Opinion
No. 36227-9-II.
July 2, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01197-8, M. Karlynn Haberly, J., entered April 13, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Hunt, J.
A jury convicted James Dee Newton of four counts of unlawful delivery of a controlled substance (cocaine). On appeal he argues that (1) trial counsel provided ineffective assistance when she stipulated that count IV occurred within 1,000 feet of a school or school bus route; (2) the prosecutor committed misconduct during closing arguments; and (3) these two errors constitute cumulative error requiring reversal. In his statement of additional grounds (SAG), he argues that (1) the prosecutor committed misconduct during closing arguments; (2) the trial court erred in allowing hearsay testimony over his objection; and (3) he received ineffective assistance of counsel when his attorney failed to object to the prosecutor's statements during closing arguments. We affirm.
RAP 10.10.
FACTS
On February 8, 2006, Edwina Stokes, a confidential informant with the Bremerton Police Department, contacted Detective Martin Garland to inform him that "J" contacted her about purchasing crack cocaine from him. 1 Report of Proceedings (RP) at 43. Detective Garland and Stokes then arranged a controlled buy from "J" that afternoon. After patting down Stokes to ensure she did not have any money or drugs on her person, Detective Garland gave her $100 and instructed her to buy crack cocaine from "J." Stokes returned with a baggie containing crack cocaine.
After the first controlled buy, Detective Garland conferred with other officers and learned that "J" was Newton's street name. Detective Garland then showed Stokes a photomontage that included Newton's picture, and Stokes identified Newton from the selection. Detective Garland and Stokes arranged three other controlled buys with "J," on February 14, 24, and March 24, 2006, and each time Stokes returned with crack cocaine.
Officers arrested Newton on August 9, 2006. The State charged Newton with four counts of delivery of a controlled substance (cocaine). The State included a school or school bus stop or other protected zone enhancement for counts I and IV.
The State charged Newton pursuant to RCW 69.50.401(1) and 69.50.401(2)(a) or (b).
Detective Garland testified on cross-examination that none of the officers involved ever saw Newton sell drugs to Stokes, but instead relied on Stoke's statements. Detective Garland also admitted that he did not perform a full body search of Stokes before each buy, did not observe her in her off hours, and did not perform a urinalysis test to ensure she was not using cocaine.
Stokes testified that Newton sold her cocaine during each of the controlled buys. She also stated that although she is addicted to cocaine, she has been drug free for two years. Stokes further testified that she became a confidential informant because she wanted to get drug dealers out of her neighborhood and that she has conducted over 20 controlled buys with Detective Garland since 2005.
Before the State rested its case, Newton's counsel stipulated in writing that the controlled buys occurred within 1,000 feet of a school or school bus stop route. The court accepted the stipulation and submitted it to the jury. The jury convicted Newton as charged, and the trial court sentenced him within the standard range. The trial court also imposed a 24-month school zone enhancement on both counts I and IV. Newton appeals.
ANALYSIS
I. Ineffective Assistance
Newton first argues that his trial counsel was ineffective because counsel stipulated that the controlled buy site was within 1,000 feet of a school. He argues that stipulating was not a legitimate trial tactic because the State failed to lay a proper foundation for exhibit 2 (a map of the area). Because Newton cannot demonstrate that his counsel's conduct fell below an objective standard or that the outcome would have differed, his argument fails.
The state and federal constitutions guarantee a defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We begin with a strong presumption that counsel provided adequate and effective representation.
McFarland, 127 Wn.2d at 335. To prevail in an ineffective assistance of counsel claim, Newton must show (1) that his trial counsel's performance was deficient and (2) that this deficiency prejudiced him. Strickland, 466 U.S. at 687. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). Prejudice occurs when trial counsel's performance was so inadequate that there is a reasonable probability that the trial result would have differed, thereby undermining our confidence in the outcome. Strickland, 466 U.S. at 694; In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). Legitimate trial strategy or tactics cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel. State v. Mak, 105 Wn.2d 692, 731, 718 P.2d 407 (1986). If Newton fails to establish either element, we need not address the other element because an ineffective assistance of counsel claim fails without proof of both elements. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
Newton's attorney stipulated that the controlled buys alleged in counts I and IV occurred within 1,000 feet of a school or school bus stop, making those counts subject to enhancement.
RCW 69.50.435(1) provides, in relevant part:
Any person who violates RCW 69.50.401 by manufacturing, selling, delivering, or possessing with the intent to manufacture, sell or deliver a controlled substance listed under RCW 69.50.401
. . . .
(c) Within one thousand feet of a school bus route stop designated by the school district;
(j) . . . may be punished by a fine of up to twice the fine other wise authorized by this chapter . . . or by imprisonment of up to twice the imprisonment . . .
Additionally, the sentencing court must add 24 months to the presumptive sentence. RCW 9.94A.510(6).
First, Newton's trial counsel was not ineffective because his decision to stipulate was a legitimate trial tactic. Newton argues that trial counsel should not have stipulated because the State failed to introduce sufficient evidence to establish the distance between the controlled buy site and a school or school bus route stop beyond a reasonable doubt. He also asserts that the decision to stipulate was not tactical because there was no benefit for Newton in doing so.
The State suggests that Newton's trial counsel may have stipulated to the element as a ". . . professional courtesy and/or avoiding boring the jury. . . ." Resp't's Br. at 3. We do not agree that these concerns are a valid reason to stipulate to an element of a crime; however, the record reflects other valid tactical considerations.
In general, a stipulation as to facts is a tactical decision. State v. Mierz, 127 Wn.2d 460, 476, 901 P.2d 286 (1995); State v. Goodin, 67 Wn. App. 623, 634, 838 P.2d 135 (1992). The Goodin court declined to find that trial counsel's decision to stipulate that the defendant's house was within 1,000 feet of a school bus route stop was ineffective assistance of counsel. Goodin, 67 Wn. App. 632-33. The court noted that trial counsel's theory was not that Goodin's home was more than 1,000 feet from the bus stop, but that RCW 69.50.435 was unconstitutional. Goodin, 67 Wn. App. at 633. Because of this, the court found the stipulation a tactical decision. Goodin, 67 Wn. App. at 634.
Similarly, Newton's counsel stipulated to the distances for tactical purposes. As in Goodin, Newton did not argue that the buys occurred more than 1,000 feet from a school bus stop or school. Instead, Newton's counsel argued that the State did not prove that Newton sold drugs to Stokes because (1) the testifying officers either could not identify Newton as the person involved in the controlled buys or did not witness any of the transactions; (2) Detective Garland failed to properly search Stokes; and (3) Stokes was not credible. Counsel and Newton lost nothing by stipulating to facts that did not affect their case theory. Additionally, it is common trial strategy for counsel to concede issues where there is little hope of prevailing in order to avoid losing credibility with a jury.
Newton argues that the State failed to introduce sufficient evidence to prove that count IV occurred within 1,000 feet of a school zone. Once Newton stipulated to the facts, however, the State had no burden to produce any evidence proving those facts. "A stipulation is an express waiver . . . conceding for the purposes of the trial the truth of some alleged fact, with the effect that one party need offer no evidence to prove it and the other is not allowed to disprove it." State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006) (quoting Key Design, Inc. v. Moser, 138 Wn.2d 875, 893-94, 983 P.2d 653 (1999) (internal quotations omitted).
Newton also asserts that the State relied on Detective Garland's testimony to prove the distances and did not lay any foundation for exhibit 2, the map he relied on to measure the distances between the controlled buys and a school and bus route stop. He argues that the State could only rely on certain statutorily enumerated sources to prove the school zone enhancement. First, the State did not rely on Detective Garland's testimony but on Newton's stipulation to prove the school zone enhancement on count IV. Second, contrary to Newton's argument, the State is not constrained by the sources listed in RCW 69.50.435(5) to make its prima facie case of the school's location and boundaries. RCW 69.50.435(5) states:
This section shall not be construed as precluding the use or admissibility of any map or diagram other than the one which has been approved by the governing body of a municipality, school district, county, transit authority, or public housing authority if the map or diagram is otherwise admissible under court rule.
Third, even if the State failed to lay proper foundation for the admission of exhibit 2, Newton explicitly stated that he did not object to the State's offer of the exhibit. The failure to object to the admission and use of an exhibit at trial precludes appellate review. State v. O'Neill, 91 Wn. App. 978, 993, 967 P.2d 985 (1998).
Because Newton cannot demonstrate either prejudice or that the trial's outcome would have differed, we hold that he did not receive ineffective assistance of counsel.
II. Prosecutorial Misconduct
Next, Newton argues that the prosecutor committed misconduct by arguing that to acquit him the jury would have to believe that the police witnesses and confidential informant were lying. The State argues that the prosecutor's statement was not misconduct and that the prosecutor was arguing why the jury should find Stokes credible. The State also argues that the prosecutor's statements were not flagrant and ill-intentioned. Because Newton mischaracterizes the prosecutor's closing arguments, fails to demonstrate prejudice, and fails to demonstrate that the comments were flagrant and ill-intentioned, his argument fails.
A defendant claiming prosecutorial misconduct must establish the impropriety of the prosecution's comments and their prejudicial effect. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Comments are prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). When determining the prejudicial effects of the prosecutor's comments, we look at the remarks in context of "the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Brown, 132 Wn.2d at 561. Additionally, where a defendant fails to object to an improper comment, the error is waived unless the comment is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice" that a curative instruction could not have neutralized. Brown, 132 Wn.2d at 561.
During closing arguments, the prosecutor stated:
The defense mentioned something in their opening that I agree with, and that is the detectives of the Bremerton Police Department have faith in Nina Stokes. They trust her. And in fact, the defense brought that out in their cross examination of Detective Garland, that Detective Garland has faith in her. And for that reason, you can have faith in her, and you can have faith that on February 8th, February 14th, February 24th, and March 24th, she bought drugs from James Newton under the supervision of the Bremerton Police Department.
3 RP at 278. The defense did not object to this statement.
A few moments later, the State reminded the jury, "You are the sole judges of credibility," and explained why the State's witnesses were credible. 3 RP at 285. The State then argued that Stokes was credible because (1) she became an informant to get drugs away from her home; (2) she was not working as an informant for money; and (3) she had been up front about her prior drug use. The State continued:
Why else should you believe and have faith in Nina? Probably the most critical is, the officers have faith in Nina. You will recall that in the defense's opening statement they brought out that fact. Detective Garland has faith in Nina. You will recall that the opening statement, [defense counsel] also said that we're going to talk about the drug world, we're going to talk about the drug community, and this is a community steeped in dishonesty. We have detectives that have been narcotics investigators for years. If you talk about their collective experience, we are talking years of experience. We are talking investigators who probably don't believe most of the people that they deal with. They probably don't have faith in a lot of people they deal with. For them to say that they have faith in Nina is huge.
3 RP 286-87. Again, the defense did not object and did not move for a mistrial based on these comments.
Newton argues that the State's comments were the equivalent of saying that to find Newton not guilty, the jury would have to find that the State's witnesses were lying. The cases Newton cited do not support this claim.
A prosecutor may not argue that in order to acquit the defendant, the jury must find that the State's witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). In Fleming, the prosecutor stated, "[F]or you to find the defendants . . . not guilty of the crime of rape in the second degree . . . you would have to find either that [the victim] has lied about what occurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom." 83 Wn. App. at 213 (emphasis omitted). The court held that this statement constituted flagrant and ill-intentioned misconduct because the court had held two years earlier that such arguments were improper. Fleming, 83 Wn. App. at 213-14.
In contrast, the prosecutor in this instance did not encourage the jury to make any such choice. The prosecutor did not argue that the jury had to believe that either Stokes or the officers had lied in order to acquit Newton. Instead, looking at the remarks in context, the prosecutor argued why the jury could find Stokes credible.
In closing argument, the State has wide latitude in drawing reasonable inferences from the evidence, including commenting on the credibility of witnesses based on evidence in the record. State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995). The prosecutor listed several reasons why the jury should believe Stokes, including her motives for working as a confidential informant, her honesty about her prior drug use, as well as the officers' confidence in her trustworthiness. During Newton's closing, he listed several reasons why the jury should not find Stokes credible, including her motives for working as a confidential informant and the likelihood that Stokes is still using drugs. Newton also argued that the officers should not have trusted Stokes. In the context of the entire argument and the issues addressed to the jury, Newton cannot show that the prosecutor's comments were prejudicial or flagrant and ill-intentioned.
In his SAG, Newton argues that the prosecutor presented a "false choice" to the jury in saying that they had to believe him or believe the State's witnesses. SAG at 15. If this were all the jury heard after the close of evidence, perhaps it would have been faced with a false choice. However, as in all cases, this jury received extensive instructions on the law and extensive argument from counsel. In this context, there was nothing inappropriate in the prosecutor's argument. When making each point in argument, there is no requirement that counsel reference all the different parts of the jury instructions that might fully place the argument in its proper context.
The State specifically argued:
Ladies and gentlemen, this comes down to who do you believe, who has the motive or a stake in the outcome of the case, and the last person we need to consider is the defendant. Does he have a motive or stake in the outcome of the case? I want you to also consider who was the only witness that sat through the whole trial and got to hear all of the testimony, and testified last. Ladies and gentleman, when you consider all of the evidence, whether it came through the State's witnesses on direct, or on the defense's cross examination, or even the defendant himself, when you consider everything, ask yourself, who do you believe? Do you believe that a person who has no other job, no other source of income, except from what he might get from one of his girlfriends at the time, is not going to sell what he's using? Do you believe that? SAG at 14.
Further, even if the prosecutor's comments were inappropriate, they are not grounds for reversal because Newton invited the comments when he asked Detective Garland whether the Detective had faith in Stokes. Improper remarks by the prosecutor are not grounds for reversal "if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective." State v. Weber, 159 Wn.2d 252, 276-77, 149 P.3d 646 (2006) (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). Here, on cross-examination, Newton asked Detective Garland questions about his faith in Stokes, and further questions designed to show that his faith was misplaced. Newton's questions pointed out that Detective Garland did not watch Stokes conduct the actual buys, did not perform a full body search before each buy, and did not test Stokes for drugs. The prosecutor was justified in showing why the officers had faith in Stokes and why she was credible.
While the State does not raise this argument, we can affirm on any grounds supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
Newton cannot demonstrate that the prosecutor's comments were flagrant and ill-intentioned or that they constitute misconduct. Thus, his argument fails.
III. Cumulative Error
Finally, Newton argues that the above two errors constituted cumulative error entitling him to a new trial. Cumulative error applies when several trial errors, when combined, denied the defendant a fair trial, although none of them alone would justify reversal. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Newton has not established multiple errors so we need not address this issue.
IV. Statement of Additional Grounds
A. Prosecutorial Misconduct
First, Newton argues that the prosecutor committed misconduct during closing argument by comparing "proof beyond a reasonable doubt" and a person's certainty in his belief in a "higher power." SAG at 4-5. He argues that this statement prejudiced him because it encouraged the jury to believe that Newton was guilty despite the lack of evidence supporting guilt. Newton also assigns error to the prosecutor's reference to people's belief in marriage because it invoked negative emotions within certain jury members.
During closing arguments, the State explained:
We talked about a belief in your marriage, or I might suggest a belief in your religion. If you have a religion, if you believe in some higher power, I imagine that there's somebody that could suggest to you a reason to doubt. You can't see that entity. It's possible your husband is cheating on you. Sure, it's possible, and we have all considered those for our beliefs. We have considered those if we have a religion. Sure, I considered that, but I still believe. If you have an abiding belief in the truth of the matter charged.
3 RP at 318. Newton did not object to this statement. As stated above, where a party does not object to statements he believes to constitute prosecutorial misconduct, he must show that the statements were "flagrant and ill-intentioned." Brown, 132 Wn.3d at 561. Newton does not meet his burden. Instead of inciting the jury against Newton, the prosecutor, in explaining reasonable doubt, was arguing that even the strongest held beliefs, such as religious beliefs or the trust that develops in a marriage, can be doubted. Newton cannot demonstrate that the prosecutor acted improperly.
B. Hearsay
Newton further argues that the trial court improperly allowed hearsay evidence over his objection, denying him the right to confront his witnesses. Because the trial court admitted the testimony under a valid hearsay exception, this argument fails.
Detective Spencer Berntsen testified that he assisted with the second controlled buy. While explaining his role in the buy, he stated that he waited to pick Stokes up after the second controlled buy until "the target . . . was clear of the area." 2 RP at 216. The following exchange then took place:
STATE: Why did you wait until the suspect was clear?
DETECTIVE BERNTSEN: Again, during this transaction, utilizing our Nextels, other detectives on scene told me that —
DEFENSE: Objection, hearsay.
STATE: Your Honor, the question was, why did he wait until that point. It's explaining why he did what he did.
THE COURT: Why don't you answer that question. DETECTIVE BERNTSEN: At the time I knew that the suspect was taking countersurveillance measures, so I did not want to get close to the operative or the informant until I was able to do so without the informant seeing me or the target seeing me.
2 RP at 216. Newton did not request a limiting instruction.
The admission and exclusion of relevant evidence is within the trial court's discretion. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (citation omitted).
Newton asserts that the court should not have admitted this testimony because the person relaying information over the walkie-talkie was not unavailable. ER 803(3) creates an exception to the hearsay rule for statements of the "declarant's then existing state of mind." The trial court did not abuse its discretion in admitting the testimony to explain why Detective Berntsen stayed out of sight until the suspect left.
In closing argument, the prosecutor stated that Detective Berntsen did not observe the second controlled buy because Newton "was doing countersurveillance. And so, the detectives don't sit there and stare at what's going on because it would be obvious." 3 RP 280. Again, the prosecutor was merely arguing why the officers did not observe the second controlled buy. Newton did not object to this argument and even if this statement was improper, he waived his right to argue this on appeal. RAP 2.5(a); State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000).
Newton further argues that a limiting instruction could not have corrected the trial court's error, so his failure to request one does not waive the error. However, a limiting instruction could have easily addressed any problems. The trial court could have instructed the jury that Detective Berntsen's testimony was not admitted to prove that Newton conducted surveillance but, rather, to show why the officers did not observe the second controlled buy.
C. Ineffective Assistance
Newton also argues that he received ineffective assistance of counsel because his counsel failed to object to the prosecutor's statements, previously discussed in this opinion, during closing arguments. Because it was not error for the prosecutor to make the statements at issue, Newton cannot demonstrate that his counsel should have objected.
D. Issue Addressed by Appellate Counsel
Finally, Newton claims that the prosecutor committed misconduct during closing arguments by arguing that the jury would have to choose between the defendant and the police witnesses and confidential informant. Newton's appellate counsel raised this issue in his direct appeal and we again reject it.
We affirm.
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.
Van Deren, C.J. and Hunt, J., concur.