Opinion
No. 51560-8-I.
Filed: February 9, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-03365-9. Judgment or order under review. Date filed: 11/13/2002.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
James A. Card (Appearing Pro Se), 1807 — 26th Avenue S., Seattle, WA 98144.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Michael Thomas Jerem Hogan, Attorney at Law, King Co Reg Justice Ctr, 401 4th Ave N Ste 2a, Kent, WA 98032-4429.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
A jury found James Card guilty of one count of attempting to elude a pursuing police vehicle and one count of second degree possession of stolen property. On appeal, he contends that the deputy prosecutor committed misconduct, that the trial court erred in denying a defense motion for a mistrial, and that he was denied effective assistance of counsel, all in conjunction with the admission of his prior convictions for crimes of dishonesty under ER 609(a)(2). Finding no reversible error, we affirm.
Card was charged with one count of attempting to elude a pursuing police vehicle and one count of second degree possession of stolen property. Prior to trial, defense counsel sought to limit the number of Card's seven prior convictions for crimes of dishonesty that would be admitted for impeachment under ER 609(a)(2). Counsel argued that because of the number of such convictions, there was a danger that the jury would consider them as `character evidence.' The trial court ruled that six of the convictions would be admitted as unnamed crimes of dishonesty.
Viewed in the light most favorable to the State, the evidence at trial established that on June 9, 2002, Card and his girlfriend got into a car that had been stolen several months earlier. Card initially drove the car at high speed, attempting to avoid a pursuing police officer. He then stopped the car in a parking lot and fled to a nearby apartment complex, leaving his girlfriend in the car. Police officers found Card a short time later, hiding in a stairwell.
Card testified that he was not the man seen getting into the stolen car and fleeing from the police. He claimed that he had walked to the apartment complex, where he lived, from a nearby park, and that he was not attempting to conceal himself when arrested, but had merely been watching to see what the police were doing at the apartment complex.
During his direct testimony, Card acknowledged that he had convictions for six crimes of dishonesty between 1998 and 2001. During cross examination, Card appeared to become confused about some details of two 1999 convictions. When the deputy prosecutor then handed Card a certified copy of a judgment and sentence and asked whether he recognized it, Card stated that he did not know what the charges were and `it just says possession of stolen property.' After reviewing additional details, Card stated that he `suppose[d]' the document was correct. Report of Proceedings (8/28/02), at 40.
When asked about a second document, Card seemed to suggest that it involved the same conviction as in the first document. The deputy prosecutor then identified the conviction as one for possession of stolen property and reviewed some of the details with Card. At first, Card stated that he did not know whether the second document involved the same offense, but eventually acknowledged that it was not a duplicate conviction. The deputy prosecutor then reviewed Card's remaining four convictions for crimes of dishonesty without identifying the crimes.
Defense counsel eventually moved for a mistrial, arguing that the deputy prosecutor had violated the trial court's pretrial ruling by naming two of Card's prior convictions. Counsel maintained that Card had not been denying his criminal history, but had merely become confused over whether he was being asked about the date of the offense or the date of the conviction and sentence.
The trial court denied the motion for a mistrial, finding that the problem was not the result of misconduct by the prosecutor, but rather that SMr. Card was demonstrating a real failure of memory about what his history was in 1999' and had then `volunteered' the fact that one of the convictions was for possession of stolen property:
But Mr. Card was here when I said I would limit the prosecutor to asking about crimes of dishonesty to avoid [the jury from learning the nature of the prior crimes], and I must say that I can't grant a mistrial for a mention Mr. Card made himself after being privy to the Court's ruling and benefit of the Court's ruling.
RP (8/28/02), at 60. Because Card himself had identified one of the prior crimes and because the jury would be given a limiting instruction on the use of the conviction, the trial court concluded that Card's right to a fair trial had not been violated.
On appeal, Card contends that the deputy prosecutor violated the pre-trial ruling and committed reversible misconduct and that the trial court erred in denying the motion for a mistrial. He argues that the deputy prosecutor took unfair advantage of his obvious confusion to refer repeatedly to two prior convictions for possession of stolen property, the same charge for which he was being tried.
We review the trial court's denial of a mistrial for an abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). The trial court should grant a mistrial only where nothing short of a new trial can ensure that the defendant will be tried fairly. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). The defendant bears the burden of showing that the conduct complained of was both improper and prejudicial. State v. Borg, 145 Wn.2d 329, 335, 36 P.3d 546 (2001).
The trial court was in the best position to assess whether the deputy prosecutor in this case violated the pre-trial ruling or attempted to take unfair advantage of Card's confusion. See State v. Borg, 145 Wn.2d at 335. The record indicates that despite being present during the trial court's pre-trial ruling on the prior convictions, Card experienced ongoing difficulties in recalling the details of two 1999 convictions. He then volunteered the identity of one of the convictions. When Card repeatedly suggested that a second document involved `the same' conviction, the deputy prosecutor then referred to the identity of the second conviction. Under the circumstances, we cannot say that the trial court erred in finding that the deputy prosecutor did not violate the pre-trial ruling or commit misconduct by unfairly cross-examining Card. The trial court did not abuse its discretion in denying the motion for a mistrial.
Card also contends that he was denied effective assistance when defense counsel failed to prepare him adequately for cross examination on the prior convictions. But as the trial court noted, crimes of dishonesty are per se admissible for the purpose of attacking credibility, and the trial court had discretion to admit the prior convictions under ER 609(a)(2) as named offenses. See State v. Teal, 117 Wn. App. 831, 844-45, 73 P.3d 402 (2003), pet. for review pending. Moreover, the jury in this case was correctly instructed that the evidence could be considered solely for the purpose of determining credibility, an instruction that the jury is presumed to have followed. See State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Consequently, Card has to demonstrate that any prejudice resulted from counsel's alleged deficient performance. See In re Personal Restraint of Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993) (if defendant alleging ineffective assistance fails to demonstrate prejudice, appellate court need not determine whether counsel's performance was deficient).
Affirmed.
COLEMAN and AGID, JJ., concur.