Opinion
No. 56428-5-I.
June 26, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-8-00558-1, Richard J. Thorpe, J., entered May 12 and June 21, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St Seattle, WA 98122.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Miguel Medina — Info only (Appearing Pro Se), 4715 200 St SW J-152, Lynnwood, WA 98036.
Counsel for Respondent/Cross-Appellant, Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.
Reversed by unpublished per curiam opinion.
To sustain a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and the deficient performance was prejudicial to him. Further, the defendant must show that there was no legitimate strategic or tactical reason for counsel's conduct. Although this court approaches an ineffective assistance claim with a strong presumption that counsel's representation was effective, the presumption may be rebutted by proof that the representation was unreasonable under professional norms, and that the challenged action was not sound strategy. Here, counsel's failure to seek a severance of the proceedings against juvenile co-respondents, or ensure that out-of-court statements of the non-testifying co-defendant were not offered, or that any reference to the client was deleted, was deficient and prejudicial. The order of adjudication is reversed and the case remanded for further proceedings.
In Snohomish County Superior Court juvenile defendants are referred to as respondents. For the purposes of this opinion, the respondents will be known as defendants.
FACTS
M.M. and his co-defendant S.B. were originally charged with second degree robbery for taking a bicycle from a person riding by them on the sidewalk. M.M.'s attorney failed to move to sever the juvenile adjudication proceedings of the two boys. She did not object to the admission or use of incriminating statements made by the non-testifying co-defendant. An amended information later added theft in the first degree to the robbery charge.
At a CrR 3.5 hearing, the court suppressed statements M.M. made to law enforcement, but found S.B.'s statements incriminating M.M. were admissible. M.M.'s attorney still failed to move to sever the adjudications or otherwise object to the admission of S.B.'s statements in the case against her client.
At the adjudication hearing, the State sought to prove that M.M. and his co-defendant S.B. acted in concert to knock Charles Hazel off his bicycle and steal it. The State argued that M.M. purposefully knocked Hazel from his bike as Hazel passed M.M. and S.B. by on a sidewalk. Hazel fell off his bike and S.B. took it after Hazel left the scene. Part of the State's proof was the use of a couple of extrajudicial statements made by co-defendant S.B. One was made following Hazel's being knocked off his bike. Hazel testified that S.B. said, `you've just been jacked' as he took the bike from him. The other witness for the State was an investigating police officer. He testified that during the investigation S.B. told him that M.M. put his arm out and hit Hazel as he was passing by, to knock Hazel off his bike. Further, the officer testified that S.B. said that M.M. carried a knife, even though M.M. later denied having a knife. S.B. did not testify at the adjudication proceeding.
While investigating the incident, police found a knife, actually a letter opener sharpened on both sides, on the ground under the bike frame. There was no allegation that the knife was used in any way, only that M.M. must have put it under the bike after he and S.B. were approached by the officers.
At the close of the State's case counsel for each of the respondents moved to dismiss the robbery charge for a lack of evidence. Counsel for M.M. argued that he did not use any force against Hazel. In denying M.M.'s motion, the court indicated that `[c]learly there was force used, it's what dislodged [Hazel] from the bike.'
M.M. testified in his own defense. He claimed that he did nothing to knock Hazel off his bike. Rather, he said that as Hazel approached, M.M. yelled at him to get off the sidewalk with his bike. But Hazel kept riding towards them and M.M. did not believe he was going to change course. So M.M. attempted to move to the edge of the sidewalk, towards S.B., to avoid a collision, but Hazel bumped into him. M.M. claimed that although he believed Hazel accidentally ran into him while attempting to get around M.M. and S.B., Hazel got off his bike and appeared to consider starting a fight. M.M. said that Hazel thought better of fighting the two of them, and then hopped over his bike and ran across the street. M.M. admitted that he and S.B. stole the bike, but denied taking it by force. Further, M.M. denied having a knife or placing it under the frame of the bicycle once he and S.B. were detained by the police.
At closing argument, counsel for M.M. continued to argue that the incident began with an accident, not a purposeful act by M.M. The State argued that M.M. purposefully knocked Hazel from the bike, and argued during rebuttal that S.B.'s statements to police undermined M.M.'s defense. The prosecutor argued that
[t]he inconvenient thing for [defense counsel] is what [S.B.] admitted to [the police officer], that [M.M.] put his arm up and hit Hazel, and that he, [S.B.], took the bike. There it is.
In finding both M.M. and S.B. guilty of robbery and theft, the adjudicating court indicated, `I'm persuaded beyond a reasonable doubt that [M.M.] had his arm out and struck Mr. Hazel across the chest such as to knock him off the bike.' The written findings of fact and conclusions of law contain a finding that as Hazel pedaled past the defendants, M.M. extended his arm and struck Hazel across the chest, intentionally knocking Hazel off the bike to the ground. The juvenile court imposed a standard range sentence of 15 to 36 weeks in a juvenile facility for the robbery conviction.
Following entry of the disposition order, another agreed order was entered to modify it. This order amended the disposition order to place the addition of a check mark next to paragraph 2.1, to reflect that the conduct in counts 1 and 2 involved the same course of conduct. However, the disposition order was not modified to change the finding of guilt as to both counts.
From the disposition order, M.M. appeals, claiming that his right to the effective assistance of counsel was denied by defense counsel's failing to move to sever the hearings of the two defendants, as well as failing to object to use of extrajudicial statements made by his non-testifying co-defendant, which violated his right of confrontation.
ANALYSIS
M.M. argues that defense counsel's failure to seek severance or object to the admission of his non-testifying co-defendant's incriminating extrajudicial statements constitutes a deficient performance and prejudiced his case.
Ineffective assistance of counsel is `a mixed question of law and fact.' `[W]e review them de novo.'
Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In re Personal Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
To sustain a claim of ineffective assistance of counsel, the defendant must show: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Further, the defendant must show that there were no legitimate strategic or tactical reasons for counsel's conduct.
Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
The first prong of the Strickland test `requires a showing that counsel's representation fell below an objective standard of reasonableness based on consideration of all of the circumstances.' The second prong requires the showing that there is a "reasonable probability" that counsel's performance more likely than not altered the outcome of the proceeding. This means that the accused must show a reasonable probability that the outcome would have been different but for counsel's unprofessional errors, i.e., "a probability sufficient to undermine confidence in the outcome."
Thomas, 109 Wn.2d at 226.
Thomas, 109 Wn.2d at 226 (quoting Strickland, 466 U.S. at 694).
In re Personal Restraint of Davis, 152 Wn.2d 647, 672-73, 101 P.3d 1 (2004) (quoting Strickland, 466 U.S. at 694).
This court approaches an ineffective assistance of counsel argument with a strong presumption that counsel's representation was effective. But the presumption may be rebutted by proof that the attorney's representation was unreasonable under prevailing professional norms, and that the challenged action was not sound strategy.
McFarland, 127 Wn.2d at 335.
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) (citing Strickland, 466 U.S. at 688-89).
Here, the first prong is satisfied by a showing that counsel failed to object to inadmissible evidence prejudicial to M.M. Counsel failed to object to the use of S.B.'s postarrest statements or move to sever the co-defendants' cases pursuant to CrR 4.4(c)(1). While a motion for severance may not have been successful, it is axiomatic that the admission of a non-testifying co-defendant's confession or implicating statement, here those made by S.B., specifically referring to M.M., violates M.M.'s right to cross-examine witnesses.
Bruton v. United States, 391 U.S. 123, 135-36, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
The Bruton Court recognized the `powerfully incriminating' effect of the extrajudicial statements of a co-defendant `who stands accused side-by-side with the defendant.' Not only are the statements `devastating to the defendant,' but their credibility is `inevitably suspect.'
Bruton, 391 U.S. at 135-36.
After Bruton, the Washington Supreme Court adopted CrR 4.4(c)(1) that provides:
A defendant's motion for severance on the ground that an out-of-court statement of a co-defendant referring to him is inadmissible against him shall be granted unless:
(i) the prosecuting attorney elects not to offer the statement in the case in chief; [or]
(ii) deletion of all references to the moving defendant will eliminate any prejudice to him from the admission of the statement.
In the juvenile proceeding below, the State stressed S.B.'s statement in its case against M.M. The statement clearly referred to and implicated M.M. The statement was inadmissible in the case against M.M., and defense counsel's representation was deficient because she failed to object to the use of the statements against her client or move to sever.
The second prong is also met in this case. The introduction of the co-defendant's incriminating statements were the most damaging and incriminating evidence to support the `use of the force' element of robbery and the `taking from the person' element of first degree theft. Although there was evidence from the victim, Charles Hazel, that M.M. held out his arm and hit him in the chest as he attempted to bicycle by the juvenile respondents, the use of and repeated argument, especially in closing, concerning the co-defendant's statement about M.M.'s hitting Hazel in the chest was entirely damning.
This is especially true in light of the argument of the State and the adjudication by the court. On appeal, the State argues that in a juvenile adjudication the judge is presumed not to consider inadmissible evidence. While that is the general presumption, it is also true that the trial court in this case relied on the inadmissible evidence to make essential findings against M.M. In denying M.M.'s motion to dismiss the robbery charge for a lack of evidence that force was used, the court specifically indicated that `[c]learly there was force used, it's what dislodged him [Hazel] from the bike.'
Further, in closing, the prosecutor emphasized S.B's statement to the investigating officer in asking the trial court to find M.M. guilty. Now, on appeal, the State claims this court must presume that the trial judge did not consider the inadmissible statements. The State is not allowed to take inconsistent positions at different proceedings in the same case, i.e., to take one position at trial and the opposite stance on appeal.
See Johnson v. SI-COR, Inc., 107 Wn. App. 902, 908, 912, 28 P.3d 832 (2001) (where a party benefits from one position, judicial estoppel prevents a party from asserting the opposite position in a later legal proceeding).
Finally, we cannot find that there were legitimate or reasonable strategic or tactical reasons for counsel's conduct. It is not enough to conclude that counsel's choice was strategic or tactical; strategic or tactical choices must also be reasonable. Here, the admission of S.B.'s out-of-court statements violated M.M.'s right to confront the witnesses against him and ultimately denied him a fair trial. The failure of defense counsel to seek severance or make sure the court could not consider the non-testifying co-defendant's statements in the case against M.M. is not reasonable.
Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).
The order of adjudication of the court is reversed and the case remanded for further proceedings.
Given our decision, the vacation of the theft conviction need not be ordered, although it is conceded by the State.
GROSSE, ELLINGTON, and APPELWICK, JJ.