Opinion
No. 60596-8-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-09182-1, Bruce W. Hilyer, J., entered September 6, 2007.
Reversed and remanded by unpublished per curiam opinion.
Sir Jesse Randall Hunter challenges his conviction for violation of the Uniform Controlled Substances Act, possession with intent to manufacture or deliver cocaine, RCW 69.50.401(1), (2)(a). Hunter argues that he received ineffective assistance of counsel, that his right to a fair trial was denied because the trial court admitted irrelevant evidence, and that the State's failure to preserve a video recording of the alleged drug transactions denied him due process. We agree that Hunter received ineffective assistance because his counsel failed to object to improper opinion testimony. We reverse his conviction and remand for a new trial.
Background
Shortly after 6:00 p.m. on July 19, 2006, King County Sheriff Deputies James Schrimpsher, Chris Pelczar, and William Kennamer were working together on an area check of the Metro bus shelters on the west side of the King County courthouse in downtown Seattle, an area known to the police as a high drug trafficking area. The area is adjacent to a park, and people often congregate there around dinner time and wait for church groups to deliver meals.
Deputy Schrimpsher was using courthouse cameras to observe the area from the courthouse basement. If he observed individuals participating in illegal activity, he would tell Deputies Pelczar and Kennamer to contact them. Deputy Schrimpsher testified that, while observing through these cameras, he saw Hunter leave the bus shelter, contact a person amongst those congregated at the entrance to the Metro tunnel, and bring him back to the bus shelter. From previous contacts with people there, Deputy Schrimpsher recognized the group by the tunnel entrance as users of cocaine. Deputy Schrimpsher saw Hunter introduce the person to a woman standing inside the bus shelter. The person stood behind Hunter, while the female undid the front of her pants and pulled out a bag containing what appeared to be cocaine. She retrieved a small chunk and gave it to the person, then put the bag back in the front of her pants.
While the drug transaction was going on, Hunter was standing in front of the woman, shielding her from the street. On direct examination, the prosecutor questioned Schrimpsher about Hunter's role in the drug transaction:
Q. Okay. What was his physical posture while this was happening?
A. Looking this way and that. Just standing up kind of looking this way and that. It was obvious to me he was trying to shield what was going on.
Q. When you say he was looking this way and that way, what did that signify?
A. He was acting as a lookout.
Q. Meaning what?
A. He was taking part in the drug transaction.
Deputy Schrimpsher observed a second transaction in which Hunter solicited a person from the same area and led the person to the bus shelter for a transaction exactly like the first one. He testified that, based on his experience and training, "I believe that those two [Hunter and the woman] were acting in concert and selling cocaine on the street."
Deputy Schrimpsher then contacted Deputy Kennamer and Deputy Pelczar and gave them a description of Hunter, the female, and the bus shelter. They responded to the area in a marked patrol car in full uniform and made contact with Hunter and the woman. Deputy Schrimpsher left the camera room to make contact with the subjects also. When Deputy Schrimpsher arrived on the scene, both subjects were out of the bus shelter and up against the patrol vehicle. He spoke with both of them and advised them of their rights.
The female voluntarily removed the bag of cocaine from the front of her pants, where Deputy Schrimpsher had seen her place it after the transactions. No physical evidence was obtained from Hunter's person. Neither Deputy Kennamer nor Deputy Pelczar saw the drug transactions take place. However, Deputy Kennamer gave expert testimony describing a typical drug transaction, including testimony about why a ringleader in a drug transaction often does not carry drugs or money.
Hunter testified that he was homeless and waiting in the park near the courthouse to obtain a free meal from the church groups that deliver meals to the homeless there. He claimed that, while he was waiting, he saw a "beautiful woman" walk through the park and for carnal reasons decided to follow her and ask for her phone number. As he was about to approach her, a man came up to Hunter and asked if he had some "goods," which Hunter testified is a street word for drugs. When he told the man he did not have any goods, the man turned to the woman and asked her the same question. Hunter realized the woman was a drug dealer and walked away. A few minutes later, he was confronted by Schrimpsher and arrested.
The jury found Hunter guilty of violating the Uniform Controlled Substances Act, possession with intent to manufacture or deliver cocaine. In a special verdict, the jury found that the crime occurred in a public transit stop shelter. Hunter was sentenced within the standard range to 72 months confinement plus an additional 24 months for committing a crime in a protected zone, for a total sentence of 96 months.
Discussion
1. Ineffective Assistance
Hunter argues that he was denied effective assistance of counsel because his lawyer failed to object to inadmissible opinion testimony and because she failed to introduce his statement to police in which he denied any involvement in the drug transactions.
When reviewing a claim of ineffective assistance, we begin with the strong presumption that counsel's representation was effective. To overcome the presumption, Hunter must show (1) considering all the circumstances, his counsel's representation fell below an objective standard of reasonableness, and (2) he was prejudiced by the deficient representation. To show deficient representation, "the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." A defendant is prejudiced if, but for counsel's unprofessional errors, the result of the proceeding would have been different. Because he bases his claim on counsel's failure to challenge the admission of evidence, he must also show that an objection to the evidence would likely have been sustained.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 336.
State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d. 674 (1984)).
Saunders, 91 Wn. App. at 578 (citing McFarland, 127 Wn.2d at 337 n. 4).
We first consider whether counsel's failure to object to opinion testimony was a legitimate strategic or tactical decision. We hold that there is no legitimate trial tactic behind counsel's failure to object to Deputy Schrimpsher's inadmissible opinion testimony.
Our Supreme Court "has held that there are some areas which are clearly inappropriate for opinion testimony in criminal trials. Among these are opinions, particularly expressions of personal belief, as to the guilt of the defendant, the intent of the accused, or the veracity of witnesses." In State v. Montgomery, the defendant was accused of possession of pseudoephedrine with intent to manufacture methamphetamine. Officers followed Montgomery and Biby as they drove to different stores and bought ingredients that could be used to manufacture methamphetamine. The court held that certain opinion testimony introduced at trial was improper.
State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008).
163 Wn.2d 577, 183 P.3d 267 (2008).
Montgomery, 163 Wn.2d at 585-86.
Montgomery, 163 Wn.2d at 595.
For example, after one detective had described the events, the prosecutor asked him whether he had formed any conclusions. The detective replied, "I felt very strongly that they were, in fact, buying ingredients to manufacture methamphetamine based on what they had purchased, the manner in which they had done it, going from different stores, going to different checkout lanes." When the prosecutor asked why he had come to that conclusion, the court sustained Montgomery's objection that this question went to the ultimate legal question in the case, and the detective did not answer.
Montgomery, 163 Wn.2d at 587-88.
Montgomery, 163 Wn.2d at 588.
Another officer testified, "It's always our hope that if the person buying these chemicals, that are for what we believe to be methamphetamine production, that we can take them back to the actual lab location." The officer also testified, based on his training and experience, "[t]hat those items were purchased for manufacturing." The forensic chemist, surveying the items Montgomery and Biby had purchased, testified, "these are all what lead me toward this pseudoephedrine is possessed with intent." Defense counsel did not object to these statements.
Montgomery, 163 Wn.2d at 588.
Montgomery, 163 Wn.2d at 588.
Montgomery, 163 Wn.2d at 588.
Montgomery, 163 Wn.2d at 588.
In concluding that the statements were improper opinions on guilt, the court considered that (1) the opinions went to the core issue and the only disputed element in the case, (2) the testimony was "quite direct and used explicit expressions of personal belief," and (3) police officers' opinions on guilt have an "aura of reliability," but low probative value due to the fact that their area of expertise is probable cause to arrest rather than guilt beyond a reasonable doubt. The same factors are present here.
Montgomery, 163 Wn.2d at 594-95.
At trial, the State offered two theories as to how Hunter could have possessed a controlled substance: (1) constructive possession (dominion and control of the woman selling the drugs), or (2) accomplice liability (soliciting customers and acting as a lookout during the transaction). Hunter denied that he knew the woman who was dealing drugs, denied having any part in her drug transactions, and even denied being inside the bus stop. Deputy Schrimpsher was the only witness who saw the alleged transactions take place. Deputy Schrimpsher testified that Hunter was "looking this way and that" and "[i]t was obvious to me he was trying to shield what was going on." He further testified that Hunter was "acting as a lookout" and "taking part in the drug transaction." He told the jury, "I believe that those two were acting in concert and selling cocaine on the street." These statements go to the core issues of whether Hunter had constructive possession with intent to deliver or was complicit in the transactions.
The Montgomery court held that "[o]pinions on guilt are improper whether direct or by inference, but it is very troubling that the testimony in this case was quite direct and used explicit expressions of personal belief such as `I felt very strongly that . . .' and `we believe.'" Similarly here, Schrimpsher signified he was expressing his personal beliefs when he said "it was obvious to me" and "I believe." Finally, because Schrimpsher is a law enforcement officer, his testimony carries a "special aura of reliability" and the jury is especially likely to be influenced by it.
Montgomery, 163 Wn.2d at 594.
State v. Demery, 144 Wn.2d 753, 762-63, 765, 30 P.3d 1278 (2001).
For all of these reasons, Schrimpsher's opinion testimony was improper. Because we can think of no legitimate strategic reason why trial counsel did not object to this inadmissible testimony, we hold that counsel's failure to object fell below an objective standard of reasonableness.
We now must consider whether an objection would likely have been sustained and whether there is a reasonable probability that the result of the proceeding would have been different had the evidence not been admitted. We answer both questions in the affirmative.
Saunders, 91 Wn. App. at 578.
The prosecutor asked Schrimpsher, "[F]rom your opinion and experience, who was conducting the operation?" Counsel objected, and the court sustained the objection. Throughout trial, the court sustained several objections defense counsel made based on speculation, hearsay, and relevance. We conclude that the court would likely have sustained other objections to opinion evidence, had such objections been made.
We also conclude that there was a reasonable possibility that counsel's failure to object affected the verdict. In State v. Padilla, this court held that there was a substantial likelihood that improper questioning by the prosecutor affected the verdict where the State's key witness was a police officer and there was little corroboration of the officer's testimony. Because the case essentially turned on the credibility of two witnesses, the officer and the defendant, the likelihood that the verdict was affected by improper questioning was substantial. We hold that in light of the "aura of reliability" of Schrimpsher's testimony and the fact that there was little corroboration of it, there is a reasonable possibility that the jury relied on Schrimpsher's improper opinion testimony to convict Hunter.
69 Wn. App. 295, 846 P.2d 564 (1993).
Padilla, 69 Wn. App. at 301-02.
Padilla, 69 Wn. App. at 302.
Hunter also argues that he received ineffective assistance because his lawyer failed to introduce Hunter's "exculpatory" statement to police. Before trial, the court granted the State's motion to preclude defense from eliciting testimony from police officers that Hunter denied criminal activity in statements to police shortly after his arrest, ruling that such testimony was self-serving hearsay. Hunter now argues that the State opened the door to this testimony when Deputy Schrimpsher testified that Hunter was asked to give a statement after his arrest. Because the jury heard Hunter testify at trial that he was not involved in the crime, the introduction of the statement would have been duplicative. Therefore, counsel's decision was a matter of legitimate trial tactics and the omission of this evidence was not prejudicial.
We conclude that Hunter was denied the right to effective assistance of counsel because his attorney failed to object to Schrimpsher's inadmissible opinion testimony.
2. Expert Testimony Regarding Drug Transactions
Hunter argues that his right to a fair trial was denied because the court allowed Deputy Kennamer to testify about typical drug transactions in which the "ringleader" does not carry drugs or cash. He described transactions where one person holds the drugs and another person contacts potential buyers. Hunter argues that this evidence was not relevant.
ER 401.
The decision to admit evidence is generally within the sound discretion of the trial court, and we will reverse a trial court's evidentiary ruling only for abuse of discretion. This court has previously held that evidence of a typical drug transaction is admissible. Here, the testimony was relevant to show whether Hunter's conduct was consistent with that of a person working with another to sell cocaine. The trial court did not abuse its discretion by admitting this evidence.
State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
State v. Avendano-Lopez, 79 Wn App. 706, 709-11, 904 P.2d 324 (1995) (testimony explaining "arcane world of drug dealing and certain drug transactions" is permissible expert opinion); State v. Cruz, 77 Wn. App. 811, 815, 894 P.2d 573 (1995) (testimony consisting of detective's knowledge of typical heroin transactions was not impermissible opinion on defendant's guilt).
3. Due Process
Hunter argues that the State failed to preserve evidence for the defense in violation of his constitutional right to a fair trial, including the right to present a complete trial defense. Hunter concedes, and we agree, that the recordings in this case were not necessarily exculpatory. However, failure to preserve "potentially useful" evidence, if law enforcement acted in bad faith, also violates due process. Assuming the evidence would have been potentially useful, there is no evidence of bad faith here.
State v. Wittenbarger, 124 Wn.2d 467, 477, 880 P.2d 517 (1994) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 LEd.2d 281 (1988)).
Deputy Schrimpsher testified that he believed the video was stored on a hard drive but that previous attempts to retrieve copies of such recordings had failed. Deputy Kennamer testified that he believed the cameras could make a video recording, and Deputy Pelczar thought the cameras could record but did not know of any occasion when a recording had been obtained by the King County Sheriffs Office. David Stamper, security chief for King County Building Services, testified that digital recordings are available for 30 days from the date of the recording and may be obtained through a public disclosure request. However, law enforcement officers are given only "rudimentary training on how to use the joystick, aim the camera, and do pan-tilt-zoom."
There is no evidence that the officers had a practice of requesting video recordings but failed to do so in Hunter's case. Hunter was charged within a reasonable time (four months) and well within the three-year statute of limitations. There is no evidence that the State acted in bad faith.
Reversed and remanded for a new trial.