have been convicted if the same acts were
committed in Washington. While the sentencing court can examine
the indictment or information as evidence of the underlying conduct,
the elements of the crime remain the focus of the analysis.
The court in Leven,cautioned against reliance on allegations
that are unrelated to the elements of the crimeJ321
Quoting Lavery, this court further stated that:
28 570 U.S. at 264-65 (quoting Taylor, 495 U.S. at 599)(internal citations
omitted)(emphasis added).
29 135 Wn. App. 474, 483, 144 P.3d 1178(2006).
30 Id.
31 Id.
32 Id. at 485(emphasis added).
11
No. 75610-9-1/12
lw]hile it may be necessary to look into the record of the foreign
conviction to determine its comparability to a Washington offense,
the elements of the charged crime must remain the
cornerstone of the comparison. Facts or allegations contained
in the record, if not directly related to the elements of the
charged crime, may not have been sufficiently proven in the
trial.'[33]
This court also noted that where "the elements of the foreign crime are
broader, there may be no incentive for a defendant to prove that he is guilty
of more narrow conduct."34
With these principles in mind, we examine this record to see if the State
met its burden of proof to show factual comparability.
Davis' March 6, 1996 burglary in California is the first on which the State
relies. It is evidenced by the Felony Complaint dated March 7, 1996, that
alleges, in relevant part, in Count 1:
On or about March 6, 1996, in the County of Los Angeles,
the crime of SECOND DEGREE COMMERCIAL BURGLARY, in
violation of PENAL CODE SECTION 459, a Felony, was committed
by TOMMIE LEE DAVIS, who did willfully and unlawfully enter a
commercial building occupied by JOHN'S FOOD MARKET with the
intent to commit larceny and any felony.[36]
This record also reflects that Davis eventually pleaded guilty to Count 1 of
this Felony Complaint.36
Id.(quoting Lavery, 154 Wn.2d at 255)(internal quotations omitted)
33
(emphasis added).
34 Id.(quoting Lavery, 154 Wn.2d at 258)(emphasis added).
35 Clerk's Papers at 173(emphasis added).
36 Id. at 177, 179.
12
No. 75610-9-1/13
His April 10, 1993 burglary is the second on which the State relies. It is
evidenced by the Felony Complaint dated April 13, 1993, that alleges facts that
largely parallel those quoted above, except for the date and place of the
"unlawful"entry.37 This record also contains a plea form, evidencing that Davis
pleaded guilty "to the[§ 459 burglary] offense(s) charged in [the felony]
complaint."38
Davis's October 2, 1991 burglary is the third on which the State relies. It
is evidenced by the Felony Complaint dated October 3, 1991 that alleges facts
that largely parallel those quoted above, with the same exceptions as to date and
place of the "unlawful"entry.39 This record also contains a plea form,
evidencing that Davis pleaded guilty "to the [§ 459 burglary] offense(s) charged in
[the felony] cornplaint."4°
His August 30, 1989 burglary is the fourth on Which the State relies. It is
evidenced by the Felony Complaint dated September 1, 1989, that alleges facts
that largely parallel those quoted above, except as to the date and place of the
"unlawful"entry.41 This record also contains a plea form showing that Davis
37 Id. at 182(emphasis added).
39 Id. at 233.
39 Id. at 187(emphasis added).
40 Id. at 191.
41 Id. at 198(emphasis added).
13
No. 75610-9-1/14
pleaded guilty "to the [§ 459 burglary] offense(s) charged in [the felony]
complaint."42
The February 6, 1988 burglary is the final one on which the State relies. It
is evidenced by the Felony Complaint dated February 9, 1996, that alleges facts
that largely parallel the prior quotation, except as to the date and place of the
"unlawful" entry.43 This record also contains a plea form together with a
transcript of a hearing in open court in which Davis pleaded guilty to the charge
of "commercial burglary in violation of Penal Code Section 459, a felony."'"
These burglaries fall short of the proof required to show that they should
be included in Davis's offender score. First, as Descamps, Lavery, and Thomas
stress, the elements of the foreign crime remain the focus of any factual inquiry
when performing a factual comparability analysis. Thus,facts untethered from
the elements of the charged crime to which a defendant later pleads guilty are
not within this focus. That is because permitting such facts to support use of a
prior conviction runs the risk of violating the Sixth Amendment protections
discussed in Apprendi and its progeny.
Second, as we already discussed in this opinion,§ 459 does not include
an "unlawful entry" element, as does Washington's burglary statute. The
California statute is much broader, as the Supreme Court expressly determined
in Descamps. This court reached the same conclusion in Thomas.
42 Id. at 202.
43 Id. at 209(emphasis added).
44 Id. at 220.
14
No. 75610-9-1/15
Third, the consequence of these principles is that it is irrelevant whether
Davis pleaded guilty to "unlawful entry," as alleged in the California felony
complaints in this record. As Descamps stated, that is irrelevant for purposes of
sentencing enhancement under the ACCA. We see no reason to reach a
different conclusion under our state comparability analysis.
The State makes two arguments in support of including these burglary
convictions in the offender score. Neither is convincing and we reject them both.
In its briefing on appeal, the State argues that § 459 incorporates the
"unlawful entry" of common law burglary. If this were correct, then Davis's plea
that followed would not run afoul of the principles this court stated in Thomas,
quoting Lavery. But we already discussed and rejected in this opinion why
"unlawful" entry is not an element of § 459. Thus, inquiry into facts in the felony
complaints that are not tied to that statute's elements is improper.
At oral argument, the State advanced another argument. As we
understand it, the State took the position that even if "unlawful entry" is not an
element of§ 459, use of the prior convictions in his offender score is still
permissible because he admitted "unlawful entry" by his plea. We disagree.
In support of this argument, the State appears to selectively rely on
language from Olsen and other supreme court cases that states when a prior
conviction may be used for enhancement. Courts are limited to "consideration of
facts that might have supported a prior conviction to only those facts that were
15
No. 75610-9-1/16
clearly charged and then clearly proved beyond a reasonable doubt to a jury or
admitted by the defendant."45
We say "selectively" because this statement of principle does appear, on
its face, to permit use of any facts "admitted by the defendant." But this
statement omits qualifying language in Lavery that in performing this factual
inquiry:
'the elements of the charged crime must remain the cornerstone of
the comparison. Facts or allegations contained in the record, if
not directly related to the elements of the charged crime, may
not have been sufficiently proven in the trial.'(46]
Thus, as we stated in Thomas,"the elements of the crime remain the
focus of the analysis."47 This court noted that "[t]he court in Lavery cautioned
against reliance on allegations that are unrelated to the elements of the crime."48
Only when one applies these limitations in considering the factual prong of
the comparability analysis does one reach a constitutionally permissible result.
As Lavery, Thomas, and Descamps make clear, facts in a charging document
that are untethered to the elements of a crime are outside the proper scope of
what courts may consider in the factual prong of analysis.
Moreover, as Lavery and Thomas make clear, allowing the use of such
facts is also inappropriate because a defendant charged with a broader foreign
45 Olsen, 180 Wn.2d at 476(emphasis added).
Lavery, 154 Wn.2d at 255 (quoting Morley, 134 Wn.2d at 606)
46
(emphasis added).
47 135 Wn. App. at 485(emphasis added).
48 Id.
16
No. 75610-9-1/17
offense may not have an incentive to prove that he is guilty of narrower conduct
covered by a Washington statute."
For these reasons, we reject this argument as well.
INEFFECTIVE ASSISTANCE OF COUNSEL
Davis argues that he received ineffective assistance of counsel in several
respects. We agree with one claim, but reject the other.
The Sixth Amendment to the federal constitution guarantees a criminal
defendant's right not only to counsel, but to counsel whose assistance is
effective.50 The Washington Constitution provides an analogous right in article 1,
section 22.51 The United States Supreme Court explained in Strickland v.
