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Homemade Paper Spear Is Not a Deadly Weapon
Homemade Paper Spear is Not a Deadly Weapon
The Washington state Court of Appeals held that a spear, made from paper rolled into a rigid shaft and tipped with a golf pencil, used to jab a guard through prisoner's cell door was not a deadly weapon for purposes of an Assault in the Second Degree conviction. The court also held as every court has that there is no double jeopardy bar to a criminal prosecution after prison disciplinary proceedings.
As Callam Bay Corrections Center (CBCC). Guard Jason Jones was passing a sack breakfast through the sixbyeighteen inch cuff port in prisoner Neil Skenandore's cell door, he was struck twice on the chest and once on the arm by a homemade spear. The spear was between 2'h and 3 feet long, fashioned from writing paper roiled into a rigid shaft and bound with dental floss, with a golf pencil for the tip. It did not tear the guards shirt but left three-pencil marks on his chest and sleeve. Skenandore then disassembled the spear and flushed parts of it down the toilet. When guards retrieved the spear it was no longer intact.
A CBCC Physician Assistant examined Jones and noted that he had red marks consistent with the incident but no broken skin. Jones was released without treatment and the marks faded away within 2 hours.
CBCC punished Skenandore for the incident by subtracting 90 days of good time credits. The state then charged him with assault in the second degree and custodial assault.
During the trial, the prosecution argued that a sharpened pencil in the eye could cause substantial bodily injury within the definition of a deadly weapon and that Skenandore was trying to put an eye out. The jury found Skenandore guilty of both charges.
Skenandore filed a motion to arrest judgment, arguing that the evidence was insufficient to prove that the spear was a deadly weapon. The trial court denied the motion and sentenced him to 72 months in prison on the Assault II conviction, consecutive to his previous prison sentence. The custodial assault conviction merged into the Assault II conviction for purposes of sentencing.
Skenandore appealed to the conviction, arguing that the evidence of a deadly weapon was insufficient and that double jeopardy barred the prosecution because the prison had already punished him for the same act.
The court of appeals reversed the Assault II conviction, holding that based upon the evidence before it, "no rational trier of fact could have found that Skenandore"s spear was readily capable of causing death or substantial bodily harm under the circumstances in which it was used."
The court rejected Skenadore's double jeopardy claim, noting that: "prison discipline for infraction of administrative rules does not bar a subsequent criminal prosecution for the same conduct. State v. Williams, 57 Wash.2d 231, 232, 356 P.2d 99 (1960)." The court also noted that Williams was cited with approval in In the matter of the Personal Restraint of Mayner, 730 P.2d 1321 (1986) "and mirrors wellsettled federal case law, see, e.g., United States v. Brown, 59 F.3d 102, 10406 (9th Cir. 1995): Garrity v. Fielder, 41 F.3d 1150, 115253 (7th Cir. 1994)." In fact, no court has ever held otherwise. See: State v. Skenadore, 99 Wn.App. 494, 994 P.2d 291 (Wash. App.Div. 2 2000).
The Washington state Court of Appeals held that a spear, made from paper rolled into a rigid shaft and tipped with a golf pencil, used to jab a guard through prisoner's cell door was not a deadly weapon for purposes of an Assault in the Second Degree conviction. The court also held as every court has that there is no double jeopardy bar to a criminal prosecution after prison disciplinary proceedings.
As Callam Bay Corrections Center (CBCC). Guard Jason Jones was passing a sack breakfast through the sixbyeighteen inch cuff port in prisoner Neil Skenandore's cell door, he was struck twice on the chest and once on the arm by a homemade spear. The spear was between 2'h and 3 feet long, fashioned from writing paper roiled into a rigid shaft and bound with dental floss, with a golf pencil for the tip. It did not tear the guards shirt but left three-pencil marks on his chest and sleeve. Skenandore then disassembled the spear and flushed parts of it down the toilet. When guards retrieved the spear it was no longer intact.
A CBCC Physician Assistant examined Jones and noted that he had red marks consistent with the incident but no broken skin. Jones was released without treatment and the marks faded away within 2 hours.
CBCC punished Skenandore for the incident by subtracting 90 days of good time credits. The state then charged him with assault in the second degree and custodial assault.
During the trial, the prosecution argued that a sharpened pencil in the eye could cause substantial bodily injury within the definition of a deadly weapon and that Skenandore was trying to put an eye out. The jury found Skenandore guilty of both charges.
Skenandore filed a motion to arrest judgment, arguing that the evidence was insufficient to prove that the spear was a deadly weapon. The trial court denied the motion and sentenced him to 72 months in prison on the Assault II conviction, consecutive to his previous prison sentence. The custodial assault conviction merged into the Assault II conviction for purposes of sentencing.
Skenandore appealed to the conviction, arguing that the evidence of a deadly weapon was insufficient and that double jeopardy barred the prosecution because the prison had already punished him for the same act.
