Opinion
No. 29751-5-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-02948-7. Judgment or order under review. Date filed: 11/14/2002. Judge signing: Hon. Brian Maynard Tollefson.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
James Mitchell appeals his conviction and sentence for unlawful delivery of a controlled substance with a school bus stop enhancement. We affirm.
The Tacoma Police Department engaged in a focused effort to decrease drug activity on Tacoma streets. Part of this effort was the set up of five buy/bust operations known as the `Hard Rock' operations. 3 Report of Proceedings (RP) (Sept. 11, 2002) at 56-57. The police sent out confidential informants under police supervision to make controlled buys of illegal drugs. The police videotaped the contacts and made audio tapes of portions of the conversations that related to drug dealing.
On May 21, 2002, Hard Rock 5 occurred. The police used confidential informant James Josey during the controlled buys to pose as a buyer looking for drugs. Before sending Josey out on a buy, Officer Bart Hayes searched him, gave him money and an undercover vehicle, and directed him to go out and purchase drugs. Josey drove around the streets of Tacoma until he located drugs to buy.
Josey gave a signal indicating he wanted to buy some drugs and Mitchell responded to the signal. Josey stopped his car and Mitchell got in the vehicle. Josey then asked if Mitchell `had a 20.' 3 RP at 108. The phrase is street slang for $20 worth of rock cocaine. Mitchell said `yeah' and told Josey to drive to the People's Center. 3 RP at 108-09.
When they reached the People's Center a young woman approached the car. The woman asked if she could get into the car. Josey told the woman he wanted a `20 piece,' and she directed him to drive up the street. 3 RP at 109.
As the car moved up the street, Mitchell asked Josey if he was a police officer. He handed Josey his crack pipe and told him to take a hit in order to prove he was not. The woman handed Josey a piece of crack cocaine and he gave her the money for it. Josey broke off a piece and put it in Mitchell's crack pipe. Before he could light the pipe, the woman commented that Josey was not the police and that she knew him from a prior meeting. The woman then handed Mitchell what looked like a piece of rock cocaine. Mitchell took it in his hand, put it in his mouth, and swallowed the substance. Josey then let Mitchell and the woman out of his car and signaled to the police that he had a `good deal.' 3 RP at 115.
At trial, the State called on Detective Jeffrey Shipp, Officer Hayes, and Josey to testify about middle-man drug transactions. This type of drug transaction involves a middle man who brings a buyer and a seller together. The middle man then receives some of the drugs as payment.
The State also questioned Jeanne Jackson from the Tacoma School District. She testified that there was a designated bus stop for students at the intersection of 17th and Ainsworth in May 2002. After review of the audio and video tapes, Officer Hayes determined that the drug transaction occurred on 17th Street between Sheridan and Cushman Streets as the car was moving. This entire area is within 1,000 feet of the school bus stop located at 17th and Ainsworth. Officer Hayes measured the shortest distance, the corner of 17th and Sheridan to Cushman, and found it to be 345 feet. The longest distance, 17th and Sheridan to the northwest corner of South 17th and Ainsworth, was 705 feet.
Mitchell also testified, saying that he stopped Josey to `[play] him for a ride.' 4 RP (Sept. 12, 2002) at 205. He asserted that his friend, Gator, was at the People's Center and that he needed a ride to the Center. He admitted that he engaged Josey in a conversation about drugs, saying he knew of some drugs up at the People's Center. Mitchell also testified that he knew Josey was looking for drugs. He had also received a ride from Josey before this incident. Mitchell also admitted that he had asked Josey to smoke some cocaine as proof that he was not a police officer. But, he further asserted that he had nothing to do with the drug deal in the car.
During closing argument, the prosecutor referred to Officer Hayes's testimony in an attempt to show how the participants in a drug transaction involving a middle man do not need to speak to each other to know their roles. Mitchell did not object to the prosecutor's comments.
Toward the end of the State's closing argument, the prosecutor used the illustration of putting a puzzle together as a way to describe reasonable doubt to the jurors. The prosecutor stated that after putting so many pieces into the puzzle, a person could walk by and recognize the picture. Mitchell did not object to this description. The court gave the jury 15 instructions and a special verdict form. Mitchell did not object to any of the instructions. The jury found Mitchell guilty of all charges. He now appeals his conviction.
I. To Convict Jury Instruction
Mitchell argues that the `to convict' instruction relieved the State of its burden of proof. He alleges that jury Instruction No. 8 misstated the State's burden of proof because it did not require that an accomplice know that the substance was a controlled substance. Thus, the jury might have convicted him by finding that he delivered the controlled substance without finding that he knew that the substance he was delivering was a controlled substance. The State responds that the instructions properly stated the law of accomplice liability. We agree.
Jury Instruction No. 8 stated:
To convict the defendant of the crime of delivery of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of May, 2002, the defendant or a person to whom the defendant was acting as an accomplice delivered a controlled substance;
(2) That the defendant or a person to whom the defendant was acting as an accomplice knew that the substance delivered was a controlled substance; and
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers (CP) at 51.
Instruction No. 8 instructed the jury that it had to find:
(1) That . . . the defendant or a person to whom the defendant was acting as an accomplice delivered a controlled substance;
(2) That the defendant or a person to whom the defendant was acting as an accomplice knew that the substance delivered was a controlled substance.
Clerk's Papers (CP) at 51. To prove accomplice liability, the State must prove that the accomplice acted with knowledge that his or her action promoted or facilitated the commission of the crime. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). Under these instructions the defendant either knew the nature of the substance he delivered or he knew that he was promoting or facilitating the crime of delivery of a controlled substance by his actions even though he may not have known the precise nature of the substance being delivered.
This court reviews a trial court's jury instructions under the abuse of discretion standard. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial court does not abuse its discretion in instructing the jury if the instructions: (1) permit each party to argue its theory of the case; (2) are not misleading; and (3) when read as a whole, properly inform the trier of fact of the applicable law. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). Reversal is not required unless prejudice can be shown. Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). An error is not prejudicial unless it affects or presumably affects the trial outcome. Thomas, 99 Wn.2d at 104.
Jury Instruction No. 8 was the `to convict' instruction. Jury Instruction No. 5 was the accomplice liability instruction. Mitchell did not object to either instruction. CrR 6.15(c) requires a party objecting to the giving or refusal of an instruction to state the reason for the objection. Where no constitutional error is alleged, a party cannot appeal a jury instruction where it failed to object at the trial level. State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988).
Further, the instructions were proper. The jury could find either that Mitchell knew the nature of the substance he delivered or he knew that he was promoting or facilitating the crime of delivery of a controlled substance by his actions even if he did not know the exact substance being delivered. Under the State's theory, Mitchell was a middle man; the jury instructions properly stated the law. The trial court committed no error in giving jury Instruction No. 8 to the jury.
Mitchell contends in his Statement of Additional Grounds for Review that jury Instruction No. 5 should not have gone to the jury because there was insufficient evidence to prove he was an accomplice. Mitchell failed to object to this instruction during the trial. Thus, he cannot now appeal it. Scott, 110 Wn.2d at 685-86.
II. Prosecutorial Misconduct
Mitchell next asserts a reversal is required because of prosecutorial misconduct. He cites to two specific places at trial where the alleged misconduct occurred. Mitchell's claim is meritless.
A defendant has the burden of establishing prosecutorial misconduct by showing the impropriety of the prosecutor's conduct and also its prejudicial effect. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). This court reviews allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). If there is a `substantial likelihood' that the prosecutor's misconduct affected the verdict, then reversal is required. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). The failure to object to a prosecutor's improper remark waives the error `unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' Hoffman, 116 Wn.2d at 93.
Mitchell's first argument is that the prosecution misstated the law, in effect relieving itself of proving reasonable doubt. He refers to the State's closing argument where it discussed reasonable doubt. Mitchell contends the prosecutor misstated the law.
A close reading of the prosecutor's comments reveals her attempt to explain reasonable doubt to the jury. The prosecutor used the example of putting a puzzle together. The State instructed that once enough pieces are placed into the puzzle, a person is able to recognize the picture in the puzzle. This description during closing argument did not misstate the law. Moreover, the State attempted to pattern its illustration after jury Instruction No. 2, which correctly defined reasonable doubt.
In Mitchell's second example, he alleges that the prosecutor committed prosecutorial misconduct during closing argument by exploiting Officer Hayes's improper remark made during the trial that Mitchell was `guilty.' He also asserts this argument in his Statement of Additional Grounds for Review. Mitchell did not object to this alleged instance of misconduct at closing argument. Thus, he must show that the comment was so flagrant and ill intentioned that a curative instruction would not have neutralized any prejudice. Hoffman, 116 Wn.2d at 93. Mitchell does not meet this burden.
The prosecutor's argument related to the method of the transaction, not the belief of guilt. Mitchell's allegation is based on the prosecutor's explanation of why the middle man in a drug transaction is guilty under accomplice liability. There was no reliance on Hayes's objectionable belief. The prosecutor noted that Detective Shipp, Officer Hayes, and Josey were well aware that the use of a middle man was a common technique used in drug transactions. This discussion was relevant to show why the audio tapes contained no discussion of details as to what the middle man received for his participation in the drug transaction. Since these transactions were so common, participants did not need to discuss details with each other. In the context of the argument, the prosecutor noted that Officer Hayes had seen the video and talked to the informant. And she concluded with the argument `[t]his is how deliveries take place.' 4 RP at 283.
Review of the record shows it was not the prosecutor's intent to rely upon the improper opinion of Officer Hayes that Mitchell was guilty. The reference to Officer Hayes's testimony was meant to provide information on the nature of the middle man drug transactions. It was not a comment on Mitchell's guilt, therefore we find no misconduct occurred during closing argument and Mitchell's contention is without merit.
Furthermore, even if these statements were error, if any prejudice arose in either of the two examples, a curative instruction could have resolved it. But Mitchell did not ask for such an instruction. Thus, he cannot meet his burden on this claim.
Mitchell also argues in his Statement for Additional Grounds for Review that the prosecutor made inappropriate comments in her opening statement. The opening statements are not part of the court's record on review. It was Mitchell's duty to provide this court with all records necessary for it to review the issues raised on appeal. RAP 9.2(b). Mitchell failed to do this and we will not consider this argument.
III. Ineffective Assistance of Counsel
Mitchell asserts he received ineffective assistance of counsel because trial counsel failed to object to the prosecutor's misconduct. The State responds that Mitchell fails to meet his burden in proving ineffective assistance of counsel. The State is correct.
In order to establish ineffective assistance of counsel, Mitchell must show that (1) his attorney's performance was deficient and not a matter of legitimate trial strategy or tactics, and (2) he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the test, Mitchell must establish both prongs of the test. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). This court presumes effective representation, and Mitchell must show in the record the absence of a legitimate strategic or tactical reason supporting the challenged conduct by counsel. Hendrickson, 129 Wn.2d at 78-79.
Mitchell's allegation of ineffective assistance of counsel fails because the comments he challenges were not improper. As shown in the preceding section, the State committed no wrong during the trial. Moreover, his attorney had no duty to object to proper argument. Thus, Mitchell cannot prove he received ineffective assistance of counsel.
IV. Insufficiency of Evidence
Mitchell next argues there was insufficient evidence to support his conviction or his sentence enhancement. A review of the record shows Mitchell's argument lacks merit.
`[The] test for determining the sufficiency of the evidence . . . is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found [guilt] beyond a reasonable doubt.' State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). We draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against Mitchell. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency `admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom.' State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980). And we consider circumstantial evidence to be as equally reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
A. Conviction
Mitchell contends that the evidence was not sufficient to prove that he was an accomplice to the drug deal. He argues that merely being present at the scene or knowing that a drug deal is going to occur is not enough for a conviction based on accomplice liability. But viewing the evidence in the light most favorable to the State shows that the evidence was sufficient to support a conviction.
RCW 9A.08.020(3)(a)(i) provides that a person is culpable as an accomplice if he or she `solicits, commands, encourages, or requests' another to commit a crime, or aids in the planning or commission thereof, knowing that such an act will promote or facilitate the commission of the crime. Inferences drawn from the evidence support that Mitchell acted as a middle man to the drug transaction. He responded to Josey's signal to buy drugs. He testified that he got into Josey's car and engaged in a discussion about drugs. He was familiar with the area and also the purchase of drugs. And Mitchell also stated that he knew Josey was looking for drugs. Further, he asked Josey to smoke some cocaine as proof that he was not a police officer. This request showed that he knew what he was doing to be illegal and that he was facilitating or aiding the woman in her sale of drugs. And finally, there was one person in the car who definitely thought that Mitchell was aiding in the sale, the drug seller gave him purported drugs for his efforts in her delivery. Thus, the evidence was sufficient to support a conviction. Even though Mitchell did not deliver the drugs, his actions showed knowledge that he was facilitating the crime.
Mitchell also asserts in his Statement of Additional Grounds for Review that there was no evidence presented to show he was an accomplice. This argument also fails as taking the evidence in the light most favorable to the State, it could be found that Mitchell's actions intended to aid in the drug transaction.
B. Sentence Enhancement
Mitchell asserts the State failed to prove the facts of the sentence enhancement beyond a reasonable doubt. He argues that the State did not present evidence that the drug transaction occurred within 1,000 feet of a school bus stop. The evidence, however, affirmatively shows the transaction occurred within 1,000 feet of a known bus stop.
Officer Hayes went to the area where the transaction occurred and measured the distance. Although the car was in motion during the transaction, with the help of the surveillance tape and Josey, Officer Hayes determined the location of the transaction. The buy occurred on 17th Street between Sheridan and Cushman. The school bus stop was located at 17th and Ainsworth. The shortest distance to the bus stop from the area of the buy was 345 feet; the longest was 705 feet. Both of these measurements fall within 1,000 feet as required for the sentence enhancement. Moreover, the surveillance tape showed the area and Josey confirmed the area of the transaction. The inferences drawn from this evidence support that the drug transaction occurred within 1,000 feet of a school bus route stop.
V. Due Process Violation
Finally, Mitchell argues that the sentence enhancement violated his due process rights because the enhancement statute did not give him sufficient notice of what it proscribed. He argues that the statute does not provide an available means for him to know what conduct the statute prohibits. His argument is incorrect as the statute clearly states the prohibited conduct.
RCW 69.50.435(a) states in part:
Any person who violates RCW 69.50.401(a) by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell, or deliver a controlled substance listed under that subsection or who violates RCW 69.50.410 by selling for profit any controlled substance or counterfeit substance classified in schedule I, RCW 69.50.204, except leaves and flowering tops of marihuana to a person:
. . . .
(3) Within one thousand feet of a school bus route stop designated by the school district.
Mitchell contends that the bus stop was not easily discernible. Our Supreme Court has held that a defendant who receives a school zone enhancement is not denied due process because he was unaware of the school bus stop if the location of the bus stop was obtainable through objective means. State v. Coria, 120 Wn.2d 156, 167, 169, 839 P.2d 890 (1992). Some objective means in Coria included observing the gathering of schoolchildren or contacting local schools to find out the locations of bus stops. 120 Wn.2d at 167. Although the statute in Coria was different from that above, courts continue to use the holding with regard to the school zone enhancement. Division One recently found no due process violation applying the Coria holding to RCW 69.50.435(a). See also State v. Johnson, 116 Wn. App. 851, 863, 68 P.3d 290 (2003) (holding objectionable methods existed for defendant to discover location of bus stop).
In applying the Coria holding to the case at bar, Mitchell's argument fails as there was no due process violation. A routing specialist from the Tacoma School District testified about her ability to determine a school bus stop location within 1,000 feet upon request. Moreover, Mitchell also could have observed children getting on and off the bus at 17th and Ainsworth. Thus, due process is met here because objective means were in place for Mitchell to know that a bus stop existed.
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.
QUINN-BRINTNALL, A.C.J. and ARMSTRONG, J., concur.
I write separately because Officer Hayes improperly expressed his opinion that the defendant was guilty and the prosecutor improperly referred to the testimony in closing argument. I concur in the result because Mitchell did not object to the argument, he has not shown that a curative instruction would have been futile, and he has not shown the trial result would probably have been different if counsel had objected to the argument.
The prosecutor asked Officer Hayes why he had identified both parties in the car. Hayes answered, `[w]ell, they were both guilty of the drug-related crime.' Report of Proceedings (RP) at 170. Mitchell objected. Before the court ruled, the officer changed his answer to, `I'm sorry, we believe they both committed a drug-related crime.' RP at 170-71. During closing, the prosecutor explained,
I asked him [Hayes] . . . why were they both why did you ID both of these people. And he knew what had happened, he had seen the video, he had talked to the CI, and he seemed almost confused by the question. Well, they delivered drugs. Not, well, there was this other guy and we didn't know his role. This is how deliveries take place.
RP at 283.
The officer clearly expressed his opinion that Mitchell was guilty. This was improper. State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992). Then the prosecutor reminded the jury that Hayes knew the defendant was guilty because he knew what had happened, had seen the video, and had talked to the CI. This was an improper reference to the officer's opinion.
But Mitchell did not object to the prosecutor's closing argument. Thus, he must show that a curative instruction would not have helped. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). He has not. In the alternative ineffective assistance of counsel claim, Mitchell must show that but for counsel's flawed performance, the verdict would probably have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Again, he has not.