State v. Maddaus

STATE OF WASHINGTON, Respondent, v. ROBERT JOHN MADDAUS, Appellant.

No. 41795-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

FILED: September 20, 2013

DATED: February 27, 2014

ORDER GRANTING RECONSIDERATION

IN PART AND DENYING IN PART BY

AMENDING MAJORITY

Appellant Robert John Maddaus has filed a motion for reconsideration of our unpublished opinion filed on September 20, 2013. We grant Maddaus's motion for reconsideration, in part, by making the following changes to our unpublished opinion filed September 20, 2013:

(1) In the first sentence of the first full paragraph on page 2, which begins, "In his Statement of Additional Grounds (SAG)" and carries over to page 3, we

* delete the word "a" from the third line of the paragraph;

* change the word "slide" to "slides" in the fourth line of that same paragraph;

* add the phrase "showing exhibits that had been altered, including" after the word "slides";

* delete the word "containing" after that addition;

* add the phrase "(4) the trial court erred in denying a motion to dismiss for discovery violations;" after the citation to CP at 978; and* change the reference to "(4)" before the word "cumulative."

With these changes, this sentence now reads,

In his Statement of Additional Grounds (SAG), Maddaus asserts that (1) the trial court erred in denying his request for new appointed counsel; (2) the trial judge was unfairly biased against him; (3) the State committed prosecutorial misconduct by displaying Microsoft Power Point slides showing exhibits that had been altered, including a photograph of Maddaus wearing a wig, with a circle and a slash superimposed over it and the word "GUILTY" written beneath it, CP at 978; (4) the trial court erred in denying a motion to dismiss for discovery violations; and (5) cumulative error violated his right to a fair trial.

(2) In the last paragraph on page 5, which begins, "Meanwhile, Maddaus had acquired," we

* delete the phrase "and a photo of himself wearing a blond wig" from the first sentence;

* after the record citation following the above change, add this new second sentence, "The police found a blonde wig in Maddaus's vehicle when they arrested him.";

* in the sentence after this addition, which begins, "When asked why he had," insert the words "a blonde" after the word "had" and before the word "wig"; and

* delete the last sentence in this paragraph, which read, "The police found this wig in Maddaus's vehicle when they arrested him."

With these changes, this paragraph now reads,

Meanwhile, Maddaus had acquired a wig and a false passport bearing the name "Chad Walker Vogt." 17 VRP at 2003. The police found a blonde wig in Maddaus's vehicle when they arrested him. When asked why he had a blonde wig, he stated, "Because I knew there was a warrant out for my arrest. The police wanted to talk to me. I didn't want to talk to them." 15 VRP at 1868.

(3) Before the period at the end of the first sentence of the first full paragraph on page 13, which begins, "The State also presented," we substitute the phrase and punctuation ", including several slides depicting photographic exhibits with text superimposed"; this changed sentence now reads,

The State also presented Microsoft PowerPoint slides during its closing argument, including several slides depicting photographic exhibits with text superimposed.

(4) In the last sentence of the first full paragraph on page 13, which begins, "Maddaus did not object," we delete the words "this slide" and replace them with the words "these slides."; this changed sentence now reads,

Maddaus did not object to these slides.

(5) In the first sentence of the last paragraph on page 13, which begins, "It appears," we delete the word "this" after the word "displayed" and substitute the word "the"; we also insert the phrase "that included the superimposed word 'GUILTY'" after the word "slide." This changed sentence now reads,

It appears that the State displayed the slide that included the superimposed word "Guilty" as the prosecutor made the following closing remarks: . . . .

(6) Before the first full sentence at the top of page 15, which begins, "In the alternative, he argues," we insert the following sentence:

In his SAG, Maddaus also asserts that the search warrant was invalid because the supporting affidavit contained "false" facts and allegations that the record did not support.

The changed ending of this paragraph now reads,

In his SAG, Maddaus also asserts that the search warrant was invalid because the supporting affidavit contained "false" facts and allegations that the record did not support. In the alternative, he argues for the first time on appeal that the search was unconstitutionally overbroad. These arguments fail.

(7) Before the last sentence in the last paragraph on page 15, which sentence begins, "Because he does not," we insert this sentence: "Nor did he challenge the facts in the supporting affidavit." The changed ending of this paragraph now reads,

Nor did he challenge the facts in the supporting affidavit. Because he does not meet his burden . . . .

(8) In the last partial sentence on page 15, which begins, "Because he does not meet his burden," we delete the words "challenge falls" and substitute the words "challenges fall"; this changed sentence now reads,

Because he does not meet his burden to show that his new challenges fall within the RAP 2.5(a)(3) exception to the preservation requirement, we address only his preserved challenge to the firearm.

(9) At the end of the first sentence in the first full paragraph on page 20, which begins, "We hold that," we insert this new footnote 18:

Although Maddaus contends that the restraints interfered with his ability to assist counsel and with his ability to testify, these bare allegations are not sufficient to establish prejudice based on the record before us. To the extent Maddaus has evidence outside the record supporting his claims of prejudice, he must raise any such claims in a personal restraint petition. McFarland, 127 Wn.2d at 335.

This changed sentence and new footnote now read,

We hold that, because the jury did not see Maddaus's restraints, there was no prejudice to him, and any error in ordering Maddaus to wear them was harmless.¹⁸Jennings, 111 Wn. App. at 61.

¹⁸ Although Maddaus contends that the restraints interfered with his ability to assist counsel and with his ability to testify, these bare allegations are not sufficient to establish prejudice based on the record before us. To the extent Maddaus has evidence outside the record supporting his claims of prejudice, he must raise any such claims in a personal restraint petition. McFarland, 127 Wn.2d at 335.

(10) In the first full sentence on page 23, which begins, "He also asserts in his SAG," we

* insert "(1)" after the phrase "asserts in his SAG that";

* add the phrase and punctuation ", and (2) the trial court erred in denying the motion to continue." after the word "misconduct."

This changed sentence now reads,

He also asserts in his SAG that (1) he received ineffective assistance of counsel based on the trial court's denial of Maddaus's motion to continue to investigate potential governmental misconduct, and (2) the trial court erred in denying the motion to continue.

(11) At the end of the first line at the top of page 25, after the text's reference to footnote 23 (which will become footnote 24 on entry of this order) and before the sentence, "Thus, this claim also fails," we insert the following sentence:

With respect to the trial court's denial of Maddaus's motion to continue, we will reverse a trial court's denial of a continuance only 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"; Maddaus fails to make such a showing here. State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146, review denied, 97 Wn.2d 1037 (1982).

These changes now read,

. . . why his counsel's performance was deficient or how counsel's performance prejudiced him.²⁴ With respect to the trial court's denial of Maddaus's motion to continue, we will reverse a trial court's denial of a continuance only 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"; Maddaus fails to make such a showing here. State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146, review denied, 97 Wn.2d 1037 (1982). Thus, this claim also fails.

(12) On page 41, we pluralize the word "Slide" in subheading D so that that the new subheading reads, "D. Power Point Slides". Also on page 41, in the first paragraph under subheading "D":

* After the first sentence phrase "other similar words surrounding it," we add ", along with several other slides depicting exhibits with additional superimposed text;" we also add a new footnote 37 between the word "text" and the semicolon, which footnote states, ''See CP at 867, 868, 881, 885, 886, 889-92, 902-05, 907, 911-13, 940, 944, 978."

* Between the first and second sentences, we insert this new sentence, "He also contends that one of the State's slides misstated the record."

* And after the last sentence, we insert another new footnote, 38, which states,

In addition, Maddaus appears to contend that the State engaged in misconduct by destroying or spoiling portions of the PowerPoint presentation. We decline to reach this issue because whether there were additional PowerPoint slides is a matter outside the record on appeal. If Maddaus has additional evidence related to this issue, he must present it in a personal restraint petition. McFarland, 127 Wn.2d at 335.

This changed paragraph with new subheading and added footnotes now reads,

D. Power Point Slides

Maddaus also argues for the first time on appeal that (1) the State engaged in prosecutorial misconduct when it displayed a Microsoft PowerPoint slide containing a photograph of Maddaus wearing a wig police had found in his vehicle, the word "GUILTY" written beneath it, and other similar

...