The court of appeals reversed the Assault II conviction, holding that based upon the evidence before it, "no rational trier of fact could have found that Skenandore"s spear was readily capable of causing death or substantial bodily harm under the circumstances in which it was used."
The court rejected Skenadore's double jeopardy claim, noting that: "prison discipline for infraction of administrative rules does not bar a subsequent criminal prosecution for the same conduct. State v. Williams, 57 Wash.2d 231, 232, 356 P.2d 99 (1960)." The court also noted that Williams was cited with approval in In the matter of the Personal Restraint of Mayner, 730 P.2d 1321 (1986) "and mirrors wellsettled federal case law, see, e.g., United States v. Brown, 59 F.3d 102, 10406 (9th Cir. 1995): Garrity v. Fielder, 41 F.3d 1150, 115253 (7th Cir. 1994)." In fact, no court has ever held otherwise. See: State v. Skenadore, 99 Wn.App. 494, 994 P.2d 291 (Wash. App.Div. 2 2000).
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Related legal case
State v. Skenadore
| Year | 2000 |
|---|---|
| Cite | 99 Wn.App. 494, 994 P.2d 291 (Wash.App.Div.2 2000) |
| Level | State Court of Appeals |
State v. Skenandore, 99 Wash.App. 494, 994 P.2d 291 (Wash.App.Div.2 03/03/2000)
[1] Washington Court of Appeals
[2] No. 22730-4-II
[3] 99 Wash.App. 494, 994 P.2d 291, 2000.WA
[4] March 03, 2000
[5] STATE OF WASHINGTON, RESPONDENT,
V.
NEIL WARREN SKENANDORE, AKA NEIL SKENENDORE, APPELLANT.
[6] Source of Appeal: Appeal from Superior Court of Clallam County Docket No: 97-1-00011-3 Judgment or order under review Date filed: 12/12/1997 Judge signing: Hon. George L. Wood Jr
[7] Judges: Authored by J. Robin Hunt Concurring: Karen G. Seinfeld Elaine M. Houghton
[8] The opinion of the court was delivered by: Hunt, J.
[9] PUBLISHED IN PART OPINION
[10] Neil Skenandore appeals his jury conviction for second degree assault, arguing that the evidence of a deadly weapon was insufficient and that double jeopardy barred the prosecution because the prison had already disciplined him for the same act. He raises additional issues in a pro se brief, including prosecutorial delay in filing the information, violation of RCW ch. 9.98 (governing disposition of a pending information against a prison inmate), lack of jurisdiction, disregard of his application for a writ of prohibition, and ineffective assistance of counsel. Agreeing that the evidence is insufficient to establish that Skenandore used a deadly weapon, we reverse his conviction for second degree assault and remand for resentencing on the remaining custodial assault conviction.
[11] FACTS
[12] Skenandore is an inmate at the Clallam Bay Corrections Center (CBCC). On July 21, 1996, he assaulted corrections officer Jason Jones with a homemade spear. The spear was two-and-one-half feet to three feet long, fashioned from writing paper rolled into a rigid shaft bound with dental floss, affixed to a golf pencil.
[13] Jones was wearing a standard uniform short-sleeve shirt over a t-shirt. As he looked through the viewing window on the left side of the cell door, he bent over to pass the contents of a sack breakfast through the 'cuff port.'*fn1 The spear first struck Jones on the chest with 'pretty good' force that 'helped {him} stand' up, then once more on the chest and once on the arm. The spear did not tear the shirt, but left three pencil marks: on Jones' left shirt pocket, near the center of the chest, and on the left sleeve. After the assault, Skenandore disassembled the spear and flushed parts of it down the toilet. When the officers retrieved the spear, it was no longer intact.*fn2
[14] At the CBCC medical clinic, Physician Assistant Phyllis Ellis examined Jones and, consistent with the pencil marks on Jones' shirt, noted: on his chest wall, he had near his left nipple, he had a mark, not a bruise but like somebody had gotten a sharp object and had stabbed the area or had pressed into the area; and above the nipple was another mark; and there was about a two inch linear mark on his left arm.
[15] The marks were red and indented but had not broken the skin. Ellis released Jones without treatment. The marks on Jones' chest faded away within two hours.
[16] CBCC punished Skenandore for this serious infraction by subtracting 90 days of good-time credit. On January 10, 1997, the State charged Skenandore with assault in the second degree. He was arraigned on January 24, 1997. On April 3, 1997, the information was amended to include an alternative, second count of custodial assault. Trial, originally set for April 14, 1997, was continued after Skenandore waived his right to a speedy trial.
[17] Skenandore filed pro se pretrial motions to dismiss, arguing that his speedy trial rights had been violated; that the trial court had lost jurisdiction because trial was not held within 120 days after he made a request for final disposition of a pending information; and that because the prison had already punished him, a trial would constitute double jeopardy. The trial court denied Skenanadore's motions to dismiss. During closing argument, the prosecutor argued:
[18] A sharpened pencil in the eye could cause substantial bodily injury and that is the definition of deadly weapon.
