Opinion
No. 60843-6-I.
March 2, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-00530-1, Gerald L. Knight, J., entered October 24, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Ellington and Lau, JJ.
Scott W. Sells appeals his conviction for assault in the third degree of a police officer in violation of RCW 9A.36.031(1)(g). Sells asserts the trial court erred in allowing the State to impeach a critical defense witness with evidence that the witness pleaded guilty to the crime of disorderly conduct arising out of the same incident. In the alternative, Sells argues that his attorney provided ineffective assistance of counsel by not requesting a limiting instruction. When a witness testifies in a manner that creates a false impression, the trial court has the discretion to allow the opposing party to impeach the witness with evidence that would otherwise be inadmissible. Here, because the defense witness testified in a manner that opened the door to impeachment with his prior conviction for disorderly conduct, and because Sells has not overcome the presumption of effective assistance of counsel,
we affirm.
FACTS
Scott W. Sells and Neil MacKinnon are best friends and former Marines. On Sunday, December 3, 2006, Sells and MacKinnon went to O'Houlie's Pub in Mountlake Terrace at around 2:00 p.m. to watch the Seattle Seahawks game.
Sally McCraney works at O'Houlie's Pub and has been a bartender for 30 years. When McCraney began her shift that night at 6:00 p.m. on December 3, she said there were 15 to 20 people in the bar. McCraney testified that during the next hour, she served Sells and MacKinnon two drinks each. At some point after 7:00 p.m., Sells went outside to smoke a cigarette. When Sells returned he was "yelling and screaming" at one of the patrons. The patron told McCraney that Sells threatened to "kick [his] ass" because the patron had not joined the armed services. MacKinnon put the patron in a headlock and told him that he had "three seconds to tell me what the fuck just happened." McCraney said that MacKinnon put the patron in a headlock more than one time and that the patron repeatedly told MacKinnon to let him go. The patron's friends came to his assistance and were yelling at MacKinnon and Sells.
McCraney asked Sells and MacKinnon "to quit this uproar that they were making, and they wouldn't." McCraney told Sells and MacKinnon to leave the bar at least five times, but they refused to leave. McCraney was concerned that the confrontation between Sells and MacKinnon and the other patrons was going to turn into a fight. McCraney called the police. McCraney testified that she had only called the police one other time.
Mountlake Terrace Police Sergeant Kevin Pickard and Officer Timothy Krahn responded to the call. McCraney and the other patrons identified Sells and MacKinnon as the instigators of the confrontation. At Sergeant Pickard's request, Sells and MacKinnon left the bar and went outside. Sergeant Pickard and Officer Krahn testified that MacKinnon and Sells were intoxicated. Sergeant Pickard told MacKinnon and Sells that he was going to make arrangements for a taxicab to drive them home. Sergeant Pickard said that MacKinnon was cooperative and apologetic.
While waiting for the taxicab, Sells started arguing with Officer Krahn. When Sells told Officer Krahn, "You have a fucking attitude problem." MacKinnon turned around and told Officer Krahn "[y]ou fat Napoleon fuck, you have an attitude problem. You need to fucking leave." Sells then pointed his finger at Officer Krahn and demanded that he leave, "you need to fucking leave. You're an asshole, you fat Napoleon fuck, you need to get the fuck out of here."
Sergeant Pickard intervened and directed MacKinnon and Sells towards the patrol car. Officer Krahn stayed back and called for assistance. Officer Krahn said that MacKinnon and Sells continued to swear at him, "telling me to get the fuck away, and fuck off."
When Officer Tracy Dunmire arrived, MacKinnon told Officer Krahn to "fuck off" and told Officer Dunmire "to get this fucking asshole away from me." At that point Sergeant Pickard informed MacKinnon that he was under arrest for disorderly conduct. When Sergeant Pickard and Officer Krahn attempted to place MacKinnon under arrest, MacKinnon stiffened and raised his fists. Officer Krahn pulled out his taser and told MacKinnon to "step down" or he would use the taser. When MacKinnon moved forward and raised his fist as if to strike Officer Krahn, Officer Krahn used the taser. MacKinnon fell to the ground and said that he lost consciousness.
Sells then grabbed the taser with both hands and attempted to wrestle it away from Officer Krahn. As Sells fought with Officer Krahn, Officer Dunmire used his taser on Sells. Sells continued to scream obscenities and hold onto Officer Krahn's taser. At some point, Sells released his grip on the taser. When Sells resisted arrest, Officer Krahn had to use the taser again. Officer Dunmire, a former Marine, told Sells that "his behavior was disgraceful and he was a disgrace to the Marine Corps." According to Officer Dunmire, Sells told Officer Dunmire that he was going to go to Officer Dunmire's house and "fuck my dog."
The State charged MacKinnon with resisting arrest and disorderly conduct. MacKinnon later pleaded guilty to disorderly conduct, a misdemeanor. The State charged Sells with felony assault in the third degree of a police officer in violation of RCW 9A.36.031(1)(g). Sells denied assaulting Officer Krahn.
At the trial, the State called McCraney, Sergeant Pickard, Officer Krahn, and Officer Dunmire to testify. MacKinnon and Sells testified on behalf of the defense.
MacKinnon testified that he and Sells cooperated with the police officers. MacKinnon said that he was "cordial" and "I immediately apologized for the fact that they had been called." MacKinnon testified that he did "absolutely" nothing to provoke Officer Krahn to use a taser on him.
Q: Do you recall if you had touched anybody, any officer under your own initiative?
A: No, absolutely not.
Q: And had you threatened to touch anyone?
A. Not in the slightest.
Q: Had you taken an aggressive stance that you can recall?
A: No. Not at all.
MacKinnon testified that Sells told the officers that "he had served in the Marine Corps and we weren't there to give them a problem. . . . Again, we were being apologetic." According to MacKinnon, Officer Krahn responded by saying that he had been in the Marine Corps and "Sells was a fucking disgrace to the Corps." MacKinnon testified that after Sells told the officers that he had hepatitis C, the officers "made an aggressive move towards" Sells.
On cross examination, the State asked MacKinnon "[s]o is it your testimony here today that you didn't do anything wrong on this occasion?" In response, MacKinnon answered, "I'd have to say that that's true." The State sought to impeach MacKinnon with his conviction for disorderly conduct.
Sells objected and argued that ER 609 prohibited impeachment with the crime of disorderly conduct and that "there is no basis for doing this. This is not a crime of dishonesty, this issue is not opened on direct." Sells also argued that there was no "symmetry between a plea of guilty for which there can be many reasons, and doing wrong."
The State argued that it was entitled to impeach MacKinnon with his prior conviction for disorderly conduct "to rebut the witness's direct testimony he just told the jury that he did nothing wrong on this occasion. I'm offering this evidence to show that he did in fact commit a crime on this occasion to which he pled guilty."
The trial court overruled Sells's objection and allowed the State to impeach MacKinnon with his prior conviction. "I think it is admissible. There can be several reasons why a person pleads guilty. I need not go through the litany of reasons. If you wish to, you may on redirect, but I think it's an appropriate line of inquiry. So your objection is overruled."
During cross examination, MacKinnon admitted that he pleaded guilty to disorderly conduct. On redirect, MacKinnon testified that he relied on the advice of his attorney in deciding to plead guilty. MacKinnon said he was sorry that he pleaded guilty to disorderly conduct and only did so because he could not afford to hire another attorney.
Sells testified that he cooperated with the police officers. Sells insisted that after he said that he was in the Marine Corps and did not want to cause any problems, Officer Krahn said "I was a fucking disgrace to the Marine Corps." Sells testified that the last thing he remembered was saying that he had hepatitis C. Sells said that he did not remember anything after the officers used a taser on him. Sells also testified that the only reason the officers used a taser was because of his language.
On cross examination, Sells admitted calling Officer Krahn "a little fat fucking Napoleon with a bad attitude" before the officers used a taser on him. He also remembered threatening Officer Dunmire.
I remember that, because it was the very end of the conversation when they were putting me in the car. Very calmly I asked him where he lived, very calmly he told me he had a house and very calmly, I asked him if he had a dog, and then I said I was going to fuck his dog. Out of my mind from being tasered.
Sells said that he was "a hundred percent positive" that he did not try to grab Officer Krahn's taser.
In closing, Sells's attorney argued that the police testimony was not credible, the use of force was excessive and unjustified, and the State should not have charged Sells with a felony assault.
The jury convicted Sells of assault in the third degree of a police officer. Sells appeals.
ANALYSIS
Sells contends the trial court abused its discretion in allowing the State to impeach MacKinnon with his conviction for disorderly conduct in violation of ER 609 and ER 613. Sells argues that MacKinnon did not testify in a manner that allowed the State to impeach him with his prior conviction. We disagree.
The trial court's decision as to the scope of examination and whether to admit or exclude evidence, is within the discretion of the trial court and will not be reversed absent abuse of discretion. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). The trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
Under the well established "open door" rule, the trial court has the discretion to admit evidence that might otherwise be inadmissible if the witness testifies in a manner that warrants impeachment with that evidence. The open door rule is aimed at fairness and truth-seeking and allows the opponent to rebut misleading and inconsistent testimony regardless of whether the evidence is otherwise admissible under rules of evidence. State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).
It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths. Thus, it is a sound general rule that, when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced.
Gefeller, 76 Wn.2d at 455.
Here, MacKinnon testified on direct examination that he and Sells were "cordial" and "apologetic" to the police. According to MacKinnon, neither he nor Sells did anything to provoke the police officers. MacKinnon testified that he did not in "the slightest" threaten and he "absolutely" did not act in an aggressive manner before Officer Krahn used a taser on him. To the contrary, MacKinnon said that the officers made an "aggressive move towards Mr. Sells" after he said that he had hepatitis C. Because MacKinnon's testimony created the impression that neither he nor Sells did anything wrong, the trial court did not abuse its discretion in allowing the State to impeach MacKinnon with evidence that he had pleaded guilty to disorderly conduct arising out of the same incident. If the State had not been allowed to impeach MacKinnon with that evidence, the defense would have succeeded in painting a false picture.
Even if the prior conviction for disorderly conduct was admissible to impeach MacKinnon, Sells contends his attorney provided ineffective assistance of counsel by failing to request a limiting instruction that the guilty plea could not be considered as evidence of Sells's guilt.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either prong, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. A claim for ineffective assistance of counsel cannot be based on conduct that can be fairly characterized as legitimate trial strategy or tactics. There is a strong presumption of effective assistance and defendant bears the burden of demonstrating the absence of a strategic reason for the challenged conduct. McFarland, 127 Wn.2d at 334-35; State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Our courts have repeatedly held that defense counsel's failure to request a limiting instruction may be a legitimate tactical decision. State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993).
Here, defense counsel did not request a limiting instruction concerning MacKinnon's testimony that he pleaded guilty to disorderly conduct. Instead, the attorney elicited testimony from MacKinnon on redirect that he did not do anything wrong and he regretted the decision to plead guilty.
Q You're sorry you pled guilty; right?
A Yes.
Q And isn't it true that you pled guilty in part upon, we might call it, advice of your attorney?
A Yes.
Q But if you'd had it to take back, you would have proceeded differently; correct?
A Most definitely.
Q Maybe consulted with a different attorney?
A Yes.
Q Maybe just proceeded differently; right?
A Yes.
Q Any speculation as to why you didn't do that? Why you followed your attorney's advice?
A Great deal of expense, for one. It would have taken considerable more expense that I was not able to afford.
Q Okay. Were you familiar with making that kind of decision?
A No. This is totally unfamiliar territory for me.
Q Okay. So to you there's not really any tension between saying yes, I pled guilty to a crime; and no, I still feel to this day that when you sort of lift the legal layer from it and just think about it as a human experience and the facts of the situation . . .
Q Yes, it is. I still don't feel like I did anything wrong?
A I still feel that way.
Q So you don't see that those two, taking those two positions is really that there's a conflict there for you?
A No, not at all.
During closing, Sells's attorney also relied on MacKinnon's testimony to argue that the officers were not credible and that Officer Krahn overreacted and used his taser on MacKinnon merely "because he had a bad mouth." Sells's attorney asserted that because MacKinnon and Sells were essentially behaving in the same way, the State should not have charged Sells with felony assault in the third degree.
Sells's reliance on United States v. Halbert, 640 F.2d 1000 (9th Cir. 1981) to argue deficient performance and prejudice is misplaced. In Halbert, Halbert and two codefendants were indicted on 16 counts of mail fraud. The two codefendants pleaded guilty and testified against Halbert at trial. During direct examination, the prosecutor asked each codefendant about the guilty plea. The court allowed the codefendants to testify that they pleaded guilty to the same charge as Halbert. The Ninth Circuit concluded that while a codefendant's guilty plea or conviction could not be admitted as substantive evidence of the guilt of the defendant on trial, "it may properly be considered by the jury in evaluating witness credibility." Halbert, 640 F.2d at 1004. However, the court held that if evidence of a codefendant's guilty plea is admitted, the jury must be instructed that the plea cannot be considered as evidence of the defendant's guilt. Halbert, 640 F.2d at 1006-07. Here, unlike in Halbert, Sells and MacKinnon were not codefendants and were charged with different crimes. MacKinnon was charged with resisting arrest and disorderly conduct and pleaded guilty to disorderly conduct, a gross misdemeanor. By contrast, Sells was charged with felony assault in the third degree of a police officer.
Because the decision to forego a limiting instruction can be fairly characterized as a legitimate trial tactic, Sells has not overcome the strong presumption of effective assistance of counsel.
We affirm.
WE CONCUR: