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rejecting challenge to two jurors who "admitted bias against individuals who do not speak English" because their responses "indicated they could set their preconceived ideas aside"
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No. 25732-1-III.
April 8, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 05-1-01723-1, James P. Hutton, J., entered December 1, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Schultheis, A.C.J., and Brown, J.
Marcos Ramos Medina was charged with and convicted of one count of vehicular homicide. Mr. Medina appeals his conviction, arguing the court erred in including two Multnomah County, Oregon convictions under the name of Manuel Robles-Perez in his offender score, and his trial counsel was ineffective because he failed to strike two jurors who admitted bias during voir dire and failed to object to holding the trial in a jail courtroom. We affirm.
FACTS
On August 4, 2005, at approximately six o'clock in the morning, Peggy Keller left her home in Yakima to drive to Clark College in Vancouver. Ms. Keller was driving southbound on Highway 97, near milepost 34, when her vehicle was struck by a northbound driver, identified as Marcos Ramos Medina. The collision occurred in the southbound lane, on the inside of the centerline. Mr. Medina first struck Ms. Keller's vehicle nose-to-nose, with approximately 20 percent overlap, and then sideswiped her vehicle. Ms. Keller died instantly as a result of the collision.
Prior to the collision, witnesses observed Mr. Medina swerving in and out of his lane, crossing both the centerline and the fog line on the right side of the lane. Mr. Medina appeared to be nodding off while driving. Additionally, after stopping at construction sites along the road, the vehicle behind Mr. Medina had to honk to get him to start driving again. After being roused, Mr. Medina initially sped up, but eventually the swerving resumed and his vehicle slowed. Witnesses twice observed Mr. Medina cross into the southbound lane of travel and almost hit oncoming vehicles, a semi-truck and a pick-up truck. Daniel Story, the driver of the pick-up truck, was driving directly in front of Ms. Keller, and had to swerve onto the shoulder of the road to avoid being struck by Mr. Medina. After Mr. Story swerved off the road, he looked back and saw the collision in his rear-view mirror.
Trooper Troy Davis was the first officer to respond to the collision. Trooper Davis observed Mr. Medina standing alone, "leaning back, kind of sitting, leaning back with his feet kicked out a little bit against the guardrail" on the southbound side of the road, behind his vehicle. 4 Report of Proceedings (RP) (Oct. 31, 2006) at 338. Trooper Davis did not detect an odor of alcohol on Mr. Medina. Trooper Davis noticed that Mr. Medina's eyes were bloodshot, and that he had a dark red tinge under his eyelids. Trooper Davis conducted the nystagmus gaze test on Mr. Medina. According to Trooper Davis, Mr. Medina's eyes would not track horizontally or vertically; instead, his eyes moved in circles and "act[ed] real wild, like stuff I haven't seen in my 15 years' experience." 4 RP (Oct. 31, 2006) at 342.
Mr. Medina was transported to Toppenish Providence Hospital. Trooper Doug Dorich contacted Mr. Medina at the hospital. Initially, Mr. Medina was sleeping and difficult to wake. Later, after being transported from the emergency room to the x-ray room, Mr. Medina became agitated and had to be restrained. Trooper Dorich observed Mr. Medina's eyes were extremely red and bloodshot. Trooper Dorich checked Mr. Medina's eyes for reaction to light. Mr. Medina's pupils constricted within the normal range; however, they constricted very slowly.
Trooper Dorich arrested Mr. Medina for vehicular homicide. A blood draw on Mr. Medina was conducted, indicating the presence of methamphetamine at .28 milligrams per liter, and amphetamine at .05 milligrams per liter.
Mr. Medina was charged with one count of vehicular homicide, under RCW 46.61.520(1)(a). The information was subsequently amended twice, so the final information charged one count of vehicular homicide, under RCW 46.61.520(1)(a), and named the defendant as Marcos Ramos Medina, date of birth January 6, 1971, a.k.a. Simon Aguilera Flores, a.k.a. Manuel Robles Perez. Mr. Medina's first trial ended in a mistrial on August 9, 2006.
Jury selection in Mr. Medina's second trial began on October 27, 2006. Each potential juror filled out a questionnaire. The court gave each juror the opportunity to be interviewed privately, outside the presence of the rest of the venire. The private interviews commenced on October 30, 2006.
In a private interview, the court questioned Juror 36 regarding an answer in her questionnaire indicating she thinks people who live in the United States should speak or learn English. In response to the question, "[d]o you believe that the use of an interpreter in this case would influence you as a juror if you were picked to sit on this particular case," Juror 36 answered no. 2 RP (Oct. 30, 2006) at 71. The court further inquired, "[y]ou feel that you could give both sides an even break in terms of hearing the evidence, listening to the evidence and making a decision," and Juror 36 responded, "I believe so." Id. In response to the court's final question, "[i]s there any reason that you can think of that you should not serve as a juror in this case," Juror 36 answered no. Id. The court then gave counsel the opportunity to question Juror 36. Neither the State nor defense counsel addressed the questionnaire answer regarding speaking or learning English. Juror 36 sat as Juror 9 on the panel.
Also in a private interview, defense counsel questioned Juror 46 regarding an answer to her questionnaire concerning race:
[Defense counsel]: Okay. Ma'am, on one of the questions it was asking about persons of Latino, Chicano, Hispanic individuals and asked if you had any view or feelings and your answer was, "Sometimes because of all the crimes." What do you mean by that?
Juror [46]: Well, listening to the news it seems like that's the names that come up most often, and it seems like it's either stabbings, shootings, gangs.
[Defense counsel]: Okay.
Juror [46]: And that's what I was relating to.
[Defense counsel]: Okay. Well, as he sits here right now, do you think my client's more likely to have committed the crime because he's Hispanic?
Juror [46]: Probably not necessarily.
[Defense counsel]: Okay. Do you think race had anything to do with his proclivity or . . . Juror [46]: Of what happened, you mean?
[Defense counsel]: To commit a crime.
Juror [46]: No. But it just seems like that's what [sic] on the news. That's what — — I guess I have a little problem with the English thing also, but . . .
[Defense counsel]: What's that?
Juror [46]: That he doesn't speak English and being in America.
[Defense counsel]: That's a problem for you?
Juror [46]: Somewhat.
[Defense counsel]: You think you could give him a full and fair hearing, despite the fact that he needs an interpreter?
Juror [46]: Oh, yeah. I think I would listen to both sides.
3 RP (Oct. 30, 2006) at 189-90.
Neither the State nor defense counsel asked Juror 46 further questions regarding her views on race or speaking English. Juror 46 sat as Juror 11 on the panel.
After the jury was selected, the court told counsel the trial was scheduled to continue the next day in jail courtroom number two. The court asked defense counsel whether he had any concerns or wanted to make a record. Defense counsel did not object to the location of the trial, but did state "that sends the message to the jury that my client is somehow a dangerous felon who has to be tried in a secured setting I guess." 3 RP (Oct. 30, 2006) at 278. Defense counsel further stated that "at least we won't have the three-guard retinue back here at all times sending that message as well." Id.
The trial, conducted in jail courtroom number two, lasted two days. The State called 13 witnesses, including three who witnessed the collision. The State also offered the results of Mr. Medina's blood draw, and expert testimony from Washington State Toxicologist Barry Logan regarding the effects of methamphetamine on the human body and on driving. Testifying in his own defense, Mr. Medina acknowledged he was the driver of the vehicle that hit Ms. Keller's vehicle, but denied the use of methamphetamine prior to the collision. The court allowed Mr. Medina to walk in front of the jury box so the jurors could view his eyes, which he testified have been bloodshot since birth. On November 2, 2006, the jury found Mr. Medina guilty as charged.
On December 1, 2006, the court sentenced Mr. Medina. The State argued Mr. Medina had three prior convictions: a 1997 conviction for possession of a controlled substance (cocaine), in Multnomah County, Oregon, under the name of Manuel Robles-Perez, date of birth November 10, 1977; a 2001 conviction for delivery of a controlled substance (heroin), also in Multnomah County and under the name of Manuel Robles-Perez, date of birth November 10, 1977; and a 1999 federal conviction for possession of a firearm by an alien, in the District of Oregon, under the name of Ismael Robles-Perez, date of birth November 8, 1977. Mr. Medina acknowledged there was sufficient proof of the 1999 federal conviction for possession of a firearm by an alien, but argued there was no proof that the two Multnomah County convictions belonged to him. Accordingly, Mr. Medina asked the court to sentence him based on an offender score of one, for the 1999 federal conviction.
The date of offense was November 10, 1997.
The date of offense was July 12, 2001.
In support of the two Multnomah County convictions, the State offered several documents. First, the State offered certified copies of the charging documents, guilty plea forms, and judgments of conviction and sentence for both convictions.
Second, the State offered an FBI criminal history report. This report includes a cover sheet, stating that "[a]ll arrest entries on the FBI record are supported by the subject's fingerprints and verified by fingerprint comparison." Clerk's Papers (CP) at 80. The report is under the name of Ismael Robles-Perez, date of birth November 8, 1977. The report lists several other dates of birth, including January 1, 1971 and November 10, 1977, and several aliases, including Manuel Robles-Perez and Marco Medina. Furthermore, the report lists a 1999 federal conviction for possession of a firearm by an alien, under the name of Ismael Robles-Perez, date of birth November 8, 1977; a 1997 conviction for possession of a controlled substance, in Multnomah County, Oregon, under the name of Manuel Robles-Perez, date of arrest November 11, 1997; and a 2001 conviction for delivery or manufacture of a controlled substance, in Multnomah County, Oregon, under the name of Manuel Robles-Perez, date of arrest July 12, 2001. The report also lists a charge of vehicular homicide, in Yakima, under the name of Marco Medina, date of arrest August 4, 2005.
Third, the State offered a fingerprint card of Mr. Medina's prints, taken in this case on August 4, 2005. The name listed on this fingerprint card is Marco Medina.
Fourth, the State offered a fingerprint card, received by the State from the Department of State Police in Oregon, listing fingerprints under the name of Manuel Robles-Perez, date of birth November 10, 1977, for an arrest on July 17, 1997.
Fifth, the State offered a fingerprint comparison report, conducted by Robin Karp, a fingerprint specialist with the Yakima County Sheriff's Office. This report stated that the fingerprints received from the FBI in this case and the fingerprints received by the State from the Department of State Police in Oregon, under the name of Manuel Robles-Perez, were made by the same person.
Finally, the State offered certified copies of two photographs of Manuel Robles-Perez, from the Multnomah County Sheriff's Office, with arrest dates listed as November 7, 1997 and September 26, 1998.
The date of birth listed on this photograph is November 10, 1977.
The date of birth listed on this photograph is November 4, 1977.
After hearing argument from the State and defense counsel, the court found that the two Multnomah County convictions belonged to Mr. Medina. The court made the finding that the photographs of Manuel Robles-Perez offered by the State were of Mr. Medina. The court also found there was "fingerprint identification that would corroborate the person named in each of these in Multnomah County as being the same one that shows up on the FBI information." RP (Dec. 1, 2006) at 11. Accordingly, the court sentenced Mr. Medina based on an offender score of three, to 61 months' confinement, the high end of the standard range. Mr. Medina appealed.
ANALYSIS
A. Calculation of Offender Score
The issue here is whether the trial court erred in including two convictions from Multnomah County, Oregon under the name of Manuel Robles-Perez in calculating Mr. Medina's offender score. Mr. Medina contends that the documents offered by the State in support of the two Multnomah County convictions do not establish that he is Manuel Robles-Perez by a preponderance of the evidence.
This court reviews a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007) (citing State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003)). Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the State must prove a defendant's prior convictions by a preponderance of the evidence. RCW 9.94A.500(1); State v. Ammons, 105 Wn.2d 175, 185-86, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). This requires "some showing that the defendant before the court for sentencing and the person named in the prior conviction are the same person." Id. at 190.
Additionally, the State must show there was a prior conviction, as opposed to a prior arrest or criminal charge. Here, the State offered certified copies of the judgments of conviction and sentence for both convictions of Manuel Robles-Perez in Multnomah County. These certified copies are sufficient to establish the existence of the prior convictions at issue. See State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 452 (1999) (stating that "[t]he best evidence of a prior conviction is a certified copy of the judgment") (citing State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994)). Therefore, this court must decide whether the State proved, by a preponderance of the evidence, that Mr. Medina and Manuel Robles-Perez named in the two Multnomah County convictions are the same person.
The majority of cases addressing this issue involve challenges to prior convictions under the same name as the defendant before the sentencing court. See, e.g., State v. Reinhart, 77 Wn. App. 454, 455-57, 891 P.2d 735 (upholding the inclusion of two convictions, listed under the same name as the defendant before the court, in the defendant's offender score), review denied, 127 Wn.2d 1014 (1995); State v. Drummer, 54 Wn. App. 751, 756-57, 775 P.2d 981 (1989) (upholding the trial court's consideration of an FBI rap sheet, listing prior convictions under the same name as the defendant before the court, to calculate the defendant's offender score); but see State v. Sanchez, 60 Wn. App. 687, 694-96, 806 P.2d 782 (1991) (upholding the exclusion of an alleged prior conviction under a different name as the defendant before the court). When the prior conviction at issue is under the same name as the defendant before the sentencing court, identity of names is sufficient proof to establish "that the defendant before the court for sentencing and the person named in the prior conviction are the same person." Ammons, 105 Wn.2d at 190. The defendant may rebut this showing by declaring, under oath, that he is not the person who is named in the prior conviction. Id. If this declaration is given, in order to include the conviction in the defendant's offender score, the State must prove, by independent evidence, that the person before the court and the person named in the prior conviction are the same. Id. If this declaration is not given, the identity of names alone is sufficient to include the conviction in the defendant's offender score. See id. (upholding the inclusion of prior convictions where the State only offered certified copies of the judgments and sentences under the same name as the defendant before the court, and the defendants made no objections).
As the State acknowledges here, Mr. Medina did not declare under oath at the sentencing hearing, that he is not the person named in the two Multnomah County convictions. However, because these convictions are not under the name of Marcos Ramos Medina, Mr. Medina did not need to make such a declaration in order to shift the burden of proof to the State. Because identity of names is not present here, the State must prove, by independent evidence, that Mr. Medina and Manuel Robles-Perez named in the two Multnomah County convictions are the same person. See, e.g., Sanchez, 60 Wn. App. at 694-95 (discussing evidence offered by the State to establish a prior conviction under a different name). Such independent evidence may include an FBI rap sheet. See Reinhart, 77 Wn. App. at 457 (stating that FBI rap sheets are admissible, as public records under ER 803(a)(8), in evidentiary hearings held to determine the validity of a prior conviction) (citing Drummer, 54 Wn. App. at 757).
Here, the State established by a preponderance of the evidence that Mr. Medina and Manuel Robles-Perez named in the two Multnomah County convictions are the same person. The State met its burden by offering three items.
First, the State offered an FBI criminal history report. The cover sheet on this report states "[a]ll arrest entries on the FBI record are supported by the subject's fingerprints and verified by fingerprint comparison." CP at 80. The report, under the name of Ismael Robles-Perez, date of birth November 8, 1977, includes a 1999 federal conviction for possession of a firearm by an alien, under the same name and date of birth. Mr. Medina stipulated to the use of this conviction in calculating his offender score. The report also includes the two Multnomah County convictions, the first for possession of a controlled substance, under the name of Manuel Robles-Perez, on November 11, 1997, and the second for delivery or manufacture of a controlled substance, under the name of Manuel Robles-Perez, on July 12, 2001. Additionally, the report includes the charge in this case, based on the arrest of Mr. Medina on August 4, 2005.
Second, the State offered certified copies of photographs of Manuel Robles-Perez, from the Multnomah County Sheriff's Office, with arrest dates listed as November 7, 1997 and September 26, 1998. The sentencing court acknowledged that these photographs were in fact Mr. Medina. Although photographs do not directly link Mr. Medina and the two Multnomah County convictions at issue here because the arrest dates on the photographs do not correspond to the arrest dates for the convictions, the photographs show that Mr. Medina used the name Manuel Robles-Perez twice in the past in Multnomah County. Additionally, the photograph listing an arrest date of November 7, 1997, lists a date of birth of November 10, 1977. This date of birth corresponds to that used in the two Multnomah County convictions at issue here.
Third, the State offered a fingerprint comparison, stating that the fingerprints taken from Mr. Medina in this case and fingerprints under the name of Manuel Robles-Perez, date of birth November 10, 1977, for an arrest on July 17, 1997 in Oregon, were made by the same person. The arrest of Manuel Robles-Perez on July 17, 1997 in Oregon does not correspond to either Multnomah County conviction at issue here. However, the fingerprint comparison does show that Mr. Medina used the name Manuel Robles-Perez and the date of birth of November 10, 1977, in Multnomah County, on one prior occasion.
Taken together, the FBI criminal history report, the photographs of Manuel Robles-Perez, and the fingerprint comparison between Mr. Medina and Manuel Robles-Perez arrested on July 17, 1997 in Oregon, establish, by a preponderance of the evidence, that Mr. Medina and Manuel Robles-Perez named in the two Multnomah County convictions are the same person. The FBI criminal history report, which states that arrest entries are supported by the subject's fingerprints and verified by fingerprint comparison, lists Mr. Medina's charge in this case as well as the two Multnomah County convictions. The report also includes the 1999 federal conviction for possession of a firearm by an alien, under the name of Ismael Robles-Perez, which Mr. Medina stipulated to for purposes of his offender score. Furthermore, the photographs and the fingerprint comparison show Mr. Medina has used the name Manuel Robles-Perez and the birth date of November 10, 1977, in Multnomah County in the past. Accordingly, the trial court did not err in including the two Multnomah County convictions under the name of Manual Robles-Perez in Mr. Medina's offender score.
B. Ineffective Assistance of Counsel
Mr. Medina contends his counsel was ineffective on two grounds. First, he contends his counsel's failure to challenge Jurors 9 and 11 for cause, or alternatively, to exercise peremptory challenges as to those jurors, constituted ineffective assistance of counsel. Second, he contends his counsel's failure to object to the trial being held in a jail courtroom constituted ineffective assistance of counsel.
When evaluating a claim of ineffective assistance of counsel, Washington follows the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). To establish a claim of ineffective assistance of counsel, a defendant must show:
(1) [T]hat defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness; and (2) that the deficient performance resulted in prejudice, i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the proceeding would have differed.
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004) (citing Thomas, 109 Wn.2d at 225-26). Both prongs must be met to satisfy the test. State v. Brockob, 159 Wn.2d 311, 345, 150 P.3d 59 (2006).
On review there is a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). This presumption will be rebutted only by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). The defendant bears the burden of showing there were no conceivable legitimate strategic or tactical reasons explaining counsel's performance. McFarland, 127 Wn.2d at 336. If trial conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim of ineffective assistance of counsel. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Jurors 9 and 11
There are three grounds on which counsel may challenge a juror for cause: implied bias, actual bias, and for certain types of "defect[s] in the functions or organs of the body." RCW 4.44.170. "Implied bias" is present when a juror is related to or associated with either party; when a juror has previously served on a jury on the same or a related case; or when a juror has an interest in the outcome of the case. RCW 4.44.170(1), .180. "Actual bias" is "the existence of a state of mind on the part of the juror 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).
Here, Jurors 9 and 11 expressed opinions regarding individuals who do not speak English and live in the United States. Additionally, Juror 11 expressed her opinion regarding involvement of Hispanics in crime, formulated by what she heard on the news. Therefore, the issue before this court is actual bias, "the existence of a state of mind on the part of the juror in reference to the action, or to either party," rather than implied bias. RCW 4.44.170(2).
A challenge of a juror for cause based on actual bias "must be established by proof . . . and the proof must indicate that the challenged juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging." Brady v. Fibreboard Corp., 71 Wn. App. 280, 283, 857 P.2d 1094 (1993) (citation omitted) (citing RCW 4.44.170(2); RCW 4.44.190; Ottis v. Stevenson-Carson Sch. Dist., 61 Wn. App. 747, 752, 812 P.2d 133 (1991)), review denied, 123 Wn.2d 1018 (1994). The fact that a juror formed an opinion on the matter is not enough for a challenge for cause based on actual bias. Brady, 71 Wn. App. at 283 (citing RCW 4.44.190). "[T]he question is whether a juror with preconceived ideas can set them aside." State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991).
In State v. Alires, the defendant raised ineffective assistance of counsel based on his counsel's failure to challenge four jurors for cause who admitted bias against Hispanics during voir dire. State v. Alires, 92 Wn. App. 931, 936, 966 P.2d 935 (1998). The defendant's counsel asked the venire, "[d]oes anybody believe that Hispanics are more likely to commit crime in the Valley than other people?" Id. at 933. Several jurors raised their hands. Id. at 933-34. His counsel followed up by asking, "any of you that raised your hands, do you feel that you'd be unable to listen to the evidence in this case and make your decision based solely on the evidence rather than any preconceived idea that you might have about Hispanics?" Id. at 934. No jurors raise their hands in response to this question, and four of these jurors were impaneled. Id. The Alires court inferred the failure of these jurors to raise their hands was an indication that they would be fair and impartial. Id. at 938. The court classified these jurors "as jurors with preconceived ideas who need not be disqualified if they can put these notions aside and decide the case on the basis of evidence given at trial." Id. at 939. In rejecting the defendant's ineffective assistance claim, the court reasoned:
Having asked the questions about Hispanics, [the defendant's] trial counsel made a legitimate trial decision not to pursue the topic. The jurors having indicated that they would be fair and impartial, he understood it was unlikely the court would disqualify these jurors. Rather than risk further antagonism by challenging the jurors, counsel elected not to pursue the matter and accept the jurors. While other counsel may have taken a more aggressive and riskier approach to the questioning of these jurors, [the defendant's] defense counsel's trial conduct can be characterized as legitimate trial strategy.
Id.
Here, Jurors 9 and 11 admitted bias against individuals who do not speak English and live in the United States. Nonetheless, Juror 9 responded, "I believe so" when the court asked her, "[y]ou feel that you could give both sides an even break in terms of hearing the evidence, listening to the evidence and making a decision?" 2 RP (Oct. 30, 2006) at 71. Additionally, in response to the court's question, "[d]o you believe that the use of an interpreter in this case would influence you as a juror if you were picked to sit on this particular case," Juror 9 answered no. Id.
Juror 11 also admitted bias against individuals who do not speak English and live in the United States, as well as an opinion regarding involvement of Hispanics in crime. However, Juror 11 responded, "[o]h, yeah. I think I would listen to both sides" in response to defense counsel's question, "[y]ou think you could give [Mr. Medina] a full and fair hearing, despite the fact that he needs an interpreter?" 3 RP (Oct. 30, 2006) at 190. When asked if "you think race ha[d] anything to do with his proclivity . . . [t]o commit a crime," Juror 11 responded "[n]o. But it just seems like that's what [sic] on the news." 3 RP (Oct. 30, 2006) at 189-90.
Despite opinions they had formed, the responses given by Jurors 9 and 11 indicated they could set their preconceived ideas aside. Akin to the trial counsel in State v. Alires, given the possibility the court would not disqualify Jurors 9 and 11 and additional questions might antagonize them, Mr. Medina's defense counsel made a legitimate strategic decision not to pursue further questioning. Therefore, Mr. Medina did not received ineffective assistance of counsel with respect to Jurors 9 and 11.
Mr. Medina also argues defense counsel's failure to exercise peremptory challenges on Jurors 9 and 11 constituted ineffective assistance of counsel. However, after the responses of Jurors 9 and 11 to the court's and defense counsel's questioning, defense counsel may have been satisfied that no peremptory challenge was necessary. This court will not find ineffective assistance of counsel when the complained actions can be characterized as legitimate trial tactics. See Adams, 91 Wn.2d at 90-91.
In addition to his ineffective assistance of counsel argument, Mr. Medina contends the issue of a biased juror can be raised for the first time on appeal. In general, an issue not raised in the trial court may not be raised for the first time on appeal. State v. Moen, 129 Wn.2d 535, 543, 919 P.2d 69 (1996); RAP 2.5(a). Here, Mr. Medina waived any appealable error by failing to challenge Jurors 9 and 11 either for cause or by peremptory challenge. See State v. Crawford, 21 Wn. App. 146, 151, 584 P.2d 442 (1978) (holding the defendant waived any appealable error as to an impaneled juror's alleged prejudice where he had the opportunity to challenge the juror for cause or by peremptory challenge, and failed to do so) (citing State v. Jahns, 61 Wash. 636, 112 P. 747 (1911)), review denied, 91 Wn.2d 1013 (1979).
Jail Courtroom
Mr. Medina's failure to object to the trial being held in a jail courtroom precludes this court from direct review of this issue. See Moen, 129 Wn.2d at 543 (stating the general rule that an issue not raised in the trial court may not be raised for the first time on appeal); RAP 2.5(a). Nonetheless, Mr. Medina may raise this issue, as he has done here, in the context of a claim of ineffective assistance of counsel. See McFarland, 127 Wn.2d at 327, 334 (deciding whether an asserted error constituted ineffective assistance of counsel, after deciding the issue was not preserved for appellate review).
Under the first prong of the two-prong test for ineffective assistance of counsel, Mr. Medina must show his counsel's conduct in failing to object to the trial being held in a jail courtroom was deficient, meaning it "fell below an objective standard of reasonableness." Reichenbach, 153 Wn.2d at 130. The burden is on Mr. Medina to make this showing, based upon the record established in the trial court. See McFarland, 127 Wn.2d at 335.
Whether holding a jury trial in a jail courtroom is analogous to having a defendant appear in prison garb, shackles, or other restraints, is an issue of first impression in Washington.
Based on the record below, Mr. Medina has not established his counsel's failure to object to the use of a jail courtroom was deficient performance. The record is devoid of any description of the courtroom; the security measures in place; what the jury saw, such as whether Mr. Medina was in street clothes or whether he was dressed in jail garb or restrained in any way; and whether the jury was told whether Mr. Medina was in custody. Under the record before us, this court cannot determine whether the jail courtroom utilized here was analogous to having a defendant appear in prison garb, shackles, or other restraints. Because Mr. Medina cannot meet the first prong of the two-prong test for ineffective assistance of counsel, his claim fails. Should Mr. Medina wish to present evidence or facts outside of the trial court record, the appropriate avenue is a personal restraint petition. See McFarland, 127 Wn.2d at 338 n. 5.
CONCLUSION
We affirm the trial court and uphold Mr. Medina's vehicular homicide conviction.
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.
SCHULTHEIS, A.C.J. and BROWN, J., concur.