Opinion
No. 28778-1-II.
Filed: March 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 00-1-05755-7. Judgment or order under review. Date filed: 04/19/2002. Judge signing: Hon. Rosanne Nowak Buckner.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 917 Pacific Ave Ste 415, Tacoma, WA 98402-4421.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Robert Marcus Boyd Jr. appeals his conviction of attempted third degree assault on Sheriff's Deputy Winson Waterman. Boyd argues that evidence of his outstanding warrants should have been suppressed and that he was denied an opportunity to confront witnesses, present evidence, and argue his case due to erroneous trial court rulings. We affirm.
FACTS
We recite the facts testified to at trial.
Waterman stopped Boyd for a traffic violation on November 28, 2000. According to Waterman, Boyd was uncooperative and attempted to grab Waterman's sidearm. According to Boyd, he did not commit the traffic infraction, act uncooperatively, or grab for the gun. Waterman handcuffed Boyd, sprayed him with pepper spray, repeatedly hit him, grabbed him in the upper body, placed him in a "spit sock," and arrested him. Boyd testified that he sustained injuries due to Waterman's and other officers' assaults at the time of his arrest and at the jail. Waterman sustained a sprained hand in the altercation.
Waterman claims that he hit Boyd in the back of his head. Boyd claims that Waterman hit him in the face.
Boyd claims that Waterman placed him in a chokehold.
A "spit sock" is a hood that is placed over an arrestee's head to prevent the arrestee from getting fluids, including saliva, on the arresting officers. 5 Report of Proceedings at 346.
At some point during the incident, law enforcement officers searched the trunk of Boyd's vehicle. Deputy Mark Eakes testified that Deputy Jay Sousley searched the trunk. Sousley testified that he did not search the trunk, but he confirmed that it was searched and claimed he did not know who searched it. The officers found nothing of interest in the trunk. The State charged Boyd with third degree assault and attempted third degree assault as a lesser included offense. Before trial, Boyd sought to exclude, under ER 404(b), evidence of his two prior Florida felony warrants, including one for aggravated felony battery, and evidence of his five Florida misdemeanor warrants. The trial court allowed the State to refer to the misdemeanor warrants, but ruled that the State could not recite the number of felonies or the nature of the aggravated battery warrant.
Boyd further sought to exclude, again under ER 404(b), evidence that his Florida driver's license was suspended when Waterman stopped him. The trial court admitted the evidence that Boyd's license was suspended to show Boyd's motive for resisting arrest.
Also during pretrial motions, the State successfully argued that Boyd should not be allowed to characterize the search of his trunk as an unlawful search during his opening statement. Boyd wanted to argue that the officers who stopped him lied to cover up their unlawful search. From this, Boyd said he hoped to show the officers' racial bias.
Boyd is African-American.
At trial, the trial court read the following stipulation and limiting instruction to the jury to explain Boyd's criminal history:
Members of the jury, for the limited purpose of proving motive. You must not consider this evidence for any other purpose. The stipulation is as follows. The parties do hereby stipulate and agree as follows: On November 28th, 2000, the Defendant Robert Marcus Boyd, Junior, was wanted in the state of Florida on outstanding arrest warrants. That's dated February 14th, 2002.
5 Report of Proceedings (RP) at 310. Later, the court read a second stipulation and limiting instruction to the jury:
Once again, members of the jury, evidence has been introduced in this case on the subject of the defendant's driver's license status out of the state of Florida, and that is offered for the limited purpose of proving motive. You must not consider the evidence for any other purpose.
5 RP at 353-54. Also, the trial court allowed Sousley to testify that Boyd's "Florida driver's status was suspended." RP at 354.
During cross-examination, Boyd testified that when Waterman stopped him, he had a valid driver's license that was not, to his knowledge, suspended. The trial court then allowed the State to impeach Boyd on this point through the introduction of three exhibits, including an abstract of Boyd's Florida driving record, and certified copies of his nolo contendere pleas to two counts of driving while license suspended.
A nolo contendere plea is a plea of "no contest" that has a nearly identical impact to a guilty plea. The principal difference between the two is that a nolo contendere plea carries no significance in a civil suit arising out the same action. BLACK'S LAW DICTIONARY 1048 (6th ed. 1990).
The jury found Boyd not guilty of third degree assault, but it found him guilty of the lesser included offense of attempted third degree assault. Boyd appeals.
ANALYSIS
Boyd first contends that the trial court erred in admitting evidence of his outstanding arrest warrants and suspended driver's license. He further asserts that the trial court erred when it allowed the State to impeach him with evidence of his prior bad acts, namely his Florida convictions of felonious driving while license suspended.
Whether to admit evidence of a defendant's prior "bad acts" under ER 404(b) lies within the court's sound discretion. State v. Suttle, 61 Wn. App. 703, 710, 812 P.2d 119 (1991). A court abuses its discretion when it makes a decision on unreasonable or untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). Although not generally admissible to show conformity therewith, evidence of prior bad acts may be admissible for other purposes, such as showing motive. Wade, 138 Wn.2d at 463.
In determining admissibility, the court relies on the test set forth in State v. Saltarelli, 98 Wn.2d 358, 655 P.2d 697 (1982): the court must determine the purpose of the evidence and find both that the evidence is relevant under ER 402 and that the evidence is more probative than prejudicial. To do so, the court engages in an ER 403 balancing test on the record. Wade, 138 Wn.2d at 463-64; Saltarelli, 98 Wn.2d at 362-63. We review such rulings for abuse of discretion. "An abuse of discretion occurs when the trial court bases its decision on untenable grounds or exercises discretion in a manner that is manifestly unreasonable." State v. Zunko, 112 Wn. App. 130, 140, 48 P.3d 344 (2002), review denied, 148 Wn.2d 1012 (2003).
Here, the trial court allowed evidence of Boyd's warrants and suspended driver's license to show motive. In doing so, the trial court engaged in a proper ER 403 balancing on the record and determined that the evidence showed Boyd's motive to resist arrest. It did not abuse its sound discretion.
Boyd also contends that the trial court improperly allowed him to be impeached through evidence of his prior convictions. He asserts that the trial court abused its discretion and violated ER 609.
ER 609 specifically renders prior convictions inadmissible as evidence unless "the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment."
When Boyd testified that he did not have a suspended license, his Florida license status was already before the jury. His testimony that his license was not suspended at the time of the traffic stop subjected him to impeachment. Also, when a prior bad act is relevant to establish a party's motive, ER 609 is inapplicable. 5A Karl Tegland, Washington Practice sec. 609.2 at 392 (4th ed. 1999) (citing Roshan v. Fard, 705 F.2d 102 (4th Cir. 1983)). Had Boyd answered the question truthfully, the exhibits identifying his otherwise inadmissible prior convictions would not have been admitted.
The State argues that Boyd did not preserve this issue for appeal. But when the trial court rules on a motion in limine, the losing party is not required to object later in order to preserve the right to claim error in future proceedings. State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984).
Moreover, a prior conviction is admissible for the purpose of contradicting a witness's assertion of an unblemished past without regard to ER 609. 5A Karl Tegland, Washington Practice sec. 609.2 at 392 (4th ed. 1999).
Boyd further contends that the trial court violated his right to confront witnesses and provide a defense when it did not allow him to present evidence that he was the victim of an unlawful search in the assault's aftermath. Boyd asserts that the trial court violated his constitutional rights in ruling that "he could not elicit evidence that the search of the locked trunk of his vehicle was unlawful." Appellant's Brief at 39.
The Sixth Amendment of the federal constitution and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to confront witnesses. State v. Smith, 148 Wn.2d 122, 131, 59 P.3d 74 (2002).
Here, the trial court limited him to the facts of the search during his opening statement. It did not permit him to state a legal conclusion that the search was unlawful. The trial court, however, contrary to Boyd's assertion, allowed Boyd to cross-examine the State's witnesses regarding the search. The trial court's rulings were proper and did not violate his rights to confront witnesses and to present a defense.
A court cannot instruct the jury that matters of fact have been established as a matter of law. . It is equally well established that an opening statement may not contain conclusions of law, where the facts have not yet been shown. United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (Chief Justice Burger concurring).
Because the trial court did not err, we do not address Boyd's claim of cumulative error.
Boyd finally contends that he received ineffective assistance of counsel when counsel stipulated to the outstanding warrants and prior convictions and when counsel failed to propose a jury instruction on the unlawful trunk search. To show ineffective assistance of counsel, the appellant must demonstrate (1) deficient performance and (2) resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice occurs when, but for the deficient performance, the outcome would have differed. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). A counsel's performance is not deficient if it concerns trial strategy or tactics., 118 Wn. App. 713, 729-30, 77 P.3d 681 (2003). We engage in a strong presumption that counsel rendered adequate assistance and made all significant decisions exercising reasonable professional judgment., 118 Wn. App. at 729-30. Here, defense counsel provided adequate assistance in moving in limine to suppress the warrants and in objecting to their admission. Moreover, as noted, the trial court did not err in admitting this evidence. And the choice of which jury instructions to propose is a tactical decision. Thus, Boyd's ineffective assistance of counsel argument fails.
Boyd also asserts, in the alternative, that "[s]hould defense counsel's failure to timely or properly object to the prosecutor's cross examination about Boyd's suspended license . . . be deemed to have waived this issue on appeal, he was denied effective assistance of counsel." Appellant's Br. at 48-49.
Affirmed.
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.
SEINFELD, J. and HUNT, C.J., concur.