Opinion
No. 61013-9-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-00728-4, James D. Cayce, J., entered December 17, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
A jury found James Battle guilty of delivery of cocaine in violation of the Uniform Controlled Substances Act, RCW 69.50.401. By special verdict, the jury also found that Battle was guilty of delivery of a controlled substance while within 1,000 feet of a school bus route stop. Battle contends he is entitled to reversal and a new trial based on ineffective assistance of counsel. Battle argues his attorney was ineffective in failing to object to testimony that the police officers in the buy-bust operation recognized him. Because defense counsel had a legitimate strategic reason not to object and Battle cannot establish prejudice, his ineffective assistance of counsel claim fails. We also conclude that the issues Battle raises in his Statement of Additional Grounds are without merit, and affirm.
FACTS
In August 2006, Jennifer Feely agreed to act as a confidential informant for the Tukwila Police Department in a buy-bust operation. The police agreed to not charge Feely with misdemeanor prostitution if the buy-bust operation resulted in two convictions.
On August 10, Officer Eric Lund gave Feely $40 in pre-recorded bills, told her to stay within certain boundaries, and instructed her on a "good-buy" signal. Officer Lund dropped Feely off in an area in Tukwila where the police officers could keep her under surveillance.
Feely went to a bus stop. She told the men who were waiting at the bus stop that she wanted to buy $40 worth of crack. James Battle agreed to arrange a meeting between Feely and Robert Gordon to purchase crack cocaine. Feely and Battle walked together to the Mountain Views apartment complex and stopped in the breezeway area of the complex near the stairwell. In the breezeway, they met Gordon and Gordon's girlfriend, Tylnne Shine. While in the breezeway, Gordon gave Feely three rocks and broke a fourth rock in half and gave half to Feely and the other half to Battle. Feely then put the rocks in her mouth.
After leaving the breezeway, Feely gave the "good-buy" sign and the officers arrested Feely, Battle, Gordon, and Shine. Feely gave Officer Lund three and half rocks of crack cocaine that she had purchased. In a written statement Feely described what had occurred.
The State charged Gordon and Battle with delivery of cocaine within 1,000 feet of a school bus route stop, resisting arrest, and tampering with a witness. Battle was tried on an accomplice liability theory. Battle filed a motion to exclude 404(b) evidence of prior crimes, wrongs, or bad acts.
The court later dismissed the tampering with a witness charge.
At trial, Feely testified about the buy-bust operation. Feely's statement to the police was marked for identification and used to refresh her recollection. Feely testified that she met Battle at the bus stop and he told her that he could arrange a meeting in a nearby apartment complex. Feely said that when they reached the stairwell, she gave the money to Battle and Gordon gave her three and a half rocks of crack cocaine. Feely stated that after they left the breezeway, they were all arrested. Feely testified that her statement to the police accurately documented what happened during the transaction.
Sergeant Mark Dunlap testified that he saw Feely walk to the bus stop, make contact with Battle, and watched the two of them as they walked to the apartment complex. Sergeant Dunlap testified that they were joined by another male at the breezeway. Because they had their backs to Sergeant Dunlap, he said that he could not see what they were doing. After another female joined the group, they walked to a 7-Eleven parking lot. Sergeant Dunlap testified that he recognized Battle, but could not recall whether he recognized him from that day. Battle's attorney did not object to this testimony. Sergeant Dunlap testified that he identified Battle as an "[a]dult black male wearing a white T-shirt and long jean shorts" in his police report. Sergeant Richard Mitchell testified that he participated in the arrest and identified Battle.
Officer Lund also testified that he saw Feely make contact with Battle at the bus stop and watched Feely and Battle walk to the apartment complex. Officer Lund could not see them in the stairwell. Officer Lund identified Battle as the person Feely contacted at the bus stop, and said that on the day of the arrest he did not have to describe Battle because "[m]ost of us knew who he was, so I said his name, and everybody pretty much knew who he was." Battle's attorney did not object to this testimony.
The defense theory at trial was that Feely was not a credible witness and that the State had not proven Battle's participation in the sale beyond a reasonable doubt. Private investigator Jeffrey Porteous testified for the defense and stated that when he interviewed Feely, she said she did not know Battle or remember a drug deal.
The jury found Battle guilty of delivery of cocaine and by special verdict found that the delivery was within 1,000 feet of a school bus route stop. However, the jury found Battle not guilty of resisting arrest. The court imposed a sentence of 114 months. Battle appeals.
ANALYSIS
Ineffective Assistance of Counsel
Battle asserts that his counsel was ineffective in failing to object to the testimony that Officer Dunlap and Officer Lund knew Battle as improper 404(b) evidence. Battle contends the testimony undermined his theory that he did not participate in the drug transaction and raised the inference that Battle had prior drug arrests.
To establish ineffective assistance of counsel, Battle must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re T.A.H.L., 123 Wn. App. 172, 97 P.3d 767 (2004). Counsel's performance is deficient if it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). "A defendant must affirmatively prove prejudice, not simply show that `the errors had some conceivable effect on the outcome.'" State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006) (quoting Strickland, 466 U.S. at 693). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
There is a strong presumption that counsel's representation was effective, and courts should avoid the distorting effects of hindsight. McFarland, 127 Wn.2d at 335; In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992). An attorney's performance is not deficient if it can be characterized as legitimate trial strategy or tactics. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Battle contends that defense counsel was ineffective in failing to object to Sergeant Dunlap's testimony that he did not recall whether he recognized Battle "from that day," and Officer Lund's testimony that "[m]ost of us knew who he was" as impermissible ER 404(b) evidence of prior bad acts. A criminal defendant may only be tried for charged offenses. State v. Fernandez-Medina, 141 Wn.2d 448, 453, 6 P.3d 1150 (2000). ER 404(b) provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence of prior bad acts is not admissible to show a defendant is a "criminal type." State v. Brown, 132 Wn.2d 529, 570, 940 P.2d 546 (1997).
Defense counsel's failure to object to the two statements does not fall below the objective standard of reasonableness. Objecting to these two statements would draw attention to the evidence that Battle sought to exclude. The attorney's failure to object can be described as a legitimate trial tactic.
Moreover, even if the failure to object did fall below the objective standard of reasonableness, it is highly unlikely that but for counsel's error, there is a reasonable probability that the result would have been different. Feely testified that she contacted Battle and he was involved in the drug transaction. The police officers performing surveillance corroborated Feely's testimony and identified Battle as the person Feely made contact with. The testimony at trial established that the police and Feely identified Battle as involved in the drug transaction, both on the day of arrest and at trial.
In addition, the fact that the jury acquitted Battle on the resisting arrest charge shows that the jury did not convict Battle based on impermissible 404(b) evidence, but rather on the strength of the evidence at trial.
Statement of Additional Grounds
Battle raises several additional issues in his statement of additional grounds. First, Battle asserts that the trial court abused its discretion by admitting the written statement Feely gave the police because it was inconsistent with testimony at trial. Any inconsistencies in testimony go to the witness's credibility and not to admissibility. State v. Woodward, 32 Wn. App. 204, 208, 646 P.2d 135 (1982). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We conclude the trial court did not abuse its discretion in admitting Feely's testimony and allowing the jury to make credibility determinations based on any inconsistency in the testimony.
At Battle's request, the trial court gave the jury a lesser included instruction on possession of a controlled substance. When the court asked the defense whether it wanted to instruct the jury on the lesser included charge of possession of cocaine, Battle's attorney said that they did and noted for the record that Battle was "nodding his head yes." Battle contends that the trial court erred by instructing the jury on the lesser included offense of possession of a controlled substance because possession of a controlled substance is not necessarily a lesser included offense of delivery of cocaine. Under the doctrine of invited error, a party may not set up an error at trial and then challenge that error on appeal. State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996). "The invited error doctrine precludes review of any instructional error — even one of constitutional magnitude — where the challenged instruction is one that was proposed by the defendant." State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996). We conclude that even if it was error to instruct the jury on the lesser included offense of possession of a controlled substance, it was invited error.
Battle asserts that the evidence at trial did not show that Battle delivered cocaine within 1,000 feet of a school bus route stop. When the defendant in a criminal case challenges the sufficiency of the evidence, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Evidence is sufficient if, after reviewing it in the light most favorable to the State, `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003) (quoting State v. Joy, 121 Wn.2d 333, 851 P.2d 654 (1993)).
Under RCW 69.50.435(1)(c), if a defendant delivers a controlled substance within 1,000 feet of a school bus route stop, he may be subject to imprisonment of up to twice the term otherwise authorized.
At trial, Officer Lund marked the location of the bus stop with a "B" on a map showing the apartment complex and school bus stop, and marked the location of the stairwell with an "S." Christine Grimm, the transportation manager for the Tukwila school district, identified the location of the school bus stop on the exhibit and testified that the Mountain View apartments were located within a 303 yard radius from the school bus route stop. Sufficient evidence establishes that Battle delivered cocaine within 1,000 feet of a school bus route stop.
Finally, Battle asserts that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963), by not designating Feely's statement to the police as a part of the record on appeal. Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Here, the State marked Feely's statement as an exhibit at trial and used it to refresh her memory, but the statement was not admitted. Battle's attorney did not object to the use of the statement at trial and the parts of the statement the State referred to it at trial are in the record. Because the relevant parts of the statement are part of the record on appeal, we conclude that Battle's due process rights under Brady were not violated.
We affirm.
FOR THE COURT: