Opinion
Nos. 25841-6-III; 26327-4-III.
July 3, 2008.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 05-1-02287-7, Harold D. Clarke III, J., entered January 23, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
John Burton appeals guilty verdicts for two counts of delivering cocaine within 1,000 feet of a school or school bus route stop. He claims his lawyer was ineffective for failing to object to comments made by a prosecutor during the course of the trial. And he claims that the court erroneously instructed the jury that its special verdict had to be unanimous. We conclude that his lawyer was not ineffective and that the jury's special verdict finding was unanimous. We therefore affirm.
FACTS
The State charged John Burton with two counts of delivery of a controlled substance (cocaine). The case proceeded to trial before a jury.
The prosecutor made the following comments during voir dire:
[T]his case is about delivery of a controlled substance. So basically we are alleging that Mr. Burton delivered a controlled substance to somebody else; a slang term might be a "dealer" that you might be familiar with.
So I guess what I want to talk about is what comes to mind when you think of the phrase "drug dealer."
Report of Proceedings (RP) at 66. Mr. Burton's attorney did not object to the prosecutor's use of the word "drug dealer."
Report of Proceedings cites refer to volumes I, II, and III, numbered continuously.
The State showed at trial that police used a confidential informant to attempt two controlled buys from Mr. Burton. The confidential informant recorded the second buy. The State entered the recording into evidence and played it for the jury. The confidential informant identified the speakers on the recording.
The judge told the jurors that all 12 of them had to agree on whether Mr. Burton "delivered the controlled substance to a person within one thousand feet of a school bus route stop designated by a school district or within one thousand feet of the perimeter of a school ground." RP at 414. No one objected to the instruction.
The prosecutor replayed the recording of the second controlled buy during final argument, over defense objection. She then identified who was speaking during the course of the recorded buy. Mr. Burton's attorney objected to the use of the recording but not to the comments the prosecutor made about the content of the recording when she played it.
The jury found Mr. Burton guilty of two counts of delivery of a controlled substance (cocaine). It also answered "yes" to two special verdicts on whether Mr. Burton delivered the drugs within 1,000 feet of a school ground or school bus route stop. The court polled the jury. The verdict, including the special verdicts, was unanimous.
Mr. Burton appealed and also filed a personal restraint petition.
DISCUSSION
Ineffective Assistance of Counsel
Mr. Burton argues that his lawyer was ineffective for a number of reasons. First, he contends that his attorney should have objected or requested a mistrial when the prosecutor referred to Mr. Burton during voir dire as a drug dealer.
We review a claim of ineffective assistance of counsel de novo. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), review denied, 159 Wn.2d 1013 (2007). And we apply the Strickland two-part test to evaluate such claims. Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). To prevail, a defendant must prove that (1) defense counsel's conduct was deficient because it fell below an objective standard of reasonableness, and (2) the deficient conduct was prejudicial. Thomas, 109 Wn.2d at 225-26 (quoting Strickland, 466 U.S. at 687). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
We presume that counsel effectively represented his client. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Only a clear showing of incompetence rebuts this presumption. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004). Mr. Burton "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). He cannot rely on trial conduct that can be characterized as legitimate trial strategy or tactics as the basis for his claim. In re Pers. Restraint of Richardson, 100 Wn.2d 669, 682, 675 P.2d 209 (1983).
Here, the prosecutor simply outlined what it expected to prove and what was spelled out in the information: that Mr. Burton sold drugs. The reference may be inartful. But it hardly rises to the level of misconduct that would require action by Mr. Burton's lawyer. State v. Ziegler, 114 Wn.2d 533, 540, 789 P.2d 79 (1990) (only flagrant and ill-intentioned prosecutorial misconduct requires reversal). Moreover, objecting at this stage of the trial on this point may well have served to only highlight the State's reference.
Mr. Burton also argues that his lawyer was ineffective because he did not object to the prosecutor's commentary on the confidential informant recording during her closing argument. But the audio recording was appropriately before the jury. And there is no showing here that the State's explanations of who was speaking (its commentary) were inaccurate. So it would have been well within the authority of the trial judge to allow the explanation. Next, the commentary was part of final argument. The prosecutor's comments were not evidence then but fair comment on the evidence. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985) (prosecutor may draw reasonable inferences from the evidence and express those inferences to the jury); Spokane County v. Bates, 96 Wn. App. 893, 901, 982 P.2d 642 (1999) (a prosecutor may comment on his own evidence). And, finally, counsel could have objected to any misstatements at the trial when they could have been corrected for the jury's benefit. There was no showing then and there is no showing now that the prosecutor's comments were inaccurate.
The prosecutor's comments do not amount to misconduct and so the failure to object does not amount to ineffective assistance.
Jury Instruction
Mr. Burton next contends that the trial court erroneously instructed the jury that it must unanimously answer the special verdict question of whether Mr. Burton delivered drugs within 1,000 feet of a school or school bus route stop. He argues that the instruction misstates the law because a jury can answer a special verdict with a "no" that is not unanimous. State v. Goldberg, 149 Wn.2d 888, 892-93, 72 P.3d 1083 (2003). The court instructed: "If you find the defendant guilty, you will complete the special verdict. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict." RP at 414. The language the court used comes from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.60, at 666 (2d ed. 1994).
A unanimity instruction that does not adequately inform the jury of the applicable law violates a defendant's constitutional right to a unanimous jury verdict. State v. Watkins, 136 Wn. App. 240, 244, 148 P.3d 1112 (2006), cert. denied, 128 S. Ct. 1707 (2008). Mr. Burton did not object to the jury instruction at trial. He may, nonetheless, raise the error for the first time on appeal if it invades one of his fundamental rights. State v. Levy, 156 Wn.2d 709, 719, 132 P.3d 1076 (2006).
And, of course, the jury here did not have to unanimously conclude that Mr. Burton had not sold the drugs within 1,000 feet of a school bus route stop. See Goldberg, 149 Wn.2d at 892-94. The unanimous verdict is only required to convict him. Id. at 892. But the jury was polled here and confirmed that it unanimously agreed on the special verdicts. Clerk's Papers at 86-89.
Mr. Burton's constitutional right to a unanimous verdict is not compromised because the record establishes a unanimous consensus on the special verdicts here. State v. Badda, 63 Wn.2d 176, 182, 385 P.2d 859 (1963). Personal Restraint Petition
Mr. Burton also petitioned for relief from personal restraint.
He must then show that constitutional error or fundamental defect caused him actual prejudice. In re Pers. Restraint of Rice, 118 Wn.2d 876, 884, 828 P.2d 1086 (1992). Bare assertions and conclusory allegations are not sufficient. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990); In re Pers. Restraint of Webster, 74 Wn. App. 832, 833, 875 P.2d 1244 (1994).
Mr. Burton contends, among other things, that the evidence against him was not sufficient to show that he delivered drugs because the State introduced no drugs into evidence at trial. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
The record here shows that Mr. Burton delivered cocaine (a controlled substance) to a confidential informant after arranging the delivery with a third party on February 25 and March 1, 2005. RP at 221-25, 227-32, 258-59. Mr. Burton delivered cocaine to the confidential informant on the corner of Gardner and Chestnut Streets on February 25, 2005. RP at 166, 221-25. He also delivered cocaine to the confidential informant at 2620 West Gardner on March 1, 2005. RP at 166, 227-32. Both locations are within 1,000 feet of Holmes Elementary School and five school bus route stops. RP at 124, 151-52. This evidence is sufficient to support a conviction for delivery of a controlled substance under RCW 69.50.401 and a sentencing enhancement for delivering drugs within 1,000 feet of a school or school bus route stop under RCW 69.50.435.
Mr. Burton's remaining arguments in his personal restraint petition are bare assertions and conclusory allegations. He fails to show actual and substantial prejudice. We decline to review them. Cook, 114 Wn.2d at 813-14; Webster, 74 Wn. App. at 833. And we dismiss Mr. Burton's personal restraint petition.
Mr. Burton also moved for a supersedeas bond pursuant to RAP 8.1 and 8.5. But RAP 8.1 applies to civil cases, not criminal cases. RAP 16.15(b) is the appropriate provision in this context. This court may release a petitioner on bail before deciding a personal restraint petition if release prevents further unlawful confinement and it is unjust to delay the petitioner's release until the petition is determined. RAP 16.15(b). Mr. Burton fails to show that he has been unlawfully confined or that it is unjust to delay his release. We therefore deny Mr. Burton's motion for an appeals bond.
We affirm Mr. Burton's convictions and sentence. And we dismiss his personal restraint petition and deny his motion for an appeals bond.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Schultheis, C.J.
Brown, J.