IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 78868-0-I v. UNPUBLISHED OPINION JEROMY KEITH LADWIG,
Appellant.
DWYER, J. — Jeromy Ladwig was convicted of vehicular homicide after a
jury trial. On appeal, he avers that the State’s questioning of prospective jurors
during voir dire—specifically, whether any jurors had strong feelings about
methamphetamine use and whether a juror who knew Ladwig personally could
be unbiased—prejudiced the jury as a whole, resulting in an unfair trial.
Relatedly, he alleges that the questioning amounted to prosecutorial misconduct,
that the trial court erred by not granting his motion for a mistrial, and that
cumulative error deprived him of a fair trial. Ladwig makes further assignments
of error in a statement of additional grounds. Finding no error, we affirm.
I
At about 4:00 a.m. on May 2, 2016, Nathan Dee was driving his pickup
truck to work at Naval Air Station Whidbey when he approached a gravel road
Citations and pin cites are based on the Westlaw online version of the cited material. No. 78868-0-I/2
leading into Joseph Whidbey State Park. Dee was driving at or about the speed
limit of 40 miles per hour, had his headlights and fog lights on, and was on alert
for deer in the area. Suddenly, without warning, a bright light appeared to the left
of his vehicle, followed by a loud collision. The force of this collision caused
Dee’s truck to rotate, strike a power pole, and roll onto its side in a ditch.
After climbing out of a window of his truck, Dee saw a Ford Mustang in a
nearby field and waved down a passing motorist for assistance. Approaching the
Mustang, he saw the defendant, Jeromy Ladwig, standing outside the vehicle’s
passenger door. A front seat passenger, Keesha Harden, was pinned inside and
covered in blood. A second passenger, Randon Koepke, had his legs pinned
behind the passenger seat while the rest of his body lay on the vehicle’s trunk.
Dee attempted to keep the three calm until first responders arrived.
At 4:18, Sergeant Cedric Niiro of the Oak Harbor Police Department
arrived and observed that Ladwig’s speech was slurred and difficult to
understand. Officer Patrick Horn, also of the Oak Harbor Police Department,
arrived shortly thereafter and observed the same. Both observed that Harden
was unconscious and suffered from labored breathing and a significant head
injury. Ladwig, upon questioning, denied taking any drugs that could have
affected his driving.
Firefighters soon arrived and extracted both Koepke and Harden from the
vehicle. After he had been removed and placed in an ambulance, Koepke
requested his backpack. Briefly checking the backpack for weapons, Deputy
Gene Martin of the Island County Sheriff’s Department observed what looked like
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a methamphetamine pipe and a baggie of methamphetamine. Meanwhile, all of
the officers who observed Dee saw no signs of impairment.
Harden was transported to WhidbeyHealth Medical Center, where she
was found to be suffering from massive internal bleeding and a severe brain
injury. She was then airlifted to Harborview Medical Center in Seattle, where she
died in surgery. Ladwig was also transported to WhidbeyHealth Medical Center
and was noted as having suffered minor injuries. However, Ladwig exhibited
bizarre behavior that led an emergency room physician to order a drug screen.
This drug screen showed both methamphetamine and amphetamine in Ladwig’s
system.
At 5:12 a.m., Trooper David Martin of the Washington State Patrol
contacted Ladwig at the hospital and immediately noticed Ladwig’s slow, slurred
speech—affected to the point that Martin could only understand every third or
fourth word that Ladwig uttered. He also noted that Ladwig could not correctly
state where the vehicular collision occurred. Martin was unable to conduct any
field sobriety tests of Ladwig due to Ladwig’s supine state. His questioning of
Ladwig led only to an admission that Ladwig had two inhalers and had taken
“hydrocoxine.” Believing Ladwig to be under the influence of drugs, Martin
obtained a search warrant for a blood draw. Subsequent testing revealed that
Ladwig’s blood contained 0.24 mg/L of methamphetamine and 0.06 mg/L of
amphetamine. Ladwig was charged with vehicular homicide.
Ladwig pleaded not guilty to this charge. While Ladwig awaited trial, his
attorney and the State’s attorney both sought and received several continuances
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for various reasons, principal among those reasons being the need for both
parties to find expert witnesses. A total of 21 months passed between the day
Ladwig was charged and his trial. On April 20, 2017, Ladwig also made a motion
to substitute counsel, which was granted.
Trial began on June 19, 2018. Shortly before commencing voir dire, the
trial court inquired as to any particular questions the prosecutor or defense
counsel wanted the court to ask of the potential jurors before the attorneys
commenced with their own questions. Defense counsel requested that the court
inquire of each potential juror, individually and outside the presence of the other
jurors, “about their feelings about those—those drugs [methamphetamine and
amphetamine] insofar as they impact on a case such as this.” The prosecutor
opined that such questioning “can be done in front of the entire panel. It would
save a lot of time and might get a good discussion going is my position.”
Initially, the court indicated that it would ask the entire panel as to whether
any individuals had strong feelings about the use of methamphetamine or
amphetamine generally, and would then individually question those who raised
their hands. However, the court expressed concern that “it’s going to make this
too burdensome, in fact, it would be very long to be able to ask each one outside
the presence of the jurors.”
Upon the court’s inquiry of the venire, 29 potential jurors raised their
hands to indicate their strong feeling regarding the use of the two drugs. The
court then indicated that it would not be questioning all 29 of these potential
jurors individually and instead would question them as a group.
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When the court asked if any potential jurors had heard of the State v.
Ladwig case, potential juror 5 raised his hand. When asked to explain how he
knew about the case, without revealing any details, juror 5 stated, “Hmm. Social
media. I know the defendant. I also do Bible study in Island County Jail for
about the last 20 years. I’ve known Jeromy for like 15 years.” Juror 5 indicated
that he had not formed an opinion about the case, but stated that he knew
someone who had.
When the court inquired as to whether anyone knew Ladwig, juror 5 raised
his hand. Asked about his relationship to Ladwig, juror 5 stated, “I would say that
we’re friends, but mostly our relationship takes place in the library at the Island
County Jail.” Juror 5 also indicated that he had strong feelings about the use of
methamphetamine or amphetamine after seeing methamphetamine addicts at
the county jail, and that his coworkers would suffer if he was not present at work.
When questioned later, juror 5 stated that he had seen Ladwig once or twice “out
on the street.”
Ultimately, the court decided to question the 29 jurors who had expressed
concern about drug use as a subgroup, apart from the other potential jurors.
However, prior to the court beginning this process, Ladwig moved to dismiss the
entire jury panel. This request was based both on juror 5’s indication that he
knew Ladwig from jail and the number of jurors who asserted strong feelings
about the use of methamphetamine. The court, however, agreed with the State
that any prejudice resulting from these circumstances was curable with a proper
jury instruction.
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The 29 potential jurors who expressed strong feelings about the use of
methamphetamine or amphetamine were questioned as a group by both parties,
and each juror who indicated that they could not be, or were uncertain as to
whether they could be, fair and impartial was excused for cause. Ladwig
objected when the State moved to dismiss juror 5 for cause. The court did not
excuse juror 5 for cause. The State later used one of its peremptory challenges
to dismiss juror 5. Ladwig did not exhaust his peremptory challenges.
Ladwig testified in his own defense at trial. He stated that he was working
as a paid driver for Koepke on the morning of May 2, 2016, and had not
consumed any methamphetamine. He claimed that he turned onto the gravel
park road to return to Oak Harbor based on the request of a passenger, stopped
at a stop sign at the end of the gravel road, and looked both ways and signaled
before moving into the intersection where he was struck by Dee’s pickup. Later,
Ladwig stated that he was going less than 15 miles per hour at the time of the
collision, had not had time to accelerate on the gravel road, and was struck from
the rear. This testimony was contradicted by Ladwig’s own expert, who opined
that Ladwig was driving at least 29 miles per hour at the time of the collision and
did not stop at the stop sign.
In addition, Ladwig’s testimony was also contradicted by the State’s
expert. Detective Kevin Nelson of the Washington State Patrol testified that,
based on data from the crash scene, Ladwig’s vehicle was traveling 36 miles per
hour at the time of impact. According to Nelson’s testimony, Ladwig’s vehicle
could not have reached this speed if Ladwig had stopped—or even if he had
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merely slowed his vehicle to five miles per hour—at the stop sign. He also
indicated that it would have been impossible for Ladwig’s vehicle to propel Dee’s
larger truck off of the road if it had been going at a slower speed.
Ultimately, the jury found Ladwig guilty. Although he had been charged
with vehicular homicide under all three prongs of the vehicular homicide statute,
RCW 46.61.520, the jury convicted Ladwig on only two of the prongs, declining to
find that he operated a motor vehicle under the influence of drugs. The court
imposed upon Ladwig a standard range sentence of 144 months of confinement.
He appeals.
II
Ladwig first contends that the trial court abused its discretion when it
declined to conduct individual voir dire regarding jurors’ feelings about
methamphetamine use. This is so, Ladwig asserts, because without individual
voir dire, prospective jurors shared personal reasons for their feelings about
methamphetamine use with the jury pool as a whole, and hearing these
sentiments tended to bias the remaining members of the jury pool against
methamphetamine users. We disagree.
The United States and Washington constitutions guarantee criminal
defendants the right to trial by an impartial jury. U.S. CONST. amend. VI, XIV;
W ASH. CONST. art. I, §§ 3, 22; State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977
(2000). Because of the nuances and subtleties presented by voir dire, the trial
judge is vested with considerable latitude in ruling on the limits and extent of voir
dire. Davis, 141 Wn.2d at 825-26; State v. Frederiksen, 40 Wn. App. 749, 753,
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700 P.2d 369 (1985). “[A]bsent an abuse of discretion and a showing that the
rights of an accused have been substantially prejudiced, a trial court’s ruling on
the scope and content of voir dire will not be disturbed on appeal. Davis, 141
Wn.2d at 826. Thus, to prevail on his contention, Ladwig must demonstrate that
(1) the trial court abused its discretion in conducting voir dire, and (2) his rights
were substantially prejudiced. Davis, 141 Wn.2d at 826. He does neither.
Ladwig argues that, because some potential jurors expressed strong
feelings against drug use in the presence of the rest of the venire, the entire jury
pool was prejudiced and he was denied an impartial jury. However, his appellate
argument relies on snippets of individual utterances divorced from the greater
context of voir dire. For example, he quotes juror 2, a former employee of the
Department of Corrections, as saying that he had “seen a lot [of] people
incarcerated over many years and mess up their lives with methamphetamine.”
He does not quote the following exchange that occurred after juror 2 uttered that
thought:
[PROSECUTOR]: So Juror No. 2. PROSPECTIVE JUROR 2: Yes, sir. [PROSECUTOR]: So I don’t remember if [defense counsel] asked you if you could be impartial, but— PROSPECTIVE JUROR 2: Actually, he never asked me if I could be impartial. [DEFENSE COUNSEL]: (Chuckling). We’re just learning. [PROSECUTOR]: Okay. Yeah. If I’m asking you that, what I’m really asking you is if you were a juror on this case you would sit in the jury box over there (indicating) and you would listen to people testify up here (indicating) at the—at the podium. You would have exhibits most likely to look at. And so that— that would be the evidence of the case. The judge would then give you Instructions, written Instructions. And that’s the law that would apply to the case. So
8 No. 78868-0-I/9
you would have to consider those Instructions and how the evidence and those two combine to come to a verdict on this case. So what these questions are getting at is: Based on your experiences—Everybody comes into Court with different experiences, different life history. And it’s okay to know different things than the other person next to you. And it’s okay to have all these different experiences. What we’re asking is: Can you put aside these experiences in order to be fair? Not to let—Some of you have some horrible experiences with meth. So there’s certainly going to be instances where that’s going to overwhelm your ability to rationally apply the law and the facts together, but . . . So what we’re asking is: Can you be rational? Can you put that aside and be fair or rational? Not have an overly emotional response and not going to hear it and decide one way or the other based on your emotions. That’s kind of where I’m getting at. So I’m going to go through a bunch of you. Hopefully that made sense. Now that I’ve said that, Juror No. 2, can you be fair and impartial? PROSPECTIVE JUROR 2: Well, after—Having worked in the Department of Corrections for 30 years, I don’t think you could be successful in that job without being fair and impartial. [PROSECUTOR]: Okay. PROSPECTIVE JUROR 2: You have to apply the laws and the rules evenly amongst everyone and you have to do it in a manner that’s fair to everybody.
Ladwig is correct that many members of the venire initially expressed
strong negative attitudes about methamphetamine use. This is not atypical for
voir dire: the primary purpose of voir dire is to give litigants the opportunity to
explore potential juror attitudes. Lopez-Stayer v. Pitts, 122 Wn. App. 45, 51, 93
P.3d 904 (2004). The question for our review is not whether a potential juror
expressed strong feelings about a topic material to Ladwig’s case but, rather,
whether the court was able to seat an impartial jury. Here, after questioning the
group of jurors that expressed strong feelings about methamphetamine use,
every potential juror who either indicated that he or she could not be, or were not
9 No. 78868-0-I/10
certain they could be, fair and impartial was stricken for cause. Only after these
jurors were dismissed was the jury reconstituted for further questioning.1
The trial court was thorough in conducting voir dire and acted within its
discretion. Ladwig does not establish that the process resulted in bias among
the remaining jurors.
Ladwig also fails to show prejudice. Davis, 141 Wn.2d at 826. Ladwig
was charged with vehicular homicide under all three means provided for that
crime in RCW 46.61.520. The jury found that he operated a motor vehicle in a
reckless manner and with a disregard for the safety of others, two of the means
set forth. But the jury did not find that he operated a motor vehicle while under
the influence of intoxicating liquor or any drug. It is logically inconsistent to
believe that the jury was biased against drug users as a result of the voir dire
process when it did not find that Ladwig had been driving under the influence.
Furthermore, abundant evidence supported Ladwig’s conviction. Ladwig
testified that he made a U-turn after entering the park road and stopped at the
stop sign to look both ways. Ladwig’s own expert, Dave Wells, directly
contradicted Ladwig’s testimony, stating that there was nothing to indicate
Ladwig made a U-turn or that he stopped at the stop sign. Wells’s testimony was
consistent with Dee having had the right-of-way and traveling slower than the
posted speed limit. It was also consistent with Ladwig having accelerated for a
1 The State takes the position that, because Ladwig did not exercise all of his peremptory challenges, he is barred from raising any issue regarding the jury’s composition. However, Ladwig’s argument is that the entire venire, not just a potential juror, was biased against methamphetamine users as a result of voir dire. The authorities cited by the State do not address the circumstances presented here.
10 No. 78868-0-I/11
distance of at least 70 feet before reaching the stop sign and passing it at 29
miles per hour. Wells also testified that visibility at the intersection was not an
issue and that Dee’s truck, with its headlights on, would have been visible to a
driver who had stopped at the stop sign. This testimony, from Ladwig’s own
expert, describes actions a jury could find constitutive of operating a motor
vehicle in a reckless manner and with a disregard for the safety of others.
The jury was instructed:
To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences. Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.
Jury Instruction 12.
As the prosecutor stated in the State’s summation:
[Defense counsel] doesn’t think that’s racing. Fine. Maybe it isn’t racing, but it sure as heck isn’t stopping at the stop sign. And it sure as heck isn’t looking to see if there’s cars coming. It sure as heck is driving in a rash and heedless manner with disregard for the consequences. The consequences of which there might be a truck coming along here . . . to a guy driving to work at the Navy base to go launch jets.
Both Ladwig’s expert and the State’s expert testified that Ladwig
accelerated on the dirt road without stopping at the stop sign. Detective Nelson
testified that Ladwig’s vehicle was moving at 36 miles per hour at the time of the
11 No. 78868-0-I/12
collision, and that attaining such a speed would have been impossible had
Ladwig stopped at the stop sign. Wells testified that Ladwig’s vehicle was
moving over 20 miles per hour when Ladwig passed the sign. The testimonial
evidence from both experts is consistent with Dee’s eyewitness testimony that
Ladwig’s vehicle appeared very suddenly before striking his own. In addition, if
Ladwig’s vehicle had come to a complete stop or even slowed down, it could not
have attained the momentum necessary to propel Dee’s larger truck off of the
road. Indeed, the testimony of the two experts supports the logical inference
that, had Ladwig come to a complete stop, Dee’s vehicle would have cleared the
intersection without having been contacted by Ladwig’s vehicle.
Given the lesser standard for finding disregard for the safety of others as
opposed to recklessness, the evidence was more than sufficient to find Ladwig
guilty under both of these prongs. That the jury declined to find that Ladwig
operated his vehicle under the influence of a drug, when abundant circumstantial
evidence of his methamphetamine use existed, logically undercuts his claim of
prejudice resulting from voir dire.
III
Next, Ladwig avers that the trial court abused its discretion when it did not
declare a mistrial because of the challenged statements uttered by juror 5. His
contention is unfounded.
When an appellant challenges the trial court’s denial of a mistrial motion
on the basis that such denial led to an unfair trial, we review the denial for abuse
of discretion. State v. Rodriguez, 146 Wn.2d 260, 269-72, 45 P.3d 541 (2002).
12 No. 78868-0-I/13
The only appropriate circumstance for declaring a mistrial is when “the defendant
has been so prejudiced that nothing short of a new trial can [e]nsure that the
defendant will be tried fairly.” State v. Gamble, 168 Wn.2d 161, 177, 225 P.3d
973 (2010) (emphasis added). “A mistrial should be granted only when ‘nothing
the trial court could have said or done would have remedied the harm done to the
defendant.’” State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) (quoting
State v. Swenson, 62 Wn.2d 259, 276, 382 P.2d 614 (1963), overruled on other
grounds by State v. Land, 121 Wn.2d 494, 851 P.2d 678 (1993)). A trial court’s
denial of a mistrial motion “should be overturned only when there is a substantial
likelihood that the prejudice affected the verdict.” Gamble, 168 Wn.2d at 177.
Here, the court was presented with a situation in which one juror, juror 5,
stated that he knew Ladwig from his volunteer work at the county jail and that he
and Ladwig were acquaintances. Based on these statements, and on the
statements of other jurors expressing unfavorable opinions regarding
methamphetamine use, Ladwig moved to strike the venire panel and declare a
mistrial. The court declined to declare a mistrial, stating:
I do not agree that there’s no way to have a fair trial with this jury panel. The Jury Instructions or any limiting instruction can take care of the problems that you remark about.
Ladwig requested no such limiting instruction, nor did he move to strike
juror 5 for cause. In fact, when the State moved to strike juror 5 for cause,
Ladwig objected, allowing juror 5 to remain in the venire until voir dire was
completed. Juror 5 was only dismissed upon the State’s, not Ladwig’s,
peremptory challenge.
13 No. 78868-0-I/14
Plainly, juror 5’s statements as to his familiarity with Ladwig did not tend to
cause prejudice so great as to warrant a mistrial. The statement that he knew
Ladwig from jail did not necessarily indicate that he knew Ladwig as an inmate of
the jail as opposed to an employee or volunteer. Similarly, his statements that he
knew methamphetamine addicts in the jail did not necessarily indicate that
Ladwig was a member of this group. The statement that he had also seen
Ladwig once or twice “out on the street” does not lead to the sole inference that
he saw Ladwig living on the street as opposed to walking or conversing with
others. Even if these statements did carry negative implications, they were not
so negative as to cause an “enduring and resulting prejudice that could not have
been neutralized by an admonition to the jury.” State v. Edvalds, 157 Wn. App.
517, 522, 237 P.3d 368 (2010). Any prejudice was entirely curable by a proper
jury instruction.2 The trial court did not err in denying Ladwig’s motion for a
mistrial.
IV
Ladwig next avers that the prosecutor’s questioning of juror 5, as to
whether his purported friendship with Ladwig might affect his impartiality,
constituted misconduct that deprived him of a fair trial. The record offers no
support for this bold claim.
A defendant alleging prosecutorial misconduct bears the burden of proving
that the prosecutor’s conduct was both improper and prejudicial. State v. Emery,
2 Ladwig’s objection to juror 5’s dismissal further undercuts his argument that juror 5’s statements tended to prejudice the jury. Such an objection would tend to indicate that Ladwig not only believed juror 5’s statements were not prejudicial but, further, that he believed juror 5’s presence on the panel to be of benefit to him.
14 No. 78868-0-I/15
174 Wn.2d 741, 756, 278 P.3d 653 (2012). Once a defendant establishes that a
prosecutor’s statements were improper, the appellate court determines whether
the defendant is entitled to relief by applying one of two standards of review.
Emery, 174 Wn.2d at 760. The first standard, which applies if the defendant
timely objected at trial and the objection was overruled, requires that the
defendant show that the prosecutor’s misconduct led to prejudice that had a
substantial likelihood of affecting the jury’s verdict. Emery, 174 Wn.2d at 760.
The second standard applies if the defendant did not object at trial. In that
event, the defendant is deemed to have waived the claim of error unless the
defendant can show that “(1) ‘no curative instruction would have obviated any
prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that
‘had a substantial likelihood of affecting the jury verdict.’” Emery, 174 Wn.2d at
761 (quoting State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011)).
Here, the first standard applies, as Ladwig objected to the prosecutor’s
questioning. However, Ladwig does not establish that the prosecutor’s
statements were improper. “Voir dire examination serves to protect the parties’
rights to a fair trial by exposing possible biases, both known and unknown, on the
part of potential jurors.” Kuhn v. Schnall, 155 Wn. App. 560, 574, 228 P.3d 828
(2010).
By the time of the questioning at issue, the prosecutor had already moved
to excuse juror 5 for cause, but Ladwig objected, leaving juror 5 on the panel.
Accordingly, the State sought to question him further. Juror 5 claimed to be a
friend of Ladwig’s yet also indicated that he could be impartial. He also claimed
15 No. 78868-0-I/16
that he had heard facts about the case outside of court prior to reporting for jury
service.
The prosecutor thus asked juror 5 if he would have greater difficulty
convicting a friend as opposed to someone he did not know. When juror 5 stated
that he would not, the prosecutor asked whether juror 5 “hope[d] to ever have
any friendship with Mr. Ladwig in the future[.]” Juror 5 responded that any
friendship was limited to the library at the Island County Jail and that he
“encountered Jeromy a couple of times out on the street, but that’s about it.”
Again, these questions were asked only after the State had already
unsuccessfully moved to dismiss juror 5 for cause over Ladwig’s objection.
Neither party had yet questioned whether juror 5 was capable of being impartial
even after he stated that he knew Ladwig. It was neither unreasonable nor
improper for the prosecutor to follow up as to a potential bias on the part of
juror 5.
Ladwig also does not show any prejudice resulting from this incident. The
court indicated that a limiting instruction was an option if Ladwig felt that the jury
might be prejudiced by juror 5’s remarks. Ladwig did not request such an
instruction and juror 5 was later dismissed. In sum, no prosecutorial misconduct
took place that would entitle Ladwig to appellate relief.
V
Based on the assignments of error discussed above, Ladwig next argues
that he has a right to a new trial due to cumulative error. Cumulative error is
established when, taken alone, several trial court errors do not warrant reversal
16 No. 78868-0-I/17
of a verdict but the combined effect of the errors denied the defendant a fair trial.
State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). It is the
defendant’s burden to prove an accumulation of error of sufficient magnitude to
necessitate retrial. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d
835, 870 P.2d 964 (1994). Ladwig makes this assertion without support. He has
not established any prejudicial error, let alone the several errors necessary to
give rise to a ruling of cumulative error. His claim fails.
VI
Finally, Ladwig presents additional issues for our review in a statement of
additional grounds. He is entitled to appellate relief on none of them.
First, Ladwig asserts a violation of his right to speedy trial. Both the
United States Constitution and the Washington Constitution provide a criminal
defendant with the right to a speedy public trial. U.S. CONST. amend. VI; W ASH.
CONST. art. I, § 22. Our state constitution “requires a method of analysis
substantially the same as the federal Sixth Amendment analysis and does not
afford a defendant greater speedy trial rights.” State v. Iniguez, 167 Wn.2d 273,
290, 217 P.3d 768 (2009). When a defendant asserts the denial of constitutional
speedy trial rights, our review is de novo. Iniguez, 167 Wn.2d at 280.
The defendant’s constitutional rights to a speedy trial attach when a
charge is filed or an arrest is made, whichever occurs first. State v. Corrado, 94
Wn. App. 228, 232, 972 P.2d 515 (1999). Some pretrial delay is often “inevitable
and wholly justifiable,” Doggett v. United States, 505 U.S. 647, 656, 112 S. Ct.
2686, 120 L. Ed. 2d 520 (1992), and any “inquiry into a speedy trial claim
17 No. 78868-0-I/18
necessitates a functional analysis of the right in the particular context of the
case.” Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972). Accordingly, our Supreme Court has adopted “an ad hoc balancing test
that examines the conduct of both the State and the defendant to determine
whether speedy trial rights have been denied.” Iniguez, 167 Wn.2d at 283. As
first articulated by the United States Supreme Court in Barker, to be considered
are: (1) the length of pretrial delay, (2) the reason for the delay, (3) the
defendant’s assertion of his or her right, and (4) prejudice to the defendant. 407
U.S. at 530.
Before trial, Ladwig moved to dismiss the case on the basis that his rights
to counsel of his choice, and to a speedy trial, were both violated. The court
postponed hearing the motion until after trial. After hearing argument, it denied
the motion, stating as to the speedy trial argument:
As to the . . . constitutional right for a speedy trial, . . . I looked over all of the transcripts for the continuances. And all of them, with the exception of the one that was remarked by [the prosecutor], were agreed upon. Either agreed upon or—Well, they all were agreed upon. Or they were initiated by the Defendant or the Defendant’s attorney. And there are certainly, as [the State] points out, the—the Defendant and the Defendant’s attorney move as one. And in this case the Defendant is deemed to have waived his speedy trial rights.
The court then discussed the reasons both parties sought continuances,
which pertained primarily to the complexity of the case and the need to arrange
for expert witnesses. In one instance, the court noted, a continuance was
requested because Ladwig’s attorney fell ill. The court then conducted the
following Barker analysis:
18 No. 78868-0-I/19
So let’s go back to the Barker factors. The reason for the delay, all of them are reasonable. All of them were things that happen in a case that you just can’t anticipate—can’t anticipate because they’re based on perhaps witness unavailability, the investigation of obtaining additional discovery, prepare for trial. Whenever I hear an attorney say I need—“I’m not prepared for trial,” I have to think he’s telling me he’s not prepared for trial. And that there’s a good reason for that. And, usually, you go ahead and tell me about a witness or—or some sort of delay. The 21 months over and over I was told or somebody was told in this case that this is a complex case and we need more time. And so there was continuances given. Not mostly—Not for the prosecution, but mostly for the defense because it was a complex case. And there were many factors that—and many experts that everybody had to contact and—and depose and look at. So the reasons were well-accepted reasons to continue a trial. The extent to which the Defendant asserted his speedy trial rights. Yes, there were a couple of times when you asserted in trial or in a hearing, excuse me, as far as we could tell was that the box had not been marked. But, again, those continuances had been agreed upon. But the assertion of the speedy trial rights has to be—It didn’t occur within that 10-days requirement. Okay. Then the last is the prejudice to the Defendant as a result of the delay. The only one that the Court can possibly say prejudiced the Defendant was the—his father had a stroke and wasn’t able to testify in this case. . . . [The court then noted that the upshot of Ladwig’s father’s testimony would have been contradicted by Ladwig’s expert witness.] So looking at all the Barker factors, I don’t see that his—his rights were prejudiced. . . . I’m going to deny the Motion to Dismiss for all those reasons, as well as the motion for—that I see here to dismiss because of—or at least give him another trial where he acts as his own attorney. I’m—I’m denying that.
Thus, the trial court actually went further than simply stating Ladwig had
waived his speedy trial rights when his attorney requested a continuance. The
court analyzed Ladwig’s case pursuant to the Barker factors and found that no
19 No. 78868-0-I/20
infringement of the right to a speedy trial took place. Nothing in Ladwig’s appeal
dissuades us from accepting the trial court’s conclusion.3
Next, Ladwig argues that he was deprived of his right to counsel of his
choice. The trial court granted Ladwig’s motion for substitution of counsel when
Ladwig expressed dissatisfaction with the appointed public defender. When a
party receives the remedy he has requested, “[t]he law presumes that these
remedies are effective.” State v. Giles, 196 Wn. App. 745, 769, 385 P.3d 204
(2016). Ladwig makes no showing to the contrary.
In arguing otherwise, Ladwig directs us to Faretta v. California, 422 U.S.
806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Therein, the United States
Supreme Court held that the state may not force a lawyer upon a defendant who
insists upon representing himself. Faretta, 422 U.S. at 807. However, here,
Ladwig requested a substitution of counsel. As the trial court stated, “The case
here is [Ladwig] never said ‘I want to represent myself.’ He said he wanted a
new attorney.” Thus, Faretta is of no help to Ladwig, and his argument is
meritless.
Ladwig also claims that members of the public were excluded from his
trial, in contravention of his right to a public trial as set forth in article I, section 22
of the Washington Constitution and State v. Bone-Club, 128 Wn.2d 254, 906
P.2d 325 (1995). Because the record does not show that the courtroom was
ever actually closed to the public, we will not further analyze this claim.
3 Similarly, Ladwig does not show that his rights to a timely trial under CrR 3.3 were violated. To the contrary, the trial court correctly calculated the time to trial periods applicable to Ladwig’s case.
20 No. 78868-0-I/21
Ladwig’s remaining claims, at least those pertinent to this appeal, assign
error to the weight given to certain evidence at trial and purported contradictions
in witness testimony. These issues were reserved to the trier of fact.
Finally, Ladwig’s averments of other past wrongful convictions are outside
the scope of this appeal.
Affirmed.
WE CONCUR: