Opinion
No. 35942-1-II.
November 18, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03719-9, Rosanne Buckner, J., entered January 12, 2007.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Jeremy Cleveland appeals his conviction of unlawful possession of a controlled substance, methamphetamine, with intent to deliver while armed with a deadly weapon. He argues that he received ineffective assistance of counsel and the prosecutor committed misconduct. He raises additional arguments pro se. We reverse and remand.
RAP 10.10.
FACTS
On the afternoon of May 12, 2006, Tacoma Police Officers Gary Keefer and Mike Tscheuschner were on routine patrol in their vehicle at Wapato Park at the corner of South 72nd Street and Sheridan Avenue in Tacoma. As the officers checked for unlawful activity based on complaints of illegal narcotics use and sale, prostitution, and other acts, they observed four individuals in a parked vehicle in a secluded area of the parking lot. Keefer noticed, on the officers' approach, the right rear passenger turned and saw the officers, appeared frightened or startled, and began making furtive movements toward the front of his seat or his lap in what appeared to Keefer to be an attempt to retrieve or discard something.
Keefer immediately exited his patrol vehicle for fear that the passenger might be retrieving a weapon and quickly approached the vehicle at the right rear passenger door. He asked the passenger if he was discarding contraband or a weapon and to place his hands where he could see them. Keefer then "did a visual" of the vehicle's interior where the right rear passenger was sitting and observed a glass smoking pipe with rubber tubing and burn marks on the floor between the passenger's legs. 1 Report of Proceedings (RP) at 22. From his training and experience, he recognized the pipe as one commonly used for smoking methamphetamine.
Tscheuschner approached the vehicle contacted the driver, Cleveland. Tscheuschner looked into the vehicle and in open view saw the handle of a machete between the driver's side door and door jamb within Cleveland's lunge area and arm span. The officers confirmed one of the vehicle's occupants had an outstanding warrant for her arrest. They removed the vehicle's occupants.
Cleveland was not the vehicle's registered owner. The officers did not arrest the registered owner, who sat in the vehicle's front passenger seat.
Keefer described the machete as a foot-and-a-half metal or steel shaft with a blade and a wooden handle, commonly used for cutting vegetation, but testified Tscheuschner observed only the machete's handle and that he did not see the machete until he removed it from the vehicle. He testified that under Tacoma Municipal Code 8.66.080.2, it was a misdemeanor to possess a dangerous weapon within the Tacoma city limits and a machete constituted a dangerous weapon. Tscheuschner testified he noticed the handle of a machete approximately two inches away from and readily accessible to Cleveland, but he did not see the blade.
During a search of the vehicle incident to arrest, the officers discovered a black backpack on the vehicle's front floorboard which Cleveland acknowledged belonged to him. Inside the backpack, the officers found several plastic baggies with distinctive markings, a scale with white powder residue, packaging material, a handgun, and ammunition. In the vehicle's center console, the officers recovered a black camera case containing packaging material similar to that found in Cleveland's backpack, an electronic scale, a vial containing 1.8 grams of suspected methamphetamine, marijuana, and loose and packaged pills. The camera case was zipped closed. The officers also found a bag of 0.6 grams of suspected methamphetamine in the right rear passenger door handle, a glass smoking pipe in the left rear passenger door handle, and a portable police scanner. The vial in the camera case and the baggie found in the rear door handle tested positive for methamphetamine. The residue on the scale found in Cleveland's backpack was not tested.
The officers ultimately arrested Cleveland for unlawful possession of a concealed weapon based on the discovery of the machete and arrested two other passengers, one for drug paraphernalia possession and one on an outstanding warrant. It is not clear from the record whether the officers initially based the vehicle search incident to arrest on Cleveland's arrest or the passengers' arrests.
The plastic baggies were orange along one side and were marked with "a series of black dots or eightballs." 1 RP at 101.
Keefer testified Cleveland told him the right rear passenger had passed the camera case to him from the back seat. He acknowledged he had been in possession of the vehicle all day. A passenger told the officers Cleveland had been driving the vehicle for the past two weeks. The officers found $245 in cash on Cleveland's person. According to Keefer, Cleveland said he was unemployed but had just sold a vehicle and the money was from the sale. Keefer testified that after Cleveland was booked into jail, Cleveland said "he could help [him] out and order up," asking, "'What do you want? Weight? But I have to get out tonight.'" 1 RP at 37.
Puyallup Tribal Police Officer John Scrivner testified that on June 30, 2006, nearly two months after the current incident, he encountered Cleveland driving the same vehicle. In closing argument, the State noted that the fact that law enforcement had contacted Cleveland approximately two months later in the same vehicle provided evidence of his dominion and control over the items in the vehicle.
By amended information, the State charged Cleveland with unlawful possession of methamphetamine with intent to deliver while armed with a deadly weapon, a machete.
The State initially charged Cleveland with unlawful possession of a controlled substance with intent to deliver with a firearm enhancement and with second degree unlawful possession of a firearm but dropped the firearm possession charge and firearm enhancement because the firearm later tested inoperable. The ammunition found in Cleveland's backpack also did not match the firearm.
Defense counsel brought a pretrial motion to exclude the firearm evidence because the weapon had tested as inoperable, there was no firearm crime charged, and the evidence was prejudicial. The trial court denied the motion. Defense counsel also moved to suppress all evidence obtained subsequent to the officers' search of the vehicle on the basis that the search was unlawful. The trial court denied the motion to suppress, finding Cleveland's arrest lawful because the officers had probable cause to believe he was in possession of a machete and the search of the vehicle was lawful incident to his arrest. It also ruled Cleveland's statements to Keefer admissible.
A jury heard the matter. Keefer testified that it was not uncommon for a drug dealer to have scales, packaging material, weapons, or varying denominations of cash; the packaging material found in Cleveland's backpack was identical to the packaging material found in the camera case in the vehicle's center console; he found $245 in cash in different denominations on Cleveland's person; Cleveland denied having possession of the camera case but told him that it had been passed up to him from the back seat; and he had located the vial of methamphetamine in the camera case. He agreed that the camera case was closed when he discovered it. He also testified the firearm tested inoperable, but it "[looked] like a gun that, if it was pointed at me, I would have to shoot him." 1 RP at 144. Cleveland did not testify.
The State argued the contents of the backpack that Cleveland claimed as his, including the digital scale with white powder residence, packaging material, and a firearm that looked real, were all evidence of intent to deliver. The State further argued Cleveland had constructive possession over the camera case and noted his acknowledgment that he took possession of it because he told Keefer that a rear passenger handed the camera case to him.
In closing, defense counsel argued it was a "huge leap" that because Cleveland was in the vehicle, he had dominion and control over the items inside. 2 RP at 213. Defense counsel noted the officers found the drugs and paraphernalia in the back seat; the scale residue in Cleveland's backpack was never tested; and the officers did not arrest the vehicle's registered owner, who was in the passenger seat and also in close proximity to the backpack and center console. Regarding the camera case, defense counsel argued:
But you have to know it's there to constructively possess something. If you are driving a friend's vehicle and they have a concealed weapons permit and that concealed weapon is under the front seat and you don't know it's there, do you possess it?[]
The State objected to defense counsel's argument on the basis there was no related jury instruction. The trial court overruled the objection.
. . . .
. . . [I]f you have dominion and control, you can't have dominion and control over something you don't know is there. I mean, it wouldn't be fair under the law to be convicted of having possession of something that you don't know is there. In terms of the football analogy, do you possess the football? Yes. Do you possess drugs hidden in that football if you don't know they are there? No.
How about if it was handed forward to you? Remember the officer said he believed it was closed when he got it out and he opened it. How could you possibly possess what's inside of this? And what showing is there whatsoever that Mr. Cleveland knew what was inside of this? None.
. . . .
. . . You still have to look at what the evidence is and how, when you look at that evidence, you can come to the conclusion that Mr. Cleveland knowingly possessed anything, because you have to know you have it to possess it, and that even if he did, that he intended to deliver it.
2 RP at 215-16, 227.
Defense counsel argued the small amounts of methamphetamine in the rear passenger door and in the vial did not indicate an intent to deliver, the paraphernalia was evidence of use, and the evidence showed that someone in the vehicle possessed drugs for use. She also argued that more than one person could have had control over the machete and analogized not checking another's vehicle or a rental vehicle for items inside, stating "you cannot even constructively possess something that you don't know is there." 2 RP at 218. She asked the jury to find Cleveland not guilty of possession with intent to deliver and not guilty of the special verdict of being armed with a deadly weapon.
In rebuttal closing argument, the State recalled defense counsel's argument that because Cleveland did not know he had methamphetamine, he did not possess, and counsel had stated, "Not so fast. Remember that the last word in how you evaluate the evidence doesn't come from me, it doesn't come from her, it comes from her honor and the instructions she gives you." 2 RP at 229. The State referred the jury to instruction 14 for the crime of possession, instructing that to convict Cleveland, the jury must find that he unlawfully possessed methamphetamine but need not find possession was knowing or intentional because knowledge was not an element of the to-convict jury instruction for possession. The State argued that Cleveland was in constructive possession of the methamphetamine found in the vehicle because he was the driver and that constructive possession need not be exclusive and stated, "Now, again, [defense counsel] said, Maybe my client didn't know it was there. Follow your instructions." 2 RP at 233.
Cleveland's proposed jury instructions contained a lesser included offense jury instruction for possession of a controlled substance but did not contain an unwitting possession instruction. Defense counsel did not object to the State's proposed jury instructions. The trial court instructed the jury in relevant part that to convict Cleveland of possession with intent to deliver a controlled substance, it must find he possessed a controlled substance with the intent to deliver it. The court instructed that one acts with intent "when acting with the objective or purpose to accomplish a result, which constitutes a crime." Clerk's Papers at 35. It instructed the jury on the lesser included offense of unlawful possession. It did not instruct it on unwitting possession.
The jury convicted Cleveland of unlawful possession with intent to deliver while armed with a deadly weapon. He appeals.
ANALYSIS Unwitting Possession Jury Instruction
We first address Cleveland's contention he received ineffective assistance of counsel where counsel failed to request an unwitting possession instruction when the trial court instructed the jury on the lesser included offense of simple possession. Cleveland argues his defense was largely that he was not aware of the drugs in the vehicle, he was entitled to an unwitting possession instruction, and the trial court would have erred in failing to give it had counsel requested it. He also notes the State relied on defense counsel's failure to request the instruction in its closing argument, urging the jury not to consider the defense's lack of knowledge theory because there was no instruction to support it.
To establish the claim of ineffective assistance, a defendant must show that under an objective standard of reasonableness that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). The defendant need only show a reasonable probability the outcome would have differed sufficient to undermine confidence in the outcome in order to demonstrate prejudice. Strickland, 466 U.S. at 693-94. The defendant must make a showing as to both prongs and must also overcome a strong presumption that defense ounsel's conduct was effective. Strickland, 466 U.S. at 687, 702; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Legitimate trial strategy or tactics may not form the basis of an ineffective assistance of counsel claim. McFarland, 127 Wn.2d at 336.
Here, we review de novo whether Cleveland was entitled to an unwitting possession instruction and whether it was unreasonable for defense counsel not to seek that instruction. If so, we then decide whether Cleveland was prejudiced. See State v. Kruger, 116 Wn. App. 685, 690-91, 694, 67 P.3d 1147 (2003).
Unwitting possession is an affirmative defense to possession. State v. Bradshaw, 152 Wn.2d 528, 537-38, 98 P.3d 1190 (2004). To establish the defense, a defendant must prove by a preponderance of the evidence that his possession of the unlawful substance was unwitting. See State v. Riker, 123 Wn.2d 351, 368-69, 869 P.2d 43 (1994).
The trial court instructed the jury on the lesser included offense of simple possession. The officers discovered the methamphetamine that formed the basis for the possession charge in the vehicle's back seat where two other passengers were sitting and in the camera case in the vehicle's center console in equal proximity to the front seat passenger, who was also the vehicle's registered owner. The State's theory was entirely one of constructive possession. Under these facts, Cleveland could show by a preponderance of evidence that his possession was unwitting, entitling him to an unwitting possession instruction.
Constructive possession means "the one not in actual possession still has dominion and control over the goods." State v. Cabigas, 3 Wn. App. 740, 743, 477 P.2d 648 (1970). The State's theory that Cleveland knew about the drugs was based on Keefer's testimony that Cleveland told him he received the closed camera case from the backseat and that Cleveland offered to buy drugs for Keefer at the jail, evidence that Cleveland had driven the vehicle on other occasions, the fact that the packaging material in the camera case matched the packaging material in Cleveland's backpack, and Cleveland's position in the driver's seat.
We next determine whether it was objectively reasonable for defense counsel not to request the instruction. Defense counsel repeatedly argued before the jury during closing argument that Cleveland did not know the drugs were there and that it could not find that Cleveland had dominion and control over the drugs when he was not aware of their presence, yet defense counsel sought no instruction supporting that argument. We can discern no tactical reason why defense counsel did not seek an unwitting possession instruction because the defense's theory was primarily that Cleveland was not aware of the drugs and, in fact, unwitting possession was Cleveland's only real defense to constructive possession here. Without an unwitting possession instruction, the defense could not properly argue its theory of the case. See State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005) (jury instructions are proper when they, in part, permit the parties to argue their theories of the case). Under these circumstances, defense counsel's failure to request an unwitting possession instruction was not objectively reasonable.
Cleveland must also demonstrate a reasonable probability that, but for defense counsel's deficient performance, the results at trial would have differed. Strickland, 466 U.S. at 694. Here, the jury essentially had no choice but to find him in constructive possession because he was in the driver's seat of the vehicle where the officers found methamphetamine, and the testimony was that he acknowledged receipt of the camera case containing methamphetamine. The only chance he had for the jury to acquit him of possession was an unwitting possession defense. We are not persuaded by the State's argument that Cleveland cannot show prejudice because the jury convicted him of the more serious offense, possession with intent to deliver. Once the jury determined possession existed, it could likely find intent to deliver based on the items found in his backpack, which Cleveland claimed ownership of. But possession was not based on the backpack's contents because the residue on the scale inside the backpack was never tested and there were no other drugs found there or on his person. Without finding he had constructive possession of drugs found elsewhere in the vehicle, there was no basis for a conviction. Further, the State used the fact that defense counsel provided no instruction supporting their theory of unwitting possession and argued to the jury that it could not find unwitting possession because it must deliberate only on the law as provided in the jury instructions.
On these facts, we cannot say to a reasonable degree of certainty that the outcome at trial would not have differed had the trial court instructed the jury on the defense of unwitting possession. Cleveland meets both prongs of Strickland, and we reverse his conviction based on ineffective assistance of counsel and remand for a new trial.
Because we reverse based on ineffective assistance of counsel, we do not address Cleveland's other arguments based on ineffective assistance of counsel and prosecutorial misconduct.
Statement of Additional Grounds
We also do not address Cleveland's pro se arguments based on witness credibility and persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Cleveland contends that his rights to a speedy trial and to speedy sentencing were violated. He asserts the State used stall tactics to persuade him to take a deal, delayed trial for the purpose of testing evidence when it did not send evidence for testing until after trial started, he objected to all continuances, and he was not present when the trial court continued his sentencing hearing.
We review applications of the CrR 3.3 speedy trial rules de novo. State v. Nelson, 131 Wn. App. 108, 113, 125 P.3d 1008, review denied, 157 Wn.2d 1025 (2006). CrR 3.3(b)(1)(i) provides that a defendant who is not released from jail must be brought to trial no later than 60 days after arraignment. But trial in the allotted time is not constitutionally required, and the trial court has discretion to grant continuances. See State v. Hoffman, 116 Wn.2d 51, 77, 804 P.2d 577 (1991).
Under CrR 3.3(f)(2), the trial court may continue the case when "required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." We review a trial court's decision to grant a CrR 3.3 continuance for an abuse of discretion. State v. Cannon, 130 Wn.2d 313, 326, 922 P.2d 1293 (1996). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
On October 25, 2006, defense counsel objected to the State submitting laboratory reports on the pills, vial, and two plastic bags because the discovery was untimely. Defense counsel asked the trial court to dismiss the case because the State, through the crime lab, completed testing only the day before. The State argued the case was only 76 days old and realized the lab had not tested an additional methamphetamine sample. The trial court found no unfair surprise to Cleveland because the change to the evidence from that listed in the declaration of probable cause was "a glass vial with 1.8 grams of methamphetamine" instead of "'several baggies of suspected methamphetamine'" as listed in the declaration. 1 RP at 89. We find no abuse of discretion in the trial court's ruling.
On October 4, the State sought a two-week continuance of three matters Cleveland had set for trial, arguing that two of the cases involved firearm evidence, the cases were relatively young, and the Washington State Crime Lab was backlogged and had not yet tested the firearms. Defense counsel objected. The trial court noted Cleveland's objection but found good cause for the continuance as required in the administration of justice. Again, we find no abuse of discretion.
On October 23, defense counsel sought a one-day continuance of trial for a motion that would be dispositive on Cleveland's other trials. Defense counsel noted that Cleveland refused to sign the continuance order because he was "quite upset by the amount of times that the court has found good cause." 1 RP at 12. The trial court confirmed Cleveland's understanding that the continuance was only one day and granted it. We find no abuse of discretion.
Finally, on October 27, the trial court set sentencing in the current matter for November 9. On January 12, 2007, the trial court held the sentencing hearing on the current matter and another matter. On the other matter, defense counsel informed the trial court that "a resolution was worked out" and that Cleveland had entered guilty pleas to two counts of unlawful possession of a controlled substance on November 9. 2 RP at 248. In sentencing Cleveland on the current matter, the trial court sentenced him to a total of 80 months and granted him 190 days' credit for time already served in custody.
Based on the record before us, we discern no abuse of discretion in the trial court's granting continuances based on findings of good cause in the administration of justice and also note that Cleveland received a reduction in his sentence for time served in custody. The record further indicates there may have been delays for strategic purposes based on negotiations between opposing counsel regarding Cleveland's other pending matters, which is beyond our review. Cleveland's argument regarding the procedural history of his case is otherwise beyond the record on appeal and we do not review it further. McFarland, 127 Wn.2d at 335.
Reversed and remanded.
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.
BRIDGEWATER and QUINN-BRINTNALL, JJ., concur.