Washington that the benchmark of this right is "whether counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result."52
The defendant demonstrates the ineffectiveness of his counsel by meeting
a two-part burden. He must first show that counsel's performance was
unreasonably ineffective and, second, that such ineffectiveness prejudiced the
49 Laverv, 154 Wn.2d at 257; Thomas, 135 Wn. App. at 485.
50 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,80 L. Ed.
2d 674 (1984).
51 State v. Quy Dinh Nguyen, 179 Wn. App. 271, 287, 319 P.3d 53(2013).
52 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
17
No. 75610-9-1/18
results of his case.53 Because he must meet both elements, the court need not
address both if either is found wanting.54
The supreme court has held that failure to object to an improper
comparability analysis is ineffective assistance of counse1.55 Prejudice is self-
evident as it increases the defendant's offender score. Thus, the only question is
whether the trial court would have reached the same result if it had properly
conducted the comparability analysis.56
Here, the State failed to prove that the California burglary convictions were
either legally or factually comparable. Based on this deficient showing, the
failure to object constituted ineffective assistance of counsel. The result altered
Davis's offender score and thus prejudiced him in sentencing.
Davis next claims his attorney was ineffective for failing to timely provide
him with redacted copies of discovery. We disagree with this claim.
CrR 4.7(h)(3) allows defense counsel "to provide a copy of the [discovery]
materials to the defendant after making appropriate redactions which are
approved by the prosecuting authority or order of the court." Davis provides no
authority for the proposition that failure to provide discovery falls below an
53 Id. at 687.
54 Id. at 697. ,
55 State v. Thiefault, 160 Wn.2d 409, 414-17, 158 P.3d 580 (2007).
56 Id. at 417.
18
No. 75610-9-1/19
objective standard of reasonableness or prejudiced the result at tria1.57 Thus, we
reject this argument.
Davis further argues that defense counsel's conduct in this regard
impaired his right "to aid his attorney.'"58 The case he cites for that proposition,
State v. Hightower, simply fails to state such a rule.58 So, we also reject this
argument.
CONSULTATION WITH COUNSEL
Davis argues that two barriers unconstitutionally deprived him of the
assistance of counsel. These claimed barriers were a lack of reasonable access
to the jail law library and lack of timely access to discovery including certain
fingerprint results. We disagree.
The federal and state constitutions guarantee the defendant's right to
counse1.8° The right "carries with it a reasonable time for consultation and
preparation."61 The defendant is entitled to an "opportunity for private and
continual discussions" with counsel through tria1.82
57 See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 248, 350 P.3d
647(2015); RAP 10.3(a)(6).
Opening Brief at 30(quoting State v. Hightower, 36 Wn.
58 Appellant's
App. 536, 543,676 P.2d 1016 (1984)).
59 See 36 Wn. App. 536, 543, 676 P.2d 1016 (1984).
v. Ulestad, 127 Wn. App. 209, 214, 111 P.3d 276 (2005); U.S.
89 State
CONST. amend. VI; U.S. CONST. amend. XIV; CONST. art. 1, § 22.
81 State v. Hartwig, 36 Wn.2d 598, 601, 219 P.2d 564 (1950).
82 State v. Hartzog, 96 Wn.2d 383, 402,635 P.2d 694 (1981).
19
No. 75610-9-1/20
The State has an obligation to allow pro se defendants "reasonable
access to legal materials, paper, writing material, and the like."63 The form this
access takes is flexible and may include appointment of standby counsel instead
of law library access." Such flexibility permits the trial court to determine the
reasonable scope of necessary access in light of all relevant circumstances.65 A
defendant represented by counsel is not entitled to the same scope of access as
he is not entitled to serve as his own "hybrid representation."66
Importantly, the federal constitution only protects Davis's right to counsel
from state interference.67 And Davis fails to indicate any authority suggesting
that the State constitutional protections reach beyond State action." A
defendant's attorney is not a state actor.69
Here, Davis was represented by counsel. He reported to the court that jail
inmates represented by counsel were allowed only one hour a week at the jail's
Westlaw workstations, which was not guaranteed due to the prioritization of
access for pro se defendants. The State's duty to ensure reasonable access to
63 State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987).
64 Id. at 524-25.
65 State v. Silva, 107 Wn. App. 605,622-23,27 P.3d 663(2001).
66 Hightower, 36 Wn. App. at 540.
67 United States v. Morrison, 529 U.S. 598, 621, 120 S. Ct. 1740, 146 L.
Ed. 2d 658 (2000).
