Opinion
A147738
02-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ETHAN HARPER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR926581)
Defendant Ethan Harper appeals his conviction by jury verdict of driving under the influence of alcohol, driving with a suspended license, and three additional counts, all arising from a single-car accident that left his car stuck in a ditch next to a highway. Harper's sole contention is that he was denied effective assistance of counsel when defense counsel failed to object to certain testimony and argument presented by the prosecutor.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 20, 2014, a witness who lived next to Highway 175 heard a crash. He went out on his deck and saw a car on the other side of the highway. The driver's side of the car faced him and the passenger's side was down in a ditch at an angle. A person got out of the driver's side of the car and asked a neighbor (not the witness) for help. The person from the crashed car was slurring his words, and the neighbor declined to help him. About three minutes after the crash, the witness called 911. He told the dispatcher the driver sounded like he was drunk. The witness only saw one person get out of the crashed car.
Around 1:14 a.m., the South Lake County Fire Protection District received a report of the crash, and a two-person medic unit was the first to arrive at the scene about six minutes later. They found an unoccupied car stuck in a culvert. A resident from across the street pointed out a person who had gotten out of the car. Paramedic Keith Fricker spoke to that person, later identified as Harper. Harper told Fricker, "That's my car. Coming from the Pub." Harper did not say that anyone else had driven his car or that he had not been driving. Harper smelled of alcohol and his demeanor led Fricker to believe he was under the influence of something.
Lake County Sheriff Deputy Dean Preader also responded to the scene, arriving shortly after the medic unit. He observed Harper walking on the roadway about 50 yards from the car in the ditch. Harper appeared unsteady and was holding himself up by a roadside marker. He had keys in his hand, which he dropped as Preader approached him. Preader picked up the keys. Harper smelled strongly of alcohol. Harper admitted to Preader he had come from the pub, he was going home and missed his turn, and he was going a little too fast on the wet road. He also said he "had a beer." Preader told Harper the California Highway Patrol (CHP) was on its way to investigate the accident. He placed Harper in handcuffs and put him in his patrol car. The keys Harper dropped unlocked the doors and operated the ignition of the crashed car. The position of the driver's seat was consistent with Harper's height.
Preader had a recording device when he responded to the scene, and his interaction with Harper was recorded. A recording of this part of their conversation was played for the jury. As will be seen, the trial court ruled that a later portion of the recording was inadmissible.
A CHP officer administered three field sobriety tests, all of which were consistent with a person under the influence of alcohol. It was stipulated that at 1:40 a.m., Harper's blood-alcohol content on a preliminary alcohol screening breath test was 0.192 percent. Within the next 12 minutes, his breathalyzer results were 0.18 and 0.19 percent blood-alcohol level.
Harper was charged by information with driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a); count 1), driving with a .08 percent blood alcohol content (id., subd. (b); count 2), driving when his driving privilege was suspended for a conviction (§ 14601.2, subd. (a); count 3), driving with knowledge that his license was suspended pursuant to sections 13353 and 13353.2 (§ 14601.5, subd. (a); count 4), and driving when the privilege was suspended for failure to appear (§ 14601.1, subd. (a); count 5). In connection with counts 1 and 2, it was alleged that Harper suffered a previous DUI conviction. In connection with counts 3 through 5, it was alleged that he had suffered a previous conviction under section 14601.2, subdivision (a).
Further undesignated statutory references are to the Vehicle Code.
Harper's defense at trial was that he was not the driver. Defense witness Christopher Hulliger testified that he saw Harper at the pub and agreed to drive him home because Harper was drunk. He claimed he was driving when Harper's car skidded off the road.
The jury found Harper guilty of all counts. Harper admitted the prior offenses. In addition, Harper was on probation for a prior DUI conviction, and the trial court found him in violation of probation. He was sentenced to three years, eight months in prison.
DISCUSSION
Harper's only claim on appeal is that he received ineffective assistance of counsel. He argues the prosecutor violated an evidentiary ruling when he elicited certain testimony from Deputy Preader and, again, when he referred to that testimony in closing argument. Harper claims defense counsel was deficient in failing to object to these two instances of alleged prosecutorial misconduct.
Evidentiary Ruling
Harper objected to the admission of statements he made to law enforcement after the car accident. As noted above, Deputy Preader's interaction with Harper on the morning of the accident was recorded. In addition, CHP Officer Glen Thomas, another responder to the scene of the accident, recorded his conversation with Harper.
Outside the presence of the jury, the trial court held a hearing under Evidence Code section 402 to determine whether Harper's recorded statements to Preader and Thomas were admissible. The trial court heard testimony from Preader and Thomas, reviewed the two recordings from the morning of the crash along with transcripts of the recordings, and heard argument from counsel.
The court found that Harper was not in custody prior to being handcuffed and placed in Preader's patrol car and, therefore, Miranda advisements were not necessary and that portion of Preader's conversation with Harper was admissible. The court further ruled, "the statements made by the defendant after his cuffing and placement in the patrol vehicle and after interrogation are ordered suppressed."
Miranda v. Arizona (1966) 384 U.S. 436, 444.
As part of its ruling, the court redacted the transcript of Preader's recording to correspond with its ruling on what portion of the recording was admissible. The court ruled the transcript from line 17 of page 2 through line 8 of page 4 was admissible. The last admissible portion of the transcript was the following statement by Preader: ". . . I'm gonna double lock these so they don't tighten up. You're not under arrest right now man. You're just detained, okay? [Addressing dispatch] Central 35, information for Ukiah. I am out with the driver. —(Unintelligible)— 27-0. Male, last of Harper with an 'H.' Middle of, first of Ethan; Edward, Tom, Henry, Adam, Nora. . . . Middle of Craig. 6-7 of 72. [Addressing Harper] Alright man I'm gonna have you just have a seat in the back of my car. I'm gonna pull off the roadway so we're safe, we're safe. Okay?"
The first part of the transcript reflected a conversation between Preader and a first responder from the medic unit and was ruled inadmissible.
The trial court explained, "That [i.e., the admissible portion of the recording and transcript] includes the conversation about double locking and so forth. But there's no statement there. It's just corroborative of what the officer is going to say." The court went on to exclude the balance of the transcript and the entirety of Officer Thomas's recording. Harper does not claim error in the trial court's ruling.
Prosecutor's Conduct
During Deputy Preader's testimony, the admissible portion of his recorded interaction with Harper was played for the jury. Thus, the jury heard Preader's statement, "Central 35, information for Ukiah. I am out with the driver." The prosecutor established the context of Preader's statement, asking, "[P]rior to you placing [Harper] in the car, when you're putting the handcuffs on, you are telling dispatch that you are out with the driver; is that correct?" Preader responded this was correct.
Then the prosecutor asked, "When you said, 'I am out with the driver,' did the defendant say, 'Hey, wait a minute. I wasn't driving' or anything like that?" Preader responded no. The prosecutor asked whether Harper said anyone else was driving, and Preader responded that he did not. Defense counsel did not object to these questions about whether Harper tried to correct Preader about who the driver was.
During his closing argument, the prosecutor referred to this testimony and argued that a person in Harper's circumstance who had not been driving would have corrected Preader and told him he was not the driver. Again, defense counsel did not object. Analysis
To prevail on a claim of ineffective assistance of counsel in violation of the federal and state Constitutions, a criminal defendant "must demonstrate both deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of reasonable probability of an adverse effect on the outcome." (People v. Waidla (2000) 22 Cal.4th 690, 718.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Our Supreme Court has often observed that deciding whether to raise an evidentiary objection is largely tactical, "and a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one." (People v. Seumanu (2015) 61 Cal.4th 1293, 1312 (Seumanu).) "An attorney may well have a reasonable tactical reason for declining to object, and ' "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." ' " (Id. at pp. 1312-1313.)
In this case, Harper claims the prosecutor violated the trial court's evidentiary ruling when he established Harper was silent after Preader told dispatch he was with the driver and, later, when he referred to Harper's silence in closing argument. Therefore, he argues, defense counsel was ineffective in failing to object in each instance. However, in People v. Tom (2014) 59 Cal.4th 1210, 1236 (Tom), our high court held the "use of a defendant's postarrest, pre-Miranda silence is not barred by the Fifth Amendment in the absence of custodial interrogation or a clear invocation of the privilege." It follows that Harper's silence in the face of Preader's statement to dispatch that he was "with the driver" was constitutionally admissible because Harper was not being interrogated at the time. Since evidence of Harper's silence was admissible, defense counsel acted reasonably in declining to object. (See Seumanu, supra, 61 Cal.4th at p. 1313. ["Where a sound legal basis exists for the admission of evidence, an attorney is not ineffective for failing to object to its introduction."]; People v. Bradley (2012) 208 Cal.App.4th 64, 90 [failure to raise a meritless objection does not constitute ineffective assistance of counsel].)
In his reply, Harper does not dispute Tom's application to this case. He only argues that the admission of Harper's silence violated the trial court's evidentiary ruling on the matter (regardless of its admissibility under constitutional standards). But the Attorney General points out that Preader's statement to dispatch that he was "with the driver" was expressly ruled by the trial court to be admissible. Thus, the prosecutor did not introduce evidence that violated the court's ruling. This is certainly a reasonable understanding of the court's ruling. Consequently, we cannot say defense counsel rendered ineffective assistance in failing to object. (See People v. Samayoa (1997) 15 Cal.4th 795, 848 [counsel's failure to object could have been premised on "a rational tactical basis, such as the reasonable assumption that such objections would be overruled"].)
Moreover, even if we assume deficient performance, defendant has not shown prejudice. Harper told first responder Fricker that the crashed car was his and he was coming from the pub. He did not say anyone else had driven his car or that he had not been driving. He then had a conversation with Deputy Preader during which he told Preader where he lived, said he was coming from pub, agreed he had missed his turn and had been going a little too fast, and said he wanted to walk home, and Preader told him the CHP was on its way. Preader's questions clearly suggested that he believed Harper was the driver, but at no point in their extended interchange did Harper mention that he had not been driving his car or that anyone else was in the car with him. On this record, we cannot say there is a reasonable probability the result of the trial would have been different had defense counsel objected and the trial court excluded evidence that Harper was silent when Preader told dispatch that he was "with the driver." Thus, Harper has not established any prejudice.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.