Opinion
No. 54071-8-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-1-08720-5. Judgment or order under review. Date filed: 03/26/2004. Judge signing: Hon. Catherine D. Shaffer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D. Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
David Mi Davison (info Only) (Appearing Pro Se), Cbcc, Doc #630654, 1830 Eagle Crest Wy., Clallam Bay, WA 98326-9723.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
David Davison was sentenced to life in prison after being found guilty of first degree assault for shooting James Cowan in both knees. Davison asserts that he was deprived of his right to effective assistance of counsel and an impartial jury when his trial counsel failed to challenge a biased juror. But Davison has not overcome the strong presumption that counsel's representation was effective. Nor has Davison shown that the trial court erred when it found him to be a persistent offender and sentenced him to life in prison without the possibility of parole. We affirm.
FACTS
On October 13, 2000, James Cowan was walking from his parents' home in Auburn, Washington toward a local business where he planned to apply for work. A friend, Dan, and another man in a white van offered Cowan a ride. Before reaching the business, however, Dan got out of the van and the driver, David Davison, told Cowan he wanted to go someplace where he could 'smoke a bowl.' They parked near a river, and Davison asked Cowan to look at something in the back of the van. When Cowan went to look, Davison shot him in both legs, then drove away.
Cowan initially told the police that he was the victim of a drive-by shooter. But that explanation was inconsistent with Cowan's injuries. When confronted about the inconsistency, Cowan told the police that Davison shot him over an alleged drug debt. Davison had told Cowan 'he would come back and finish the job' if Cowan told anyone what happened.
A jury convicted Davison of first degree assault. He had an extensive criminal history, including convictions for second degree rape and second degree manslaughter and, therefore, was sentenced as a persistent offender to life in prison without the possibility of parole. An incorrect jury instruction led this Court to overturn Davison's conviction on appeal. He was retried, convicted again, and sentenced as a persistent offender to life in prison without the possibility of parole.
ANALYSIS I. Davison Has Not Overcome The Presumption That Trial Counsel's Representation Was Effective
In this second appeal, Davison contends that he was denied his rights to effective assistance of counsel and an impartial jury when his trial counsel failed to challenge a juror who expressed a bias toward police witnesses.
A juror is biased if he or she has 'a state of mind . . . in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging[.]' RCW 4.44.170(2). A potential juror's expressed preference in favor of police testimony alone does not conclusively demonstrate bias. State v. Gonzales, 111 Wn. App. 276, 281, 45 P.3d 205 (2002). The question is whether a juror can set aside his or her preconceived ideas. State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991). Because the trial judge can observe demeanor, he or she is in the best position to evaluate and interpret responses and determine the juror's ability to be fair and impartial. Noltie, 116 Wn.2d at 839.
To establish that counsel was ineffective, the defendant must prove that counsel's performance was deficient and, as a result, the defendant was prejudiced. State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001). If either part of the test is not satisfied, an ineffective assistance of counsel claim fails. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
A defendant proves deficient performance by demonstrating that the representation fell below an objective standard of reasonableness. Townsend, 142 Wn.2d at 844. Prejudice is established by showing that 'there is a reasonable probability that, but for counsel's error, the result would have been different.' Townsend, 142 Wn.2d at 844. Courts approach ineffective assistance claims with a strong presumption that counsel's representation was effective. Townsend, 142 Wn.2d at 843. Competency is determined by considering the entire record at trial. Townsend, 142 Wn.2d at 843. If counsel's actions were the result of legitimate trial strategies or tactics, an ineffective assistance claim fails. Townsend, 142 Wn.2d at 847.
In this case, defense counsel asked potential jurors whether they could treat a law enforcement officer like any other witness in assessing credibility or whether they would tend to automatically believe the testimony of an officer. Juror 26 indicated that he would be inclined to believe an officer's testimony:
I kind of feel that I might have a tendency to put more weight on testimony by law enforcement person [sic] than somebody else. I mean, I would be very honest about it.
DEFENSE: I appreciate it.
Juror 26: And I would try to be very objective but my underlying feeling might be still that I would tend to favor the law enforcement person.
DEFENSE: Well, so it comes back to the question of are you acknowledging that you may not be able to follow the Court's instructions if you're told that you're not to do — what you're suggesting that you might have the tendency to do?
Juror 26: I would make all my attempts to follow the instructions but my inner feeling might still exist. I mean, I just can't erase that feeling.
DEFENSE: I understand the feeling. Do you think you could consciously put that feeling aside?
Juror 26: I would try to do that, yes.
Davison did not challenge Juror 26 for cause, so he cannot assign error to the trial court's failure to remove the juror. He contends instead that defense counsel was ineffective for failing to challenge Juror 26.
But Davison has not overcome the strong presumption that counsel's representation was effective. Rather, considering the type of jury selection the trial court employed, the record supports a conclusion that counsel retained Juror 26 as part of a legitimate trial strategy.
The trial court used a method of jury selection where the judge and counsel questioned potential jurors as a group. The judge emphasized the importance of paying close attention and giving straightforward answers so that the court could determine if potential jurors had preconceived ideas that might affect the case. The potential jurors were informed that they must decide the case based upon the evidence produced in court. On balance, the answers that Juror 26 gave to some questions, and his silence in response to others, indicated that he would be fair.
Moreover, Davison's trial counsel challenged other potential jurors, which shows that he knew how to exercise challenges and made a conscious decision to retain Juror 26. For example, one of those challenged, Juror 10, expressed a bias toward police witnesses. Like Juror 26, Juror 10 was equivocal about whether she would be able to assess law enforcement witnesses as she would any other witness: 'I would work real hard to be fair, but I know internally I'm now a little bit more inclined to associate integrity with an officer. . . . I'd have to make a real conscious decision to following [sic] the judge's instruction.'
Trial counsel exercised all of Davison's peremptory challenges, but did not challenge any jurors for cause.
Ultimately, Juror 10 told the judge that she thought she could follow the instructions and assess the credibility of a law enforcement officer as she would assess the credibility of any other witness. Nevertheless, defense counsel challenged Juror 10, perhaps because her father had been an FBI agent, and she herself was a compliance officer who described herself as a law and order person.
In contrast, Juror 26's tendency to believe that law officers were credible was balanced by his high regard for individual rights and an awareness of the fallibility of the government. He told the court:
I have a very high regard for individual rights. Being incarcerated as a group back in '42 I feel that the justice system sort of failed me at that time, but that was over 60 years ago. But because of that I feel a very high regard for the individual and his rights or her rights[.]
By showing his awareness that government officials can make mistakes, Juror 26 strengthened his claim that he could set aside his preconceived ideas about law officers.
Both Jurors 10 and 26 expressed a bias toward police witnesses, but of the two, defense counsel challenged only Juror 10. Given the strong presumption that counsel's assistance was effective, we cannot say that the decision to retain Juror 26 was not a tactical one.
Moreover, Davison has not shown that counsel's performance throughout the rest of the trial was deficient. The main witness against Davison was the victim, James Cowan. Defense counsel impeached Cowan's credibility by showing that his testimony at trial was inconsistent with statements he had made in the past.
For example, Cowan claimed that he had never met Davison before the day he was shot. But by asking Cowan about statements he made to detectives at the hospital, which Cowan claimed he did not remember, defense counsel raised the possibility that Cowan was lying. Cowan's testimony was further contradicted by testimony that defense counsel elicited from a police witness. Defense counsel also discredited Cowan by bringing out testimony that, on the day he was shot, drug charges were pending against him. Defense counsel presented a plausible defense. His questioning suggested that Cowan implicated Davison in the shooting because he feared retribution from the true shooter. Counsel also appropriately and successfully challenged the admission of evidence before and during trial. Davison has not established that counsel's representation fell below an objective standard of reasonableness. Therefore, his ineffective assistance of counsel claim fails.
II. The State Was Not Required To Prove Davison's Prior Convictions To A Jury Beyond A Reasonable Doubt
Davison argues that he was deprived of his right to a jury trial when the court sentenced him to life in prison under the persistent offender accountability act (POAA) without proving to a jury beyond a reasonable doubt that he had two prior convictions for most serious offenses. He bases his argument upon the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
In both of those cases, however, the Supreme Court distinguished prior convictions from other facts that must be proved to a jury beyond a reasonable doubt: 'Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Apprendi v. New Jersey, 530 U.S. at 490; Blakely, 124 S. Ct. at 2536 ('This case requires us to apply the rule we expressed in Apprendi[.]')
Davison contends that, because neither Apprendi nor Blakely involved the use of prior convictions to enhance a sentence, the issue whether prior convictions must be proved to a jury beyond a reasonable doubt is unresolved. But the Washington Supreme Court recently addressed the issue in State v. Hughes, ___ Wn.2d ___, ___ P.3d ___ (2005). The Hughes Court held that 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' ___ Wn.2d at ___. Therefore, if imposing an enhanced sentence requires findings beyond the fact of the prior conviction, such as a finding of rapid recidivism or a determination that a sentence is clearly too lenient, that decision is a factual determination that cannot be made by the trial court. Hughes, ___ Wn.2d at ___.
Davison's prior convictions did not require findings beyond the fact of the convictions. The court did not use his prior convictions to increase the penalty for his crime beyond the prescribed statutory maximum. The fact of Davison's convictions alone established that he was a persistent offender, subjecting him to the three strikes law. We, therefore, reject Davison's argument that he was deprived of his right to due process and a jury trial when the state failed to prove his prior convictions to a jury beyond a reasonable doubt.
III. Davison's Prior Convictions Were Not Facially Invalid, So He Must Challenge Them In A Collateral Proceeding Under RAP 16.3
Davison argues that the trial court erred when it counted his prior convictions as strikes under the POAA. He claims that his prior convictions, which resulted from guilty pleas, were facially invalid because the pleas did not mention the possibility of enhanced punishment for future crimes. He contends that, absent warnings of possible enhanced punishment, he was deprived of his right to due process when he pled guilty to the earlier crimes.
But increased punishment under the POAA is triggered only upon the third conviction of a most serious offense. State v. Angehrn, 90 Wn. App. 339, 344, 952 P.2d 195 (1998); see also RCW 9.94A.030(23), (27). Therefore, the absence of warnings about enhanced punishment on the guilty plea forms used when Davison pleaded guilty to serious crimes before the POAA was enacted did not deprive him of due process.
Furthermore, the state does not have an affirmative burden to prove the constitutional validity of a prior conviction before it can be used in a sentencing proceeding. State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796 (1986). But the sentencing court may not consider a prior conviction if the conviction has previously been determined to have been obtained unconstitutionally or is constitutionally invalid on its face. Ammons, 105 Wn.2d at 188-89.
A facially invalid conviction is one that, without further elaboration, affirmatively shows that the defendant's constitutional rights were violated. State v. Ammons, 105 Wn.2d 175, 188-89, 713 P.2d 719, 718 P.2d 796 (1986). Not only must the plea forms be deficient, the defendant must affirmatively show that constitutional safeguards were not provided. Ammons, 105 Wn.2d at 189; State v. Burton, 92 Wn. App. 114, 117, 960 P.2d 480 (1998).
Davison did not present affirmative evidence showing that his guilty pleas were constitutionally deficient. Consequently, his sole remedy is to pursue relief in the form of a collateral challenge under RAP 16.3. Ammons, 105 Wn.2d at 189.
Citing Division Two's decision in State v. Carpenter, 117 Wn. App. 673, 72 P.3d 784 (2003), Davison argues that his challenge below to the use of his prior convictions was not a collateral attack because it was directed to the present use of his prior convictions to prove that he was a persistent offender.
In Carpenter, the defendant argued that, for purposes of sentencing under the POAA, he did not have two prior convictions that counted as strikes when he committed the robberies for which he was being sentenced. He disputed that a 1996 assault conviction constituted a strike because the State did not seek a declination of juvenile court jurisdiction until after he was charged with the robberies. Therefore, he argued, the adult court that sentenced him in 1996 did not have jurisdiction over him. But the trial court counted the 1996 conviction as a strike and sentenced Carpenter as a persistent offender.
On appeal, Carpenter argued that he did not have two strikes against him when he committed the third offense. The State argued that Carpenter's challenge was an improper collateral attack on his 1996 conviction. Division Two held that Carpenter's challenge was not a collateral attack because it was directed to the present use of a prior conviction to prove that Carpenter was a persistent offender. Carpenter, 117 Wn. App. at 678. Then, applying the rule of lenity, the court of appeals held that Carpenter's conviction of second degree assault did not count as a strike until the declination hearing was held. Carpenter, therefore, did not have two previous convictions when he committed his alleged third strike. Carpenter, 117 Wn. App. at 682.
Carpenter is distinguishable from Davison's case. At trial, Carpenter disputed the State's assertion that he had two prior convictions that counted as strikes under the POAA, and he apparently presented affirmative evidence to support his position.
In contrast, Davison did not affirmatively show that he was deprived of his right to due process or other constitutional safeguards when he pleaded guilty to the earlier serious crimes. He merely argued that the plea forms were deficient.
Davison's reliance upon Carpenter also is unpersuasive because the holding that Carpenter's challenge was not an improper collateral attack on his prior conviction was based upon State v. Holsworth, 93 Wn.2d 148, 607 P.2d 845 (1980). Holsworth involved challenges to prior convictions in habitual criminal proceedings. The Supreme Court in Ammons distinguished POAA proceedings under the Sentencing Reform Act (SRA) from habitual criminal proceedings and concluded that defendants have other, more appropriate arenas for determining the constitutional validity of prior convictions. Ammons, 105 Wn.2d at 188.
Davison did not present affirmative evidence that constitutional safeguards were not provided when he pleaded guilty to his earlier crimes. Therefore, the trial court properly considered the prior convictions when it sentenced him as a persistent offender.
IV. Davison Was Not Deprived Of His Constitutional Rights When The Trial Court Ordered Him To Give A Sample Of His DNA
RCW 43.43.754 requires an individual who has been found guilty of a felony to give a biological sample for DNA identification analysis. Pursuant to that statute, the court ordered Davison to cooperate in providing a blood sample to the Department of Corrections. Davison argues that, if he has not yet provided a blood sample, the order should be stricken. If he has provided a blood sample for DNA identification analysis, he asks this Court to order that the sample be destroyed. He claims that the order violates the Fourth Amendment protection against warrantless searches and seizures and his privacy rights under article I, sec. 7 of the state constitution.
In support of his argument, Davison relies upon United States Supreme Court decisions, including City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000), and Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), and United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). Davison argues that, even though convicted offenders have lessened privacy interests, warrantless seizures of DNA must be based upon individualized and reasonable suspicion.
This Court, however, rejected the same argument last year in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004). In deciding Surge, we rejected the analysis of a panel of the Ninth Circuit Court of Appeals in United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003), which held that a similar federal statute violated the Fourth Amendment. Furthermore, although the Washington Supreme Court has granted the petition for review in Surge, the Ninth Circuit Court, considering the Kincade case en banc, upheld the federal DNA collection statute, and the United States Supreme Court denied certiorari. United States v. Kincade, 379 F.3d 813 (2004), cert. denied, Kincade v. U.S., ___ S. Ct. ___, 2005 WL 637432 (U.S. Mar 21, 2005) (NO. 04-7253). In rejecting the argument that the federal statute violated Kincade's Fourth Amendment rights, a majority of the Ninth Circuit Court concluded that compulsory DNA collection was reasonable: In light of conditional releasees' substantially diminished expectations of privacy, the minimal intrusion occasioned by blood sampling, and the overwhelming societal interests so clearly furthered by the collection of DNA information from convicted offenders, we must conclude that compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances.
Kincade, 379 F.3d at 839. In light of this precedent, Davison's arguments fail.
CONCLUSION
Davison has not overcome the presumption that his trial counsel's assistance was effective. He also has failed to show that he was denied his constitutional rights when the trial court considered his prior convictions, sentenced him to life in prison without the possibility of parole, and ordered him to provide a sample of his DNA.
Davison asks this Court not to impose costs if he loses this appeal, but he does not cite any authority in support of that request. It, therefore, is denied.
The decision of the trial court is affirmed.
ELLINGTON, and BAKER, JJ., Concur.