68 See Darkenwald, 183 Wn.2d at 248; RAP 10.3(a)(6).
69 Vermont v. Brillon, 556 U.S. 81, 91, 129 S. Ct. 1283, 173 L. Ed. 2d 231
(2009).
20
No. 75610-9-1/21
legal resources for pro se defendants does not extend to defendants represented
by counsel. And if standby counsel is an adequate substitute for law library
access, than active representation is even more so.
CONTINUANCE
Davis argues that the trial court abused its discretion in denying him a
continuance. We disagree.
The decision whether to grant a continuance lies in the trial court's sound
discretion.7° In reaching this decision, the trial court may consider several
factors, including "surprise, diligence, materiality, redundancy, due process, and
the maintenance of orderly procedures."71 A defendant challenging the denial of
a continuance must show that the denial prejudiced him.72
The trial court has the discretion whether to consider a pro se continuance
motion when the defendant is represented by counse1.73
This court reviews for abuse of discretion the denial of a continuance.74
Here, Davis received several hundreds of pages of discovery on March
16, 2016, and an additional 60 to 70 pages on March 21. He explained to the
court that he had struggled to review these extensive materials. He alleged that
70 State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242(1974).
71 Id.
72 Id.
73 State v. Bergstrom, 162 Wn.2d 87, 97, 169 P.3d 816 (2007),
superseded by statute on other grounds as stated in State v. Cobos, 182 Wn.2d
12, 15, 338 P.3d 283(2014).
74 Eller, 84 Wn.2d at 95.
21
No. 75610-9-1/22
his attorney had inadequately and untimely provided him with these documents,
and sought new counsel. The trial court denied that motion. By this point, the
jury had been selected and the State had already presented five witnesses.
The trial court did not abuse its discretion here for several reasons. First,
no clear motion for continuance was made. Second, even if Davis's expression
of frustration over his capacity to review discovery constituted such a motion, the
trial court had the discretion whether to consider this pro se motion. Third,
regarding the merits of such a putative motion, the trial court could determine,
within its discretion, whether the trial had reached such a point that a
continuance would be improper.
NEW TRIAL
Davis argues that the trial court abused its discretion by denying his new
trial motion based on the State's failure to provide him timely notice of the firearm
fingerprint report. He contends that disclosure to him personally was required
and that the State unconstitutionally suppressed the report. He makes the same
argument in his Statement of Additional Grounds. We disagree.
Under CrR 7.5(a), a trial court may grant a new trial on motion based on
certain enumerated circumstances. These include prosecutor misconduct,
procedural irregularity that prevented a fair trial, or a legal error objected to at
tria1.75
75 CrR 7.5(a)(2), (5), (6).
22
No. 75610-9-1/23
This court reviews for abuse of discretion the trial court's denial of a new
tria1.78
CrR 4.7(a)(1)(iv) requires the State disclose "to the defendant" any expert
reports or statements, including scientific tests. Davis interprets this language to
require direct disclosure to the defendant rather than to defense counsel. He
contrasts this language to that of CrR 4.7(a)(3) requiring disclosure of other
material exculpatory information "to defendant's counsel." Additionally, the
defendant must show that noncompliance with the discovery rules caused him
prejudice.77
This court interprets court rules in the same manner as statutes.78 The
plain language governs interpretation unless the language is ambiguous.79 If the
statutory language could be subject to more than one reasonable interpretation,
then it is ambiguous.8° In interpreting ambiguous terms,"a court should take into
consideration the meaning naturally attaching to them and that best harmonizes
76 State v. Copeland, 89 Wn. App. 492, 496, 949 P.2d 458(1998),
abrogation on other grounds recognized by State v. Radcliffe, 164 Wn.2d 900,
194 P.3d 250 (2008).
77 State v. Krenik, 156 Wn. App. 314, 320, 231 P.3d 252(2010).
78 Jafar v. Webb, 177 Wn.2d 520, 526, 303 P.3d 1042(2013).
78 Parentage of I.A.D., 131 Wn. App. 207, 213, 126 P.3d 79(2006).
8° Id.
23
No. 75610-9-1/24
with the context of the rest of the statute."81 This court also strives to avoid
unlikely or absurd results in its interpretation of statutes.82
Applying these canons, CrR 4.7(a)(1)(iv) is most naturally read to require
disclosure to the counsel of a represented defendant, or to the defendant himself
if proceeding pro se. The language used accounts for these two scenarios. The
alternative reading that Davis proposes would create an anomaly requiring the
prosecutor to directly communicate with a represented defendant. Davis
presents no authority requiring such an absurd and unlikely reading of CrR
4.7(a)(1)(iv).83
Additionally, Davis fails to explain how the State prejudiced the result at
trial by disclosing discovery to his counse1.84
Davis also argues that the State unconstitutionally suppressed evidence.
This argument is not persuasive.
Constitutional due process, as interpreted in Brady v. Maryland, requires
the State to disclose material exculpatory evidence.85 To demonstrate a Brady
violation, the defendant must show three elements.86 First, "'[t]he evidence at
issue must be favorable to the accused, either because it is exculpatory, or
81 Id.
82 State v. Mannerinp, 112 Wn. App. 268, 272, 48 P.3d 367(2002).
83 See Darkenwald, 183 Wn.2d at 248; RAP 10.3(a)(6).
84 See Copeland, 89 Wn. App. at 496.
85 373 U.S. 83, 87, 83S. Ct. 1194, 10 L. Ed. 2d 215(1963).
86 State v. Mullen, 171 Wn.2d 881, 895, 259 P.3d 158 (2011).
24
No. 75610-9-1/25
because it is impeaching."87 Second,"that evidence must have been
suppressed by the State, either willfully or inadvertently.'"88 Third, "prejudice
must have ensued.'"89
Here, the parties do not dispute that evidence showing a lack of Davis's
fingerprints on the gun would be exculpatory and material. But Davis cannot
make out the second and third necessary elements.
The State did not suppress the fingerprint report. Davis acknowledges
that the State disclosed this evidence to defense counsel on February 26, 2016.
In its pretrial answer to Davis's discovery demand, filed March 9, 2016, the State
explained that "[t]he firearm was examined for latent prints, but none were
found." In that document, the State cited to an exhibit that was not transmitted
on appeal. Thus, the report's finding that no fingerprints were found was not
suppressed. There was no Brady violation.
Davis also cannot show prejudice. From opening statements onward,
Davis conceded that he was guilty of unlawful possession of a firearm. Davis
also testified and identified the pistol in evidence as his own, and admitted to
firing it in the air. Thus, the jury was aware that Davis possessed a firearm. In
light of this concession, prejudice would not have resulted from suppression of
evidence showing a lack of fingerprints on that firearm.
87Id. (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936,
144 L. Ed. 2d 286 (1999)).
88 it(quoting Strickler, 527 U.S. at 282).
89 Id.(quoting Strickler, 527 U.S. at 282).
25
No. 75610-9-1/26
SUBSTITUTION OF COUNSEL
Davis argues that the trial court abused its discretion by denying his
motion to substitute counsel. We disagree.
To warrant substitution of counsel, the defendant must show "good cause,
'such as a conflict of interest, an irreconcilable conflict, or a complete breakdown
in communication."9° Such circumstances must reach the point "as to prevent
presentation of an adequate defense."91
"A disagreement over defense theories and trial strategy does not by itself
constitute an irreconcilable conflict."92 Defense counsel, not the defendant, has
authority to decide which theories and strategies to employ.°
"A court learning of a conflict between defendant and counsel has an
'obligation to inquire thoroughly into the factual basis of the defendant's
dissatisfaction" sufficient to reach an informed decision.94
The trial court can also consider its own evaluation of counsel and the
effect on scheduled proceedings.°
90 State v. Thompson, 169 Wn. App. 436,457, 290 P.3d 996(2012)
(quoting State v. Schaller, 143 Wn. App. 258, 267-68, 177 P.3d 1139(2007)).
91 Id. at 457 (quoting Schaller, 143 Wn. App. at 268).
92 Id. at 459.
93 Id.
94 Id. at 462(quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
1991)).
95 State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239(1997).
26
No. 75610-9-1/27
This court reviews for abuse of discretion the trial court's decision not to
appoint new counse1.96
Here, Davis argues that his relationship with his counsel had sufficiently
broken down because of counsel's delays in providing him copies of discovery,
lack of adequate consultation, and failure to file certain motions he requested.
He alleged below that counsel had failed to timely provide him discovery
and had failed to ask his version of events. Regarding discovery, defense
counsel explained that he had believed there was nothing in certain requested
call transcripts "that would involve any worthwhile evidence that could be
presented in this case."97 But he had nonetheless provided the requested
transcripts.
Additionally, defense counsel put Davis on the stand and elicited his
version of events.
The trial court concluded that it did not "see the issue rising to the level of
having any type of issue."98 It denied the motion to remove defense counsel.
After trial, Davis moved pro se for relief from judgment based in part on his
counsel's alleged misconduct. In this motion, he alleged that he had requested
that his counsel file two motions but counsel refused. Defense counsel's
decision was not improper. He, not Davis, had the proper authority to determine
trial strategy, including which motions to file.
96 Thompson, 169 Wn. App. at 457.
97 Report of Proceedings(March 21, 2016) at 48-49.
98 Id. at 50.
27
No. 75610-9-1/28
CUMULATIVE ERROR
Davis further argues that reversal of his convictions is required under the
cumulative error doctrine. We disagree.
Under the cumulative error doctrine, a conviction must be reversed where
the cumulative effect of multiple preserved and unpreserved errors below
deprived the defendant of a fair tria1.99
As discussed above, there were no errors at trial in reaching conviction.
The only errors concern the sentencing phase of this case. Thus, the cumulative
error doctrine does not require reversal of the underlying conviction.
STATEMENT OF ADDITONAL GROUNDS
Citing RCW 43.43.754, Davis claims that the State unconstitutionally
obtained pretrial DNA evidence from his cheek swab that was used at trial. He
further claims his counsel failed to object to the taking of this evidence. And he
finally claims that he was not personally provided with discovery and the charging
document at issue in this case. These claims are without merit and we reject
them.
His challenge to RCW 43.43.754 is misplaced. It provides in relevant part
that "[a] biological sample must be collected for purposes of DNA identification
analysis from...[e]very adult or juvenile individual convicted of a felony.',ioo At
the time the State moved for the swab, he was not then convicted.
99 State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747(1994).
loo (Emphasis added.)
28
No. 75610-9-1/29
In any event, his constitutional claim is based on article 1 section 9 of the
Washington Constitution. It provides that Inio person shall be compelled in any
criminal case to give evidence against himself." But this "protects an accused
only from being compelled to testify against himself or otherwise provide the
state with evidence of a testimonial or communicative nature.'1101 "That
compulsion which makes an accused the source of real or physical evidence
does not violate the privilege."102 The cheek swab does not offend this
constitutional provision.
Davis claim that his counsel failed to object to the taking of the swab is
unsupported by the record. His counsel did object, but that objection was
unsuccessful.
Finally, Davis fails to show any other constitutional violation in this case.
Our search of this record reveals none.
We affirm the conviction, vacate the sentence, and remand for
resentencing.
WE CONCUR:
/**
101 State v. West, 70 Wn.2d 751, 752, 424 P.2d 1014(1967).
102 Id.
29