Opinion
No. 59123-1-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11813-6, Laura C. Inveen, J., entered November 20, 2006.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
A witness may be impeached if his or her credibility is a fact of consequence to the action. A person's credibility is not a fact of consequence when he or she fails to say anything pertinent to the case. But, here, there was not a total lack of consequence when Hughes testified that he was not present at the scene of the shooting, a statement that was inconsistent with a signed statement he previously gave to police. Further, although additional or more complete objections could, and likely should have been raised, a claim of ineffective assistance of counsel fails, because, given the evidence as a whole, there is no reasonable probability that the outcome of the trial would have been different had additional objections been made or had limiting instruction been requested or given. We affirm.
FACTS
Residents of a South Seattle neighborhood heard multiple gun shots and observed a young man, later identified as Damien Johnson, stumble up the street and fall to the ground. No one witnessed the actual shooting, but several people heard the shots and saw portions of what happened afterward. Witnesses saw a car with a number of males inside, and one or two of these men were said to have assaulted the victim further. One resident said he thought he heard an additional shot. After a resident yelled for what he believed was a robbery or assault to stop, the men returned to the car and sped off. As it turns out, Johnson had been shot in the back and was killed. Witnesses did not get a good look at the occupants of the car, but one witness observed that one of the men wore a dark colored beanie. The beanie was recovered not far from Johnson's body. The beanie was submitted to the State crime lab for DNA analysis. Tests revealed a mixture of DNA, with one major contributor. The profile of that contributor matched Master Lawrence Anthony-Jones. Sometime later Detectives interviewed Anthony-Jones at a correctional facility where he was being held on another charge. He was confronted with the DNA results, but denied any involvement in the shooting. He stated he didn't know Johnson and that one of his friends or his girlfriend could have worn his hat and left it at the crime scene. No weapon was ever recovered.
As the investigation progressed, three jail informants provided information about the shooting of Johnson. All three obtained the information from Anthony-Jones while they were incarcerated with him. The informants were housed with Anthony-Jones in different facilities and had no known contact or connection with each other. In separate interviews, each informant said that Anthony-Jones made admissions about the Johnson murder.
In part due to information given by one of the jailhouse informants, police also investigated another possible suspect, Zell Hughes. He was interviewed twice. The first time he claimed to know nothing about the shooting, but at a second interview he admitted he was present at the scene of the shooting and that Anthony-Jones shot Johnson. Detectives obtained a written statement from him admitting to his presence and that Anthony-Jones shot Johnson.
Anthony-Jones was charged, by amended Information, with murder in the second degree with a firearm enhancement, unlawful possession of a firearm in the second degree, and a charge of tampering with a witness, which is not in issue here on appeal. The murder and firearm charges arose from the shooting death of Damien Johnson.
At trial, the three jailhouse informants testified that Anthony-Jones told them he shot Johnson. Defense counsel sought to impeach these informants in multiple ways: with prior crimes of dishonesty, use of aliases, lengthy criminal records and some inconsistencies between their testimony and their prior statements, as well as their desire to gain some benefit from their cooperation. One of these informants was DeVaughn Dorsey. He testified that Anthony-Jones told him that "Savage Rat" and "Zell" were with him when he shot Johnson. Dorsey did not know Zell's last name.
Also admitted at trial were recordings of phone calls from Anthony-Jones to friends and witnesses seeking to persuade them not to appear at trial or cooperate with authorities. A letter written by Anthony-Jones to a friend was also admitted. In it, Anthony-Jones discusses setting up an alibi, indicating that he thought he could beat the murder charge if the recipient helped him, that all the police had on him was some DNA at the crime scene and no weapon. There was also testimony about the black beanie, and the DNA recovered from it. The profile of the major contributor to the DNA was a match to Anthony-Johnson, with a probability statistic of one in six hundred trillion.
The State called Hughes as a witness. The State hoped that Hughes would testify in concert with his statement — that he had been present at the shooting and that Anthony-Jones was the shooter. However, defense counsel alerted the trial court to the fact that Hughes told him that he did not make statements to the police about the shooting. Counsel requested that Hughes be questioned outside the presence of the jury. The court rejected this request, choosing not to go forward simply on speculation about the content of Hughes' testimony, instead indicating that if Hughes did or did not testify as he did when questioned by police, the court would address it at that time.
At trial Hughes answered preliminary questions and admitted that he was questioned by the police about the murder. Although he said he knew nothing about the shooting, he specifically denied that he was present at the shooting:
Q. Mr. Hughes, were you present for that murder?
A. No.
After this denial, the prosecutor showed Hughes a signed statement, which he admitted to signing, but disavowed any of the information attributed to him therein concerning his presence at, or the circumstances surrounding, the shooting. He claimed that the police must have made up the information contained in it. The prosecutor then pressed on:
Q. In that document, you're clear you were present when Master Anthony-Jones shoots Damien . . .
MR. ILLA: Your Honor, I object to the content of the document.
MS. SNOW: It's impeachment.
THE COURT: Overruled.
Thereafter, the prosecutor proceeded to confront Hughes with his statement, specifically inquiring about his presence at the murder of Damien Johnson but also inquiring about other salient facts. Hughes consistently denied making any of the statements set forth in the signed statement. There were no further objections raised or grounds given as to why the document could not be referred to or admitted, no request for a continuing objection and no request for a limiting instruction as to Hughes' testimony. Hughes' prior out-of-court statement was never admitted into evidence.
Following Hughes' testimony, Detective Steiger, one of the Seattle police detectives who interviewed him, took the stand and recounted the circumstances of the taking and signing of the statement. In doing so, the detective testified to the content of the statement, without objection.
The jury returned verdicts of guilty on all three counts, and answered a special interrogatory in the affirmative, determining that Anthony-Jones was armed with a firearm at the time of the commission of the murder. He was sentenced to 370 months, including the 60-month firearm enhancement. Anthony-Jones appeals.
DECISION
Anthony-Jones argues that the trial court erred in admitting information from the out-of-court statement of Zell Hughes as impeachment, as Hughes' credibility was not relevant or a matter of consequence to the prosecution. We disagree.
A witness may be impeached with a prior inconsistent statement. A witness may be impeached if his or her credibility is a fact of consequence to the action, but not if his or her credibility is not. Here, unlike the facts of Allen and the cases cited therein, and contrary to Anthony-Jones' assertion that Hughes gave no substantive testimony about the shooting, Hughes opened the door to impeachment when he testified contrary to his signed statement — that he was not present at the scene of the shooting. Hughes did not refuse to testify or invoke a Fifth Amendment right, or fully claim that he did not remember anything pertinent to the case. He affirmatively testified that he was not present, a statement of an admissible fact that could be said to be favorable to the defense or unfavorable to the prosecution, thus subject to contradiction by impeachment or otherwise. His testimony was relevant for substantive use on the merits. Further, his testimony that he was not present not only conflicted with his prior statement but conflicted with the testimony of at least one of the jailhouse informants, Dorsey.
ER 613(b).
State v. Allen, 98 Wn. App. 452, 464, 989 P.2d 1222 (1999) (citing State v. Hancock, 109 Wn.2d 760, 748 P.2d 611 (1988); State v. Lavaris, 106 Wn.2d 340, 721 P.2d 515 (1986); ER 806).
Allen, 98 Wn. App. at 464 (citing State v. Robbins, 25 Wn.2d 110, 169 P.2d 246 (1946); State v. Washburn, 116 Wash. 97, 198 P. 980 (1921); State v. Stingley, 163 Wash. 690, 2 P.2d 61 (1931); State v. Delaney, 161 Wash. 614, 297 P. 208 (1931); Kuhn v. United States, 24 F.2d 910 (9th Cir 1928)).
See Delaney, 161 Wash. at 619.
Here, there is no doubt that Hughes' out-of-court statement was inconsistent with his trial testimony, the inconsistency tended to cast doubt on the credibility of Hughes' testimony. The State was a party entitled to impeach Hughes as long as his credibility was a fact of consequence to the action. Here his credibility was a fact of consequence, because whether or not he was present at the shooting is of consequence to the action. At the time of the objection the trial court did not err in allowing impeachment of Hughes.
When offered to impeach a witness, in order not to be considered hearsay, the prior statement must cast doubt without regard to the truth of the matters asserted therein. Statements that contradict testimony of a witness are admissible if they are not collateral to the principle issue and are solely offered to impeach the witness but not as direct and affirmative proof of the facts to which they relate. The record shows defense counsel failed to make additional objections to questions asked by the prosecutor following the court's ruling, failed to ask for a continuing objection, and failed request to a limiting instruction to instruct the jury to limit the use of the testimony to determine Hughes' credibility. The objection that was made was neither crisply stated nor did it provide the trial court with any basis other than the fact that counsel objected to the content of the document coming in as substantive evidence. There was no argument that Hughes' testimony was not relevant or that he could not be impeached. Additionally, there was no objection to Detective Steiger's testimony. Now, on appeal, Anthony-Jones seeks to challenge the testimony as an improper admission of substantive evidence admitted under the guise of impeachment. Appellate counsel argues that the inadmissible hearsay was improperly before the jury not once, but twice.
State v. Stepp, 18 Wn. App. 304, 310, 569 P.2d 1169 (1977).
But, appellate review of the admission of evidence is limited to the grounds for the objection specifically raised at trial. An objection that does not contain a specific valid reason for the exclusion of evidence is inadequate to preserve error. It is inadequate unless it calls attention to the specific reason for the impropriety, otherwise the trial court does not have the opportunity to correct the error. Here, trial counsel failed to give the trial court a specific reason to fully apprise it of the issue now raised on appeal and this argument is not properly preserved and is therefore waived.
State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) (citing State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1076)); see also, Smith v. Behr Process Corp., 113 Wn. App. 306, 338, 54 P.3d 665 (2002) (sweeping objections to evidence without explanation or specific objection insufficient).
Seattle v. Carnell, 79 Wn. App. 400, 403, 902 P.2d 186 (1995) (citing State v. Casteneda-Perez, 61 Wn. App. 354, 363-64, 810 P.2d 74 (1991)).
State v. Suarez-Bravo, 72 Wn. App. 359, 365, 864 P.2d 426 (1994).
Anthony-Jones contends that if this court determines that the issue was not properly preserved for appeal then trial counsel provided ineffective assistance of counsel for failing to adequately object or request a limiting instruction restricting the jury's consideration of the statement.
To prevail on a claim of ineffective assistance of counsel, Anthony-Jones must show both that his counsel's performance was deficient and that he was prejudiced thereby. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. If Anthony-Jones fails to prove either element, the inquiry ends.
State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Wash., 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
There is a strong presumption that defense counsel's conduct is not deficient. However, if there is no legitimate tactic explaining counsel's performance there may be a sufficient basis to rebut this presumption. Even if we presume that the performance of counsel for Anthony-Jones was deficient, the prejudice prong of the test must be met. That prong is not met here.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999).
Anthony-Jones argues that the effect of the admission of Hughes' out-of-court statements and the failure to instruct the jury that the statements could not be considered as substantive evidence was extremely damaging and highly prejudicial evidence when considered in the context of an allegedly weak prosecution. Anthony-Jones argues that the improper admission was likely outcome determinative and thus the prejudice standard of a "reasonable probability" that, but for trial counsel's deficient performance the outcome of the trial would have been different, is met. We disagree.
Reviewing the evidence other than Hughes' testimony or that of the detective, there was ample evidence to convict Anthony-Jones. There was the testimony of the three jailhouse informants, which Anthony-Jones calls unreliable. But, that is a determination for the trier of fact. At trial it was pointed out that each informant knew details he would not otherwise have known if it did not come from someone present at the scene or being present himself. Further, there was the testimony of a witness as to a black hat or beanie that was left behind at the scene. Anthony-Jones' DNA was found near the body of the victim and a pool of blood. Additionally, there was phone call and letter evidence showing that Anthony-Jones tampered with witnesses in the case, evidencing his consciousness of guilt. Under these facts, Anthony-Jones cannot show that, but for defense counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been different.
Finally, Anthony-Jones claims the firearm enhancement must be vacated because there is no statutorily authorized procedure whereby a jury can impose such an enhancement.
This claim is without merit and is contrary to existing case law. Washington law permits the jury to consider a firearm enhancement.
State v. Recuenco, 163 Wn.2d 428, 439, 180 P.3d 1276 (2008); see also, State v. Tessema, 139 Wn. App. 483, 494-95, 162 P.3d 420 (2007), rev. denied, 163 Wn.2d 1018 (2008); State v. Nguyen, 134 Wn. App. 863, 870, 142 P.3d 1117 (2006), rev. denied, 163 Wn.2d 1053, 187 P.3d 752 (2008), cert. denied, ___ S. Ct. ___, 2008 WL 4522397.
We affirm the judgment and sentence of the trial court.