Opinion
No. 52857-2-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 03-1-00247-2. Judgment or order under review. Date filed: 07/08/2003. Judge signing: Hon. Michael F. Moynihan.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Karamjit Singh (Appearing Pro Se), 1905 Buttercup Drive, Lynden, WA 98264.
Counsel for Respondent(s), Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
To support a claim of ineffective assistance of counsel, a defendant must establish that trial counsel's performance was deficient and that the deficiency prejudiced him. Karamjit Singh fails to establish that trial counsel's performance in abandoning the duress defense he outlined in his opening statement was prejudicial. Singh's conviction for possession of cocaine with intent to deliver is therefore affirmed. However, because Singh received an exceptional sentence premised on facts other than those found by a jury, under Blakely v. State of Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), he must be resentenced.
FACTS
A United States (U.S.) Border Patrol employee monitoring surveillance cameras observed Singh throwing two large bags over a ditch just north of the Canadian border. The cameras had been triggered by sensors on the U.S. side of the border that indicated someone had walked up to the border from the south at that location. As nearby Border Patrol officers arrived, Singh left the bags and fled farther into Canada, but Canadian police with a tracking dog quickly located and arrested him. The bags contained over 50 pounds of very pure cocaine. Singh was charged with possession of cocaine with intent to deliver.
Singh's counsel notified the State that he would present a duress defense. At trial, Singh brought a motion in limine to prevent the State from admitting evidence of Singh's other charges for attempting to drive a truck carrying a large quantity of marijuana into the U.S. three months before the cocaine incident. The State contended that the evidence was admissible to rebut the duress defense. The trial court said it would discuss the issue later and instructed the State not to mention the other charges in its opening statement.
The State also brought a motion in limine to prevent the defense from inquiring into the precise nature and location of the sensor devices that triggered the surveillance cameras. Defense counsel suggested there might be an issue as to whether Singh was actually in the U.S., but the prosecution stated that the State was not relying on the sensors to prove that fact. The court treated the matter as resolved by agreement.
In his opening statement, defense counsel outlined a duress defense. He anticipated evidence would show Singh had been abducted at gunpoint while leaving his doctor's office, was held in a place he believed was in Canada, and was threatened with harm to himself and his family if he did not cooperate with the abductors by assisting in smuggling. Counsel indicated that Singh had cooperated on several occasions. He explained that because the defense was duress he would not question the officers about what had happened or what they did.
After opening statements and the lunch break, the prosecutor informed the court that contrary to her earlier understanding, the videotape from the surveillance camera had not actually shown Singh in the United States. Defense counsel then renewed his argument for admitting the location of the sensors. After further argument by counsel, the court indicated it was inclined to deny the State's motion in limine, believing the sensor's location would be relevant.
During testimony of the State's witnesses, defense counsel cross-examined the witnesses about the type and location of the sensors, their sensitivity, whether the video tape ever showed Singh in the U.S. and whether any witness ever saw him in the U.S.
At the end of the State's case, defense counsel again asked the court to address the admissibility of the marijuana incident, explaining that the defense needed to know to determine whether the defendant should testify. The court ruled that the marijuana incident would be admissible to rebut a claim of duress since that incident had taken place before any of the alleged duress related to cocaine trafficking.
After a break, defense counsel stated that Singh had wanted to present the duress defense but had decided not to testify because the defense would be rendered incredible by the evidence of the marijuana incident. In closing argument, the defense used his cross-examination of the State's witnesses to argue there was no proof Singh had committed any crime in the State of Washington. The jury found Singh guilty.
The State gave notice it would request an exceptional sentence. At sentencing the prosecutor presented evidence that the cocaine was a much larger quantity than typically recovered at the border and had a street value as high as two million dollars. Defense counsel argued in mitigation that Singh was just a carrier and there had been partial duress because Singh had been blamed by the owners of the marijuana he was caught with for the loss of those drugs and thus had been threatened and forced to work as a cocaine runner. The trial court found the crime a major violation of the controlled substances act and imposed an exceptional sentence of 60 months duration. Singh appeals.
DECISION
Singh contends that by promising and failing to deliver evidence of duress, his retained trial counsel provided ineffective assistance. To establish a claim of ineffective assistance, the defendant has the burden of proving that trial counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995). In applying this test, we need not consider whether counsel's performance was deficient if we can say that the defendant was not prejudiced by the alleged deficiency. In re Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992). The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. State v. Brett, 126 Wn.2d 136, 199, 892 P.2d 29 (1995).
Singh contends that his counsel rendered deficient performance by outlining the duress defense to the jury without knowing whether the marijuana incident would be admitted by the court, and then failing to present the duress defense. The State responds that while it would have been more prudent for counsel to obtain a ruling from the trial court before opening statements, the decision to change the defense to the argument that there was no proof that Singh actually possessed cocaine in the State of Washington was a reasonable tactical choice under all the circumstances.
We need not resolve the issue of deficient performance because Singh cannot establish prejudice. A review of the record shows the state's evidence was overwhelming regardless of the defense Singh presented. As Singh acknowledges, admitting the marijuana incident effectively rebutted the duress defense. And as for the jurisdictional issue, Singh was videotaped just north of the border carrying between half a million and two million dollars worth of cocaine seconds after sensors on the ground a few feet away in Washington State indicated that someone was crossing the border on foot at that precise location. No one else was observed in the area. And even if the jury could possibly have considered that only an accomplice of Singh's had actually been in Washington, they were instructed that Singh was guilty as an accomplice in that event anyway. Clerk's Papers (CP) at 37.
Singh does not explain why the jury might have acquitted him but for the apparent change in the defense position. Instead he relies on out-of-state authority to suggest that prejudice is necessarily established when defense counsel promises to call witnesses who do not subsequently testify. But of the cases he cites, only the two-judge majority in Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988) actually holds that such an error establishes prejudice as a matter of law. And the First Circuit has subsequently held that the inquiry is `necessarily fact-based[,]' United States v. McGill, 11 F.3d 223, 227 (1st Cir. 1993), and that prejudice must be established in the traditional sense that the reviewing court must determine whether there is a reasonable probability that the outcome of the trial would have changed. Ouber v. Guarino, 293 F.3d 19 at 32-33 (1st Cir. 2002) (`Whether or not Anderson intended to [create an exception to the prejudice requirement] is beside the point, since the weight of recent Supreme Court precedent is to the contrary.')
Singh also cites two cases that employ the correct prejudice requirement, Ouber, and People v. Ortiz, 224 Ill. App.3d 1065, 586 N.E.2d 1384 (1992). But in those cases, prejudice was found only because the cases were very close. In Ortiz the two-judge majority found counsel's failure to deliver promised other suspect evidence prejudicial because the case was based on identification by a legally blind assault victim who was drunk during the incident. 224 Ill. App.3d 1065. And in Ouber, the court found the case `exceedingly close' because in two previous trials where the defendant did testify `the evidence . . . was so underwhelming that the jurors were unable to reach a decision' and the only material difference in the final trial was counsel failed to deliver on his promise that the defendant would testify. 293 F.3d at 33-35.
Because Singh fails to establish prejudice, there is no showing of ineffective assistance of counsel. We therefore affirm the conviction.
Singh also contends, and the State correctly concedes, that the exceptional sentence cannot stand in light of Blakely v. Washington, 542 ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Although the parties dispute both the appropriate remedy and whether this court should stay the case pending Supreme Court review of other cases, we follow our recent decisions in State v. Harris, 123 Wn. App. 906, 99 P.3d 902 (2004) and State v. Maestas, ___ Wn. App. ___, 101 P.3d 426 (2004), and remand for resentencing, at which time the State may, if it elects, ask the trial court to convene a sentencing jury to determine the facts necessary to support an exceptional sentence.
Conviction is affirmed, remanded for resentencing.