Opinion
No. 64537-4-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-05144-3, Regina S. Cahan, J., entered November 17, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Leach, JJ.
Appellant claims ineffective assistance of counsel for failure to request a lesser included offense instruction. Appellant's theory of the case was that the jury should acquit him because inconsistencies in the police reports of his arrest raised a reasonable doubt that he had committed any crime except for possession of drugs, a crime not charged. The record shows a deliberate decision not to request a lesser included offense instruction. Because this was a legitimate trial tactic, counsel was not ineffective.
Johnson was arrested by Seattle police in an undercover drug sting operation. He was charged with possession of cocaine with intent to deliver and delivery of cocaine. He pled not guilty.
Before trial, Johnson moved to suppress the testimony of officers involved in his arrest on the basis that their testimony lacked consistency and reliability. He presented evidence that the written reports of the officers conflicted with information they relayed to a Department of Corrections officer on the day of the arrest. The trial court denied the motion.
At trial, Detective Adley Shepherd testified that he was working undercover on June 6, 2008. He met Johnson on the street and asked if Johnson would sell him narcotics. Johnson agreed to sell Detective Shepherd $40 worth of cocaine. Johnson placed the cocaine on a telephone booth and waited. When Shepherd picked up the cocaine and left money in the booth, Johnson took the money and left. Shepherd testified Johnson was wearing a white T-shirt and a black stocking cap. Shepherd admitted that his official report was dated January 14, 2008, but said the date on the report was a computer related mistake.
Officer George Davisson said he and his partner arrested Johnson in a club near the location of the drug sale after Shepherd indicated he had made the drug buy. He said Johnson had a 4.8 gram nugget of cocaine and two $20 bills that matched the serial numbers of the buy money. According to Davisson, Johnson was wearing a black jacket and white stocking cap — the reverse of Shepherd's description. Davisson's report was dated June 6, 2008.
Davisson's partner, Officer John O'Neil, testified that Johnson was wearing a black jacket, a white shirt with stripes, and a white stocking cap at the time of arrest. His report was dated May 6, 2008.
Officer Rafael Martinez testified that he watched the drug sale to protect Shepherd. He said he saw Johnson and Shepherd exchange the drugs and money hand to hand. He did not mention a telephone booth.
The defense presented Department of Corrections Officer Rocky Bronkhorst as the only defense witness. Bronkhorst testified that the officers involved in Johnson's arrest called him to see if Johnson was in compliance with supervision by the Department of Corrections. Based on what the calling officers said, he wrote up a report the day of Johnson's arrest. Officer Bronkhorst testified that his report said Johnson was arrested on June 6, 2008, for possession of one gram of cocaine and for smoking crack in public.
The trial court discussed jury instructions with counsel. Defense counsel argued that a definition of the crime of possession should be included. The court asked defense counsel, "Are you proposing a lesser?" Counsel said she was not. "I'm not proposing a lesser, but . . . our whole theory is that this is also not charged correctly. There is possession, there's possession with intent to deliver, and there is delivery. These are three different crimes and I think they should have the definition of possession."
Defense counsel argued in closing that the State had failed to prove the elements of either delivery or possession with intent to deliver. She argued that the jury should disregard the testimony of the State's witnesses due to the discrepancies in the officers' testimony and the sloppiness of their work. Instead, she said, the jury should believe Officer Bronkhorst's report, if any, that Johnson was arrested for possession. Because possession had not been charged, the jury should acquit.
The jury returned guilty verdicts on both charged counts. Johnson appeals.
To prevail on an ineffective assistance of counsel claim, a defendant must show that defense counsel's performance was deficient and counsel's deficient performance prejudiced the defense. A reviewing court's scrutiny of counsel's performance is highly deferential, and we employ a strong presumption of reasonableness. If defense counsel's conduct can be fairly characterized as legitimate trial strategy or tactics, it does not constitute deficient performance. State v. Breitung, 155 Wn. App. 606, 614-15, 230 P.3d 614 (2010). "The decision to not request an instruction on a lesser included offense is not ineffective assistance of counsel if it can be characterized as part of a legitimate trial strategy to obtain an acquittal." State v. Hassan, 151 Wn. App. 209, 218, 211 P.3d 441 (2009).
Johnson argues that counsel's strategy to seek outright acquittal instead of conviction for possession was unreasonable, citing Breitung. Breitung was tried for second degree assault. The State presented evidence that he had pointed a gun at two men and threatened to kill them. Breitung testified that he had threatened the men by pointing a microscope lens at them like a gun, but denied he had used a real gun or told them he would kill them. His counsel did not request a lesser included instruction on fourth degree assault. Though Breitung had testified he threatened the men, basically admitting to some kind of assault, defense counsel argued that Breitung had not threatened the men and had not committed any assault. Breitung was convicted as charged.
This court determined counsel was ineffective for failing to request the lesser included instruction. Breitung's strategy to seek outright acquittal was not a legitimate trial tactic because once he admitted to committing some kind of assault, the jury was likely to convict him of the only assault charged. Breitung, 155 Wn. App. at 617. The court explained the strategy of outright acquittal was undermined by the fact that counsel's argument was inconsistent with Breitung's own testimony. Breitung, 155 Wn. App. at 617.
By contrast, Johnson's counsel explicitly refused to request a lesser included instruction because it was inconsistent with the defense theory that the prosecution had not charged the case correctly. Counsel argued this theory to the jury consistent with the evidence presented by the defense that Johnson had been charged with the wrong crime. Johnson's gamble for acquittal was not unreasonable considering the inconsistent testimony of the State's witnesses and Officer Bronkhorst's testimony indicating that Johnson was guilty only of possession. Because Johnson has failed to overcome the strong presumption that counsel's performance was reasonable, we reject his claim of ineffective assistance.
Johnson filed a statement of additional grounds under RAP 10.10. He argues the trial court erred by failing to grant his motion to suppress because the police lacked probable cause to stop and search him. The motion, however, did not seek to suppress evidence on this basis. Thus, any argument that the police lacked probable cause has been waived. State v. Baxter, 68 Wn.2d 416, 423-24, 413 P.2d 638 (1966).
Johnson also contends his convictions should be dismissed because the evidence given by Officer Bronkhorst was dispositive and should have been credited by the jury. But despite the inconsistencies in the testimony of the police witnesses, their evidence was sufficient to support the jury's verdict. Witness credibility is a determination for the jury that will not be disturbed on appeal. Stiley v. Block, 130 Wn.2d 486, 925 P.2d 194 (1996).
Johnson also alleges that the prosecution committed procedural misconduct by introducing evidence during trial that it had withheld from his attorney. He refers to defense counsel's statement at trial that she had not had a chance to look inside an envelope the State offered into evidence. The envelope contained a photocopy of the two $20 bills the police used to buy the cocaine from Johnson. Counsel did not object to admission of the evidence. Her statement that she had not previously looked in the envelope does not establish misconduct on the part of the prosecution.
In short, we find nothing in Johnson's statement of additional grounds that warrants further review of the proceedings in the trial court.
Affirmed.