Opinion
No. 36172-8-II.
March 10, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03298-7, John R. Hickman, J., entered March 23, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Bridgewater, JJ .
Fawn Rae Bergh appeals her conviction for third degree assault of a law enforcement officer. She contends that the trial court abused its discretion by admitting evidence of her codefendant-father's insulting comments and that this evidence so pervaded the trial that it violated her due process right to a fair trial. She also argues that she received ineffective assistance of counsel. We affirm.
FACTS
On July 16, 2006, Pierce County Deputy Sheriff Robert Carpenter was patrolling the Lake Tapps Park area. Toward the end of the day, Carpenter began clearing people out of the park so all would be gone by the 8:00 pm closing time. When Carpenter encountered Robert Bergh, Fawn's father and her codefendant at trial, he told Robert that he had to leave because the park was closing.
Because Robert Bergh shares the same last name as his daughter, Fawn, we refer to them by their first names for clarity. In doing so, we mean no disrespect.
Robert replied that Carpenter must be new to his job because Carpenter did not recognize him. Robert explained that he had a contract with the county to rent personal watercraft (PWC) for use on the lake. Carpenter told Robert that he still needed to leave the park by 8:00 pm. At that point, Robert pointed to some individuals on the boat launch in a Yukon Denali truck who were loading their jet skis into the truck. According to Carpenter, Robert said, "'I'll get my boats out of the water just as soon as those fucking Indians get their boats out.'" Report of Proceedings (RP) (Feb. 15, 2007) at 201. Robert asserted that they were "competitors" with his watercraft rental business. RP (Feb. 15, 2007) at 202. Carpenter repeated that Robert needed to leave the park on time and began to walk away.
Fawn ran up to Robert and Carpenter and told them that she had rented a rope and inner tube earlier in the day to a child named Billy. Now she could not find him and was upset because she spotted the rope attached to one of the PWCs owned by the people in the Denali. She had asked them where Billy was but they said they did not know. Robert became infuriated, according to Carpenter. Carpenter asked Robert and Fawn whether there was any paperwork regarding the rental but they said it was an "under the table deal." RP (Feb. 15, 2007) at 205. By Carpenter's account, Robert then ordered him to arrest the individuals at the dock. In response, Carpenter said that it was a civil dispute, there was nothing he could do, and he would not get involved.
At that point Carpenter says Robert "became unglued." RP (Feb. 15, 2007) at 206. Robert began yelling at him and using profane language. Carpenter gave Robert his name, said that no other deputies would be responding, and reiterated that Robert had to leave the park. Robert stormed over to the nearby concession stand and Carpenter started to leave, assuming Robert was leaving to call his supervisor. But as Carpenter proceeded back to his patrol car, he saw Robert charge toward the Denali that was carrying the jet skis. When Robert reached the Denali, he shouted at the driver, then "opened the passenger side door, reached in, [and] snatched the ignition keys out of the . . . vehicle." The Denali's owner shouted, "'Officer, that guy has my keys.'" RP (Feb. 15, 2007) at 211. Carpenter ordered Robert to stop because he had committed a crime — vehicle prowl; but when Robert ignored the deputy and continued to walk to the concession stand, Carpenter said, "'Stop right there or you are going to be placed under arrest.'" RP (Feb. 15, 2007) at 212.
Robert stopped, turned, and squared off in a fighting stance, clutching the keys in his fist. By then, his demeanor was hostile and aggressive and he said, "'What? What are you going to do?'" RP (Feb. 15, 2007) at 213. Carpenter told him to give the keys back or he would place him under arrest. Robert refused, even after Carpenter ordered him to do so numerous times. Carpenter repeatedly advised Robert that he had engaged in criminal activity by taking the keys. Finally, Carpenter commanded, "'Turn around and put your hands behind your back. You are under arrest.'" RP (Feb. 15, 2007) at 215. Robert defiantly replied that he was not going to jail.
Fearing for his safety, Carpenter pulled out his pepper spray and ordered Robert to turn around with his hands behind his back or he would use the pepper spray. Carpenter said he tried to deescalate the situation by saying that "'[i]t doesn't have to be this way,'" but Robert steadfastly refused to cooperate. RP (Feb. 15, 2007) at 216.
Carpenter then sprayed Robert in the eyes. Robert threw the keys, tried to punch the deputy, missed, and ran a short distance to the lake to wash out his eyes. While Carpenter's attention was focused on Robert, Fawn punched him in the jaw and continued to hit him. According to Carpenter, he also attempted to spray Fawn but she was too far away. He grabbed her, forced her to the ground, and handcuffed her.
After Fawn was in handcuffs, Carpenter saw Robert run back toward him from the lake. Believing that a fight was imminent, Carpenter drew his telescopic baton and accidentally threw it into the air. While the deputy ran to retrieve his baton, Robert ran to Fawn and consoled her. Carpenter ordered Robert to get down onto the ground, but Robert did not comply. Carpenter then struck him with the baton "approximately three times in the shoulder, biceps, and [] back." RP (Feb. 15, 2007) at 221. Only then did Robert comply with the order to get down onto the ground.
At the pretrial hearing, Robert objected to the admissibility of his statement characterizing his competitors as "those fucking Indians." RP (Feb. 15, 2007) at 201. He based his objection on several grounds:
The only statement that I'm concerned about from Robert Bergh being introduced in front of the jury is the quote, those fucking Indians. I believe 404(a) character evidence is generally not admissible because people often make comments that are out of character.
401 — this isn't relevant to anything pertaining to the charges. The probative value is minimal. The prejudicial effect is great. This would be offered to show that my client is a racist, and I think that the prejudice outweighs the probative value. I would ask for a limiting instruction under 105 restricting any reference to any racist comments.
RP (Feb. 13, 2007) at 41. The State admitted that the statement might be inflammatory but argued that it should be admissible as res gestae to explain Robert's state of mind leading into the conflict. The court ruled:
I understand where defense counsel would like to have the fucking Indian statement out, but again, I would have to concur with the State that I think it is res gestae and it does set the stage for what was to occur later on. So I think it does have probative value.
Obviously [the] defense can put whatever light on it it wants with the jury, but again, I think it was — it was said within minutes of what was occurring and I think it's important that it come in as state of mind evidence.
RP at (Feb. 13, 2007) 44-45. At that point, Fawn's counsel said:
[FAWN'S COUNSEL]: Your Honor, if I may just state on the record, in regards to the admissibility of the statement regarding Indians, as a party who can be affected by the court allowing that in, we just want to raise an objection on the ground that because Fawn Bergh is the daughter of Mr. Bergh and that she was part of the scenario that occurred, I believe it will affect how she's perceived in this case and because there's no indication that — well, there's no — there's no direct — this case involves an assault — alleged assault on the officer.
There's no indication that the officer himself is Indian or that any of the other parties were directly involved other than the fact a set of keys was taken and because the prosecution can prove its case without bringing that in we are objecting on the record. We understand the court has ruled.
THE COURT: There's been no pretrial motion for severance or separation of these trials, and I believe the jury could adequately distinguish the case between these two defendants, and they will be so instructed.
Again, the argument was being presented currently as post decision, but I will allow it to stand for the record. But the court has made its decision.
RP (Feb. 13, 2007) at 46-47. The trial court ruled the statement was admissible. At several points during trial, the attorneys, defendants, and witnesses addressed Robert's comments. The jury found Fawn guilty of third degree assault. The jury found Robert guilty of third degree theft, but not third degree assault. Fawn appeals her conviction.
ANALYSIS
I. Admission of Robert's Statement
Although Fawn and the State characterize Robert's statement about "those fucking Indians" as "racist," we decline to reach that conclusion. RP (Feb. 15, 2007) at 201. We will instead characterize his epithet as "insulting." Washington's hate crime statute, RCW 9A.36.080(1), only criminalizes certain acts against a person or a person's property because of their "race, color, religion, ancestry, [or] national origin"; it provides no guidance with regard to characterizing racist or racial statements.
A. Preservation for Appeal
First, we address whether Fawn properly preserved the evidence issue for appeal. The State contends that Fawn did not make a timely, specific objection at the pretrial hearing to the statement challenged on appeal and, thus, cannot challenge its admission. Even if her objections were sufficiently timely and specific, the State argues, she must limit her arguments on appeal to those grounds she argued below.
Counsel must make timely objections to preserve errors for appeal or else they are deemed waived. State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979). Also, "[a]n objection which does not specify the particular ground upon which it is based is insufficient to preserve the question for appellate review. . . . A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial." State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
Under CR 46, "it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor." CrR 8.7 basically incorporates CR 46 by reference. See CrR 8.7 ("Objections in criminal causes shall be taken as in civil causes.").
"An objection should be as specific as possible, preferably citing the applicable rule by number. An objection that does not clearly assign some rule of evidence as a basis for exclusion is of little assistance to the court and is termed a general objection. . . . General objections are not prohibited." 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence Rule 103 author's cmts. at 190 (2008-2009 ed.).
ER 103 governs the preservation of evidentiary claims of error:
Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected, and. . . . [i]n case the ruling is one admitting evidence, a timely objection . . . is made, stating the specific ground of objection, if the specific ground was not apparent from the context.
ER 103(a)(1). We generally do not consider errors raised for the first time on appeal. See RAP 2.5(a).
But "[a] party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court." RAP 2.5(a)(3). Arguably contra State v. Davis , 141 Wn.2d 798, 850, 10 P.3d 977 (2000) ("Appellant cannot rely upon the objection of a codefendant's counsel to preserve an evidentiary error on appeal.").
RAP 2.5 was amended in 1994 to allow an appellant to rely on a coparty's trial objection on appeal. The purpose of the amendment was to bring Washington in line with the federal rules and eliminate this "trap" for the unwary practitioner. See 2A Karl B. Teglund, Washington Practice: Rules Practice RAP 2.5 drafters' cmts at 238-39 (6th ed. 2004). In 2000, however, our Supreme Court stated, "Appellant cannot rely upon the objection of a codefendant's counsel to preserve an evidentiary error on appeal." Davis, 141 Wn.2d at 850. Because Davis fails to mention RAP 2.5(a), "Washington's courts have not yet had occasion to address . . . directly" whether under RAP 2.5(a) the evidentiary objection of a coparty adequately preserves the error for appeal. 5 Karl B. Teglund, Washington Practice: Evidence Law and Practice § 103.10, at 56 (5th ed. 2007). Although Davis does not mention the amendment to RAP 2.5(a), we read Davis as interpreting RAP 2.5(a) to allow the preservation of non-evidentiary objections.
Here, Fawn may argue any timely, specific objections she made at the pretrial hearing. We entertain her general objection raising the issue of prejudice and that the evidence was not relevant or admissible under ER 401 and 404(b). Fawn argued that Robert's statement would "affect how she's perceived in this case," apparently only because she is his daughter. RP (Feb. 13, 2007) at 46. Fawn's prejudice-based objection was sufficient to preserve an ER 404(b) objection on appeal. See State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007), cert. denied, ___ U.S. ___, 128 S. Ct. 2430, 171 L. Ed. 2d 235 (2008). The purpose of requiring timely and specific objections is "'to afford the trial court an opportunity to correct any error, thereby avoiding unnecessary appeals and retrials,'" and while Fawn's objection is by no means a model of specificity, because the ER 404(b) issue was fully developed during the trial court's consideration of Robert's arguments and because its ruling makes it clear that the trial court understood that Fawn was claiming undue prejudice from Robert's remark, we address her issue on appeal. State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.2d 324 (1995) (quoting Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983)).
Fawn does not argue ER 404(a) on appeal.
As for its timing, her objection immediately followed the trial court's ruling to admit Robert's statement. Although the State argues that this sequence renders Fawn's objection untimely, the trial court nevertheless "allow[ed] it to stand for the record." RP (Feb. 13, 2007) at 47.
Fawn could also raise any non-evidentiary objections Robert made at trial. See Davis, 141 Wn. 2d at 850. But Robert's several objections to the statement, "those fucking Indians," were evidentiary. RP (Feb. 15, 2007) at 201. Robert did not specifically argue for exclusion of the statement under ER 404(b) but by arguing that the evidence "would be offered to show that [Robert] is a racist, and . . . the prejudice outweighs the probative value," he was either asserting that the statement should be excluded under ER 403 or should fail the ER 404(b) balancing analysis. RP (Feb. 13, 2007) at 41. Moreover, the State argued, and the trial court agreed, that the statement was admissible under this specific rule, so clearly the ER 404(b) issue was argued on Robert's behalf before the trial court. Under a strict reading of RAP 2.5(a) and ignoring Davis, she could have relied on Robert's objections on appeal but because we hold that she preserved the ER 404(b) objection, we do not further address RAP 2.5(a).
B. Standard of Review
We review the trial court's admission of evidence for abuse of discretion. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). "An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). And we consider "[f]ailure to adhere to the requirements of an evidentiary rule [as] an abuse of discretion." State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).
C. Purpose of Statement's Admission
Fawn contends that the trial court abused its discretion by admitting Robert's reference to the people in the Denali truck as "those fucking Indians." RP (Feb. 15, 2007) at 201. Fawn both challenges the relevance of Robert's statement to her and argues that the trial court failed to balance the probative and prejudicial aspects on the record.
The State argued that the evidence was admissible as res gestae but only as to Robert's charges, "[S]uch statements go towards his state of mind, his emotion, his anger and so forth." RP (Feb. 13, 2007) at 43 (emphasis added). Res gestae is the "same transaction" exception to ER 404(b) in which evidence is admissible "'[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.'" State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (internal quotation marks omitted) (quoting State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980)). "The res gestae exception requires that evidence 'be relevant to a material issue and its probative value must outweigh its prejudicial effect.'" State v. Acosta, 123 Wn. App. 424, 442, 98 P.3d 503 (2004) (internal quotation marks omitted) (quoting State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)).
Fawn may only challenge the trial court's admission of Robert's statement as it relates to her; that is, she may not argue Robert's case on appeal. Thus, we only address the trial court's rulings and alleged errors with regard to Fawn, not Robert.
D. ER 401 and ER 404(b)
ER 402 prohibits the admission of evidence that is not relevant. ER 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "The threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). "[T]o admit prior misconduct evidence, it must be necessary to prove a material issue. Therefore, prior misconduct evidence is only necessary to prove intent when intent is at issue or when proof of the doing of the charged act does not itself conclusively establish intent." Powell, 126 Wn.2d at 262.
Trial courts may not admit "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." ER 404(b). "This prohibition encompasses not only prior bad acts and unpopular behavior but any evidence offered to 'show the character of a person to prove the person acted in conformity' with that character at the time of a crime." Foxhoven, 161 Wn.2d at 175 (quoting State v. Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002)). Questions and comments can constitute "acts" under this rule, but they must raise concern or cause fear in the listener. See Brown, 132 Wn.2d at 579 n. 116; State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993).
In State v. Halstien, our Supreme Court held that conversations a defendant had with his victim, which made her uncomfortable and "'gave [her] the creeps,'" constituted "acts" under ER 404(b). 122 Wn.2d 109, 113, 126, 857 P.2d 270 (1993). But in Brown, our Supreme Court distinguished Halstien's conversations from social, non-criminal conversations Brown had with two witnesses. Neither of the women expressed concerns, as did the victim in Halstien, and, thus, Brown's conversations with them did not constitute "acts" under ER 404(b). Brown, 132 Wn.2d at 579 n. 116.
Here, the State charged Fawn with third degree assault. The facts "of consequence" in Fawn's case are only the elements of the assault charge. ER 401. Robert's statement is wholly immaterial to Fawn's assault on Carpenter and the State did not use the statement in proving its case against her. Rather, the State only introduced Robert's statement as evidence of his state of mind. Thus, Robert's statement does not constitute an "act[]" or "wrong[]" by Fawn under ER 404(b). Therefore, the trial court had no duty to balance its prejudicial and probative value as to Fawn.
Even if we chose to review Fawn's argument that the trial court's failure to weigh the evidence against Robert prejudiced her, Fawn fails to cite to any authority for the proposition that evidence of a codefendant-family member's racist or insulting comments necessarily prejudice another defendant. She did not make the statement — Robert did. Nor did she nod her head or otherwise tacitly adopt her father's comment. Although Robert's statement was addressed at several points throughout trial, the State never implied that Fawn had similarly insulted the other individuals at the park that day or that her beliefs mirrored those of her father. "[T]he mere fact that evidence may be admissible against one defendant and not against another is not by itself proof that the defendants cannot have a fair trial if tried together." State v. Walker, 24 Wn. App. 78, 81-82, 599 P.2d 533 (1979).
In response to her pretrial relevance objection, the trial court stated, "There's been no pretrial motion for severance or separation of these trials, and I believe the jury could adequately distinguish the case between these two defendants, and they will be so instructed." RP (Feb. 13, 2007) at 46-47. Accordingly, the trial court did not rule that the statement was relevant to Fawn's case. Therefore, she cannot challenge, and we will not review, the trial court's decision that Robert's statement was relevant to his case.
Even if we were to review the trial court's decisions with respect to Robert, the trial court did not abuse its discretion in admitting the statement as relevant to his theft charge. The State charged Robert with third degree theft and third degree assault, so the facts "of consequence" in his case include the elements of the theft and assault charges. See ER 401. The State can prove third degree theft by showing beyond a reasonable doubt that the defendant wrongfully obtained or exerted unauthorized authority over another's property that does not exceed $250 in value, with intent to deprive that person of that property. See RCW 9A.56.050; 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 70.11, at 59 (3d ed. 2008). Thus, because Robert's statement tends to show his anger or displeasure towards the people in the Yukon Denali, the evidence is relevant to establish his intent to deprive them of their car keys.
The State's case against Fawn was simple. Carpenter testified that Fawn punched him while he attempted to arrest Robert. An eyewitness also testified that she saw Fawn strike the deputy. The defense presented no witnesses, other than the defendants, to testify to the contrary. The jury found the State's two witnesses credible and convicted Fawn of third degree assault. She cannot argue trial court error related to Robert's case in her appeal.
II. Due Process Challenge
Fawn next argues that the "repeated admission of Carpenter's claims that Robert had made . . . racist comments" violated her due process right to a fair trial. Br. of Appellant at 23. The State responds that, because the jury convicted Robert of the theft but not the assault, clearly the jury did not hold Robert's comments against him and, thus, there is nothing to suggest that the jury held Robert's comments against Fawn.
Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee criminally accused persons the right to trial by an impartial jury. Davis, 141 Wn.2d at 824. The Washington Constitution provides a similar safeguard. Wash. Const. art. I, §§ 3, 22. A defendant's right to a jury also includes the right to an unbiased and unprejudiced jury. Davis, 141 Wn.2d at 825. "'The failure to accord an accused a fair hearing violates even the minimal standards of due process.'" Davis, 141 Wn.2d at 824 (internal quotation marks omitted) (quoting State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969), abrogated on other grounds by State v. Fire, 145 Wn.2d 152, 34 P.3d 1218 (2001)). "'Not only should there be a fair trial, but there should be no lingering doubt about it.'" Davis, 141 Wn.2d at 825 (quoting Parnell, 77 Wn.2d at 508). We review de novo "[w]hether a proceeding satisfies constitutional due process." In re Welfare of J.M., 130 Wn. App. 912, 920, 125 P.3d 245 (2005).
In support of her due process argument, Fawn relies on federal and out-of-state cases which generally hold, in various contexts, that trial courts must guard against the unnecessary introduction of prejudicial evidence into trial proceedings. See Dawson v. Delaware, 503 U.S. 159, 165-67, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992) (sentencing hearings); Payne v. Tennessee, 501 U.S. 808, 825, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (sentencing hearings); United States v. Ebens, 800 F.2d 1422, 1425, 1432-33 (6th Cir. 1986) (reversing defendant's federal conviction for interfering with civil rights of another because trial court admitted evidence of racist statements but government did not prove by a preponderance of evidence that defendant made the statements), abrogated by Huddleston v. United States, 485 U.S. 681, 684-85, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 489, 501-02, 734 A.2d 1147 (1999) (reversing trial decision because admission of evidence that defendant said he left the military because there were too many African-American soldiers was too inflammatory and lacked enough probative value). But only Dawson and Payne squarely address due process and represent controlling authority. Dawson held that, under the particular stipulation agreed to by trial counsel, the defendant's membership in a white, racist prison gang was irrelevant to prove an aggravating circumstance or rebut mitigating evidence in the defendant's case and was, thus, inadmissible in his sentencing hearing. 503 U.S. at 165-67. And Payne held that the federal constitution does not prohibit a capital sentencing jury from considering a victim impact statement, except when it is "so unduly prejudicial that it renders the trial fundamentally unfair." 501 U.S. at 825.
Fawn also argues that "it is not criminal to utter biased or racist remarks while committing an unrelated crime" and cites to State v. Pollard, 80 Wn. App. 60, 65, 906 P.2d 976 (1995). Br. of Appellant at 27. Pollard indeed supports this proposition but it has no relevance to Fawn's case.
There are several reasons why neither Dawson nor Payne aid Fawn, but chief among them is the absence of any State's evidence that she is racist. Again, she may only argue her own case on appeal. The trial court ruled that Robert's comments were admissible to prove his state of mind leading into his assault and theft. Even if there were, in Fawn's words, "repeated admission[s] of . . . Robert['s] . . . racist comments," the State did not suggest that Fawn's beliefs mirrored those of her father or otherwise attempt to tie her to his statement. Br. of Appellant at 23.
Fawn presents no authority that supports her claim that admitting evidence of a codefendant's insulting or racist comments violated her due process right to a fair trial. She cannot prevail on her argument that the trial court abused its discretion by admitting Robert's insulting statement only against him at trial or that the trial court's ruling thereby denied her a fair trial.
Although the Ninth Circuit held in United States v. Cabrera, 222 F.3d 590, 593-94 (9th Cir. 2000) that "[a]ppeals to racial, ethnic, or religious prejudice during the course of a trial violate a defendant's Fifth Amendment right to a fair trial," this was in the context of the improper discussion of a defendant's race, ethnicity, or religion. See also State v. Torres, 16 Wn. App. 254, 257, 554 P.2d 1069 (1976) (Prosecutor repeatedly and improperly referred to defendants as Mexicans or Mexican-Americans.).
III. Ineffective Assistance of Counsel
Finally, Fawn contends that her counsel provided ineffective assistance because her counsel "fail[ed] to join in Robert's counsel's motion to exclude the evidence in the first place" and failed to move to sever after the trial court ruled the evidence admissible. Br. of Appellant at 31.
To establish ineffective assistance of counsel, a defendant must show that her counsel's performance was deficient and that deficient performance prejudiced him or her. Counsel's performance is deficient if it falls below an objective standard of reasonableness based on a consideration of all the circumstances. To prove prejudice, a defendant must show that but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001); Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If a defendant fails to prove either deficient performance or prejudice, we need not inquire further. Strickland, 466 U.S. at 700. We give deference to a trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Conduct that can be "characterized as legitimate trial strategy or tactics . . . cannot serve as a basis for a claim [of] ineffective assistance of counsel." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). We review de novo a defendant's claim of ineffective assistance of counsel. State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).
The Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution both guarantee criminal defendants the right to have assistance of counsel. This right includes the right to effective assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
First, "[c]ounsel's failure to make a motion does not support an ineffective assistance of counsel claim unless the defendant can show that the motion would properly have been granted." State v. Price, 127 Wn. App. 193, 203, 110 P.3d 1171 (2005). Here, Fawn's trial counsel did object to the admission of Robert's statement and the trial court "allow[ed] it to stand for the record." RP (Feb. 13, 2007) at 47. Her counsel preserved the issue for appeal. Fawn contends that her counsel's argument for reconsideration was inherently weaker than had counsel joined in Robert's objection. But there is no reasonable probability that the trial court would have ruled otherwise had Fawn objected during Robert's objection. With multiple defendants, objections are made serially, and counsel need not interject themselves into other counsel's motions. As such, Fawn cannot show prejudice, and we need not inquire further.
Second, where "counsel's failure to litigate a motion to sever is the basis" of an ineffective assistance claim, the defendant must "demonstrat[e] that the motion should have been granted." State v. Standifer, 48 Wn. App. 121, 125, 737 P.2d 1308 (1987). Despite the language of CrR 4.4(c)(2), Washington courts do not favor severance. State v. Melton, 63 Wn. App. 63, 68, 817 P.2d 413 (1991).
CrR 4.4(c)(2) states:
The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (i), should grant a severance of defendants whenever:
(i) if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or
(ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.
Under CrR 4.4(c)(2)(i), trial courts have broad discretion to sever a joint trial when "it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant." "The mere fact that evidence admissible against one defendant would not be admissible against a codefendant if the latter were tried alone does not necessitate severance," State v. Philips, 108 Wn.2d 627, 640, 741 P.2d 24 (1987), and a defendant still has "'the burden of demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy.'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 711-12, 101 P.3d 1 (2004) (quoting State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991)).
Here, Fawn cannot show that the State's use of Robert's statement against him was manifestly prejudicial to her, much less that any prejudice would have outweighed the trial court's concern for judicial economy when the charges stemmed from the same series of events. And she cannot show that, facing the same witnesses at a separate trial, there is a reasonable probability that she would have prevailed. Fawn's ineffective assistance of counsel claims fail.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BRIDGEWATER, J., concur.