Opinion
No. 35312-1-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00714-6, H. John Hall, J., entered August 28, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Grant Childers appeals his bench trial conviction for possession and delivery of methamphetamine and fourth degree assault. He contends that the insufficient evidence of delivery, judicial bias, and the loss of evidence require that his conviction be reversed and dismissed with prejudice. He also asserts that he received ineffective assistance of counsel. We affirm.
FACTS
Danielle Ortiz was a paid confidential police informant who participated in controlled drug buys for the police. Childers worked as a counselor, supervisor, and community corrections officer for the Department of Corrections (DOC) before he retired. After his retirement from DOC, Childers worked as a "payee" for the Department of Social and Health Services (DSHS). 3 Report of Proceedings (RP) at 7. Ortiz knew Childers because he had formerly been her DSHS payee.
A DSHS payee is entrusted to receive benefit checks for certain DSHS clients and ensure these funds get disbursed for necessities, essentially managing the client's money.
On September 28, 2005, Ortiz called her Centralia Police Department contact, Christi Fitzgerald, about Childers. Ortiz informed Fitzgerald that Childers had agreed to get methamphetamine for her the following day and Fitzgerald arranged for police surveillance and support for the controlled buy operation. The next morning, officers searched Ortiz and her vehicle to ensure that any drugs Ortiz subsequently surrendered came from Childers and were not planted by Ortiz. After the search, Fitzgerald provided Ortiz with money and protective surveillance for the drug buy.
Childers met Ortiz in a school parking lot to discuss the buy. While Childers went to check on the availability of methamphetamine, the police searched Ortiz again before she parked her car in a different parking lot and waited for Childers to pick her up. After he picked her up, Childers directed Ortiz to climb behind the seat and remain out of sight. Apparently, although both Childers and Kilpela testified that she had sold him drugs in the past, Childers did not want Kilpela to see Ortiz in his vehicle while he made the buy. Ortiz testified that when she climbed behind the seat, Childers struck her in the forehead with his closed fist and told her that he had heard she was a "snitch." 1 RP at 18. Childers drove to Kilpela's home and parked outside. Ortiz gave him $150 and remained hidden in the vehicle while Childers went inside. Kilpela and Childers both testified that Childers paid her $150 for an "eight ball" of methamphetamine. Childers returned to his vehicle and drove a few blocks before stopping to let Ortiz back into the front seat.
"An eight ball is approximately one[-]eighth ounce or approximately 3.5 to 3.7 grams of methamphetamine." 1 RP at 12.
Ortiz testified that when Childers returned to the vehicle he stated that he had already taken his share of the methamphetamine and that he was reluctant to give Ortiz the remainder, but that he either handed it to her or she "grabbed it" from his hand. 1 RP at 155. In contrast, Childers testified that, although he purchased the methamphetamine, he told Ortiz that Kilpela was out of drugs and that he was keeping the $150 because Ortiz owed him money.
After Childers dropped Ortiz off at her car, she drove to a prearranged meeting place with Fitzgerald and Fitzgerald and Detective Neil Holium followed her back to the police compound. Ortiz turned over the methamphetamine and told Fitzgerald that Childers had struck her. Fitzgerald photographed the visible injury to Ortiz's forehead. Ortiz also testified that she was frightened of Childers and thought he was armed.
Childers testified that Ortiz contacted him later that same day because "[s]he wanted to buy more, she wanted me to get more methamphetamine." 3 RP at 26. Again, Fitzgerald arranged police surveillance and support for the controlled buy. The next day, September 30, 2005, Childers picked Ortiz up at a laundromat. They went to Kilpela's home to purchase the drugs, but she was not there. Childers drove to a gas station for gasoline and snacks. Ortiz testified that, because Childers had become aggressive and threatened to harm her, she locked the doors of the vehicle after he got out. Then she called Fitzgerald to request termination of the buy and to ask for police protection. Centralia police arrested Childers at the gas station. Upon searching him incident to arrest, they recovered a plastic baggie from his pocket containing methamphetamine residue.
The State charged Childers with (1) unlawful delivery of methamphetamine with a school bus stop enhancement under RCW 69.50.435, (2) unlawful possession of a controlled substance under RCW 69.50.4013, (3) fourth degree assault under RCW 9A.36.041(1), and (4) unlawful imprisonment under RCW 9A.40.040(1). Childers waived his right to a jury trial.
The prosecutor interviewed Kilpela on February 17, 2006. The State supplemented its witness list to include Kilpela on March 21. On April 7, Kilpela pleaded guilty in a separate matter based on a plea agreement in which the State agreed to drop certain charges against her in return for her truthful testimony against Childers. The same day, Childers's defense investigator interviewed Kilpela. On April 20, the police and prosecutor interviewed Kilpela with her attorney present. As part of a successful argument for a continuance of the trial date, Childers told the trial court that the State had apparently lost one surveillance videotape of the drug buy and the audiotape of Kilpela's April 20 interview.
During the bench trial, Kilpela testified about her plea agreement. Childers moved to strike Kilpela's testimony, claiming that: (1) he had never received a transcript of the April 20 interview; (2) the audiotape of that interview had been lost; and (3) the State had not previously disclosed Kilpela's plea agreement. Childers's counsel admitted that his defense investigator had received a copy of the April 20 transcript, but asserted that he had not received a copy and moved for a mistrial. The trial court denied these motions, but recessed and offered to continue the trial if Childers wanted further discovery. After a recess, Childers informed the trial court that he would proceed without a continuance and without further discovery.
Childers was convicted of delivery of methamphetamine, possession of a controlled substance, and fourth degree assault. The trial court found that the school bus stop enhancement had not been proven and that Childers was not guilty of unlawful imprisonment.
Childers appeals.
ANALYSIS
I. Evidence of Delivery
Childers contends that the evidence was insufficient to prove that he delivered methamphetamine to Ortiz. He argues that "Ortiz initially told the police that she grabbed the methamphetamine from Childers," thus, the evidence was insufficient to show actual or constructive transfer by Childers. Br. of Appellant at 23.
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We must defer to the trier of fact on any issue that involves "conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
The Uniform Controlled Substances Act, chapter 69.50 RCW, defines "delivery" as "the actual or constructive transfer from one person to another of a substance." RCW 69.50.101(f). Here, Childers admitted that he agreed to purchase drugs for Ortiz and that he, in fact, did purchase drugs while Ortiz waited in his car.
On appeal, Childers argues that Ortiz's conflicting statements do not provide sufficient evidence to support the trial court's verdict, based on Ortiz's testimony that she "grabbed" the drugs from Childers's hand and that he handed them to her. 1 RP at 122. But Childers did not testify that Ortiz grabbed the drugs from his hand. He testified that he refused to give her the methamphetamine. He also admitted that Ortiz wanted him to get more methamphetamine for her, leading to the trial court's conclusion that Childers's statement was an inadvertent acknowledgment of an earlier drug delivery to Ortiz. 3 RP at 26.
Furthermore, the evidence before the trial court also included Childers's testimony that (1) Ortiz gave him $150 to buy drugs, (2) Ortiz rode in his vehicle to Kilpela's to buy drugs, and (3) he purchased $150 worth of drugs while Ortiz waited in his vehicle. Moreover, Fitzgerald testified that she recovered a plastic baggie containing methamphetamine from Ortiz immediately following the second controlled buy and that it was not in Ortiz's possession before the buy.
We hold that, viewing all of the evidence in the light most favorable to the State, any rational trier of fact would have found the evidence sufficient to prove unlawful delivery of methamphetamine beyond a reasonable doubt.
II. Failure to Recuse
Childers next contends that the trial judge's "contact with Childers, who had appeared in his courtroom over 'a number of years' in his capacity as a community corrections officer violated the appearance of fairness doctrine due to his potential bias." Br. of Appellant at 25 (quoting RP (Aug. 28, 2006) at 8). Childers refers to Canon 3 of the Code of Judicial Conduct (CJC). He argues that this constituted abuse of discretion. Furthermore, he argues that his due process rights were violated.
The CJC provides guidance to judges and candidates for judicial office. Canon (D) of the CJC states that "'[j]udges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.'" State v. Chamberlin, 161 Wn.2d 30, 37, 162 P.3d 389 (2007) (quoting CJC Canon 3(D)(1)). "Outside of scenarios involving a clear and nondiscretionary duty to recuse, the decision 'will necessarily involve the exercise of discretion.'" Chamberlin, 161 Wn.2d at 37 n. 4 (quoting State v. Carlson, 66 Wn. App. 909, 918, 833 P.2d 464 (1992). To prevail, the party seeking relief under a claim of bias must present evidence of actual or potential bias. See, e.g., Chamberlin, 161 Wn.2d at 37.
Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). Whether RAP 2.5(a)(3) applies is based on a two-part test: (1) whether the alleged error is truly constitutional and (2) whether the alleged error is '"manifest." ' State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007) (quoting State v. Kirkpatrick, 160 Wn.2d 873, 880, 161 P.3d 990 (2007)). "An error is manifest when it has practical and identifiable consequences in the trial of the case." State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001). "Due process, the appearance of fairness doctrine, and Canon 3(D)(1) of the [CJC] also require a judge to recuse himself if he is biased against a party or his impartiality may reasonably be questioned." State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). Failure of a judicial officer to properly recuse could have practical and identifiable consequences and, therefore, an asserted error could be manifest, but here it is not.
Childers waived his right to a jury trial and agreed to allow the trial court to hear the case, knowing that he had appeared before the court as a community corrections officer. And the only evidence of potential bias Childers points to is the trial judge's acknowledgement at sentencing that he knew Childers:
THE COURT: Well, you know, I've known Mr. Childers as a community corrections officer for a number of years. He's generally appeared in the court on probation violations through those years and I'm well aware of his former Department of Corrections position and that he is retired from the Department of Corrections.
RP (Aug. 28, 2006) at 8-9. The judge was responding to Childers's plea for leniency based on his prior DOC employment and experiences.
Childers offers no authority to support his argument that the judge was potentially biased based on his knowing the defendant's former employment or by interacting with him in a professional capacity. As the State responds:
None of the factors set out in CJC 3(D) ? are present here, and the fact that the judge simply knew of [Childers] because [he] appeared many times before the court in a completely different capacity (as a Department of Corrections Officer ?), and in totally unrelated cases, does not require a judge to recuse himself. If this were the criteria, then judges from every smaller county would have to recuse themselves constantly because they see so many of the same faces appearing in their courts over and over again. Such reasoning is absurd.
Br. of Resp't at 8 (internal quotation marks omitted). And under these circumstances, a reasonably prudent and disinterested observer would conclude that the proceedings were fair. Thus, the trial judge was not required to recuse and Childers's assertions of bias and his claim that the trial court abused its discretion or that it violated his due process rights are without merit. See State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995).
III. Loss of Evidence
Childers further contends that the State's failure to provide defense with the April 20 interview audiotape, combined with the State's late disclosure of Kilpela's plea agreement "mandates at least reversal for retrial, but, more properly, dismissal with prejudice." Br. of Appellant at 28. Childers does not appeal the denial of his motion for mistrial, but rather asserts that his constitutional right of due process was denied.
A manifest error affecting a constitutional right may be raised for the first time on appeal. RAP 2.5(a). "To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense." State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994). To determine if a failure to preserve exculpatory evidence amounts to a denial of due process, the Washington Supreme Court has adopted the tests set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) and California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). See Wittenbarger, 124 Wn.2d at 475.
A showing that the evidence was potentially useful because it might have exonerated the defendant is not enough; to be considered "material exculpatory evidence," the evidence must (1) "possess exculpatory value that was apparent before it was lost or destroyed" and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." If the State fails to preserve "material exculpatory evidence," criminal charges must be dismissed. Wittenbarger, 124 Wn.2d at 475.
In Youngblood, the Court held that a failure to preserve only "potentially useful" evidence, absent bad faith, does not constitute a denial of due process of law:
We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.
488 U.S. at 58. Thus, the United States Supreme Court has been unwilling to "'impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.'" Wittenbarger, 124 Wn.2d at 475 (quoting Youngblood, 488 U.S. at 58).
Here, Childers argues that the missing April 20 Kilpela interview audiotape "may have contained information that would have assisted counsel in the impeachment of Kilpela." Br. of Appellant at 27. But the record shows that the transcript of that interview was made available to Childers. Thus, his claim that its content was lost for purposes of impeaching Kilpela misstates the facts. And the trial court offered Childers a continuance for further discovery and preparation when he raised this issue at trial, but he declined the court's offer.
Moreover, Childers argument that the interview audiotape "may" have assisted the defense falls far short of a showing that the evidence possessed exculpatory value that was lost, in light of a transcript being available. Br. of Appellant at 27. See Wittenbarger, 124 Wn.2d at 475. Even if all record of the April 20 interview had been lost, the most Childers's assertion amounts to is that the "lost" evidence was potentially useful. In order for the loss of potentially useful evidence to constitute a denial of due process, the proponent must show bad faith. See Youngblood, at 58.
Childers makes no argument of bad faith and he admits that the State tried to deliver the interview transcript to him, thus, Childers's claim that he was denied the due process of law based on loss of the audiotape of the April 20 interview is without merit.
Childers also claims that the State's disclosure of Kilpela's plea agreement at trial violated his due process rights. The State was required to reveal Kilpela's plea agreement. See State v. Soh, 115 Wn. App. 290, 294, 62 P.3d 900 (2003) ("The State is required to disclose exculpatory evidence, including impeachment evidence"; a "[f]ailure to disclose a promise of leniency may also violate the due process clause of the Fourteenth Amendment.").
But we note that Childer's defense investigator interviewed Kilpela on April 7, the day she changed her plea based on the agreement. And Kilpela's imminent guilty plea in the separate matter and her testimony against Childers were discussed at length during Childers's pretrial motion for a continuance on April 6. Moreover, the State showed the trial court notations that suggested the separate plea agreement had been sent to Childers along with all other discovery material. Finally, after Childers objected to the late disclosure of Kilpela's plea agreement during the trial, he refused the trial court's offer of a continuance for further discovery, which could have cured any prejudice to the claimed late disclosure.
Furthermore, Childers offers no argument or citation to authority to support his bare assertion of prejudice based on this late disclosure. Therefore, we decline to further consider this issue. This court will not consider an assignment of error that is unsupported by argument or citation of authority. See RAP 10.3(a)(6); State v. Farmer, 116 Wn.2d 414, 433, 805 P.2d 200 (1991).
IV. Ineffective Assistance of Counsel
Childers claims that his counsel was ineffective for failing to request that the judge recuse himself and for failing to move to dismiss based on the lost videotape of his meeting with Ortiz in the parking lot before the controlled buy and the late disclosure of Kilpela's plea agreement. We review claims of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To demonstrate ineffective assistance of counsel, appellant must show that: (1) defense counsel's representation was deficient; i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances and (2) defense counsel's deficient representation prejudiced the defendant; i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
"The defendant must overcome a strong presumption that counsel's performance was not deficient." Nichols, 161 Wn.2d at 8. "In assessing performance, 'the court must make every effort to eliminate the distorting effects of hindsight.'" Nichols, 161 Wn.2d at 8 (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992)).
A. Recusal
Childers contends that his counsel was ineffective in failing to move for recusal based on judicial bias. But we have already determined that the judge need not have recused and, therefore, he would not have been required to grant a motion asking him to recuse on Childers's case. Therefore, Childers cannot show prejudice arising from his counsel's failure to make such a motion and his claim is without merit.
B. Dismissal
Childers also contends that his counsel was ineffective in failing to move for dismissal based on the lost videotape and late disclosure of Kilpela's plea agreement. Childers asserts that "the record does not reveal any tactical or strategic reason why trial counsel would have failed to [move to dismiss]. And had counsel done so, the motion to dismiss would have been granted." Br. of Appellant at 32-33. Childers makes no specific argument regarding the lost videotape or late disclosure of Kilpela's plea agreement. We, therefore, decline to address this contention. See RAP 10.3(a)(6); Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d 1056 (1991) (assignment of error unsupported by legal argument will not be considered on appeal).
Even if Childers had offered some argument, this additional assertion of ineffective assistance is without merit. The record shows that lost videotape captured three to four minutes of the meeting between Childers and Ortiz in the school parking lot before they drove to the parking lot where Ortiz left her car. This meeting was observed by numerous law enforcement personnel, was captured on another videotape shot from a different angle, and was testified to by the officer who shot the lost videotape. Moreover, Childers's counsel specifically addressed the lost videotape during a pretrial hearing on his motion for a continuance. Despite the fact that the videotape was never found, the record fails to indicate any unique probative value of that evidence such that a motion to dismiss would have been objectively reasonable. Again, Childers's claim is without merit.
Finally, the record shows that Childers did in fact move for a mistrial based on the State's late disclosure of Kilpela's plea agreement. Therefore, apparently Childers's appellate suggestion is that a motion to dismiss was the only reasonable tactical decision and, thus, his counsel's choice to move for mistrial fell below an objective standard of reasonableness. But deliberate tactical choices may constitute ineffective assistance of counsel only if they fall outside the wide range of professionally competent assistance. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). And exceptional deference must be given when evaluating trial counsel's strategic decisions. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Here, we cannot say that trial counsel's decision to move for a mistrial, as opposed to dismissal, was not an objectively reasonable tactical decision under the circumstances. As Childers provides no supporting argument otherwise, this claim of ineffective assistance is also without merit.
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.
ARMSTRONG, J., QUINN-BRINTALL, J., concur.