Opinion
No. 61443-6-I.
January 12, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-07471-2, Dean Scott Lum, J., entered March 7, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Tony Curry appeals his conviction for possession of a stolen vehicle. He contends his counsel was ineffective for failing to request a mistrial. We disagree and affirm.
BACKGROUND
In September 2007, Officer Stephen Smith noticed a Toyota van traveling in the opposite direction with its high beams on. Smith checked the van's license plate and discovered the van had been reported stolen. The van pulled over and its occupants emerged. After backup officers arrived, Smith detained the occupants.
Tony Curry identified himself as the driver and told Smith he "had paid . . . about 40 bucks for the van" to someone named Jay the previous night. When Smith asked him if he knew the vehicle was stolen, Curry replied, "I had a pretty good idea it was stolen."
Report of Proceedings (RP) (Feb. 12, 2008) at 8.
Id.
Smith arrested Curry and performed a search incident to arrest. Smith discovered tools in Curry's pocket, including a screwdriver, multipurpose tool, and a pair of pliers. Curry also had a vehicle ignition key bearing a Toyota stamp, which he said he used to operate the van.
The State charged Curry with possession of a stolen vehicle. At a pretrial hearing, the court ruled that witnesses could not refer to the key as "shaved," but could refer to it as a "jiggler" key.
According to Detective Emanual Guinonez, a shaved key is filed down or cut; a jiggler key is one that is made for one make of vehicle that can be used without alteration on vehicles of the same make besides the one for which it was designed.
At trial, Curry's counsel cross examined Officer Smith about whether he had discovered on Curry certain tools typically used in automobile thefts. Counsel asked Smith whether he had found a "false or master key." Smith testified the key he found "could be used as a false or master key." The key was passed around the jury, and counsel asked, "And the key you are referring to is the key passed around?" Officer Smith responded, "No."
RP (Feb. 12, 2008) at 21.
Id.
Id. at 22.
Id.
Detective Emanual Guinonez also testified about the key. He clarified that the police found only one key, which he referred to as a "jiggler key."
Id. at 45.
The vehicle owner testified the key was not one of his, that he did not know Curry or the people Curry was with when he was arrested, and that he had not given anyone permission to drive his van.
The jury convicted Curry as charged and he now appeals.
DISCUSSION
Curry contends he was denied his right to effective representation by counsel because his attorney did not demand a mistrial in response to Officer Smith's testimony concerning the master key. Curry argues the testimony improperly suggested Smith found two keys: the jiggler described by Detective Guinonez and the master key described by Officer Smith.
To demonstrate ineffective assistance of counsel, Curry must establish both (1) that counsel's representation was deficient by falling below an objective standard of reasonableness when considering all the circumstances; and (2) that this deficiency prejudiced the defendant. To show deficient performance, Curry has the "heavy burden of showing that his attorneys `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. . . .'" To establish prejudice, Curry must show "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different."
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
We evaluate counsel's performance in light of the record as a whole, and employ a strong presumption that counsel's representation was effective. Matters that go to trial strategy or tactics do not show deficient performance; Curry must show there were no legitimate strategic or tactical reasons behind his attorney's choices.
State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988);McFarland, 127 Wn.2d at 335.
McFarland, 127 Wn.2d at 335.
Curry argues there was no strategic or tactical reasons for not bring a motion for mistrial following Officer Smith's testimony about a master key. The argument presumes a mistrial was warranted. We do not agree.
The trial court has wide discretion to cure trial irregularities and "should grant a mistrial `only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" When reviewing a motion for mistrial based on a witness's objectionable remark, the testimony must be examined "against the backdrop of all the evidence." In deciding whether a trial irregularity should result in a mistrial, courts examine (1) its seriousness, (2) whether it involved cumulative evidence, and (3) whether an instruction could cure the irregularity. And because the trial court is in the best position to assess whether a remark can be cured by admonition or requires a mistrial, appellate courts review the decision to grant or deny a mistrial under the abuse of discretion standard.
State v. King, 131 Wn. App. 789, 799, 130 P.3d 376 (2006) (quoting State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996)).
State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987).
Id.; State v. Dickerson, 69 Wn. App. 744, 748, 850 P.2d 1366 (1993).
Escalona, 49 Wn. App. at 254-55; Dickerson, 69 Wn. App. at 748.
Curry contends Officer Smith's testimony about a master key was a serious irregularity that undermined the defense theory that Curry did not know the vehicle was stolen. He argues, "one key — which says Toyota and appears unaltered — is easy to explain. A separate `master key' suggests Curry's actual involvement in the theft [and] [a]t the very least, it demonstrates his actual knowledge of the theft." But counsel clarified with both Officer Smith and Detective Guinonez that the Toyota key was the only key in Curry's possession when he was arrested. There was no prejudice.
Br. of Appellant at 9.
A mistrial was not warranted and would not have been granted; counsel was not ineffective for failing to make a mistrial motion.
Affirmed.