Opinion
38872-7-III
08-17-2023
STATE OF WASHINGTON, Respondent, v. WILLIAM P. MCBRIDE, Appellant.
UNPUBLISHED OPINION
SIDDOWAY, J.P.T. [*]
William McBride appeals his conviction for possession of a controlled substance (methamphetamine) with intent to deliver. Mr. McBride intended to provide the methamphetamine to "Pauline Niner," who turned out to be a fictitious social media persona created as part of a sting operation by the Whitman County Sheriff's Office.
Mr. McBride contends he should have been acquitted on the basis of his defense of entrapment and, for the first time on appeal, that the conduct of law enforcement was outrageous, in violation of his right to due process. He fails to make the required showings, however. For that reason and because he presents no meritorious issues in his pro se statement of additional grounds, we affirm.
FACTS AND PROCEDURAL BACKGROUND
During Sergeant (Sgt.) Michael Jordan's employment by the Whitman County Sheriff's Office, he has attended a number of training programs focused on drug and street-level crimes. As of 2022, the most recent training he had attended dealt with how drug dealers and users are increasingly communicating through social media and how officers can create a profile and participate in social media communication as a way of interdicting drug dealing.
In January 2022, Sgt. Jordan relied on his recent training to create a Facebook profile for "Pauline Niner," for the purpose of meeting people online who are willing to sell drugs. "Pauline's" Facebook profile characterized her as a woman living in Pullman. At Mr. McBride's trial, the sergeant explained that he set up a female profile because "[i]t attracts more people. More-more guys are out looking for girls and girls are- looking to-more guys sell drugs than girls." Rep. of Proc. (RP) at 117.
In 12 days' communications that took place over two and one-half weeks in early 2022, Mr. McBride contacted "Pauline" and the two discussed meeting up. "Pauline" wanted to procure methamphetamine and Mr. McBride said he could obtain some for her. Problems with Mr. McBride's vehicle, his suppliers, and his cash flow proved to be obstacles to his attempts to provide her with methamphetamine on February 9 and 10, and again on the evening of February 15, but on February 16 he informed "Pauline" he had a "little bit" to bring to her. Ex. 101, at 28. Present to meet him when he arrived at "Pauline's" address was Sgt. Jordan, who arrested him.
Mr. McBride was charged with possession of a controlled substance (methamphetamine) with intent to deliver. At trial, he asserted the defense of entrapment. His lawyer likened Sgt. Jordan's sting to a Cold War, KGB "honey trap": using fictitious females to seduce men into doing something wrong. Defense counsel also argued that on the day of his arrest, Mr. McBride had merely intended to share the small amount of methamphetamine in his possession with "Pauline," which was not the statutorily-required "delivery."
The transcript of closing argument reports counsel as saying KJB, but in context it is clear he must have said KGB, the acronym for "Komitet Gosudarstvennoy Bezopasnosti," according to the Encyclopedia Brittanica. (Available at https://www.britannica.com/topic/KGB). According to the encyclopedia, the KGB (in English, "Committee for State Security") was a security agency of the Soviet Union established in 1954.
The only witnesses called in the State's case were Sgt. Jordan and a witness from the Washington State Patrol Crime Laboratory. The crime lab witness had tested the substance seized from Mr. McBride and testified that it was 0.4 grams of crystalline material that contained methamphetamine. Mr. McBride did not testify.
The most critical evidence at trial was exhibit 101, a complete collection of screenshots that Sgt. Jordan had taken of "Pauline's" and Mr. McBride's communications on Facebook Messenger. Apart from that, the two had only had one brief telephone conversation.
Sgt. Jordan did not testify about the content of the call, but it is reflected on the Facebook Messenger screen shots as having taken place at 10:46 a.m. on February 9. The immediately preceding messages suggest the parties were confirming "Pauline's" interest in 2 ounces of methamphetamine estimated to cost $400. No explanation was provided whether Sgt. Jordan participated himself in the call and, if so, how he passed himself off as female.
In the briefing on appeal, Mr. McBride emphasizes communications from "Pauline" that he contends were repeated inducement, while the State emphasizes communications that it contends belie any reluctance on Mr. McBride's part to provide "Pauline" with methamphetamine. The communications themselves best illustrate Mr. McBride's point that "Pauline" was playfully offering to "party" with him as much as to buy drugs, and the State's point that the two-and-one-half-week delay in an actual delivery of drugs was more attributable to mishaps befalling Mr. McBride than any reluctance on his part to sell drugs. We therefore reproduce the communications.
Mr. McBride's communications are on the left and "Pauline's" are on the right. The extensive shorthand, misspellings, and run-on words are from the original. Early in the communications, the slang terms "white christmas," and "Clr" (short for "clear") are used, both of which Sgt. Jordan testified refer to methamphetamine:
Hi paulie whats up in pullman
JAN 30, 4:31 PM JAN 31, 9:35 PM
Just new to the area tryn to meet new peeps. Pullman seems cool tho.
Yes m n spokane
FEB 04, 12:22 AM FEB 04, 12:38 AM FEB 04, 6:01 AM
Nice. Do you like Spokane
Its ok but latly with all the hpmeless its getting kinda ttashy but its ok What do you like to do walk or hike bike beaches bars cars laying together watching stars
FEB 07, 4:06 PM FEB 07, 7:41 PM
Mainly party lol
Cool thats mainly what i do you like to drink smoke gfssn or do youblike the white christmas Yep my choice. Also
FEB 08, 6:01 PM
I like a little Clr Well Pullman is dry af Hey there
It is i dont know anyone to sell to i can get as much as i want
FEB 08, 6:46 PM FEB 08, 8:17 PM
Can you hook me up?
Im sure i could but i just got a motor home so im out on the rez at the moment
FEB 08, 8:43 PM
Oz
What ate you looking for
FEB 08, 9:22 PM FEB 09, 8:05 AM FEB 09, 9:26 AM
Sry was just an idea
Ok they run 400 hundredish do you have a number so we dont have to be on messenger to talk ot we could meet and talk maybe we can work out an arrangment that works for both of us ?
FEB 09, 10:33 AM
Can I call you on here?
Audio Call 1 min
FEB 09, 10:46 AM
Sry my WiFi sux I got paid today. Planning any trips to Pullman?
I could this evening if thst would work for you what was you thinking how much
FEB 09, 11:34 AM
I think 2. My girl getting paid tonight too
Ok Im going to spokane in a few hrs i will call you befor i leave town to come see you so i know what to bring and when we meet i would like to talk to you about a maybe working together
Sweet what time you thinking about coming down? Just want to make sure my girl gets me the money by then
Im not sure exactly but before it gets to late Yep that would be cool i will give you a heads up so you will have a little time to get it set up ok
FEB 09, 12:17 PM
We good [Photo of fingers holding currency, $100 and $20 bills visible]
Yep Thumb up emoji]
FEB 09, 12:39 AM
We're you able to get me 2
I'm headed to Spokane right now since I get there I'll check on it and I'll let you know right away
FEB 09, 3:58 PM
Thanks are you gonna party with me tonight
I hope so Allright. Im working on my suburban got some bad gas i will get it together n get thare
FEB 09, 5:42 PM
K I can order a pizza or something?
No i will get it going Im working on the other for you im sure it will be there when i dp I will get you something ok Oh its no big deal i work on cars all the time. I will get it going What kind ofcar do you have I like hondas what do you think is wrong with it what did it do befor it died
FEB 09, 6:38 PM
Oh no that sounds bad! K I'm hurting lol I'm sorry about ur car Nice! Maybe you could look at my car sometime haha A Honda ... I forget what year. Like 02 maybe It runs fine but shakes bad when I'm on the highway
Thats easy i would say you have a tire out of balance im sure i could figure thst out No. I will check it out get it working right thats what i do when im not doing my reg job No problem i like to doit. It gets me brownie points i hope lol Some try to but im hard to tye down But its fun trying lol
FEB 09, 7:18 PM
Oh is that serious Please don't feel like you have to but I really appreciate it [Smiley face emoji] How has no girl scooped you up Haha
But its fun trying lol
FEB 09, 8:41 PM
How's it going
Just got my suburbon started and running Im headed tp spplane in a vouple min it takes about 45 min to get thete No im ok its not too cold Ok let me get to town and i will let you know how much i can get so just hang with me Not even i will get ypu a good deal and im wanting to do something with you i will talk to you about ut more when i see you if your interested Ok we will talk i will text you in a little while watch for me k
FEB 09, 9:54 PM
You must be freezing I got 8 bills K please don't burn me Ya I'm interested. Just need help getting started [Smiley face emoji]
Im in spokane now working on getting it for you would you be willing to come to spokane i could come down n pick you up anf we could come up here n pick it up my regular dude is out of town but I can still hook up but i woulf have to have cash so you would have to be with me I understanfi dont want that i dont like drams um i kinda feel the same way i just know that i wouldnt let my money go i just dont have that much cash on hand at the moment but i was hoping we could do something thats why was wanting to get something going in other plaa es to exspand a little and make a little extra Dont give up yet it can happen just have to figure out how to get it. To get it too you im tryi g a couple other people trying to get someone to let me run with them
FEB 10, 12:01 AM
Idk kinda makes me nervous Ok so I guess it's not gonna happen [Disappointed emoji
Ok im working on something. Now my homegirls person is there anf she is trying to do something so give me a couple min to ser it up k
FEB 10, 12:53 AM
I understand yo have been super cool I'm just really hurting It doesn't have to be 2 we could do 1 and if my car is working better I could meet you for another 1 later K
Ok i know you want a oz but you said you was hurting i got a ball that i could bring you if you want to check it out that way we can. Meet and go from there its 60 and if you smoke with me i wont make anything but im hoping that it makes me some down the rd if you know what i mean Thats what i was thinking. If you reallywant more we can do more tomorrow or something like that
FEB 10, 1:21 AM
Sure that sound good I know you really tried and this will be a great way to meet and go from there [Smiley face emoji]
Now i just got to get some gas
FEB 10, 4:03 AM
Ok
Allmost im on my way to get it now I
FEB 10, 4:28 AM
U on your way?
Im low on gas so im ttot trying to run out i got it and headed your eay
FEB 10, 5:21 AM
Hello is 5here any way ypu could meet me half way
FEB 10, 6:11 AM
I thought u wanted to party
I do i have the ball but i can get the rest if you want it i didnt have enough gas last night j wad going to go any way but then i lost you fora mii. So do you still wanna party wuth me We can figure this out if we hook up right
FEB 10, 7:18 AM
Do you still want me to come down
FEB 10, 8:26 AM
Yes plea's sorry I fell asleep waiting
.i know my fault ok i got a couple little things to do then im on my way we will get this worked out k
FEB 10, 9:02 AM
Are you sure lol
Im sure lol
FEB 10, 9:28 AM
Are you sure lol Ok what time seriously
2hrs or by nooj
FEB 10, 10:02 AM
For sure
She can be there if you want her but it would be nice to be able to talk. Alone so maybe she could give us a couple hrs. To talk after i get there what you thinl
FEB 10, 10:45 AM
Ya that would be nice. Did you get the 2
We can smoke or whtever you like first
FEB 10, 11:39 AM
Have them roll with you Listen I'm hurting I'm gonna have to figure out another way. Thanks for trying
lgot themon hold i. need cash to be able to get thr
FEB 10, 12:16 PM
So your not coming to Pullman
Im in oakesdale now if you could meet me i have some to get ypu high with you could check it out if you like it we could go grab whatever you want
FEB 10, 12:45 PM
Ok well my car is fucked off
I will but i only got a little enough for you to try to get better but i need the cash to get the two they are waiting for me to come grt them
FEB 10, 1:11 PM
I just found a little. Hit me up sometime when you have some.
I will get some n bring we are still going. To party right
FEB 10, 1:53 PM
Maybe next week. I'm set up for the next few days
Ok if thats. Good for you hit me up if you eant to
FEB 10, 2:49 PM
Prob Monday or Tues. will you be able to meet up then? Understand you can't really promise to get me set up. But don't want end up empty last min
I here you my norm person is out of town so tjats why this i just shelled out money for motor home and going to get it and it kinda drained my pockets sprry this other person dont do fronts so. A sure i would like to mrrt you and get a to know you a little and i would still lookat your car fir you i think i could fix it for you pretty chea Cheap
FEB 11, 11:15 AM
Hi there
.Hey whats up
FEB 11, 12:21 AM
Not much. How are you
Not much. How are you
FEB 11, 12:55 PM
What are you doing today
FEB 11, 1:41 PM
Just cleaning house lol What are u doing
You too maybe we will get a chance to kick it some nighy
FEB 11, 8:12 PM FEB 11, 11:52 PM
Have a good night [“Rock on” emoji]
Hello how are you today
FEB 12, 4:41 PM FEB 14, 10:53 AM FEB 14, 4:16 PM
What's up Happy Valentine's Day
Happy valentines day to you [Smiley heart eyes emoji and heart emoji] Nothing much finishing my motor home heading back to spokane soon What are you doing Sorry wish i was there to entertain you We will have to set up a time for me to come visut you Well i would say any time but im way out of town now soon though would ve awsome Ok i will let you know as soon as i can
FEB 14, 5:17 PM
What you doing I'm so bored Me too What's a good time for you Sounds good..l'm not doing anything Cool
Im working on it got the tranny out now just gotta change the flywheel. And put it. Ack un
FEB 14, 6:18 PM
Did you get your motor home fixed? Oh that sounds like a big job
Back in Nit too bad
FEB 14, 7:26 PM
Did you go to school to learn how to fix cars?
Hi and moost of myeducationigot hands on For sure i like hands on withveverything i do ha ha How about you would you like some hands on eclwrience Exspeeance Well looks like i need a typing classs lmao Would like to get with you and kick it i think rhat would be fun
FEB 15, 11:28 AM FEB 15, 12:24 PM
That's the best kind [Smiley face emoji]
For dure would like to do it soon i jave togo back down to oregon soon but i want to meet and hook up with you befor that happens
Well let's figure out when you can make a trip down here then
Ok let me see if i can make it there tonightf
I got cash and don't have plans tonight
Me too i cant wait to see you I will get there as early as possible so thay. Ee have lots of toime
I'm excited [Heart emoji] And are you able to bring 2? [Fingers crossed emoji]
I will see whats up for surr
K. Hopefully you can make it happen. I gotta get back to work. I'm off at 4.
Pk i will work on it ok Thumb up emoji]
FEB 15, 4:15 PM
[Winking face with tongue emoji]
Sorry
FEB 15, 6:30 PM
Hello
FEB 16, 8:24 AM
You partying tonight?
FEB 16, 10:49 AM
It's fine
FEB 16, 12:26 PM
What happened
I hada flat tire and no spare and so i had to chang them all so it took awhile and i didnt have what you wanted we need to talk and if i could get you ti comme to spokane or i could come and you could ride with mr So what do you think about going pn a little road trip withvme I got all nrw ntires now
FEB 16, 1:37 PM
Ok Well my car is messed up still so I'm stuck here Anytime What's your plan...if any
Ex. 101, at 1-29 (duplicated messages omitted).
Pk
FEB 16, 4:23 PM
?
Okay so I'm headed your way you still want to do this right
FEB 16, 6:06 PM
Yes
O hope so cause i am on the bad guy list Will you be anle to p Greet me a little gas gss
FEB 16, 6:45 PM
Of course silly. Do you have a little shit to help me stay awake?
I ewill get a litttle Im in oakeddale now and i will be lrsving soon Hey I'm driving now I'm just leaving Oakdale so maybe 40 45 minutes I'll be there you'll have to send me your address or something Then I got a little bit dumpling for you hopefully that'll work it gives out there and I'll jump into the guy when I get there all right
FEB 16, 7:11 PM
Sweet
[Thumb up emoji] They mean from those 14 miles away
FEB 16, 7:40 PM
Ok let me know when you are close
Im at dismores where do I go [Thumb up emoji]
Huh Are you close? 1155 SE Bypass dr
Im on tpwn Ok
Go to the back of parking lot and you can park by a shed there. Let me know when you are here and I can meet you outside [Open smile face emoji]
The address provided by "Pauline" was that of an apartment complex. On Mr. McBride's arrival, Sgt. Jordan placed him under arrest and searched him, recovering methamphetamine in his left front pocket and a broken methamphetamine pipe in his sweatshirt pocket. He informed Mr. McBride that he was "Pauline." Mr. McBride protested that he brought the meth to share with "Pauline," not to sell it.
The jury returned a guilty verdict. Defense counsel later stated at sentencing that it had taken the jurors almost two and one-half hours to return the guilty verdict on a single count, which suggested they were troubled by the issues of entrapment and whether there had been a delivery. He asked for a sentence at the bottom of the range, but the court imposed a midrange sentence of 90 months total confinement, with 12 months of community custody. Mr. McBride appeals.
ANALYSIS
Mr. McBride challenges the sufficiency of the evidence to support the jury's verdict on two theories: he contends (1) that no rational juror could have found that he failed to prove the defense of entrapment, and (2) for the first time on appeal, that the conduct of law enforcement was outrageous, in violation of his right to due process. I. THE EVIDENCE WAS SUFFICIENT TO PRESENT A JURY QUESTION ON THE
ENTRAPMENT DEFENSE
Washington courts have long recognized the existence of the common law defense of entrapment. State v. Arbogast, 15 Wn.App. 2d 851, 868-69, 478 P.3d 115 (2020) (Arbogast I) (quoting State v. Lively, 130 Wn.2d 1, 9, 921 P.2d 1035 (1996)), aff'd, 199 Wn.2d 356, 506 P.3d 1238 (2022) (Arbogast II). In 1975, the legislature codified the common law definition of entrapment. Id. RCW 9A.16.070 provides:
(1) In any prosecution for a crime, it is a defense that:
(a) The criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and
(b) The actor was lured or induced to commit a crime which the actor had not otherwise intended to commit.
(2) The defense of entrapment is not established by a showing only that law enforcement officials merely afforded the actor an opportunity to commit a crime.
"The statute restates the subjective test of entrapment applied by federal and Washington state courts, which focuses on the issue of whether the defendant was predisposed to commit the crime rather than on the conduct of the State to induce or entice the defendant." Id. (citing Lively, 130 Wn.2d at 10 &n.2 (citing Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932); State v. Waggoner, 80 Wn.2d 7, 10, 490 P.2d 1308 (1971)).
The Washington Supreme Court has held that RCW 9A.16.070(1)(b) requires proof that the defendant "'was tricked or induced into committing the crime by acts of trickery by law enforcement agents,'" and "'[s]econd, . . . that he would not otherwise have committed the crime.'" Lively, 130 Wn.2d at 10 (quoting State v. Smith, 101 Wn.2d 36, 43, 677 P.2d 100 (1984)). The court also held in Lively that the burden of proving the defense of entrapment is borne by the defendant. It is like other affirmative defenses that are uniquely within the defendant's knowledge and ability to establish, since the predisposition of the defendant to commit the crime "is the focal element of the defense." Id. at 13. This distinguishes Washington's law of entrapment from federal common law and the law of many states, which require the government to disprove entrapment beyond a reasonable doubt. Id. at 12-13 &n.3.
Given Washington's allocation of the burden of proof, when entrapment was asserted and evidence sufficiency is challenged, we review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found that the defendant failed to prove entrapment by a preponderance of the evidence. Id. at 17. "'The preponderance of the evidence standard requires that the evidence establish the proposition at issue is more probably true than not true.'" State v. Arredondo, 188 Wn.2d 244, 257, 394 P.3d 348 (2017).
In any case involving a law enforcement sting operation, the evidence may well support a finding that the criminal design originated in the mind of law enforcement officials. As in this case, the outcome is more likely to turn on whether the defendant proves that he was "lured" or "induced" to commit a crime or whether law enforcement did no more than afford the defendant an opportunity to commit a crime.
"Inducement evidence may be based on persuasion, fraudulent representations, threats, coercion, harassment, promises of reward, pleas based on need, and sympathy or friendship." Arbogast II, 199 Wn.2d at 375. "There must be opportunity 'plus' something else, such as excessive pressure placed on the defendant." Id. at 377. In Arbogast I and II, which involved a Washington State Patrol Internet sting operation targeting child predators, a fictitious mother implied that she might get sexually involved with the defendant if he first had sexual sessions with her children. The trial court viewed that enticement as only a "'normal amount of persuasion.'" Id. at 375. Our Supreme Court agreed that it might be only a normal amount of persuasion, but held, "[T]hat is a jury question." Id. The trial court's error in Arbogast was to refuse to even instruct the jury on the entrapment defense. Here, the jury was instructed on the defense, but found it was not proved.
The jury had a sufficient basis for concluding that Mr. McBride was not tricked into committing a crime he would not otherwise have committed. Early in his communications with "Pauline," Mr. McBride said not only that he could get as much methamphetamine as he wanted but "don[']t know anyone to sell to"; he also suggested that she and he embark on a joint enterprise. See Ex. 101, at 3 (speaking of "work[ing] out an arrangment [sic] that works for both of us," id. at 4, talking about "maybe working together," id. at 5, and stating, "im [sic] wanting to do something with you . . . if your [sic] interested," id. at 10). At least two attempts by Mr. McBride to acquire methamphetamine for resale to "Pauline" failed not because of any reluctance on his part but because people were out of town, or he was cash-strapped, or he had car trouble. At no point in their communications did he express any reservation about selling drugs to her. Substantial evidence supported the jury's verdict.
II. OUTRAGEOUS GOVERNMENT CONDUCT IS NOT SHOWN
For the first time on appeal, Mr. McBride contends that the conduct of Sgt. Jordan was so outrageous that it violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution. If manifest, the constitutional error may be raised for the first time on appeal. RAP 2.5(a)(3); Lively, 130 Wn.2d at 19.
A claim of outrageous government conduct "is founded on the principle that the conduct of law enforcement officers and informants may be 'so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.'" Lively, 130 Wn.2d at 19 (quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)). "For the police conduct to violate due process, the conduct must shock the universal sense of fairness," a matter that presents a question of law for the court. Id. Courts evaluate the government's actions under the totality of circumstances. Id. at 21.
Lively identifies the following factors for determining whether police conduct was outrageous:
[(1)] whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity; [(2)] whether the defendant's reluctance to commit a crime was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation; [(3)] whether the government controls the criminal activity or simply allows for the criminal activity to occur; [(4)] whether the police motive was to prevent crime or protect the public; and [(5)] whether the government conduct itself amounted to criminal activity or conduct "repugnant to a sense of justice."Id. at 22 (citations omitted).
When dealing with drug-related crimes, courts recognize that it is particularly necessary to allow for the use of aggressive law enforcement mechanisms, such as using paid informants or providing contraband or other necessary items to further the criminal activity. Id. But Mr. McBride compares his case to United States v. Twigg, in which the Third Circuit Court of Appeals held the government went too far when it spent months encouraging and assisting the defendant to set up a methamphetamine laboratory. 588 F.2d 373 (3d Cir. 1978). The direct and continuous government involvement over a long period of time was deemed too outrageous to allow for prosecution. Id. at 379.
"Pauline" offered Mr. McBride no assistance in setting up a criminal enterprise. He relied on his own contacts and resources in his efforts to procure and provide her with methamphetamine. Mr. McBride never expressed resistance or reluctance to obtaining methamphetamine for her. The only control that can be said to have been exercised by Sgt. Jordan was balking when Mr. McBride suggested a delivery taking place in Spokane, which was outside Sgt. Jordan's jurisdiction.
Mr. McBride repeatedly failed to deliver the amount of methamphetamine "Pauline" was seeking, at the times she was seeking it. The amount and timing of the eventual delivery was controlled by Mr. McBride. Mr. McBride implies on appeal that he was targeted by Sgt. Jordan, but he presented no such evidence and any evidence that he was a known or suspected drug dealer would cut against him in the due process analysis. At most, Mr. McBride can point to only the fact that he was arrested in a law enforcement sting operation, in which he failed to prove entrapment. This falls well short of outrageous government conduct.
STATEMENT OF ADDITIONAL GROUNDS
In an original and supplemental pro se statement of additional grounds (SAG), Mr. McBride identifies what we discern to be five additional grounds for review. He includes an "affidavit of facts," but in a direct appeal, allegations of error must be based on the record on review. See RAP 9.1(a).
SAG 1, 3: Ineffective Assistance of Counsel
Mr. McBride alleges that his trial lawyer provided ineffective assistance by (1) not moving at trial for dismissal of the charge for insufficient evidence, (2) "failure to investigate probable cause to investigate," SAG at 1, and (3) failing to provide Mr. McBride with discovery.
The Washington and United States Constitutions guarantee a criminal defendant the right to effective assistance of counsel. WASH. CONST. art. I, § 22; U.S. CONST. amend. XIV, § 1; see also State v. Sardinia, 42 Wn.App. 533, 538, 713 P.2d 122 (1986). To demonstrate ineffective assistance, a defendant must show that (1) defense counsel's representation was deficient, and (2) defense counsel's deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). When alleging ineffective assistance based on defense counsel's failure to make a motion, the defendant must show that "the trial court likely would have granted the motion if made." State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).
Mr. McBride offers no explanation why he believes a motion to dismiss for insufficient evidence would have been granted. We have already rejected appellate counsel's sufficiency challenge, so the contention merits no further consideration. See RAP 10.10(c) (SAG must inform the court of the nature and occurrence of alleged errors).
The second and third allegations of ineffective assistance depend on facts outside the record and must be considered, if at all, in a personal restraint petition. State v. Norman, 61 Wn.App. 16, 27-28, 808 P.2d 1159 (1991).
SAG 2: Trial Court Failure to Instruct the Jury
Mr. McBride alleges that the trial court's jury instructions failed to explain guilt beyond a reasonable doubt, failed to explain entrapment, and failed to instruct on a lesser charge when the evidence did not support the crime with which he was charged. While we note that the first two concepts were addressed by the instructions and an instruction on a lesser charge is required only when an identifiable lesser crime was arguably committed, it is sufficient to point out that these objections were unpreserved at the time the trial court entertained objections and exceptions.
SAG 4: Evidentiary Error Regarding Phone Call
Mr. McBride contends the trial court erred by allowing Sgt. Jordan to testify about the occurrence of a phone call between the sergeant and himself because there was no recording of such a call, no such call ever took place, and the sergeant's testimony was hearsay. The defense made no objection to the testimony, which was only that a call occurred, not what was said. If there was any basis for an objection, error is unpreserved. RAP 2.5(a).
SAG 4: Prosecutorial Misconduct
Mr. McBride labels his next ground as "prosecutorial misconduct," but in substance this is another challenge to the sufficiency of the evidence and specifically whether there was evidence supporting an intent to deliver. Mr. McBride relies on cases in which there is no evidence of delivery or a planned delivery to an identified person, but only evidence of drug possession and other evidence (scales, ledgers, cash, packaging materials) supporting an inference that the defendant is in the business of delivering drugs. In this case, there was evidence of a planned delivery to "Pauline." The cases on which Mr. McBride relies are inapposite.
SAG 5: Pretextual Arrest
Mr. McBride asserts that he was first stopped in the Pullman apartment complex parking lot by a deputy other than Sgt. Jordan, who pointed out that he had a taillight out and suspected him of driving with a suspended license. He claims that this was a pretextual stop, and only developed into the search and arrest by Sgt. Jordan.
Whether there was a basis for a challenge to the stop and whether it was preserved cannot be determined from our record. It must be considered, if at all, in a personal restraint petition. Norman, 61 Wn.App. at 27-28.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Pennell, J., Staab, J.
[*] Judge Laurel H. Siddoway was a member of the Court of Appeals at the time argument was held on this matter. She is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.