Opinion
No. 51143-2-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-01894-3. Judgment or order under review. Date filed: 09/16/2002. Judge signing: Hon. James D Cayce.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.
Counsel for Respondent(s), Nancy Anne Balin, Ofc of Pros Aty W554, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Omar Bruno contends his conviction for heroin delivery should be reversed because his counsel was ineffective. We disagree and affirm.
On February 1, 2002, Seattle police officer Juan Tovar was acting as an undercover buy officer. He saw Bruno and Rachel Chernowski walking together and approached them. Tovar made eye contact with Chernowski, nodded at her, and asked if she had "black", a street term for black tar heroin. She said "yes" and pointed to Bruno, who was standing next to her and talking on a cell phone.
Bruno said "Let's walk out of here" and the three started walking. Chernowski asked Tovar how much money he had and he indicated he had $40. Bruno said "We have to get out of here" and Chernowski nodded in agreement. While the three were walking, Bruno asked Tovar to let him see the money. Bruno told Tovar to give the money to Chernowski and told Chernowski to give Tovar a "gram". After the exchange was completed, Tovar gave a "good buy" signal and officers arrested Bruno and Chernowski. Bruno had the marked buy money in his pocket, an additional $183 in his wallet, but no drugs. Chernowski had no money but had several bindles of heroin in her pocket.
Officer Schweiger testified that he was a trailing observer and confirmed that Tovar met up with Bruno and Chernowski, that the three walked together, and that Tovar and Chernowski made an exchange. Officer Toner was also working as an observer. He saw Tovar show Bruno the money, saw Bruno nod to Chernowski, and saw Chernowski and Tovar make an exchange. Toner described how Bruno motioned for some individuals who were following him to "back off" and how Bruno looked around before the transaction occurred. Officer Pitts was a member of the arrest team. He recovered the buy money from Bruno and the additional heroin from Chernowski.
Bruno testified that he was talking to his girlfriend on his cell phone when he noticed Chernowski, from whom he had previously purchased heroin. Chernowski was talking to several other individuals, including Tovar. Bruno asked Chernowski for "[t]wo for 60" and gave Chernowski a $100 bill, receiving $40 in change (the police buy money). According to Bruno, Chernowski said they needed to walk to Union street and that she would give him the heroin there. The two were arrested before the deal could be completed. Bruno denied speaking to Tovar and denied any involvement in selling Tovar drugs. He explained that his money came from working through the Millionaire's Club. According to Bruno, the police offered to let him go if he would assist them in facilitating a large heroin purchase. According to the police, it was Bruno who suggested a deal.
Prior to trial, the State indicated that it intended to introduce Chernowski's statements as a co-conspirator under ER 801(d)(2)(v). The court interrupted and asked the parties if they would stipulate that Chernowski's statements were not being offered for their truth but as proof that a transaction took place involving her, Bruno, and Tovar, thereby avoiding the necessity of determining whether the statements were admissible under an exception to the hearsay rule. The following exchange occurred:
THE COURT: Well, what if I were to instruct the jury, assuming Mr. Staton [defense counsel] objected based on hearsay, that . . . the truth of the statements made, that they are being offered to show the alleged transaction?
MS. BALIN [the prosecutor]: I think that would cut to the chafe (sic) on this issue, Your Honor.
THE COURT: Mr. Staton, do you have any reaction to that proposal?
MR. STATON: Your Honor, actually, I don't. We may call — I expect that we will call Ms. Chernowski. So I expect there will be discussion about these statements anyway. And I think that would be the best way for all parties to handle it, that you're not admitting it as evidence under 801. Because that, I would be objecting to. But as the Court's already stated, I think several of these probably do not qualify as hearsay statements and probably would come in irregardless.
So I would just request that the Court make that ruling, that we can address — there's only one statement in particular, pointing, which is basically a nonverbal assertion, which may be a little bit more problematic. And I may want to make an objection on the record at the time the testimony is elicited. But otherwise —
THE COURT: And I don't have a problem with you making an objection based on hearsay. And I don't have any problem instructing the jury that none of this should be considered for the truth, but to show actions, to show the alleged transaction, and so forth. And I think with that, whether, arguably, it could be considered a factual statement or not, if it's not being offered for the truth and if the jury is so instructed, it seems to me that it avoids the whole co-conspirator issue.
MR. STATON: I agree completely. And I can make an objection to make a clear record and the Court can make a ruling at that time and give the instruction to the jury.
THE COURT: Okay. We will handle it that way.
Defense counsel did not object to Officer Tovar's description of the initial encounter. On appeal, Bruno contends counsel was ineffective for failing to object to Chernowski's statements as related by Tovar, and particularly to Chernowski's act of pointing to Bruno, thereby depriving Bruno of the benefit of an instruction limiting the use of this evidence. He contends the failure to object was prejudicial because it allowed the prosecutor to bolster what was a credibility case between Bruno and Tovar.
To succeed on his claim, Bruno must establish that counsel's performance was deficient and that he was prejudiced. Counsel's performance is measured by an objective standard considering all of the circumstances. Our review is highly deferential and there is a strong presumption that counsel performed in a reasonable manner. If counsel's conduct can be characterized as legitimate trial strategy or tactics, it does not provide a basis for a claim of ineffective assistance. We make every effort to eliminate the distorting effects of hindsight. When the basis of the ineffective assistance argument is the failure to object to evidence, the appellant must show the absence of any legitimate strategic or tactical reason for not objecting.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990).
State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002); State v. Israel, 113 Wn. App. 243, 269, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013 (2003).
In re Rice, 118 Wn.2d 876, 888-89, 828 P.2d 1086 (1992).
State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
The prejudice prong requires that Bruno show that, but for the ineffective performance, there is a reasonable probability that the outcome of the trial would have been different.
State v. Bowerman, 115 Wn.2d at 808.
A failure to object may constitute legitimate trial strategy. In this case, the pre-trial exchange shows that counsel was aware of the impact of the testimony regarding Chernowski's "pointing" gesture and was considering whether or not to object to it. Counsel was aware he needed to object to raise the issue and that there was some question as to whether an objection would be sustained. The defense theory, based on Bruno's testimony, was that Bruno was on the phone and not even aware of the interaction between Tovar and Chernowski. Counsel argued that Tovar did not clearly remember the transaction based on his participation in other drug operations. Counsel pointed out inconsistencies and omissions in the testimony and suggested that Tovar had a motive for prosecuting Bruno because Bruno failed to assist the police in further drug buys. The decision not to object may well have been based on counsel's evaluation of the chances of success balanced against the possibility of giving the testimony more emphasis while considering how the testimony fit into Bruno's theory of the case. Moreover, a limiting instruction may have cast additional emphasis on this part of the evidence. We have no difficulty on these facts viewing counsel's lack of objection as part of a legitimate strategy.
In re Tortorelli, 149 Wn.2d 82, 95, 66 P.3d 606, cert. denied, 124 S.Ct. 223, 157 L.Ed.2d 137 (2003); State v. Gladden, 116 Wn. App. 561, 567, 66 P.3d 1095 (2003).
See, State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993).
Additionally, Bruno has not shown that the result of the trial would have been different had counsel objected. Officer Tovar clearly testified that Bruno was interacting with he and Chernowski. Officer Toner described what appeared to be deliberate attempts by Bruno to insure the transaction was not observed. Bruno's story was weak and failed to account for the absence on any cash on Chernowski's person. There is no reasonable possibility that the outcome of the trial would have been different had there been a limiting instruction.
We reject the claim of ineffective assistance on the grounds that Bruno has not shown that counsel's performance was deficient or that he was thereby prejudiced.
Affirmed.
APPELWICK and BECKER, JJ., Concur.