State Of Washington v. Rickey L. Fievez ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, K too
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Respondent,
) DIVISION ONE ro
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v.
RICKY L. FIEVEZ, ) UNPUBLISHED OPINION .— . . • .
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Appellant. ) FILED: July 29, 2013
Becker, J. — Ricky Fievez appeals the court's refusal to continue the final
day of his trial to await execution of a material witness warrant. We accept the
State's concession of error and reverse the conviction for possession of
methamphetamine.
On the afternoon of July 28, 2011, in Mason County, Washington, a
trooper with the Washington State Patrol stopped a vehicle driven by Fievez for
traveling over the posted speed limit. Fievez's speech and demeanor suggested
to the trooper that Fievez was under the influence of an intoxicant. The trooper
learned from dispatch that Fievez's driver license was suspended. The trooper
placed Fievez under arrest. Fievez consented to a warrantless search of his car.
Inside a suitcase in the car's interior, the trooper discovered a syringe containing
a liquid that tested positive for methamphetamine. Inside a purple bag in the
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car's trunk, the trooper found drug paraphernalia and a crystalline substance that
also tested positive for methamphetamine.
Fievez was charged with unlawful possession of a controlled substance
(methamphetamine), driving while under the influence, and driving while license
suspended or revoked in the third degree. A jury trial lasting four days was held
in November 2011. Three government witnesses testified for the State, including
the arresting trooper, the forensic scientist who identified the substances as
methamphetamine, and a records custodian for the Department of Licensing.
Fievez also took the stand. He testified that he had found the syringe in a park
and did not know what the liquid was inside of it, and that the purple bag in the
car's trunk belonged to his former girl friend Nina Lawrence. He claimed he had
been helping Lawrence on the day of his arrest by transporting some of her
possessions out of storage. He claimed ignorance of the purple bag's contents.
Fievez wanted to introduce testimony by Nina Lawrence to confirm his
claim of ignorance as to the purple bag's contents. At a witness interview
attended by both defense counsel and the prosecutor, Lawrence had confirmed
Fievez's account, stating that the purple bag belonged to her and that Fievez had
not been aware of its contents. Lawrence was served with a subpoena, and
Fievez filed an affidavit of service with the court. The record reflects that
Lawrence was present in the courthouse for the first three days of trial, on
November 3, 4, and 8, 2011.
When the court was ready for Lawrence's testimony on November 9,
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however, she was no longer present and could not be located. The court entered
a finding that she was a material witness and issued a material witness warrant
for her arrest. Defense counsel later spoke to Lawrence by telephone and
arranged to meet her at the jail the following morning.
Lawrence did not appear as agreed, however, and police had not
executed the warrant. Fievez requested that trial be continued until later in the
afternoon or until the next available court day. The court held a recess for
purposes of checking with court administration as to the afternoon calendar.
When the court reconvened, no more was said about Lawrence, and the defense
rested. The jury returned verdicts of guilty on each count as charged.
DENIAL OF CONTINUANCE
On appeal, Fievez contends the court's failure to grant him a continuance
violated his right to a fair trial. The State concedes that the denial of a
continuance was error, that it deprived Fievez of his due process rights to
compulsory process and to present a defense, and that he is entitled to a new
trial on the charge of possession of methamphetamine.
The decision to grant or deny a motion for a continuance rests within the
sound discretion of the trial court. State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d
1146. review denied. 97 Wn.2d 1037 (1982). The decision is discretionary
because the court must consider various factors such as diligence, materiality,
due process, a need for an orderly procedure, and the possible impact on the
result of the trial. Kelly, 32 Wn. App. at 114. The decision to deny the defendant
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a continuance may be disturbed on appeal upon a showing that the defendant
was prejudiced or that the result of the trial would likely have been different had
the motion been granted. Kelly, 32 Wn. App. at 114.
Under certain circumstances, denial of a continuance may violate the
defendant's constitutional Sixth Amendment rights to a fair trial or to compulsory
process. These rights are applicable in state proceedings. Washington v.
Texas. 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). "The
constitutional right of the accused to have compulsory process to obtain
witnesses in his defense is well established." Dickerson v. Alabama, 667 F.2d
1364, 1369 (11th Cir.) (citing Washington. 388 U.S. at 19), cert denied, 459 U.S.
878 (1982). While not every denial of a motion for continuance to obtain
witnesses violates the accused's right to compulsory process, a court may not
refuse to grant a reasonable continuance request where it has been shown that
the testimony would be relevant and material to the defense. Dickerson. 667
F.2d at 1370. Federal courts have identified several factors to be considered in
determining whether denying a motion for continuance deprives an accused of
his right to compulsory process:
"The diligence of the defense in interviewing witnesses and
procuring their presence, the probability of procuring their testimony
within a reasonable time, the specificity with which the defense is
able to describe their expected knowledge or testimony, the degree
to which such testimony is expected to be favorable to the accused,
and the unique or cumulative nature of the testimony."
Dickerson, 667 F.2d at 1370, quoting Hicks v. Wainwriqht, 633 F.2d 1146, 1149
(5th Cir. 1981).
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In this case, each of these factors weighs in favor of the appellant. The
record indicates that defense counsel exercised due diligence in attempting to
procure the presence of Lawrence at trial. Lawrence was properly subpoenaed
and was present in the courthouse for the first three days of trial. After she failed
to appear on the final day of trial, her absence was noted. The defense
requested a material witness warrant, which the court granted. The record
reflects that defense counsel placed several telephone calls to verify her
whereabouts and ultimately informed the court that she was in Lilliwaup, a town
in Mason County about an hour's drive from the courthouse. Because Lawrence
was nearby and had expressed a willingness to appear for trial, it was probable
that her presence could have been procured within a reasonable time. The
testimony she planned to give as to her ownership of the purple bag and Fievez's
ignorance of its contents was specific, plainly favorable to Fievez's defense, and
not cumulative.
The record reflects no effort by the State to enforce the material witness
warrant. In such a case, the witness's "absence can more easily be attributed to
the state's failure to enforce" the material witness warrant by arresting the
witness than to any lack of diligence by the defense. Dickerson, 667 F.2d at
1370.
Under these circumstances, we accept the State's concession that the
court erred by not granting a continuance.
We also agree that the error was prejudicial and Fievez is entitled to a
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new trial on the charge. The jury heard evidence that the purple bag contained a
variety of residue-laden drug paraphernalia items, including spoons, a scale, and
a glass pipe, as well as a cache of crystalline methamphetamine. In closing, the
State argued the jury could find Fievez guilty of possession based on either the
syringe or the contents of the purple bag.
The jury was specifically instructed that it must reach unanimous
agreement as to which of the items of methamphetamine—the contents of the
syringe or the purple bag—Fievez was guilty of possessing. Without Lawrence's
testimony to corroborate Fievez in his claim that he lacked knowledge of the
contents of the purple bag, one or more jurors might easily have agreed to
convict Fievez of possession based only on the contents of the purple bag.
Thus, the denial of a continuance to obtain Lawrence's testimony likely affected
the outcome of the trial.
We perceive no grounds, in short, for rejecting the State's concession that
Fievez is entitled to a new trial on the charge of possession of
methamphetamine.
DRIVING WHILE LICENSE SUSPENDED
Fievez argues he is also entitled to reversal of his conviction for driving
while his license was suspended. He contends the admission of evidence of his
driving record violated his constitutional right of confrontation.
The State introduced into evidence a notice of suspension of Fievez's
driving privilege and an affidavit from a legal custodian of driving records stating
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that the records indicated that Fievez's status on the day of the arrest was
suspended. Fievez contends these documents are testimonial and therefore
should have been excluded understate v. Jasper. 174 Wn.2d 96, 109-117, 271
P.3d 876 (2012). He contends the Jasper rationale also applies to testimony by
the arresting trooper that he learned of Fievez's suspended status by calling
dispatch.
Fievez's confrontation rights were not violated. A records custodian of the
Department of Licensing was one of three government witnesses who testified at
trial. Fievez's counsel cross-examined her about the documents generated
pursuant to the suspension. Fievez was afforded an opportunity to confront the
witness against him as to the suspended license charge. Also, Fievez stipulated
to the admission of his driving record and the statement concerning the status of
his license. These circumstances distinguish Jasper.
In the alternative, Fievez contends he was deprived of effective assistance
of counsel because his attorney did not challenge the evidence. In closing
argument, defense counsel conceded Fievez's guilt on the charge of driving with
a suspended license.
Conceding guilt to the jury can be a sound trial tactic when the evidence of
guilt overwhelms. State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96(2007). Such an approach may help the defendant gain credibility with the jury
when a more serious charge is at stake. Hermann. 138 Wn. App. at 605. When
counsel's conduct can be characterized as legitimate trial strategy or tactics,
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performance is not deficient. State v. Grier. 171 Wn.2d 17, 33, 246 P.3d 1260(2011).
Despite Fievez's claim of ignorance that his license was suspended, the
State's evidence that the license was, in fact, suspended was overwhelming.
Counsel's concession of this matter did not constitute deficient performance.
The judgment and sentence for driving while license suspended is affirmed.
OFFENDER SCORE
Fievez contends his offender score was incorrectly calculated because the
trial court failed to address on the record whether the Arizona convictions in his
criminal history are comparable to Washington felonies. He is entitled to raise
this issue for the first time on appeal. State v. Ford, 137 Wn.2d 472, 973 P.2d
452 (1999). The State agrees that the court erred in failing to conduct a
comparability analysis on the record.
As the State points out, the remedy is for the trial court on remand to hold
an evidentiary hearing, allow the State to present evidence of criminal history,
and resentence according to what is proved at that hearing.
The judgment and sentence for possession of methamphetamine is
reversed, and the case remanded for further proceedings not inconsistent with
this opinion.
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WE CONCUR:
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