Opinion
No. 25455-1-III.
January 22, 2008.
Appeal from a judgment of the Superior Court for Franklin County, No. 05-1-50534-5, Craig J. Matheson, J., entered August 25, 2006.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Brown and Kulik, JJ.
jury convicted Larry Gene Moore of three counts of delivery of a controlled substance, cocaine, with a 24-month enhancement on each count for the delivery taking place within 1,000 feet of the perimeter of a civic center. At trial, the State introduced a map into evidence purportedly showing the boundaries of a drug-free zone. The confidential informant (CI) and the police officers testified that the CI purchased cocaine from Mr. Moore on three different occasions and that the buys occurred inside the boundaries of a solid black line drawn on the map which the prosecutor had referred to as the drug-free zone. At the close of the evidence, the jury was given a special verdict form regarding the sentencing enhancement and was instructed that it must unanimously agree on the answer to the special verdict. Arguing evidence sufficiency and error in the instructions, Mr. Moore appeals. We affirm.
FACTS
On July 29, 2005, Carrie DeVore, a CI, in conjunction with the Tri-City Metro Drug Task Force, conducted a controlled buy of cocaine from Larry Gene Moore. Two more controlled buys were conducted between Ms. DeVore and Mr. Moore on August 5, 2005, and August 17, 2005, respectively.
At trial, the investigating officers marked the locations of these controlled buys on a certified copy of the official drug-free zone map of the City of Pasco. The map was admitted into evidence without objection. The locations as marked by the officers fell within the boundaries denoted as the drug-free zone on the official map.
A special verdict form regarding delivery within a drug-free zone was submitted to the jury. The jury was instructed by the court, without objection, that it must unanimously agree on the answer to the special verdict form.
The jury found Mr. Moore guilty of three counts of delivery of a controlled substance, cocaine, within 1,000 feet of a civic center.
ANALYSIS
A. Special Jury Instruction
Mr. Moore contends that the trial court erroneously instructed the jury that it must unanimously agree on the answer to the special verdict. While it is clear that a jury must be unanimous in order to answer "yes" to a special verdict question about the grounds for a sentence enhancement, see State v. Goldberg, 149 Wn.2d 888, 892-93, 72 P.3d 1083 (2003), it is not clear whether the jury always needs to be unanimous in order to answer a special verdict question "no." However, under the particular facts of this case, we do not need to resolve this issue because it is clear from the record that the jury's response to the special verdict form was unanimous and there is nothing in the record to indicate that the jury was compelled to reach that verdict.
Here, the instruction given in this case was consistent with 11 Washington Practice, Washington Pattern Jury Instructions: Criminal 50.60, at 666 (2nd ed. 1994), and was admitted without objection. The record reflects that the jury was polled by the court after the reading of the verdict and that the jury unanimously found that Mr. Moore delivered drugs within 1,000 feet of the civic center. There is nothing in the record to suggest that the jury was misled into believing it had to be unanimous in order to answer "no" to the special verdict, or that it was ever split in its decision on this issue.
B. Sufficiency of Evidence
Mr. Moore next contends that the evidence did not support his sentencing enhancement for delivery of a controlled substance within 1,000 feet of a civic center because the State neglected to elicit any testimony as to which places or facilities on the map constituted a civic center and how far those places were from the alleged deliveries.
When a defendant challenges the sufficiency of the evidence supporting an enhanced penalty, we determine whether, viewed in the light most favorable to the State, a rational trier of fact could find the facts needed to support the enhancement beyond a reasonable doubt. State v. Hennessey, 80 Wn. App. 190, 194, 907 P.2d 331 (1995). All reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
A person who delivers a controlled substance within 1,000 feet of a civic center designated as a drug-free zone by the local governing authority is subject to having his sentence enhanced pursuant to RCW 69.50.435. The statute allows the State to prove the location of a drug-free zone, including a civic center and its 1,000 foot boundaries, by maps adopted by resolution of the municipality, school district, county, or transit authority as prima facie evidence, or by "any other evidence or testimony to establish any element of the offense." RCW 69.50.435(5).
Here, the State properly admitted, without objection, a certified copy of a map adopted by the City of Pasco which denoted those civic centers designated by the City of Pasco and which marked the 1,000 foot boundaries surrounding it. See ER 902(d) (self-authenticating documents). The testifying police officers marked the locations of the controlled buys on the map and the buys fell within the 1,000 foot perimeter as indicated on that map. Thus, there was sufficient evidence to support the enhancement.
C. Timely Filing of Information
In his statement of additional grounds, Mr. Moore contends the State lost jurisdiction to proceed with the prosecution when it failed to file charges within 72 hours of his arrest as provided by CrR 3.2.1(f). He claims that his arrest date was Tuesday, December 20, 2005, and the information was not filed until Tuesday, December 27, 2005; yet he was in custody that entire period.
CrR 3.2.1(f) provides:
(1) Unless an information or indictment is filed or the affected person consents in writing or on the record in open court, an accused, shall not be detained in jail or subjected to conditions of release for more than 72 hours after the defendant's detention in jail or release on conditions, whichever occurs first. Computation of the 72 hour period shall not include any part of Saturdays, Sundays or holidays.
(2) If no information or indictment has been filed at the time of the preliminary appearance, and the accused has not otherwise consented, the court shall either:
(i) order in writing that the accused be released from jail or exonerated from the conditions of release at a time certain which is within the period described in subsection (f)(1); or
(ii) set a time at which the accused shall reappear before the court. The time set for reappearance must also be within the period described in subsection (f)(1). If no information or indictment has been filed by the time set for release or reappearance, the accused shall be immediately released from jail or deemed exonerated from all conditions of release.
Clearly, CrR 3.2.1(f)(1)-(2) does not specifically address the dismissal of a charge for an untimely filing of an information or indictment. Rather, it simply addresses an individual's detention in jail or conditions on release where no information is filed within 72 hours of arrest. Thus, even assuming a violation of the rule occurred, dismissal was not the appropriate remedy.
D. Ineffective Assistance of Counsel
Mr. Moore also contends that he was denied effective assistance of counsel when defense counsel failed to call any witnesses on his behalf.
To establish ineffective assistance of counsel, Mr. Moore must show that his attorney's performance was deficient and that he was prejudiced by the deficiency. 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, 77-78, 917 P.2d 563 (1996). The first element requires a showing that counsel's performance was not reasonable under prevailing professional norms and all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). The second element requires a showing based on reasonable probability that, but for counsel's deficient performance, the result would have been different. Id. If either element of the test is not satisfied, the inquiry ends. Hendrickson, 129 Wn.2d at 78.
There is a strong presumption counsel's performance was reasonable. Thomas, 109 Wn.2d at 226. When counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim of ineffective assistance. Hendrickson, 129 Wn.2d at 77-78.
Here, the second part of the Strickland test ends the inquiry, because there is no showing of prejudice. Mr. Moore does not indicate how these prospective witnesses would have testified at trial. See RAP 10.10(c). Because there is no basis in the record to believe that these witnesses would have been helpful to his defense, Mr. Moore cannot show that defense counsel's decision not to call them was deficient. Therefore, we reject Mr. Moore's claim of ineffective assistance of counsel for failure to call witnesses on his behalf.
Mr. Moore also apparently argues that counsel was deficient for failing to request a dismissal for untimely filing of the information. He cites Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992) to support his position. However, Oviatt is inapposite. It is a federal civil rights action out of California in which the plaintiff seeks damages for improper incarceration. It does not address Mr. Moore's argument that his charges should have been dismissed. Second, as shown above, even if a violation occurred, Mr. Moore has failed to prove that dismissal was the appropriate remedy. Thus, his argument on this count must also fail.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Thompson, J. Pro Tem.
WE CONCUR: Brown, J. Kulik, J.