Opinion
No. 36143-4-II.
September 3, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04093-9, Kitty-Ann van Doorninck, J., entered March 2, 2007.
Andrew Kimbrough appeals his convictions of unlawful delivery of a controlled substance (cocaine) and unlawful possession with intent to deliver. He argues that the trial court erred in failing to hold an in camera hearing to determine whether the State should disclose a confidential informant's identity, that the evidence was insufficient to support his convictions, and that his attorney was ineffective for failing to introduce as evidence the cash Kimbrough possessed at the time of arrest. In a statement of additional grounds (SAG), Kimbrough contends that the trial court erred in admitting hearsay testimony, that his attorney ineffectively represented him, that the police and prosecuting attorney committed misconduct, and that the State's closing argument violated his right to be free from double jeopardy. Finding no reversible error, we affirm.
RAP 10.10.
FACTS
Tacoma police officers videotaped a controlled drug buy involving a confidential informant (CI), Kimbrough, and Randall Faison. The officers searched the CI before the buy and gave her a recorded $20 bill. Seven officers maintained constant surveillance of the CI during the buy. Kimbrough contacted Faison, who then met briefly with the CI. After the encounter, the CI gave the officers .2 grams of cocaine that she had purchased from Faison in exchange for the prerecorded $20 dollar bill. The officers did not find any other drugs or money in her possession.
The officers arrested Faison and Kimbrough a few minutes later in a wooded area a short distance from the buy location. Faison possessed neither drugs nor buy money. Kimbrough possessed a bag of seven rocks of cocaine that weighed 2.6 grams as well as $445, including the buy money the CI had given Faison.
The State charged Kimbrough with unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. On the first day of trial, Kimbrough filed a written motion to compel the State to disclose the CI's identity in an in camera hearing. Our record contains nothing further about the motion. Several officers testified about the drug buy, and the State introduced a copy of the videotape showing the drug transaction without the audio. Officer Ryan Lane explained that street-level drug buys often involve "middler[s]," or people who take the drugs from the dealer to the customer and return the purchase money to the dealer. 1 Report of Proceedings (RP) at 45-48. A middler is generally a drug addict who assists the dealer so he can obtain drugs for himself.
Sergeant Shawn Stringer testified that it is common for dealers to carry several pieces of crack cocaine and uncommon for a user to break a large piece of crack into smaller pieces ahead of time. He also testified that dealers often carry large sums of cash, representing the profits from dealing. He believed it would be uncommon for a crack user to carry $425. He noted further that while crack users typically carry a device in which to smoke the cocaine, Kimbrough had no smoking device. Officer Lane added that possessing 2.6 grams of cocaine was inconsistent with mere use of the drug.
The jury convicted Kimbrough on both counts.
ANALYSIS
1. Disclosure of Informant's Identity
Both statute and court rule protect an informant's identity. See RCW 5.60.060(5) (public officer shall not be examined as a witness to the communications made to him or her in official confidence when the public interest would suffer by the disclosure); CrR 4.7(f)(2) (disclosure of informant's identity shall not be required where that identity is a prosecution secret and failure to disclose will not infringe on defendant's constitutional rights). The informer's privilege is predicated on the public's interest in encouraging the flow of information from confidential sources to the police. State v. Massey, 68 Wn.2d 88, 91-92, 411 P.2d 422 (1966). There is no fixed rule governing disclosure, but the public interest must be balanced against the individual's right to prepare his defense. State v. Harris, 91 Wn.2d 145, 150, 588 P.2d 720 (1978); Massey, 68 Wn.2d at 92 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)). A defendant who seeks disclosure of an informant's identity has the burden of justifying an exception to the rule of nondisclosure. Massey, 68 Wn.2d at 92. The preferred method for making this determination without prejudicing the rights of either the State or the defendant is for the trial court to hold an in camera session at which the judge hears the informant's testimony and applies the Roviaro balancing test. Harris, 91 Wn.2d at 150.
The trial court should apply a relevancy standard in exercising its discretion as to whether to hold an in camera hearing. State v. Potter, 25 Wn. App. 624, 628, 611 P.2d 1282 (1980). It should conduct such a hearing if the defendant makes an initial showing that the confidential informant may have evidence that would be relevant to the defendant's innocence. Potter, 25 Wn. App. at 628. The trial court should not order an in camera hearing if the defendant's contention that the informant may have relevant information is based on speculation, but the trial court should be aware of the difficulty of explaining "`in the abstract why the informant's testimony is crucial.'" Potter, 25 Wn. App. at 628 (quoting Bewers, Defendant's Right to a Confidential Informant's Identity, 40 La. L. Rev. 147, 168 (1979)). There is no reason to require disclosure when the informant's evidence would be cumulative or tend only to prove the defendant's guilt. Potter, 25 Wn. App. at 629.
Kimbrough's written motion requested an in camera hearing because (1) it would allow the CI to be questioned about her conversations with Kimbrough before Faison delivered the cocaine, and (2) it would allow the CI to be questioned about the exchange with Faison, which "would allow evidence of the defendant's innocence to be explored in regards to the state[']s claim of accomplice liability[.]" Clerk's Papers (CP) at 26. Our record contains neither the arguments nor the trial court's ruling on Kimbrough's motion. Defense counsel did refer to the CI's absence during closing argument when he referred to "the lady who is in the video, where is she? Why didn't she testify? We don't know from her what happened. It's the State's burden to produce that evidence, and they haven't." 2 RP at 81-82.
Kimbrough's first problem is that he has not given us a sufficient record to address this issue. See RAP 10.3(a)(5), (6) (factual statements and argument in appellate brief must contain cites to relevant parts of the record). As the State asserts, it is possible the defense withdrew its motion. The State also suggests that it is possible that the trial court held an in camera hearing and denied the
motion for disclosure. This is unlikely. The Supreme Court has specified that a sealed transcript of such proceedings must be made, and there is no such transcript in this record. See State v. Casal, 103 Wn.2d 812, 821, 699 P.2d 1234 (1985); State v. Vargas, 58 Wn. App. 391, 395 n. 2, 793 P.2d 455 (1990). Given the lack of argument or any definitive ruling, the record is insufficient to resolve this issue on the merits.
Moreover, on the spare record we do have, Kimbrough has not justified his request for an in camera hearing. He only speculates that such an examination would disclose evidence of his innocence. Such speculation is insufficient to overcome the privilege, particularly where the drug transaction at issue was recorded on audio and videotape and clearly involved Kimbrough. Although the defense apparently succeeded in suppressing the audio portion of the videotape at trial, the audio portion of the exhibit provided to this court is fully functional and demonstrates that the CI's testimony would have been unlikely to aid the defense. Her conversation with Kimbrough clearly focused on acquiring drugs, and she stated quite plainly that she had been successful in their acquisition as soon as she left Faison. Even if we overlook the inadequacy of the appellate record, we conclude that Kimbrough did not satisfy his burden of showing that an in camera hearing to disclose the CI's identity was warranted.
Neither the motion to suppress nor the ruling thereon is part of the appellate record. The appellant's brief, and Kimbrough's statement of additional grounds, simply assert that the defense successfully suppressed the audio portion of the tape.
2. Sufficiency of the Evidence
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In reviewing a sufficiency challenge, we draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. Salinas, 119 Wn.2d at 201. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
A. Unlawful Delivery of a Controlled Substance
The trial court instructed the jury that to convict Kimbrough of delivering a controlled substance, it had to find: (1) that on or about August 30, 2006, the defendant or an accomplice delivered a controlled substance; (2) that the defendant knew the substance delivered was cocaine; and (3) that the acts occurred in Washington. The trial court further instructed the jury that a person is an accomplice in the commission of a crime if, with knowledge that it will promote or
facilitate the commission of the crime, he either (1) solicits, commands, encourages, or requests another person to commit the crime or (2) aids or agrees to aid another person in planning or committing the crime.
Kimbrough argues that the evidence was insufficient to prove that he acted as an accomplice to Faison's delivery of crack cocaine to the CI. As the trial court instructed the jury, to prove that a defendant aided another in committing the crime, the State must prove that the person was ready to assist in the commission of the crime. State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981). One does not aid and abet unless, in some way, he associates himself with the undertaking, participates in it as something he desires to bring about, and seeks by his action to make it succeed. State v. J-R Distribs., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973).
The videotape of the controlled buy showed that after the CI contacted Kimbrough, Kimbrough contacted Faison. The two men appeared to exchange something and clasp hands, whereupon Faison met with the CI. Kimbrough then reappeared and rejoined Faison, and the two walked away together. Officer Daryl Higgins testified that the videotaped transaction was consistent with a narcotics buy. After the transaction, the CI gave the officers a piece of crack cocaine, and the officers found the buy money in Kimbrough's pocket. Kimbrough also possessed seven rocks of cocaine and a large amount of cash. Viewed in the light most favorable to the State, the evidence supports the State's theory that Kimbrough was an accomplice to the delivery of crack cocaine.
B. Unlawful Possession of a Controlled Substance with Intent to Deliver
The trial court instructed the jury that to convict Kimbrough of unlawful possession with intent to deliver, it had to find that on or about August 30, 2006, Kimbrough possessed a controlled substance, that he possessed the substance with the intent to deliver, and that the acts occurred in Washington. Kimbrough argues that the State failed to prove his intent to deliver.
Mere possession of drugs, without more, does not raise an inference of the intent to deliver. State v. Cobelli, 56 Wn. App. 921, 925, 788 P.2d 1081 (1989). Rather, the State must prove at least one additional factor, suggesting a sale and not mere possession, to corroborate the defendant's intent to deliver. State v. Hagler, 74 Wn. App. 232, 236, 872 P.2d 85 (1994). In Hagler, the evidence was sufficient where the defendant was found in possession of 24 rocks of cocaine as well as $342 in cash. Hagler, 74 Wn. App. at 236. Division One also found sufficient evidence of intent where the defendant possessed drugs along with a gram scale and $850 in cash. State v. Lane, 56 Wn. App. 286, 297-98, 786 P.2d 277 (1989).
The jury may infer intent to deliver from an exchange or possession of significant amounts of drugs or money. State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995). In Davis, however, the only incriminating evidence was the possession of small amounts of marijuana and marijuana packaging materials. Davis, 79 Wn. App. at 593. "[T]here was no evidence Mr. Davis had bought or sold marijuana or was in the business of buying or selling." Davis, 79 Wn. App. at 595. Similarly, in Cobelli, the defendant was found with a small amount of marijuana and an undetermined amount of money in his pockets. Even though officers saw him engage in brief conversations with small clusters of people in a convenience store parking lot before his arrest, they saw nothing exchanged and no suspicious gestures. Cobelli, 56 Wn. App. at 925. The court concluded that the evidence was no more indicative of an intent to deliver than of mere possession. Cobelli, 56 Wn. App. at 925.
Here, when viewed in the light most favorable to the State, the videotape and testimony established that Kimbrough assisted in the delivery of crack cocaine to the CI. Officers testified that the amount of cocaine found in Kimbrough's possession was not typical of the amount carried by users and that it was common for dealers to carry several smaller pieces of crack cocaine. Sergeant Stringer testified that it would be unusual for a user to carry $425 in cash, and that users normally carry a smoking device along with their cocaine. Kimbrough did not have any smoking device.
The State submitted more than evidence of mere possession. Viewed in the light most favorable to the prosecution, the evidence is sufficient to support Kimbrough's conviction of possession of a controlled substance with intent to deliver.
3. Ineffective Assistance of Counsel
Kimbrough argues that if the evidence was sufficient to support the charges against him, his attorney was ineffective for failing to introduce the money recovered from Kimbrough at the time of arrest because it was inconsistent with his guilt on both counts.
To show that his attorney ineffectively represented him, Kimbrough must demonstrate both that such representation was deficient and that the deficiency prejudiced Kimbrough. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Deficient performance is not shown by matters that go to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). To show prejudice, Kimbrough must demonstrate a reasonable probability that, but for counsel's errors, the trial result would have differed. Thomas, 109 Wn.2d at 226. If either part of the test is not satisfied, the inquiry need go no further. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). We give considerable deference to counsel's performance and presume it was effective. State v. Jensen, 125 Wn. App. 319, 328, 104 P.3d 717 (2005).
To establish his counsel's flawed representation, Kimbrough points to the following. Sergeant Stringer testified on direct that dealers often carry large sums of cash, which are their profits from dealing, and that it is very uncommon for users to carry around $425. He then stated on cross that a dealer normally sells $20 worth of cocaine at a time, and that it is common for dealers to have lots of $20 bills. When asked if he could remember the denominations of the money taken from Kimbrough, he first said he could not, but then said they were 20s and smaller. After Sergeant Stringer added that he was not "100 percent sure," defense counsel asked:
Q: So if Officer Lane's report indicated that it was four $100 bills, one 20 and one 5, that would be incorrect?
A: No. I would go with Officer Lane, since he took custody of the money. I could very well be incorrect on that.
2 RP at 53. Kimbrough reasons that his attorney should have introduced the bills found in his wallet to support the argument that he was not a dealer.
Even if counsel was deficient for not introducing the money, we find it unlikely that introducing the bills would have altered the trial's result. Sergeant Stringer conceded that he could well have been mistaken in testifying about the denominations and that he would "go with" Officer Lane's report that Kimbrough had only one $20 bill and four $100 bills. And during closing argument, counsel argued that the denominations Kimbrough possessed at the time of his arrest were inconsistent with drug dealing. Kimbrough does not establish that his attorney's assistance was ineffective because of his failure to introduce this evidence.
4. SAG Issues
To the extent that Kimbrough frames this issue in terms of the State's alleged error in preventing the CI from testifying, it fails. Appellate counsel has raised this issue, and we have rejected the argument.
Kimbrough argues that the trial court erred in admitting "backdoor hearsay" through the officers' testimony about the CI's actions and speech during the controlled buy. Only one of the statements he cites elicited an objection, and that objection was not based on hearsay. Consequently, whether the statements constituted improper hearsay has not been preserved for appellate review. See State v. Quigg, 72 Wn. App. 828, 836-38, 866 P.2d 655 (1994) (party may only assign error in appellate court on specific ground of evidentiary objection made at trial); United States v. Check, 582 F.2d 668, 675 (C.A.N.Y. 1978) (issue whether witness was serving as conduit for inadmissible hearsay was properly preserved for appellate consideration when counsel made early hearsay objections).
B. Ineffective Assistance
Kimbrough argues that his attorney was ineffective for failing to fully investigate and failing to call Faison to testify on his behalf. Kimbrough supports this contention with facts that are not part of the record. In any event, an attorney's decision on what witnesses to call is strategic and cannot support a claim of ineffective assistance. See In re based on a hypothetical witness, that does not warrant further analysis.
Kimbrough also contends that defense counsel was ineffective when he failed to introduce evidence explaining the concept of "washing" money. When defense counsel cross examined Sergeant Stringer, counsel asked whether he knew what "washing money" meant in reference to drug dealing. 2 RP at 53. The officer replied that he was not familiar with the term, and defense counsel did not pursue it further. Sergeant Stringer was the last witness to testify. Kimbrough now defines "washing money" in a manner that might have assisted in his defense at trial. Even if this definition is widely accepted, his attorney may have decided against calling Kimbrough to the stand to offer it. This decision is a strategic one that does not constitute ineffective assistance.
Kimbrough also asserts that his attorney should have called witnesses to explain why he possessed $425 at the time of his arrest. To support this argument, Kimbrough presents facts that are not part of the record, and any decision to call witnesses is a strategic one. Kimbrough also faults his attorney for suppressing the audio of the controlled buy videotape. He admits that the audio was "deficient," as nearly all of it records the CI's efforts to obtain drugs, but he still argues that a few of the statements are ambiguous and could have been interpreted in his favor. Kimbrough does not establish that suppression of the audio constituted deficient performance.
Kimbrough next argues that defense counsel should have presented evidence that he bought Faison a bottle of alcohol so that the men could party in the woods with two women after the controlled buy. Here again, defense counsel may have decided not to have Kimbrough offer this evidence, and this strategic decision cannot support a claim of ineffective assistance of counsel.
Finally, Kimbrough argues that his attorney should have moved to suppress the drugs seized because the officers questioned him at gunpoint before belatedly reading him his Miranda rights. The police report he attaches to his brief is not part of the record and contains no reference to a gun. We need not review this claim of error further.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
C. Police and Prosecutor Misconduct
Kimbrough contends that the State's first police witness committed misconduct when he referred to the audio recordings of the controlled buy even though the trial court had earlier suppressed the audio portion of the videotape. The first two references he complains of were general statements that officers make audio recordings of controlled buys, and the second two related to the buy that implicated Kimbrough: "We were running the audio intercept, which is under the state law called a 204 intercept. It's authorization to record, one party consent. We had the audio equipment, and we were also doing a video, keeping the video pretty much on the informant in this case." 1 RP at 34-35. Defense counsel did not object to any of these references to the audio. And, because the officer did not testify about the contents of the audio, Kimbrough has not shown misconduct.
Kimbrough next objects to several statements made by other police officers, arguing that they were unpersuasive, contradictory, not credible, or without foundation. Kimbrough's counsel did not object to any of the statements he addresses. It was up to the jury to assess the witnesses' credibility and to weigh the evidence, and that some statements contradicted others does not reflect misconduct by the witnesses. Related to this argument is Kimbrough's assertion that Officer Lane committed perjury when he testified on direct that it is not typical for a user to possess as much as 2.6 grams of cocaine, but on cross examination identified an "eight-ball" as 3.2 grams that could last a crack addict half a day. 1 RP at 72. This testimony, while confusing and somewhat contradictory, does not constitute perjury. See RCW 9A.72.050 (perjury consists of person making inconsistent material statements under oath, knowing one to be false).
Kimbrough also complains that Sergeant Stringer, who testified that the money recovered from Kimbrough was mostly small bills, did not testify correctly about the denominations until he was cross examined about information contained in another officer's report. Sergeant Stringer readily deferred to the report, however, and Kimbrough does not show misconduct under these circumstances.
Kimbrough's remaining arguments concern statements the prosecuting attorney made during closing argument. Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Absent a proper objection and a request for a curative instruction, the issue of misconduct is waived unless the comment was so flagrant or ill intentioned that an instruction could not have cured the prejudice. State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978).
Kimbrough first faults the prosecuting attorney for arguing that the brown bag he handed Faison after the controlled buy contained beer. The officer who arrested Faison testified that he thought he found alcohol in a bag at the arrest site; the bottle was not taken into evidence. The prosecutor stated during closing, without objection, that the videotape shows Kimbrough joining Faison after the transaction "with what looks like a 40-ounce bottle of beer in a brown paper bag." 2 RP at 74. Kimbrough argues that the bag contained alcohol other than beer. There was no direct evidence offered at trial to show exactly what the bag contained, and Kimbrough does not carry his burden of showing that this argument was improper. See State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005) (prosecution has wide latitude in closing argument to draw reasonable inferences from the evidence).
Kimbrough also contends that the prosecutor erred in referring to the testimony of the "officers," when only one officer made the statement in question. Again, there was no objection to this argument, and this claim of misconduct is waived.
Kimbrough also complains about the prosecutor's characterization of circumstantial evidence and his desire to play only the last portion of the videotape for the jury. The defense did not object to the State's definition of circumstantial evidence, however, and counsel succeeded in having the entire videotape played for the jury, so these claims of misconduct are waived.
Kimbrough also contends that the jury should have been given a missing witness instruction to explain the CI's absence. His attorney never requested such an instruction, however, so he cannot now claim its omission as error. State v. Lucero, 140 Wn. App. 782, 787, 167 P.3d 1188 (2007).
Finally, Kimbrough complains about photos the prosecuting attorney displayed to the jury, again to explain the concept of circumstantial evidence, that are not part of the appellate record. There was no objection to these photographs. To the extent that Kimbrough makes additional arguments regarding further misstatements, such as the prosecutor's reference to the CI as a male, none of these misstatements elicited an objection and none appears so egregious that an appropriate instruction could not have cured resulting prejudice.
D. Double Jeopardy
In a separate claim of error, Kimbrough argues that the prosecuting attorney's closing argument convicted him of two separate charges based on the same criminal behavior. More specifically, Kimbrough claims that when the prosecutor argued that the delivery of cocaine to the CI showed that Kimbrough also intended to deliver the additional cocaine he possessed, this argument violated his right to be free from double jeopardy.
But again, counsel did not object to this argument. In addition, argument is not evidence, as the trial court instructed the jury. And as we have discussed, the State produced ample evidence other than the controlled buy to support Kimbrough's conviction for possession with intent to deliver. The elements of these crimes are not the same, and Kimbrough's convictions of both do not violate his right to be free from double jeopardy. See State v. Walker, 143 Wn. App. 880, 886, 181 P.3d 31 (2008) (if charged crimes contain different elements, convictions thereof do not subject defendant to double jeopardy).
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.
HUNT, J. and PENOYAR, A.C.J., concur.