Opinion
Nos. 24358-3-III; 24881-0-III.
April 10, 2007.
Appeal from a judgment of the Superior Court for Stevens County, No. 05-1-00019-2, Rebecca M. Baker, J., entered July 8, 2005, together with a petition for relief from personal restraint. Judgment affirmed and petition dismissed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Kato, J. Pro Tem.
Perry Green was convicted for the crime of possession of methamphetamine. In his direct appeal, he asserts numerous errors by the trial court. Mr. Green's direct appeal has been consolidated with his personal restraint petition in which he asserts that he received ineffective assistance of counsel and that the trial court erred when it denied his requests for different trial counsel. We conclude that the trial court committed no error. Therefore, we affirm the conviction and dismiss the personal restraint petition.
FACTS
On November 29, 2004, Perry Green was arrested and booked into the Stevens County Jail. Earlier, he had been arrested for making violent threats, but was never charged. At the jail, Mr. Green was subjected to a pat-down search as part of routine booking procedures. When an officer removed Mr. Green's wallet, inside the officer found a baggie containing traces of methamphetamine. Mr. Green was charged with possession of methamphetamine.
Mr. Green failed to appear at a court hearing scheduled during the morning of June 6, 2005. He had missed several earlier proceedings. The trial court issued a bench warrant based on Mr. Green's failure to appear. Mr. Green arrived at the court later that same day, at which time he was arrested and taken into custody.
On June 7, Mr. Green appeared before the court. The trial court refused to release the warrant issued the preceding day. Mr. Green made repeated protestations to the court's decision, and he was warned several times that he was in danger of being held in contempt of court. Mr. Green continued to complain about the warrant. His objections culminated in him exclaiming "shit" in open court. Report of Proceedings (RP) (June 7, 2005) at 23. The trial court held Mr. Green in contempt and sentenced him to 10 days' incarceration.
During the trial, one of the State's witnesses identified Mr. Green through a photograph, which had been taken when Mr. Green was booked into the jail. Mr. Green did not object to the admission of this photograph.
Mr. Green requested a jury instruction on unwitting possession. This instruction stated that Mr. Green carried the burden of proving unwitting possession by a preponderance of the evidence.
The jury found Mr. Green guilty of possession of methamphetamine. Mr. Green was sentenced to 18 months' confinement and 12 months' community placement. The trial court's original judgment and sentence relied on RCW 9.94A.700 in ordering the term of community placement. However, the State subsequently requested that the trial court amend its judgment and sentence to reflect a 9 to 12 month community custody range as authorized by RCW 9.94A.715. The trial court granted the State's motion.
The portion of Mr. Green's judgment and sentence ordering 12 months' community placement was deleted and was replaced by an order of community custody for a range of 9 to 12 months. This appeal followed.
Mr. Green also presents this court with a statement of additional grounds for review. The grounds are identical to those raised in his personal restraint petition.
ANALYSIS
1. Did the trial court err in sentencing Mr. Green to 12 months' community placement?
The trial court originally sentenced Mr. Green to a term of community placement of 12 months under RCW 9.94A.700(1)(b), which authorizes the imposition of community placement for certain serious felony offenses that were committed between July 1, 1988, and July 25, 1999. Mr. Green allegedly committed his offense in November 2004. Therefore, the trial court's original judgment and sentence was erroneous.
This error was brought to the trial court's attention by the Department of Corrections and Mr. Green's sentence was altered to reflect 9 to 12 months' community custody under RCW 9.94A.715. This sentence is consistent with Mr. Green's request. Because the trial court has already altered Mr. Green's judgment and sentence, this issue is moot.
2. Did the trial court err by finding Mr. Green to be in contempt of court for using a profanity?
Under RCW 7.21.010(1)(a), contempt of court includes intentional behavior that is: "[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings." Trial courts have both statutory and inherent power to punish or prevent contemptuous behavior. State v. Breazeale, 144 Wn.2d 829, 842, 31 P.3d 1155 (2001).
This court upholds a finding of contempt so long as there is any proper basis that may support it. State v. Hobble, 126 Wn.2d 283, 292, 892 P.2d 85 (1995). A trial court may make a summary finding of contempt if the contempt was committed directly in the courtroom. Id. at 293. Behavior that conflicts with the maintenance of order in the court or that is "manifestly offensive to the authority and dignity of the court" may form the basis of a contempt finding. Id. at 294.
Mr. Green's behavior in this case was contemptuous, insolent, and disruptive. This behavior is even more unreasonable in light of the multiple warnings Mr. Green received from the trial court and his own counsel. The trial court was well within its authority in making a summary finding of contempt of court.
3. Did the jury instructions on unwitting possession impermissibly shift the burden of proof to Mr. Green?
Mr. Green concedes that he proposed the unwitting possession instruction that the trial court gave the jury. A defendant may not request an instruction at trial and then complain on appeal that the instruction was given. State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (quoting State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 Page 6 (1990)). The doctrine of invited error applies even where the alleged defect was a constitutional error. Studd, 137 Wn.2d at 546-47. Because Mr. Green requested the unwitting possession instruction, invited error precludes him from raising this issue in his direct appeal.
4. Did Mr. Green receive ineffective assistance of counsel?
This court employs the two-prong Strickland test to evaluate claims of ineffective assistance of counsel. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). A defendant must demonstrate both deficient performance by trial counsel and resulting prejudice. Id. (quoting Strickland, 466 U.S. at 687). This court indulges in a strong presumption that counsel's performance was effective.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Thomas, 109 Wn.2d at 226. A claim of ineffective assistance cannot be based on conduct that can be characterized as strategy or tactics. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991).
Unwitting Possession Instruction
As previously noted, Mr. Green is barred from challenging on appeal a jury instruction that he proposed. See, e.g., State v. Carter, 127 Wn. App. 713, 716, 112 P.3d 561 (2005). A defendant may, however, raise such a challenge through a claim of ineffective assistance of counsel. Id.
Mr. Green asserts that his counsel was deficient in proposing a jury instruction on unwitting possession that placed the burden of proof on the defense. Mr. Green claims that this instruction erroneously shifted the burden of proof for this defense.
In support of this claim, Mr. Green relies on this court's decision in Carter. But Carter dealt with the charge of unlawful possession of a firearm, which requires the State to establish a culpable mental state as an element of the offense. Id. at 717.
In contrast, there is no knowledge requirement for the offense of unlawful possession of a controlled substance. State v. Bradshaw, 152 Wn.2d 528, 535-38, 98 P.3d 1190 (2004). A defendant may argue that possession was unwitting as an affirmative defense to this charge.
Id. at 538. But the defendant bears the burden of proving this defense. Id.
The unwitting possession instruction did not impermissibly shift the burden of proof onto Mr. Green. Because the instruction was an accurate statement of the law, Mr. Green's counsel was not deficient in proposing this instruction.
Booking Photograph
Mr. Green next asserts that his trial counsel was deficient in failing to object to the admission of his booking photograph.
The use of a booking photograph for purposes of identification is not prejudicial if the jury otherwise becomes aware of the defendant's arrest. State v. Rivers, 129 Wn.2d 697, 712, 921 P.2d 495 (1996). Juries are generally presumed to know that booking procedures, including booking photographs, are usually part of the arrest process. Id.
Here, a baggie containing traces of methamphetamine was found in Mr. Green's wallet during the booking process. There was testimony from several witnesses that the drugs were discovered while Mr. Green was being booked into the Stevens County Jail. Mr. Green cannot demonstrate that the use of the booking photograph had any prejudicial effect on the outcome of his trial. Therefore, he cannot establish a claim of ineffective assistance of counsel on this basis.
Rebuttal Evidence
Lastly, Mr. Green asserts that he received ineffective assistance of counsel because his trial counsel failed to object to the rebuttal testimony of Detective Loren Erdman. Detective Erdman testified that baggies, such as the one in Mr. Green's possession at the time of his arrest, were commonly used to package methamphetamine. This testimony was presented to rebut Mr. Green's assertion that he was using the baggie to store rare coins.
Here, Mr. Green ignores the fact that his trial counsel sought unsuccessfully to suppress this testimony during trial. Trial counsel failed to get the rebuttal testimony excluded because the trial court found that counsel's objections went to the weight of the rebuttal testimony, not its admissibility. While trial counsel did not obtain suppression of the testimony, this does not render counsel's performance deficient. The right to effective assistance of counsel is not necessarily a guarantee of successful assistance of counsel.
In re Pers. Restraint of Richardson, 100 Wn.2d 669, 682, 675 P.2d 209 (1983). Mr. Green received effective assistance of counsel at trial.
5. Was there sufficient evidence to support Mr. Green's conviction?
When a defendant claims the evidence is insufficient to support his or her conviction, this court considers whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In resolving this issue, this court views all of the evidence in the light most favorable to the State and draws all reasonable inferences from that evidence in favor of the State and most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences that may be drawn therefrom. Id.
Circumstantial evidence is not considered any less reliable than direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
Even if circumstantial evidence is the only evidence of guilt, that evidence does not need to be inconsistent with a hypothesis of innocence. State v. Couch, 44 Wn. App. 26, 30, 720 P.2d 1387 (1986). In reviewing for substantial evidence, this court defers to the credibility determinations of the jury. In re Det. of Halgren, 156 Wn.2d 795, 811, 132 P.3d 714 (2006).
Here, the State was required to prove that Mr. Green was in possession of a controlled substance. Testimony at trial established that a baggie was found on Mr. Green during routine booking procedures. Tests on the residue found on the baggie reveal that the substance inside was methamphetamine. This evidence was sufficient for the jury to find the essential elements of possession of methamphetamine beyond a reasonable doubt.
Mr. Green argues that he raised a plausible defense of unwitting possession; and that this defense, combined with the trace amounts of drugs in this case, should render the evidence insufficient. Neither factor applies to undermine the sufficiency of the evidence in this case.
While Mr. Green presented a defense of unwitting possession, it was for the jury to decide whether this defense was credible. As indicated by the guilty verdict in this case, the jury did not believe Mr. Green's assertion of unwitting possession. It is not for this court to disturb the jury's findings of credibility. Id.
The fact that only trace amounts of drugs were found also does not diminish the proof of guilt in this case. The offense of possession of a controlled substance has no requirement setting a minimum amount. Therefore, residue alone may suffice. See State v. Malone, 72 Wn. App. 429, 439, 864 P.2d 990 (1994).
Mr. Green's claim of insufficiency of the evidence is without merit.
PERSONAL RESTRAINT PETITION
Mr. Green's personal restraint petition raises two primary allegations of error: that he received ineffective assistance of counsel and that the trial court erred when it denied his request to discharge his attorney. To obtain relief in a personal restraint petition based on an alleged constitutional error, Mr. Green must demonstrate by a preponderance of the evidence that he was "actually and substantially prejudiced by the error." In re Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P.3d 1 (2004).
1. Ineffective Assistance of Counsel
The right to effective assistance of counsel is guaranteed under the sixth amendment to the United States Constitution and article I, section 22 of the Washington State Constitution. Id. As previously noted, a defendant challenging the effectiveness of trial counsel's performance must establish both deficient performance and resulting prejudice. Id. at 672 (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). Failure to establish either prong defeats a claim of ineffective assistance. Davis, 152 Wn.2d at 673. In order to establish prejudice, there must be a reasonable probability that, but for counsel's alleged errors, the outcome of his trial would have been different. Id. at 700.
Failure to seek independent testing of the baggie
Mr. Green alleges that his trial counsel rendered deficient performance by not demanding independent testing of the substance found in the baggie located in Mr. Green's wallet.
However, the failure to raise all possible nonfrivolous issues is not ineffective assistance. In re Pers. Restraint of Brown, 143 Wn.2d 431, 452, 21 P.3d 687 (2001) (quoting In re Pers. Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994)). Mr. Green also must prove that, had his counsel demanded independent testing, the tests would not have been positive for the presence of methamphetamine. See Brown, 143 Wn.2d at 452.
Mr. Green has not proved, nor does he claim, that the baggie would not have tested positive for methamphetamine if his trial counsel had demanded additional testing. As such, Mr. Green has not demonstrated that counsel should have requested this testing or that he was prejudiced by this failure. Contrary to Mr. Green's assertions, trial counsel was not deficient because he failed to demand additional testing of the baggie.
Failure to seek suppression of evidence obtained from the booking search
Mr. Green claims that his trial counsel was deficient in failing to seek suppression of the evidence obtained as a result of his initial arrest and the subsequent search. Mr. Green asserts that, because he did not face charges on his initial threats, his arrest for those threats was unlawful. As such, Mr. Green claims that his trial counsel should have sought suppression of all of the evidence in this case.
Warrantless searches are considered per se unreasonable, and exceptions to the warrant requirement are narrowly drawn. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). One exception to the warrant requirement is an inventory search as part of routine booking procedures. State v. Cheatam, 150 Wn.2d 626, 634-35, 81 P.3d 830 (2003).
Lawful custodial arrest is a constitutionally required prerequisite to a delayed search incident to arrest or a booking inventory search.
Id. at 635-36; Parker, 139 Wn.2d at 496.
In order to be lawful, a warrantless arrest must be supported by probable cause. See RCW 10.31.100; McFarland, 127 Wn.2d at 334 n. 2. Probable cause requires grounds of suspicion strong enough to warrant a reasonable person of ordinary caution to believe the accused is guilty of the indicated crime. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001) (quoting State v. Seagull, 95 Wn.2d 898, 906-07, 632 P.2d 44 (1981)).
The State argues that police had probable cause to believe that Mr. Green had committed harassment and assault when the officers arrested him. A person is guilty of harassment if he or she unlawfully threatens to inflict bodily injury on any other person. RCW 9A.46.020(1)(a)(i). Assault is defined by common law, and includes any intentional act that puts another in reasonable apprehension of imminent bodily harm. State v. Aumick, 126 Wn.2d 422, 426 n. 12, 894 P.2d 1325 (1995).
Mr. Green had left several messages on a woman's answering machine stating that he would kill her if she did not return his dog. Mr. Green admitted to police that he made these statements. Based on the threats that Mr. Green conceded he made, police had probable cause to believe that he was guilty of the crimes of harassment and assault. As such, his initial arrest and the subsequent search were lawful.
This conclusion is not undermined by the fact that the State ultimately decided not to charge Mr. Green for making violent threats. Prosecutors have broad discretion in making charging decisions. State v. Korum, 157 Wn.2d 614, 625, 141 P.3d 13 (2006). The fact that the State decided to proceed only on the possession charge does not diminish the probable cause that existed for Mr. Green's original arrest.
Mr. Green's trial counsel was not deficient in failing to seek to exclude all of the evidence in this case. Mr. Green's initial arrest was lawful, as was the subsequent search of his person. As such, Mr. Green cannot demonstrate ineffective assistance of counsel or prejudice.
2. Request to Discharge Trial Counsel
Trial court decisions relating to attorney/client differences are generally reviewed for abuse of discretion. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80 (2006). A defendant is not entitled to discharge appointed counsel unless the motion is timely and made upon proper grounds. Id. at 606. This court considers three issues when reviewing the denial of a request for new counsel: (1) the extent of the conflict; (2) the adequacy of the trial court's inquiry; and (3) whether the motion was timely. Id. at 607 (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001)). Mere disagreements about trial strategy are insufficient grounds of conflict to require appointment of substitute counsel. Cross, 156 Wn.2d at 608-10.
Here, Mr. Green did not complain of his representation until his trial was over and he had been found guilty. The form of his complaint was an informal letter to another superior court judge in Stevens County. Nothing in the record indicates that a request for substitute counsel was ever made to the trial court, much less that the request was made in a timely fashion. Therefore, this allegation of error is without merit.
We affirm Mr. Green's conviction for possession of methamphetamine and dismiss his personal restraint petition.
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.
Schultheis, A.C.J., Kato, J. Pro Tem., concur.