Opinion
No. 56659-8-I.
December 4, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14019-2, Bruce W. Hilyer, J., entered July 5, 2005.
Counsel for Appellant(s), Jason Brett Saunders Washington Appellate Project 1511 3rd Ave Ste 701 Seattle, WA, 98101-3635.
Counsel for Respondent(s), David M Seaver King County Prosecuting Attorney's Offic 500 Fourth Ave., Room 840 Seattle, WA, 98104-2337.
Authored by C. KENNETH GROSSE Concurring: H JOSEPH COLEMAN.
Affirmed by unpublished opinion per Grosse, J., concurred in by Schindler, A.C.J., and Coleman, J.
An attorney's deficient performance in failing to object to an incorrect jury instruction does not amount to ineffective assistance of counsel warranting reversal without a concomitant showing of prejudice. Here, the evidence was overwhelming and there was no showing of prejudice to the defendant. We affirm Richard Mitchell's conviction of unlawful possession of a firearm in the first degree.
FACTS
Richard Mitchell was convicted of possession of a firearm that the police discovered during a routine stop. Mitchell denies possession of the gun and claims it was planted by the police.
Officer Shandy Cobane testified that he was performing a routine patrol of the area at 23rd and Madison when he observed a group of individuals in an alley. As he approached the alley, he noticed the smell of marijuana. Seeing Mitchell partially hidden by a parked car, Cobane called him over to the patrol car. As Mitchell approached, he stated, "[I]t's me, Cobane. I'm sitting here smoking some weed." Officer Cobane met Mitchell and returned to the patrol car to run a computer check on Mitchell. While he was running the computer check, Cobane heard something metallic hit the ground. Officer Cobane quickly exited the patrol car and asked Mitchell if he dropped anything. Mitchell did not reply. Cobane then noticed that Mitchell was standing on a gun. Officer Cobane testified that he knew Mitchell was a convicted felon and arrested him for Violation of the Uniform Firearms Act (VUFA). Mitchell began to cry telling Cobane that he only had the gun for protection from someone who was after him.
Officer Marvin Rivera testified that he was training Officer Marion in the same area where the incident occurred. They arrived at the scene to back up Officer Cobane after Cobane radioed that he was making a suspicious stop. As they exited their patrol car, they heard Officer Cobane yelling there was a gun. Officer Rivera went to Officer Cobane's side as he led Mitchell away from the gun. Officer Marion went to retrieve the gun. Officer Marion was instructed to pick the gun up and make it safe. Officer Rivera observed Officer Marion remove the magazine with rounds, place the magazine on the vehicle, rack the chamber back and observe that it was empty. While Officer Marion was performing these tasks, Officer Rivera testified that Mitchell remarked that there was no round in the chamber. Officer Marion tried several times to make the weapon safe by locking the slide back. Officer Marion told Officer Rivera that he could not figure out how to lock it back. Before Officer Rivera could respond,
Mitchell said, [I]t's broken, it doesn't lock back." Rivera then told Officer Marion to make it as safe as possible. Rivera corroborated Officer Cobane's testimony that he heard Mitchell tell Cobane that he was carrying the gun for protection because of a beef with someone. Officer Rivera also testified that he could smell marijuana standing next to Mitchell. Mitchell told Officer Rivera that he was smoking a blunt which he indicated was over by the van. A blunt was recovered from the site.
Mitchell testified that he did not say anything to Officer Cobane and that Officer Cobane pulled the gun from behind him. Mitchell denied telling Cobane that he was carrying the gun for protection. Mitchell admitted that he was convicted of a serious offense before and that he had "a drug case, possession and stuff." Mitchell denied smoking marijuana and said he was not doing anything wrong. He was in the alley looking for the manager of the restaurant to return some keys. When the other officers arrived, Mitchell said that Cobane told them to stay back because Mitchell would not talk to him with them there. Mitchell denied that it was his gun and contended that Officer Cobane planted the gun to get money from him.
Mitchell's brother also testified that he was present at the scene and overheard the conversation between Mitchell and Officer Cobane. He confirmed Mitchell's testimony that Officer Cobane asked for money and said that he could make the gun disappear. Mitchell's brother appeared at the trial in his jail attire testifying that he was still incarcerated for not reporting on a parole violation and that he was convicted of a felony drug offense. The brother also admitted during testimony that he was arrested nine or ten times by Cobane. He did not hear Officer Cobane read Mitchell his rights. On cross-examination, the brother admitted that he heard Mitchell had a beef with someone in the neighborhood.
Kim Watson also testified for the defense stating that they were not smoking or doing anything. She heard Officer Cobane tell people to scatter and that he smelled something. Watson further stated that Mitchell said there was "nothing happening back here." Watson heard Officer Cobane ask what hit the ground and then heard him say it was a gun. When Watson heard a gun mentioned, she left.
Effective Assistance of Counsel
Mitchell first contends that he was denied effective assistance of counsel because his counsel failed to object to an instruction that permitted the jury to consider his past offenses to assess his credibility. Mitchell's previous convictions were admitted and stipulated to for the sole purpose of satisfying the prior serious offense element of the firearm offense. His prior convictions had not been admitted under ER 609 which would have permitted the admission of such prior convictions where the trial court finds their probative value to
RCW 9.41.040(1)(a) provides in pertinent part:
1 RCW 9.41.040(1)(a) provides in pertinent part:
A person . . . is guilty of the crime of unlawful possession of a firearm in the first degree, if the person . . . has in his . . . possession, . . . any firearm after having previously been convicted . . . of any serious offense[.]
outweigh the prejudicial effect. Here, there was no such weighing by the trial court as the convictions were not admitted to impeach the defendant.
