Opinion
No. 36812-9-II.
January 13, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-00825-1, Thomas P. Larkin, J., entered August 31, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
UNPUBLISHED OPINION
While incarcerated at Pierce County Jail, Eric R. Anichini spat on a prison guard and punched him in the ribs multiple times. Anichini now appeals his conviction of custodial assault, arguing that his counsel ineffectively represented him by (1) allowing him to testify, although the attorney did not know about past criminal convictions, and (2) not preparing Anichini to answer questions regarding his prior convictions. In a statement of additional grounds, Anichini argues that the officers did not follow procedures by failing to seek assistance from other officers before entering his cell and, thus, were acting outside of the scope of their employment at the Pierce County Jail. Finding no reversible error, we affirm.
FACTS
One day in February 2007, correctional officers Rocklin Severson and Brian Blowers supervised an inmate meal at the Pierce County Jail. They gave Anichini a food tray and a "spork" eating utensil. After dinner, Anichini refused to return the tray and "spork" as mandated by jail procedures. Severson summoned Blowers for assistance. Severson again asked Anichini to return the tray; when Anichini refused, Severson ordered him to place his hands through a small window in the door so that they could handcuff him. Anichini again refused to do so.
Through the cell window, Severson then saw Anichini "stuffing something into the toilet." Report of Proceedings (RP) at 49. Concerned that Anichini might be attempting to flush contraband down the toilet, the officers entered Anichini's cell to "secure what he was shoving in the toilet . . . collect the trays [and] perform[] a quick search of the cell . . . [for] contraband or weapons." RP at 51. Severson ordered Anichini to sit on the bed, but he refused to comply. Nonetheless, Severson completed a quick search of the cell and found a long braid of rope made from toilet paper.
After the search, Blowers left the cell first. As Severson was leaving with the trays and rope, Anichini spat in his right eye and on the right side of his face. Severson and Blowers immediately forced Anichini onto the bed. During the scuffle, Anichini hit Severson in the ribs three or four times. Blowers did not see the blows. Severson went to Tacoma General for care.
The State charged Anichini with custodial assault. During trial, the prosecutor informed the court that he wanted to question Anichini about his 2004 third degree assault conviction if it was for assaulting an officer. The prosecutor was not aware of who the victim had been for that conviction, but asked Anichini's counsel if she would "concur that there was an Assault 3" on his record. RP at 116. Anichini's counsel answered, "I don't have his criminal record in front of me." RP at 116. The court then recessed and the prosecutor called the King County Prosecutor's Office and was told that they "couldn't tell if [the victim] was a police officer." RP at 117. The prosecutor informed the court that he would not explore the assault conviction but that he did intend to ask about Anichini's other 2004 conviction for theft. Anichini's counsel asked "[i]f [she could] have one second to explain it to [her] client?" RP at 118. The court granted counsel's request.
ANALYSIS I. Ineffective Assistance of Counsel
To demonstrate that counsel ineffectively represented him, Anichini must show that (1) his attorney's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). We give trial counsel considerable deference and presume that counsel effectively represented the defendant. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). If it appears to us that counsel's challenged conduct was pursuant to legitimate trial strategy or tactics, we will not find it deficient. McNeal, 145 Wn.2d at 362.
Anichini argues that his counsel ineffectively represented him because she was unaware of his prior assault and theft convictions and, thus, failed to properly advise and prepare him for questioning about the convictions. Anichini points to his attorney's inability to inform the court about his 2004 conviction for third degree assault. Anichini's argument fails because the prosecutor, after consulting with the King County Prosecutor's Office, did not question him about the assault charge. Thus, even if we assume that defense counsel should have known about Anichini's assault conviction, he cannot show that he was prejudiced by the failure.
As to his prior theft conviction, Anichini argues that "[c]ounsel should have been aware that if Anichini testified, under the rules of evidence, the [S]tate could present evidence of any prior conviction that constituted a crime of dishonesty." Br. of Appellant at 8. We agree. But the record is unclear as to whether counsel knew about Anichini's criminal record before she put him on the stand. In response to the State's question about the prior assault victim, counsel said that she did not "have his criminal record in front of me." RP at 116. She did not say that she was unaware of the prior theft conviction. In addition, defense counsel had obtained a copy of Anichini's competency evaluation at Western State, which listed his prior convictions, including the theft conviction. Defense counsel asked for and received a brief recess to discuss the theft conviction with her client and then she questioned Anichini about it on direct examination. Thus, the record does not establish that counsel was unaware of Anichini's prior theft conviction.
"For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime . . . involved dishonesty or false statement." ER 609(a)(2).
Further, Anichini has not shown prejudice. We will find prejudice only when the record shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694. Under RCW 9A.36.100(b), a person is guilty of custodial assault when he "[a]ssaults a full or part-time staff member . . . at any adult corrections institution or local adult detention facilities who was performing official duties at the time of the assault." The record contains ample evidence to prove that Anichini assaulted Severson while the officer was performing his normal duties. Both Severson and Blowers testified that the defendant spat on Severson. See State v. Jackson, 145 Wn. App. 814, 821, 187 P.3d 321 (2008) (spitting can be assault). Both also described the combative circumstances leading up to the spitting. Considering the entire incident, it is unlikely that the jurors would have acquitted Anichini even without the evidence he had been convicted of theft before.
II. Statement of Additional Grounds (SAG)
In his SAG, Anichini argues that Officers Severson and Blowers entered his cell without following internal jail procedures and without permission from their superiors. Thus, reasons Anchini, Severson and Blowers were not acting in line with their official duties and were acting outside of the scope of their authority.
Nothing in the trial court record supports Anichini's claims that the officers improperly entered his cell or that Severson or Blowers were acting independently and not under the authority of the Pierce County Jail. Accordingly, we cannot address this argument. See, e.g., State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) ("the reviewing court will not consider matters outside the trial record.").
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and HUNT, J., concur