[19] {Skenandore was} not trying to break a bone but trying to put out an eye.
[20] On November 13, the jury returned guilty verdicts on both assault charges. Skenandore filed a motion to arrest judgment, arguing the evidence was insufficient to prove that the spear was a deadly weapon. The trial court denied the motion, ruling, '{T}he evidence that came in supports the fact that this device that was stuck out through the port hole could have struck the officer in the eye which would have caused substantial loss, loss or impairment to the eye.'*fn3
[21] At sentencing, the convictions were merged and sentence was imposed on only the second degree assault conviction. The trial court sentenced Skenandore to 72 months for second degree assault, to run consecutively to his previous sentence for first degree murder.
[22] ANALYSIS
[23] I. Sufficiency of Evidence
[24] In reviewing a claim of insufficient evidence, we determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (quotations omitted). '{A}ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995). This standard is not met here with regard to the deadly weapon element of second degree assault.
[25] The crime of deadly weapon second degree assault occurs when a person assaults another with a deadly weapon without intent to inflict great bodily harm. RCW 9A.36.021(1)(c); 9A.36.011(1)(a). A weapon is 'deadly' if, 'under the circumstances in which it is used, . . . {it} is readily capable of causing death or substantial bodily harm.' RCW 9A.04.110(6) (emphasis added). 'Substantial bodily harm' means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part{.}' RCW 9A.04.110(4)(b).
[26] We agree with the State that Division One's opinion in State v. Schilling, 77 Wn. App. 166, 889 P.2d 948 (1995), is instructive here. Schilling hit the victim on the head with a bar glass, knocking off the victim's eye glasses and causing lacerations that required stitches. Schilling, 77 Wn. App. at 172. At trial, Schilling testified that the glass 'could possibly cause substantial bodily harm or death' and that the glass was 'pretty strong'; an expert testified that 'a blow to the head using the glass could fracture the nose and/or cause lacerations requiring stitches and producing permanent scarring.' Schilling, 77 Wn. App. at 172. Division One ruled this evidence sufficient to support a conviction for deadly weapon second degree assault. Schilling, 77 Wn. App. at 172. In reaching this conclusion, the court observed that, because the glass was not a per se deadly weapon,
[27] the inherent capacity and 'the circumstances in which it is used' determine whether the weapon is deadly. RCW 9A.04.110(6). 'Circumstances' include 'the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted.' State v. Sorenson, 6 Wn. App. 269, 273, 492 P.2d 233 (1972) (construing RCW 9.95.040) (quoting People v. Fisher, 234 Cal. App. 2d 189, 193, 44 Cal. Rptr. 302 (1965)). Ready capability is determined in relation to surrounding circumstances, with reference to potential substantial bodily harm. RCW 9A.04.110(6); State v. Cobb, 22 Wn. App. 221, 223, 589 P.2d 297 (1978), review denied, 92 Wn.2d 1011 (1979); State v. Carlson, 65 Wn. App. 153, 159, 828 P.2d 30, review denied, 119 Wn.2d 1022 (1992). Schilling, 77 Wn. App. at 171-72.
[28] Although under some circumstances the spear used by Skenandore might be shown to be a deadly weapon, the record here demonstrates that it, like the glass in Schilling, is not a per se deadly weapon, as would be a long-bladed knife, for example. See RCW 9.94A.125. Thus, as in Schilling, we must look to the surrounding circumstances to assess whether the spear as used here could be said to be a deadly weapon.
[29] Unlike Schilling, there was no testimony regarding the spear's potential for substantial bodily harm had Skenandore struck Jones on the face or in the eye. Nor was the jury able to examine the spear in its completely assembled state to determine its deadly weapon capability because Skenandore had partially disassembled it and flushed at least the pencil-point down his cell toilet.
[30] The record did not reflect that Jones' face was near the cuff port such that the spear could have struck his eye; rather, the evidence was that Jones was looking through a higher vertical window off to the side as he served Skenandore breakfast through the cuff port. Moreover, the three blows all landed on Jones' upper torso, well below his head. The cell door that separated Jones and Skenandore, together with the small opening of the low cuff port, about one-third of the way from the floor, restricted the spear's movement.
[31] Thus, unlike in Schilling, the surrounding circumstances inhibited the spear's otherwise potential, but unproven, ready capability to inflict substantial bodily harm.*fn4 The spear did not tear Jones' shirt or break his skin; and the non-abraded red indentations on Jones' chest faded within hours of the assault.
[32] We hold that, based on the evidence in the record before us, no rational trier of fact could have found that Skenandore's spear was readily capable of causing death or substantial bodily harm under the circumstances in which it was used. Thus, the second degree assault conviction cannot stand.
[33] II. Double Jeopardy
[34] The alternate custodial conviction, however, suffers no evidentiary deficiencies. Rather, Skenandore challenges this conviction on double jeopardy grounds. 'The double jeopardy clause of the federal constitution protects against . . . multiple punishments for the same offense,' State v. Cole, 128 Wn.2d 262, 273, 906 P.2d 925 (1995), as does the Washington State double jeopardy clause, State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). Prison discipline for infraction of administrative rules does not bar a subsequent criminal prosecution for the same conduct. State v. Williams, 57 Wn.2d 231, 232, 356 P.2d 99 (1960).*fn5 Thus, Skenandore's criminal prosecution in state court did not constitute double jeopardy and the custodial assault conviction is not barred.
[35] We reverse the second degree assault conviction and remand for sentencing on the custodial assault conviction.
[36] A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
[37] III. Preaccusatorial Delay
[38] 'Preaccusatorial delay in bringing charges may violate due process.' State v. Calderon, 102 Wn.2d 348, 352, 684 P.2d 1293 (1984). 'Washington has established a 3-prong test to determine if preaccusatorial delay has violated due process:
[39] (1) the defendant must show the delay has prejudiced him, (2) the court must consider the reasons for the delay, and (3) the court must balance the State's justifications against the defendant's prejudice.' State v. Watson, 63 Wn. App. 854, 861, 822 P.2d 327 (1992).
[40] The State filed the information in this case over five months after it investigated the assault and arrested Skenandore. But Skenandore fails to identify any prejudice resulting from the delay; therefore, he cannot establish a due process violation. See State v. Martinez, 78 Wn. App. 870, 878, 899 P.2d 1302 (1995) ('If an accused does not show actual prejudice, the second and third prongs of the test need not be considered.'). Thus, his argument fails.
[41] IV. RCW Ch. 9.98
[42] Skenandore next argues that the trial court lost jurisdiction over his prosecution because he was not brought to trial within 120 days after August 26, 1996, the date he 'post{ed} a pro se Notice for Final Disposition' of the information. The argument is also without merit.
[43] RCW 9.98.010(1) provides, in pertinent part:
[44] Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within one hundred twenty days after he shall have caused to be delivered to the prosecuting attorney and the superior court . . . written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . . (Emphasis added).
[45] Following a proper request, if the action is not timely brought to trial, 'no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.' RCW 9.98.020.
[46] But here, at the time Skenandore issued his request for final disposition, there was no 'untried indictment, information or complaint' pending against him. Thus, RCW ch. 9.98 does not apply.
[47] V. Petition for a Writ of Prohibition
[48] Skenandore sought interlocutory, discretionary review, which we denied. See RAP 2.3. Skenandore then filed a motion to modify the ruling,*fn6 which was denied on November 12, 1997, the first day of his trial. On the same day, Skenandore filed a pro se petition for writ of prohibition, asking the Washington Supreme Court to stop the trial; nevertheless, trial proceeded. Skenandore contends that the trial court erred in proceeding to trial in the face of his petition for a writ of prohibition. His contention appears to be that trial could not proceed because his request for discretionary review of the denial of his pretrial motions was still pending. But, as noted above, our review of the denial was completed on the first day of Skenandore's trial.
[49] Also, there is no indication that a writ of prohibition was ever issued by the Supreme Court. The mere filing of a petition for a writ, at least where the petition is patently groundless, is ineffective to abate judicial proceedings. See RCW 7.16.300. See, e.g., Hodsdon v. Superior Court, 239 A.2d 222, 225 (Del. 1968); Crowder v. Lackey, 46 A.2d 699, 700 (D.C. 1946). As explained above, Skenandore's RCW ch. 9.98 rights were not violated.
[50] VI. Right to a Speedy Trial
[51] Nor were Skenandore's speedy trial rights violated.*fn7 A criminal defendant who is serving a sentence on an earlier conviction must be brought to trial on the new charge within 90 days of the arraignment. State v. Nelson, 26 Wn. App. 612, 616, 613 P.2d 1204 (1980); State v. O'Neil, 14 Wn. App. 175, 176-77, 540 P.2d 478 (1975). See also CrR 3.3(c)(1). Skenandore was arraigned on January 24, 1997, and his trial was scheduled for April 14, 1997, 80 days after his arraignment. Before expiration of the 90-day period, Skenandore waived his speedy trial rights.
[52] Thus, there was no violation of Skenandore's speedy trial rights and no merit to his petition for a writ of prohibition on this ground. The trial court did not err in trying Skenandore during the pendency of his petition for a writ of prohibition.
[53] VII. Assistance of Counsel
[54] 'Courts engage in a strong presumption counsel's representation was effective.' State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance of counsel the defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. King, 130 Wn.2d 517, 531, 925 P.2d 606 (1996). 'Prejudice' exists where 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694.
[55] A. Failing to Secure the Presence of Two Inmate Witnesses
[56] Skenandore asserts that two inmate witnesses, whom his counsel failed to call, would have provided 'testimony on their observations of events, surrounding the alleged assault of Jason Jones.' But he does not demonstrate how such testimony would have assisted his defense. Thus, he has failed to establish that his counsel's inaction was deficient or prejudicial.