The instructions were created by the State and given to the court. The court distributed the instructions to both attorneys. Defense counsel did not object to any of the instructions. Jurors were given the following Instruction 6:
Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to the testimony of the defendant and for no other purpose.
Here, the State concedes that this instruction should not have been given in this case.
"Effective assistance of counsel is guaranteed by both the federal and state constitutions." To sustain a claim of ineffective assistance of counsel, a defendant must show both that the performance was deficient and that the deficient performance was prejudicial to him. Such prejudice results only when there is a reasonable probability that, but for the counsel's performance, the outcome would have differed.
In re Pers. Restraint of Woods, 154 Wn.2d 400, 420, 114 P.3d 607 (2005); see U.S. Const. amend VI; Wash. Const. art. I, § 22.
Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Woods, 154 Wn.2d at 420-21.
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Here, the first prong of Strickland is met and it was error for counsel to not object to the instruction. But the second prong — that the deficient performance was prejudicial — is not met here. Mitchell was charged with a crime that required as one of its elements proof of conviction of a serious offense. Thus, Mitchell's prior conviction was already known to the jury.
Viewing the evidence of the conviction against the backdrop of all of the evidence presented leads us to the conclusion that Mitchell was not prejudiced to any significant degree by the instruction. Officer Cobane's testimony is corroborated by his fellow officer's testimony. Mitchell's testimony is somewhat shaky. The witnesses that defense produced told differing stories and in some instances they validated the police accounts. At trial, the defense stipulated that the "defendant ha[d] previously been convicted of a `serious offense' as defined in RCW 9.41.010." That stipulation was read to the jury.
These facts do not come within the ambit of a "probability sufficient to undermine confidence in the outcome." We cannot find that the outcome would have been different if counsel had objected to the instruction. Any error was harmless and did not affect the outcome of the case.
Strickland, 466 U.S. at 694.
State v. Hendrickson, 129 Wn.2d 61, 80, 917 P.2d 563 (1996).
Stipulation to Community Placement
Mitchell challenges the addition of a point to his offender score because he was on community placement at the time. He contends that only a jury could make that determination. Thus, the admission of his stipulation was a violation of his Sixth Amendment right to a jury trial.
On April 14, 2005, Mitchell signed a notice and waiver of proof of community placement status that stated:
I have been informed and fully understand that I have the right to have a jury determine beyond a reasonable doubt that I was under community placement at the time I committed the crime(s) charged in the count(s) listed above. I am knowingly, intelligently and voluntarily giving up this right. I agree that I was under community placement at the time I committed the listed crime(s). I understand that because of my community placement status one point will be added to my offender score on the listed count(s) for sentencing in this case.
The Sixth Amendment guarantees a criminal defendant the right to "a speedy and public trial, by an impartial jury[.]" The United States Supreme Court has held that "`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'"
Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).
Mitchell relies on State v. Jones, where this court held that a jury — not a judge — must make the factual determination of whether a defendant is on community placement. Jones contested the fact of his community placement. Whether a person was on community placement or not at the time of the current crime cannot be determined merely by looking at the fact of the prior conviction or even what sentence was imposed by the prior court. Thus, it was appropriate in Jones to require that a jury make the factual determination of whether or not the defendant was in community custody.
Jones, 126 Wn. App. 136, 144, 107 P.3d 755, review granted, 155 Wn.2d 1017 (2005); but see State v. Giles, 132 Wn. App. 738, 740, 132 P.3d 1151 (2006), where Division Two rejected Jones and held that the defendant's community placement status is closely connected to his criminal history. Thus, it falls within Blakely's prior conviction exception to the rule requiring the State to prove sentence-increasing facts to a jury beyond a reasonable doubt.
In contrast to Jones, Mitchell admitted in his waiver the facts that were used to calculate his offender score. He also expressly waived his right to a jury trial on the matter and recognized that it might increase his penalty. Blakely specifically exempts admissions from its jury trial requirement holding that "nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant . . . stipulates to the relevant facts[.]"
Blakely, 542 U.S. at 310; See Apprendi, 530 U.S. at 488; Duncan v. Louisiana, 391 U.S. 145, 158, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
Statement of Additional Grounds for Review
Mitchell raises additional grounds for review, most of which are factual in nature involving the credibility of witnesses. As such, these were within the sole purview of the jury as the trier of fact.
Mitchell also contends that it was prejudicial for his brother to appear in court in jail house garb. In State v. Rodriquez, the court found no harm where the inmate testified in prison clothes, handcuffs and shackles. In so holding, the court noted that the witness had testified about his conviction and the jury knew of it. A court should grant a mistrial only when a defendant has been so prejudiced that nothing short of a new trial would insure the defendant be tried fairly. Here, Mitchell's brother testified about his conviction and incarceration for a probation violation. It cannot be said that the wearing of those clothes in and of itself without objection at trial was so prejudicial as to warrant reversal.
State v. Rodriquez, 146 Wn.2d 260, 45 P.3d 541 (2002).
Rodriguez, 146 Wn.2d at 269-70.
Mitchell also contends that he was never notified of his rights. The court held a CrR 3.5 hearing in which it determined that the officer advised the defendant of his rights and that the statements made to the police were voluntary. Mitchell chose not to testify at that hearing and cannot now testify.
Mitchell further contends that he should have been charged with a lesser included offense, but does not assert what that offense would be.
And finally, there is no constitutional right to be tried by a jury that contains at least one member of the defendant's race. Thus, Mitchell's contention that he was not tried by a jury of his peers because there was no African-American on the panel also fails.
State v. Sellers, 39 Wn. App. 799, 802, 695 P.2d 1014 (1985).
Affirmed.
WE CONCUR: