Opinion
No. 59667-5-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-07148-2, Michael Hayden, J., entered March 1, 2007.
Affirmed by unpublished per curiam opinion.
Talley appeals his conviction of possessing stolen property in the second degree. He claims ineffective assistance of counsel and prosecutorial misconduct related to hearsay evidence presented to the jury. We affirm.
Background
Officer Scott Schmidt responded to a report of a car prowl very early on a cold, rainy morning in the Madison Park area of Seattle. A witness had described the prowler as a black man wearing a blue raincoat and carrying several backpacks. Schmidt arrived at the location of the suspected car prowl within minutes of the report but found no one matching the suspect's description on the nearly deserted streets. He worked his way methodically up and down the neighboring streets toward a nearby bus stop where he knew a bus made a lengthy layover before going downtown. In Schmidt's experience, criminals frequently used buses as an anonymous way to travel.
He thought a car prowler burdened with several knapsacks could not have gone very far and was likely to take the bus.
He soon came upon the bus moving down 42nd Avenue towards Madison Street. There was only one passenger inside the brightly lit bus — a man matching the description of the car prowler. Schmidt turned on his flashing lights, and the bus pulled over. He parked his cruiser behind the bus and walked up towards the front passenger door. As he did so, he passed the side door of the bus and saw the passenger get out of his seat and move towards the front of the bus, leaving several bags behind.
Officer Schmidt stopped the passenger before he could leave the bus and quickly patted him down.
After backup officers arrived, Schmidt went back to where the passenger had been sitting and found a knapsack, a laptop computer in a case, and a pair of athletic shoes. The laptop had been stolen out of the trunk of a car from Nancy Crase, an IT worker at the Fred Hutchinson Cancer Research Center who lived nearby. The computer was clearly marked with a Fred Hutchinson identification sticker.
Schmidt went to pick up Mark Lunsford, the witness who had reported the car prowl to 911, for a drive-by identification. Lunsford identified the passenger as the man he had seen in his neighbor's car.
The passenger, Jerome Talley, was charged with possessing stolen property in the second degree and vehicle prowl in the second degree.
During her opening statement at trial, the prosecutor gave the jurors a preview of Lunsford's testimony, describing how he had called 911 upon seeing a stranger inside his neighbor's car. She told the jury that Talley matched Lunsford's description of the prowler and that Nancy Crase, the owner of the stolen laptop, lived in "the same general area where Mark Lunsford had seen this individual inside of his neighbor's car."
Following opening statements, the prosecutor learned that Lunsford was on vacation and would not be available to testify and so informed defense counsel. Neither counsel informed the court of the witness's unavailability.
At trial, Officer Schmidt testified about picking Lunsford up at his house, prompting this exchange with the prosecutor:
Q: When you got that individual, picked him up, what did you do?
A: I brought him to the area where we had the possible suspect detained.
Q: And what did you do?
A: I asked [one of the officers] to stand the detainee up while I drove Mr. Lunsford by. And then I asked Mr. Lunsford, "Is this the man you saw in your neighbor's car?" And he said, "Yes."
Defense counsel immediately made a hearsay objection. The court sustained the objection preliminarily, stating that if Lunsford came to trial and testified the statement would not be hearsay under ER 801(d)(1).
At the close of the state's case, the prosecutor informed the court that Lunsford would not be testifying. The court expressed surprise and noted that the identification was inadmissible in the absence of Lunsford's testimony. It stated that had it known Lunsford would not be testifying, it would have definitively sustained defense counsel's hearsay objection. "You don't have evidence that the defendant was out prowling anything," the court told the prosecutor. "The only thing you have is evidence that, within sometime after the event, he was found in possession of a computer. That's all."
Defense counsel moved to have the vehicle prowl count dismissed. The court dismissed the count the following day. The only reasonable alternative, the court stated, would be to grant a new trial, an alternative which would impair Talley's right to a speedy trial. When Talley inquired why the court did not dismiss the remaining charge of possessing stolen property, the court explained:
The possession of stolen property charge is based on the fact that you were found on the bus, and had just left the seat allegedly where there was a stolen laptop computer, and that you left it in a manner that would suggest that you were trying to get away from it, which would suggest by inference that you knew it was stolen, which would suggest by inference that you would be guilty of possession of stolen property in the second degree. That's what is left, and that would go to the jury.
Talley was subsequently convicted of possessing stolen property in the second degree.
Standard of Review
To prevail on a claim of ineffective assistance of counsel, Talley must overcome the presumption of effective representation and demonstrate (1) that his lawyer's performance was so deficient that he was deprived of "counsel" for Sixth Amendment purposes and (2) that there is a reasonable probability that the deficient performance prejudiced his defense.
State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
To prevail on his claim of prosecutorial misconduct, Talley bears the burden of proving, first, that the prosecutor's comments were improper and, second, that the comments were prejudicial.
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
Discussion
Ineffective Assistance of Counsel
In order to establish that counsel was ineffective, a defendant must show that counsel's conduct was deficient and that the deficient performance resulted in prejudice. To show deficient representation, a defendant must show that it fell below an objective standard of reasonableness based on all the circumstances. The defendant must overcome a strong presumption that counsel's performance was not deficient. Prejudice is established if the defendant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different.
State v. Brockob, 159 Wn.2d 311, 345, 150 P.3d 59 (2006) (citing Strickland, 466 U.S. at 687).
Brockob, 159 Wn.2d at 345.
Brockob, 159 Wn.2d at 345.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Talley argues that his counsel was deficient in allowing Officer Schmidt to relate hearsay from Lunsford, knowing that Lunsford would not be called as a witness. We do not accept this argument. Defense counsel objected at once when Schmidt repeated Lunsford's hearsay testimony. The court sustained the objection and subsequently dismissed the vehicle prowling charge. While counsel was aware of Lunsford's unavailability and, like the prosecutor, did not inform the court that Lunsford would not appear, under the circumstances his failure to preempt the hearsay testimony did not fall below an objective standard of reasonableness.
ER 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 802 states that hearsay "is not admissible except as provided by these rules, by other court rules, or by statute."
Talley has not shown that there is a reasonable probability the outcome of his trial would have been different had his counsel preempted Schmidt's testimony about Lunsford. As the trial court noted in dismissing the vehicle prowling charge, there was ample evidence to convict Talley on the remaining possession of stolen property charge. There were few, if any, other people about at the very early hour at which Talley was apprehended. As soon as Officer Schmidt pulled the bus over, Talley rose from his seat, abandoning the laptop, and attempted to leave the bus. Doing so raised a strong inference that he knew the laptop was stolen and was attempting to distance himself from it. The laptop was stolen from Nancy Crase very near where the bus was stopped and was clearly marked with a Fred Hutchinson sticker. Under the circumstances, there was sufficient evidence to sustain Talley's conviction.
Nor do we find that Talley's counsel's performance was deficient because he failed to request a curative instruction. Deficient performance is not shown by matters involving trial strategy or tactics. It is quite possible counsel did not wish to draw further attention to the hearsay testimony. Defense counsel was clearly aware that he could request a curative instruction; he declined a curative instruction regarding Schmidt's testimony that he had found a flashlight on Talley's person during the pat down.
Hendrickson, 129 Wn.2d at 77-78.
Talley also argues his counsel was ineffective in not objecting to Schmidt's testimony that he was responding to a call about a vehicle prowl. Talley asserts that Schmidt's statement was double hearsay and violated his right to confront witnesses.
For the purposes of the Sixth Amendment right to confront adverse witnesses, the admissibility of an out-of-court statement made by an unavailable declarant depends on whether the statement is testimonial or nontestimonial in nature. A testimonial statement made by an unavailable declarant may not be admitted unless the defendant had a prior opportunity to cross-examine the declarant. A nontestimonial statement may be admitted whether or not the defendant had a prior opportunity to cross-examine the declarant.
State v. Williams, 136 Wn. App. 486, 502, 150 P.3d 111 (2007).
Williams, 136 Wn. App. at 502 (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)).
Generally, 911 calls are not considered testimonial as they are ordinarily intended to describe current circumstances requiring police assistance, rather than to establish or prove past facts. Such calls are considered testimonial when circumstances objectively indicate that there is no ongoing emergency and that the primary purpose of the call is to establish or prove past events potentially relevant to later criminal prosecution. Lunsford's call was intended to alert police to ongoing criminal activity and was thus not testimonial.
Williams, 136 Wn. App. at 502-03.
Williams, 136 Wn. App. at 502 (citing Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 2270-78, 165 L. Ed. 2d 224 (2006)).
Regardless of whether Talley's counsel should have objected to Schmidt's testimony about the vehicle prowl call, Talley has failed to establish that its admission prejudiced him. Once the court dismissed Talley's vehicle prowling charge, Schmidt's testimony that he was responding to a vehicle prowl was not relevant to prove the truth of the matter asserted, namely, that Talley possessed stolen property. The evidence supporting Talley's conviction was substantial. Talley has not shown that, but for the admission of the challenged testimony, there is a reasonable probability that the outcome of the proceeding would have been different.
Prosecutorial Misconduct
In cases of prosecutorial misconduct, the touchstone of due process analysis is the fairness of the trial, i.e., did the misconduct prejudice the jury, thereby denying the defendant a fair trial guaranteed by the due process clause? To prevail on his claim of prosecutorial misconduct, Talley bears the burden of proving, first, that the prosecutor's conduct was improper and, second, that the conduct was prejudicial. A prosecutor's conduct is prejudicial only where there is a substantial likelihood the misconduct affected the jury's verdict.
Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78, (1982).
McKenzie, 157 Wn.2d at 52.
McKenzie, 157 Wn.2d at 52.
Here, the court properly found the prosecutor's failure to inform it of Lunsford's unavailability and subsequent solicitation of hearsay evidence to be improper. It then properly dismissed the charge implicated in the hearsay testimony. Talley has shown the prosecutor's conduct was improper. He has not, however, shown a substantial likelihood the misconduct affected the jury's possession of stolen property verdict. As detailed above, there was considerable evidence to support Talley's conviction. Viewed in the context of the entire proceeding, the prosecutor's conduct, while improper, was not prejudicial.
Affirmed.