Opinion
No. 37692-0-II.
September 22, 2009.
Appeal from the Superior Court, Clallam County, No. 07-1-00055-0, S. Brooke Taylor, J., entered April 24, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
Kodi Lane Carr appeals her jury conviction for first degree theft. She argues that (1) the State failed to preserve or to produce material exculpatory evidence; (2) her trial counsel provided ineffective assistance in failing to seek dismissal based on the State's withholding exculpatory evidence and in failing to request a jury instruction on the "good faith claim of title" defense; and (3) cumulative error requires reversal. In her pro se statement of additional grounds (SAG), Carr appears to argue that her trial counsel was ineffective in failing to call a witness. We affirm.
FACTS I. Theft
In October 2006, Thomas Wheeler met Clifford Topham in the Clallam County jail. Topham told Wheeler that Kodi Carr could use his (Wheeler's) automated teller machine (ATM) card to obtain funds to post Wheeler's bail. Topham arranged for Wheeler to authorize the jail to release Wheeler's ATM card to Carr. Wheeler signed an inmate request form called a "kite," which stated:
I Thomas A Wheeler would like to release my ATM in the approx. amt $500 to my lady friend, her name is Cody Carr. I need this done so she can produce bail $500.
Ex. 1.
On October 26, Topham called Carr from the jail, asked her to pick up Wheeler's ATM card, and told her to use it to withdraw money from Wheeler's account to post his (Topham's) bail. When Carr picked up Wheeler's ATM card, she signed Wheeler's "kite" authorizing her to use the card to withdraw $500 for his (Wheeler's) bail. Neither in writing nor orally did Wheeler authorize Topham or Carr to use his ATM card for Topham's bail or for any other expenditures.
A total of $5,465.45 was withdrawn from Wheeler's account using his ATM card after the jail released the ATM card to Carr. On October 29, Carr posted Topham's bail. Carr did not post Wheeler's bail. On February 8, 2007, Clallam County Sheriff's deputies arrested Carr, executed a search warrant at her residence, and found some of the property Carr had purchased with Wheeler's ATM card.
II. Procedure
The State charged Carr with first degree theft. At her jury trial Clallam County Sherrif's Department corrections officer Don Wenzl testified about inmate telephone call procedure, including that (1) all inmate telephone calls, except for attorney calls, are recorded; (2) the recordings are stored on a computer server for a year; and (3) the phone system logs data for all inmate calls, including phone numbers dialed, dates, and times. Topham's telephone log showed that he completed four telephone calls between October 26 and November 2, 2006. Wenzle testified that he retrieved and listened to the recordings of these four telephone calls, compared the recordings with transcriptions of the recordings, and found the transcriptions to be accurate. Clallam County Sheriff's patrol deputy Todd Yarnes testified that the four telephone calls Topham completed from jail between October 26 and October 29 were to Carr's telephone number.
Although Wenzl testified that Topham's log extended through November 2, the log ended on October 29, the day Carr posted Topham's bail.
Carr testified in her own defense that (1) she accepted five or six phone calls from Topham during which they discussed Wheeler's ATM card; (2) "there[was] a whole other conversation about him [Topham] explaining, um, about him paying back Mr. Wheeler and it's not on this record, on these phone records"; (3) Topham owed her and her fiancé "probably about $4,200"; and (4)
Carr explained that she would have to look at her phone records to know when this allegedly missing call occurred; but she did not produce her own telephone records to support her assertion.
I basically just — I was just going to go down and get the card. From me and [Topham's] conversation I was going to get, um — I was able to use the card to, um, pay off pretty much what he owes me and get $1,000 out to bail him — to bail [Topham] out, and that was my understanding.
Report of Proceedings (RP) (March 25) at 55. Carr later testified that she remembered having signed the "kite," but not having read it.
Carr further testified that (1) she used Wheeler's ATM card at Wal-Mart and at Safeway to purchase items for herself and for her house; (2) she gave Wheeler's ATM card to her fiancé, Steven Blake, who made several purchases with it, in her presence, because "that's what [Topham] said it was okay to do"; and (3) she posted Topham's bail using funds from Wheeler's bank account and then gave Wheeler's ATM card to Topham.
Blake testified that (1) his "understanding was that [Topham] had an inheritance that his sister had, that he was going to pay Mr. Wheeler back," RP (March 25) at 87; (2) Topham's sister "called the house [and] verified the funds were in there," RP (March 25) at 87; (3) he (Blake) made several purchases with the card and repaid Wheeler "a little under $1,800" for those purchases, RP (March 25) at 90-92; and (4) neither he nor Carr ever spoke with Wheeler about using the ATM card "because [Topham] wouldn't provide him for us." RP (March 25) at 95-96.
The jury convicted Carr of first degree theft as charged. Carr appeals.
ANALYSIS I. Exculpatory Evidence
Carr first argues that we should reverse her conviction because the State failed to produce exculpatory evidence, namely the transcript of a telephone conversation between Carr and Topham in which he told her she could use Wheeler's ATM card to reimburse herself for money Topham owed her. This argument fails.
The prosecution has a duty to disclose to the defense all material exculpatory evidence in its possession (" Brady materials"). Evidence is material if its absence undermines confidence in the verdict. The prosecution's duty to disclose extends to evidence in the possession of anyone working on the State's behalf, including law enforcement. "The destruction of evidence offends due process if the evidence was materially exculpatory and was destroyed in bad faith." In re Pers. Restraint of Woods, 154 Wn.2d 400, 429, 114 P.3d 607 (2005) (citing State v. Straka, 116 Wn.2d 859, 884, 810 P.2d 888 (1991)).
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
State v. Lord, 161 Wn.2d 276, 291, 165 P.3d 1251 (2007) (citing Brady, 373 U.S. at 87); In re Pers. Restraint of Woods, 154 Wn.2d 400, 428, 114 P.3d 607 (2005) (quoting State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994)).
Woods, 154 Wn.2d at 428-29.
Lord, 161 Wn.2d at 292 (citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L.Ed. 2d 490 (1995)).
When an inmate places a telephone call to someone outside the jail, other than an attorney, the jail telephone service records the phone call. Corrections officers can create logs of a particular inmate's telephone calls using the jail's telephone system computer server. Wenzl testified that the log he created to track Topham's telephone calls between October 26 and November 2, 2006, showed that Topham completed only four telephone calls during that time frame.
Carr contends that Topham telephoned her from jail a fifth time during this same time frame and that the prosecution failed to produce records or a transcript of that telephone call. Relying solely on her own unsupported testimony, Carr fails to show that any state agent ever possessed evidence of this alleged fifth telephone call. Thus, she does not establish that the prosecution withheld exculpatory evidence. See Lord, 161 Wn.2d at 294 ("Merely asserting that the State withheld information does not make it so.").
See n. 4.
Carr implies that the jail's "old computer system" may have failed to record this "missing" fifth telephone call. But even if the system failed to record this purported call, the State did not destroy evidence in bad faith; thus, such hypothetical system failure would not warrant reversal of Carr's conviction. See Woods, 154 Wn.2d at 429.
Although also outside the relevant time period, the State allowed Carr's trial counsel to listen to an earlier jail telephone call from Topham to Carr about his dog, shortly after his arrest. RP (March 25) at 50. Thus, not only did Carr's counsel have access to this telephone call to assess whether it could help Carr's case, but also, the content of the call was not exculpatory for Carr and, therefore, not offered into evidence.
II. Ineffective Assistance of Counsel
Carr next argues her trial counsel provided ineffective assistance in (1) failing to move for dismissal based on the alleged Brady violation, (2) failing to request a "good faith claim of title" defense jury instruction, and (3) failing to call a witness. This argument also fails.
A. Standard of Review
We review an ineffective assistance of counsel claim de novo, based on the record below. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001); McFarland, 127 Wn.2d at 335. Only "a clear showing of incompetence" will overcome this presumption of effectiveness. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004) (citing State v. Piche, 71 Wn.2d 583, 590-91, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968)).
To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient, and (2) this deficient performance prejudiced her. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To meet the first part of the ineffective assistance of counsel test, an appellant must demonstrate that counsel's actions fell below an objective standard of reasonableness. Townsend, 142 Wn.2d at 843-44; State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). To meet the second part of the ineffective assistance of counsel test, an appellant must demonstrate prejudice, a reasonable probability that the trial's outcome would have been different absent the deficient performance. Townsend, 142 Wn.2d at 844; In re the Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). "Reasonable probability" means "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
B. Failure to Move for Dismissal
As we hold above, Carr failed to establish a Brady violation. Thus, there is no reasonable probability that the trial court would have granted the motion to dismiss. See Townsend, 142 Wn.2d at 844. Accordingly, trial counsel's performance was not deficient when he did not move for dismissal based on the State's "failure" to produce a recording of the "missing" fifth telephone call from the jail in which Topham allegedly told Carr that she could use Wheeler's ATM card to purchase thousands of dollars worth of merchandise.
C. Failure to Request Instruction
To show that trial counsel was ineffective in failing to request a "good faith claim of title" defense instruction, Carr must show that (1) the court would have given the instruction if counsel had requested it, (2) counsel was deficient in failing to request the instruction, and (3) counsel's failure to request the instruction prejudiced her. State v. Johnston, 143 Wn. App. 1, 177 P.3d 1127 (2007). RCW 9A.56.020(2)(a) provides a statutory defense to theft where "[t]he property . . . was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable." To be entitled to a "good faith claim of title" instruction, however, there must be objective evidence to support the defendant's assertions that she had a good faith claim of title. State v. Chase, 134 Wn. App. 792, 805-06, 142 P.3d 630 (2006), review denied, 160 Wn.2d 1022 (2007). Similarly, for Carr to have been entitled to a jury instruction supporting this theory of her case, there had to be substantial evidence supporting her theory. State v. Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009) (citing State v. Washington, 36 Wn. App. 792, 793, 677 P.2d 786, review denied, 101 Wn.2d 1015 (1984)).
But the record here contains no objective evidence supporting Carr's assertions that she had permission to use Wheeler's ATM card to make thousands of dollars in purchases. Even if Topham had called from the jail and told her that he would arrange for her to obtain and to use Wheeler's ATM card, Carr's testimony that she had Topham's permission to use Wheeler's ATM card does not support her "good faith claim of title" to Wheeler's funds to unlimited use of his ATM card. Moreover, Carr never spoke with Wheeler directly. And when she picked up Wheeler's ATM card at the jail, she signed the jail "kite" in which Wheeler had authorized her to withdraw only $500 to pay his bail.
Although Carr asserts in her Brief of Appellant that Blake confirmed this story at trial, she mischaracterize Blake's testimony, and her citations to the record do not support her assertion. Furthermore, Carr does not support a "good faith claim of title" defense in asserting that her "intentions in using Wheeler's ATM card were completely appropriate, because of the arrangement which she and Topham discussed on the telephone." Br. of Appellant at 19.
Because Carr did not produce objective evidence showing that she was entitled to the "good faith claim of title" defense, she cannot show that the trial court would have given such an instruction had trial counsel requested it. Therefore, she fails to show that trial counsel's performance was deficient. Because Carr does not establish the first prong of the ineffective assistance of counsel test, we do not reach the second, prejudice prong.
D. Failure To Call Witness
Carr also appears to argue in her pro se statement of additional grounds (SAG) that someone, presumably her defense attorney, should have called Topham as a witness. Carr writes:
They did not have Cliff Topham there denying the allegation. I have witnesses stating what was said. Cliff Topham also in his statement admits to as he said scamming us. His credibility and mine are so far apart. How can I be guilty of something I had permission for!
SAG at 1. Assuming Carr means to argue that her trial counsel provided ineffective assistance in failing to call Topham, we disagree.
"The decision whether to call a witness is ordinarily a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel." State v. Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008), review denied, 165 Wn.2d 1050, 208 P.3d 555 (2009) (citing State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995)). Furthermore, the "statement" to which Carr refers is not a part of the record; thus, Carr cannot demonstrate with reasonable probability that the outcome would have been different had counsel called Topham as a witness. See Townsend, 142 Wn.2d at 844. Again, Carr fails to establish ineffective assistance of counsel.
We further note that Carr appears to argue that Topham would have admitted to a crime if he had testified; but the United States Constitution protects Topham from having to testify against his interest in a criminal case. U.S. Const. amend. V.
III. Cumulative Error
Finally, Carr argues that cumulative error requires us to reverse her first degree theft conviction. Again, we disagree.
Cumulative error may warrant reversal, even if each error alone would be considered harmless, where it appears reasonably probable that the cumulative effect of several errors materially affected the outcome of the trial. State v. Korum, 157 Wn.2d 614, 652, 141 P.3d 13 (2006) (citing State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000)); State v. Johnson, 90 Wn. App. 54, 74, 950 P.2d 981 (1998). The doctrine does not apply where the errors are few and have little or no effect on the outcome of the trial. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because Carr's individual claimed errors do not warrant reversal, the cumulative error doctrine does not warrant reversal either.
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.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.