[57] B. Not Interviewing Defense Witnesses
[58] Skenandore contends his counsel did not interview defense witnesses before presenting their testimony. But he neither identifies any particular witness nor indicates how a pre-testimony interview would have affected his defense. Consequently, he has failed to establish that his counsel's inaction was deficient or prejudicial.
[59] C. Insufficient Cross-Examination
[60] Skenandore asserts that his counsel insufficiently cross-examined corrections officer William Livingston, who witnessed the assault on Jones. Skenandore believes the cross-examination was deficient because counsel did not elicit (1) why Livingston did not sign Jones' report of the assault, and (2) Livingston's exact location when he witnessed the assault, given varying descriptions of Livingston's location by Jones and corrections officer Robert Schimetz.
[61] Defense counsel's performance was not deficient. That Livingston did not sign Jones' report is inconsequential; neglecting to cross-examine Livingston about his absent signature can be characterized as sound trial strategy. See Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. Ct. Crim. App. 1992) (defense counsel is not required to point out irrelevant matters); cf. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993) (failure to offer inadmissible testimony does not constitute deficient performance). Moreover, defense counsel did ask Livingston about his location during the assault, and Livingston's answer precisely mirrored that of Jones and Schimetz.
[62] Hunt, J.
[63] We concur:
[64] Seinfeld, P.J. Houghton, J.
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Opinion Footnotes
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[65] *fn1 A cuff port is a six-by-eighteen inch locking portal in the cell door.
[66] *fn2 The parties did not designate the spear as part of the record on appeal, but we asked that the record be supplemented with the spear remnants.
[67] *fn3 But the record contains no evidence that Skenandore was aiming for Jones' face or eyes, that Skenandore stabbed Jones anywhere on the face, or that Jones' eye would have been injured had the spear struck his eye.
[68] *fn4 See Rogan v. Florida, 203 So.2d 24, 25 (Fla. Dist. Ct. App. 1967) (holding that whether a flower pot used in an assault was a deadly weapon depended on the evidence; where the pot broke a glass window but the intervening screen prevented it from hitting the victim, the flower pot was not a deadly weapon).
[69] *fn5 Contrary to Skenandore's protestations, Williams remains valid law. It was cited with approval in In the Matter of the Personal Restraint of Mayner, 107 Wn.2d 512, 521, 730 P.2d 1321 (1986) ('{M}isconduct while in prison can result in a denial of good time credit and may also result in additional criminal penalties.'), and mirrors well-settled federal caselaw, see, e.g., United States v. Brown, 59 F.3d 102, 104-06 (9th Cir. 1995); Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994).
[70] *fn6 In his pro se brief, Skenandore appears to refer to the motion as one for 'Discretionary Review of the Court of Appeals{'} Commissioner's decision to deny Appellant's interlocutory appeal.'
[71] *fn7 RCW ch. 9.98 does not supplant an incarcerated defendant's CrR 3.3 speedy trial rights. State v. Alexus, 91 Wn.2d 492, 496-97, 588 P.2d 1171 (1979).
[1] Washington Court of Appeals
[2] No. 22730-4-II
[3] 99 Wash.App. 494, 994 P.2d 291, 2000.WA
[4] March 03, 2000
[5] STATE OF WASHINGTON, RESPONDENT,
V.
NEIL WARREN SKENANDORE, AKA NEIL SKENENDORE, APPELLANT.
[6] Source of Appeal: Appeal from Superior Court of Clallam County Docket No: 97-1-00011-3 Judgment or order under review Date filed: 12/12/1997 Judge signing: Hon. George L. Wood Jr
[7] Judges: Authored by J. Robin Hunt Concurring: Karen G. Seinfeld Elaine M. Houghton
[8] The opinion of the court was delivered by: Hunt, J.
[9] PUBLISHED IN PART OPINION
[10] Neil Skenandore appeals his jury conviction for second degree assault, arguing that the evidence of a deadly weapon was insufficient and that double jeopardy barred the prosecution because the prison had already disciplined him for the same act. He raises additional issues in a pro se brief, including prosecutorial delay in filing the information, violation of RCW ch. 9.98 (governing disposition of a pending information against a prison inmate), lack of jurisdiction, disregard of his application for a writ of prohibition, and ineffective assistance of counsel. Agreeing that the evidence is insufficient to establish that Skenandore used a deadly weapon, we reverse his conviction for second degree assault and remand for resentencing on the remaining custodial assault conviction.
[11] FACTS
[12] Skenandore is an inmate at the Clallam Bay Corrections Center (CBCC). On July 21, 1996, he assaulted corrections officer Jason Jones with a homemade spear. The spear was two-and-one-half feet to three feet long, fashioned from writing paper rolled into a rigid shaft bound with dental floss, affixed to a golf pencil.
[13] Jones was wearing a standard uniform short-sleeve shirt over a t-shirt. As he looked through the viewing window on the left side of the cell door, he bent over to pass the contents of a sack breakfast through the 'cuff port.'*fn1 The spear first struck Jones on the chest with 'pretty good' force that 'helped {him} stand' up, then once more on the chest and once on the arm. The spear did not tear the shirt, but left three pencil marks: on Jones' left shirt pocket, near the center of the chest, and on the left sleeve. After the assault, Skenandore disassembled the spear and flushed parts of it down the toilet. When the officers retrieved the spear, it was no longer intact.*fn2
[14] At the CBCC medical clinic, Physician Assistant Phyllis Ellis examined Jones and, consistent with the pencil marks on Jones' shirt, noted: on his chest wall, he had near his left nipple, he had a mark, not a bruise but like somebody had gotten a sharp object and had stabbed the area or had pressed into the area; and above the nipple was another mark; and there was about a two inch linear mark on his left arm.
[15] The marks were red and indented but had not broken the skin. Ellis released Jones without treatment. The marks on Jones' chest faded away within two hours.
[16] CBCC punished Skenandore for this serious infraction by subtracting 90 days of good-time credit. On January 10, 1997, the State charged Skenandore with assault in the second degree. He was arraigned on January 24, 1997. On April 3, 1997, the information was amended to include an alternative, second count of custodial assault. Trial, originally set for April 14, 1997, was continued after Skenandore waived his right to a speedy trial.
[17] Skenandore filed pro se pretrial motions to dismiss, arguing that his speedy trial rights had been violated; that the trial court had lost jurisdiction because trial was not held within 120 days after he made a request for final disposition of a pending information; and that because the prison had already punished him, a trial would constitute double jeopardy. The trial court denied Skenanadore's motions to dismiss. During closing argument, the prosecutor argued:
[18] A sharpened pencil in the eye could cause substantial bodily injury and that is the definition of deadly weapon.
[19] {Skenandore was} not trying to break a bone but trying to put out an eye.
[20] On November 13, the jury returned guilty verdicts on both assault charges. Skenandore filed a motion to arrest judgment, arguing the evidence was insufficient to prove that the spear was a deadly weapon. The trial court denied the motion, ruling, '{T}he evidence that came in supports the fact that this device that was stuck out through the port hole could have struck the officer in the eye which would have caused substantial loss, loss or impairment to the eye.'*fn3
[21] At sentencing, the convictions were merged and sentence was imposed on only the second degree assault conviction. The trial court sentenced Skenandore to 72 months for second degree assault, to run consecutively to his previous sentence for first degree murder.
[22] ANALYSIS
[23] I. Sufficiency of Evidence
[24] In reviewing a claim of insufficient evidence, we determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (quotations omitted). '{A}ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995). This standard is not met here with regard to the deadly weapon element of second degree assault.
[25] The crime of deadly weapon second degree assault occurs when a person assaults another with a deadly weapon without intent to inflict great bodily harm. RCW 9A.36.021(1)(c); 9A.36.011(1)(a). A weapon is 'deadly' if, 'under the circumstances in which it is used, . . . {it} is readily capable of causing death or substantial bodily harm.' RCW 9A.04.110(6) (emphasis added). 'Substantial bodily harm' means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part{.}' RCW 9A.04.110(4)(b).
[26] We agree with the State that Division One's opinion in State v. Schilling, 77 Wn. App. 166, 889 P.2d 948 (1995), is instructive here. Schilling hit the victim on the head with a bar glass, knocking off the victim's eye glasses and causing lacerations that required stitches. Schilling, 77 Wn. App. at 172. At trial, Schilling testified that the glass 'could possibly cause substantial bodily harm or death' and that the glass was 'pretty strong'; an expert testified that 'a blow to the head using the glass could fracture the nose and/or cause lacerations requiring stitches and producing permanent scarring.' Schilling, 77 Wn. App. at 172. Division One ruled this evidence sufficient to support a conviction for deadly weapon second degree assault. Schilling, 77 Wn. App. at 172. In reaching this conclusion, the court observed that, because the glass was not a per se deadly weapon,
[27] the inherent capacity and 'the circumstances in which it is used' determine whether the weapon is deadly. RCW 9A.04.110(6). 'Circumstances' include 'the intent and present ability of the user, the degree of force, the part of the body to which it was applied and the physical injuries inflicted.' State v. Sorenson, 6 Wn. App. 269, 273, 492 P.2d 233 (1972) (construing RCW 9.95.040) (quoting People v. Fisher, 234 Cal. App. 2d 189, 193, 44 Cal. Rptr. 302 (1965)). Ready capability is determined in relation to surrounding circumstances, with reference to potential substantial bodily harm. RCW 9A.04.110(6); State v. Cobb, 22 Wn. App. 221, 223, 589 P.2d 297 (1978), review denied, 92 Wn.2d 1011 (1979); State v. Carlson, 65 Wn. App. 153, 159, 828 P.2d 30, review denied, 119 Wn.2d 1022 (1992). Schilling, 77 Wn. App. at 171-72.
[28] Although under some circumstances the spear used by Skenandore might be shown to be a deadly weapon, the record here demonstrates that it, like the glass in Schilling, is not a per se deadly weapon, as would be a long-bladed knife, for example. See RCW 9.94A.125. Thus, as in Schilling, we must look to the surrounding circumstances to assess whether the spear as used here could be said to be a deadly weapon.
[29] Unlike Schilling, there was no testimony regarding the spear's potential for substantial bodily harm had Skenandore struck Jones on the face or in the eye. Nor was the jury able to examine the spear in its completely assembled state to determine its deadly weapon capability because Skenandore had partially disassembled it and flushed at least the pencil-point down his cell toilet.
[30] The record did not reflect that Jones' face was near the cuff port such that the spear could have struck his eye; rather, the evidence was that Jones was looking through a higher vertical window off to the side as he served Skenandore breakfast through the cuff port. Moreover, the three blows all landed on Jones' upper torso, well below his head. The cell door that separated Jones and Skenandore, together with the small opening of the low cuff port, about one-third of the way from the floor, restricted the spear's movement.
[31] Thus, unlike in Schilling, the surrounding circumstances inhibited the spear's otherwise potential, but unproven, ready capability to inflict substantial bodily harm.*fn4 The spear did not tear Jones' shirt or break his skin; and the non-abraded red indentations on Jones' chest faded within hours of the assault.
[32] We hold that, based on the evidence in the record before us, no rational trier of fact could have found that Skenandore's spear was readily capable of causing death or substantial bodily harm under the circumstances in which it was used. Thus, the second degree assault conviction cannot stand.
[33] II. Double Jeopardy
[34] The alternate custodial conviction, however, suffers no evidentiary deficiencies. Rather, Skenandore challenges this conviction on double jeopardy grounds. 'The double jeopardy clause of the federal constitution protects against . . . multiple punishments for the same offense,' State v. Cole, 128 Wn.2d 262, 273, 906 P.2d 925 (1995), as does the Washington State double jeopardy clause, State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). Prison discipline for infraction of administrative rules does not bar a subsequent criminal prosecution for the same conduct. State v. Williams, 57 Wn.2d 231, 232, 356 P.2d 99 (1960).*fn5 Thus, Skenandore's criminal prosecution in state court did not constitute double jeopardy and the custodial assault conviction is not barred.
[35] We reverse the second degree assault conviction and remand for sentencing on the custodial assault conviction.
[36] A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
[37] III. Preaccusatorial Delay
[38] 'Preaccusatorial delay in bringing charges may violate due process.' State v. Calderon, 102 Wn.2d 348, 352, 684 P.2d 1293 (1984). 'Washington has established a 3-prong test to determine if preaccusatorial delay has violated due process:
[39] (1) the defendant must show the delay has prejudiced him, (2) the court must consider the reasons for the delay, and (3) the court must balance the State's justifications against the defendant's prejudice.' State v. Watson, 63 Wn. App. 854, 861, 822 P.2d 327 (1992).
[40] The State filed the information in this case over five months after it investigated the assault and arrested Skenandore. But Skenandore fails to identify any prejudice resulting from the delay; therefore, he cannot establish a due process violation. See State v. Martinez, 78 Wn. App. 870, 878, 899 P.2d 1302 (1995) ('If an accused does not show actual prejudice, the second and third prongs of the test need not be considered.'). Thus, his argument fails.
[41] IV. RCW Ch. 9.98
[42] Skenandore next argues that the trial court lost jurisdiction over his prosecution because he was not brought to trial within 120 days after August 26, 1996, the date he 'post{ed} a pro se Notice for Final Disposition' of the information. The argument is also without merit.
[43] RCW 9.98.010(1) provides, in pertinent part:
[44] Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within one hundred twenty days after he shall have caused to be delivered to the prosecuting attorney and the superior court . . . written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . . (Emphasis added).
[45] Following a proper request, if the action is not timely brought to trial, 'no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.' RCW 9.98.020.
[46] But here, at the time Skenandore issued his request for final disposition, there was no 'untried indictment, information or complaint' pending against him. Thus, RCW ch. 9.98 does not apply.
[47] V. Petition for a Writ of Prohibition
[48] Skenandore sought interlocutory, discretionary review, which we denied. See RAP 2.3. Skenandore then filed a motion to modify the ruling,*fn6 which was denied on November 12, 1997, the first day of his trial. On the same day, Skenandore filed a pro se petition for writ of prohibition, asking the Washington Supreme Court to stop the trial; nevertheless, trial proceeded. Skenandore contends that the trial court erred in proceeding to trial in the face of his petition for a writ of prohibition. His contention appears to be that trial could not proceed because his request for discretionary review of the denial of his pretrial motions was still pending. But, as noted above, our review of the denial was completed on the first day of Skenandore's trial.
[49] Also, there is no indication that a writ of prohibition was ever issued by the Supreme Court. The mere filing of a petition for a writ, at least where the petition is patently groundless, is ineffective to abate judicial proceedings. See RCW 7.16.300. See, e.g., Hodsdon v. Superior Court, 239 A.2d 222, 225 (Del. 1968); Crowder v. Lackey, 46 A.2d 699, 700 (D.C. 1946). As explained above, Skenandore's RCW ch. 9.98 rights were not violated.
[50] VI. Right to a Speedy Trial
[51] Nor were Skenandore's speedy trial rights violated.*fn7 A criminal defendant who is serving a sentence on an earlier conviction must be brought to trial on the new charge within 90 days of the arraignment. State v. Nelson, 26 Wn. App. 612, 616, 613 P.2d 1204 (1980); State v. O'Neil, 14 Wn. App. 175, 176-77, 540 P.2d 478 (1975). See also CrR 3.3(c)(1). Skenandore was arraigned on January 24, 1997, and his trial was scheduled for April 14, 1997, 80 days after his arraignment. Before expiration of the 90-day period, Skenandore waived his speedy trial rights.
[52] Thus, there was no violation of Skenandore's speedy trial rights and no merit to his petition for a writ of prohibition on this ground. The trial court did not err in trying Skenandore during the pendency of his petition for a writ of prohibition.
[53] VII. Assistance of Counsel
[54] 'Courts engage in a strong presumption counsel's representation was effective.' State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish ineffective assistance of counsel the defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); State v. King, 130 Wn.2d 517, 531, 925 P.2d 606 (1996). 'Prejudice' exists where 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, 466 U.S. at 694.
[55] A. Failing to Secure the Presence of Two Inmate Witnesses
[56] Skenandore asserts that two inmate witnesses, whom his counsel failed to call, would have provided 'testimony on their observations of events, surrounding the alleged assault of Jason Jones.' But he does not demonstrate how such testimony would have assisted his defense. Thus, he has failed to establish that his counsel's inaction was deficient or prejudicial.
[57] B. Not Interviewing Defense Witnesses
[58] Skenandore contends his counsel did not interview defense witnesses before presenting their testimony. But he neither identifies any particular witness nor indicates how a pre-testimony interview would have affected his defense. Consequently, he has failed to establish that his counsel's inaction was deficient or prejudicial.
[59] C. Insufficient Cross-Examination
[60] Skenandore asserts that his counsel insufficiently cross-examined corrections officer William Livingston, who witnessed the assault on Jones. Skenandore believes the cross-examination was deficient because counsel did not elicit (1) why Livingston did not sign Jones' report of the assault, and (2) Livingston's exact location when he witnessed the assault, given varying descriptions of Livingston's location by Jones and corrections officer Robert Schimetz.
[61] Defense counsel's performance was not deficient. That Livingston did not sign Jones' report is inconsequential; neglecting to cross-examine Livingston about his absent signature can be characterized as sound trial strategy. See Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. Ct. Crim. App. 1992) (defense counsel is not required to point out irrelevant matters); cf. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993) (failure to offer inadmissible testimony does not constitute deficient performance). Moreover, defense counsel did ask Livingston about his location during the assault, and Livingston's answer precisely mirrored that of Jones and Schimetz.
[62] Hunt, J.
[63] We concur:
[64] Seinfeld, P.J. Houghton, J.
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Opinion Footnotes
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[65] *fn1 A cuff port is a six-by-eighteen inch locking portal in the cell door.
[66] *fn2 The parties did not designate the spear as part of the record on appeal, but we asked that the record be supplemented with the spear remnants.
[67] *fn3 But the record contains no evidence that Skenandore was aiming for Jones' face or eyes, that Skenandore stabbed Jones anywhere on the face, or that Jones' eye would have been injured had the spear struck his eye.
[68] *fn4 See Rogan v. Florida, 203 So.2d 24, 25 (Fla. Dist. Ct. App. 1967) (holding that whether a flower pot used in an assault was a deadly weapon depended on the evidence; where the pot broke a glass window but the intervening screen prevented it from hitting the victim, the flower pot was not a deadly weapon).
[69] *fn5 Contrary to Skenandore's protestations, Williams remains valid law. It was cited with approval in In the Matter of the Personal Restraint of Mayner, 107 Wn.2d 512, 521, 730 P.2d 1321 (1986) ('{M}isconduct while in prison can result in a denial of good time credit and may also result in additional criminal penalties.'), and mirrors well-settled federal caselaw, see, e.g., United States v. Brown, 59 F.3d 102, 104-06 (9th Cir. 1995); Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir. 1994).
[70] *fn6 In his pro se brief, Skenandore appears to refer to the motion as one for 'Discretionary Review of the Court of Appeals{'} Commissioner's decision to deny Appellant's interlocutory appeal.'
[71] *fn7 RCW ch. 9.98 does not supplant an incarcerated defendant's CrR 3.3 speedy trial rights. State v. Alexus, 91 Wn.2d 492, 496-97, 588 P.2d 1171 (1979).