Opinion
No. 64547-1-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-04379-1, Jeffrey M. Ramsdell, J., entered November 13, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Dwyer, C.J., and Spearman, J.
Legitimate trial strategy that results in an adverse ruling does not amount to ineffective assistance of counsel, particularly when, as here, there was sufficient undisputed evidence to prove the crime regardless of whether counsel pursued that strategy. Accordingly, we affirm.
FACTS
On May 25, 2009, police arrested Ronald Collins on an outstanding misdemeanor warrant. Police arrested him while he standing outside in front of his home and advised him of hisMiranda rights. During a search incident to arrest, one of the officers recovered a large piece of heroin from Collins' pocket. The other officer asked Collins if one of the items pulled out of his pockets was heroin and Collins replied that it was. The officer then asked him how much he used and Collins replied, "I use about a piece every two weeks." When the officer asked him how much he paid for it, Collins replied that he paid "$300 for the piece."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Collins with one count of possession of heroin, a violation of the Uniform Controlled Substances Act. Before trial, the court held a CrR 3.5 hearing to determine the admissibility of Collins' post-arrest statements. The court first ruled that the statements were lawfully obtained and were therefore generally admissible, but that they were provisionally excluded under ER 404(b) because they were not relevant to establish simple possession of the heroin and instead amounted to prejudicial propensity evidence. But the court also ruled that if the defense opened the door and asserted an unwitting possession defense, the statements would be relevant and admissible.
As the court explained:
If [the defense] backpedal and start arguing unwitting possession or something of the sort, then we would excuse the jury and have a chat, and chances are what I would do then is reopen the case for presentation of more evidence, and then you would get in what you wanted in in [sic] the first place, with my apologies of not knowing what was going to happen.
But absent some showing that that's where we're heading, it sure seems to me the probative value is substantial evidence in the sense that what it does is establish, in essence, is "I'm a drug addict, and therefore you can assume that these drugs were there, because that's what I do." And you don't need that to prove the case when it's just a simple possession case and the drugs were on the person's person, as opposed to constructive possession.
. . . .
Well, if we go there [with the defense that the drugs were planted on Collins], I would gladly rethink all this, but I think I'm inclined to keep it as lien [sic] as possible in light of the fact that under the statute, all you have to do is prove that he possessed it. And if the testimony comes out the way I anticipate, which is the drugs were found on his person, that's pretty much the end of the story, unless and until the defense ponies up on an unwitting possession defense or something of the sort, in which case, then the door is opened for, I think, the testimony that you want to [e]licit.
So right now I'm going to suppress that under 404(b). With that being said, it is admissible under 3.5. So we don't have that impediment. So if the door gets open for whatever reason the testimony [inaudible] intent, I'm keeping it out, okay?
During cross-examination of one of the officers at trial, defense counsel elicited testimony that other than the fact it was found on his person at the time of the search, there was no additional evidence linking Collins to the drugs, such as finger prints, fiber analysis or video of the actual search. The prosecutor then sought to admit Collins' post-arrest statements, arguing that his cross-examination sought to establish that the drugs were planted on him by police, thereby opening the door to his statements about his drug use. Defense counsel contended that he was not necessarily raising an unwitting possession defense, but that he was pointing out that the officers did not collect further evidence to connect Collins to the drugs that were recovered. The court acknowledged that this was "perfectly within [Collins'] purview to do so," but pointed out that "it does now make the testimony or the proposed testimony of Mr. Collins far more relevant than it was before." As the court further explained:
And I was excluding it in an effort to be as cautious as possible, because it was unnecessary at the time when it was first being proffered by [the prosecutor]. It seems to me it's becoming more necessary, so, [prosecutor], as far as I'm concerned you're — you can elicit testimony from Officer [Larry] Longley with regard to his conversation with Mr. Collins relating to his knowledge that the item was in his pocket and when he purchased it and how much he uses, because I think now it's fair game.
Officer Longley then testified that Collins made statements post-arrest, that he bought that piece of heroin for $300, and that he used "about a piece every two weeks."
The jury found him guilty as charged. The court imposed a standard range sentence of 89 days confinement (which was time served). Collins appeals.
ANALYSIS
Collins contends that he was denied effective assistance of counsel when his lawyer elicited testimony that he knew would open the door to highly prejudicial evidence against him. To establish a claim of ineffective assistance of counsel, the defendant has the burden to show that (1) counsel's performance fell below a minimum objective standard of reasonableness and (2) that but for counsel's errors, there is a reasonable probability that the result would have been different. The defendant must establish both prongs to prevail on an ineffective assistance of counsel claim. "[S]crutiny of counsel's performance is highly deferential and courts will indulge in a strong presumption of reasonableness." Accordingly, reviewing courts will make "every effort to eliminate the distorting effects of hindsight." A decision made by trial counsel for legitimate strategic or tactical reasons does not amount to ineffective assistance.
State v. West, 139 Wn.2d 37, 41-42, 983 P.2d 617 (1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
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) (citing Strickland, 466 U.S. at 689).
In re Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992).
State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Here, counsel's decision to cross-examine the officer about whether the police made additional efforts to connect Collins to the drugs can be reasonably characterized as legitimate trial strategy. While the court clearly ruled that the door would be opened if Collins sought to establish an unwitting possession defense, defense counsel specifically stated that he was not pursuing such a defense and was instead simply pointing out the absence of evidence collected by the police. Indeed the court recognized this:
THE COURT: You're absolutely right. It's not unwitting possession. It's general denial —
[DEFENSE COUNSEL]: Right.
THE COURT: — by affirmative cross-examination.
[DEFENSE COUNSEL]: Right.
THE COURT: And just say, here's the things you didn't do that would have locked this down even further. Correct, Officer? Which is perfectly within your purview to do.
Unfortunately, however, the court concluded that this line of cross-examination also made Collins' post-arrest statements about his knowledge of and familiarity with the drug more relevant than without the cross-examination. Thus, counsel attempted to pursue a legitimate strategy that he reasonably believed would advance the defense theory of police misconduct without opening the door to Collins' statements; he did not pursue an unwitting possession defense that would clearly open the door, as Collins suggests. That the strategy was not the best choice is simply a matter of hindsight, given the trial court's ruling after counsel chose to pursue that route.
But even if this strategy could be fairly characterized as deficient conduct, Collins still fails to establish prejudice necessary to satisfy the second prong and establish a claim of ineffective assistance. Even without this additional evidence of Collins' statements, there was sufficient evidence to establish the crime of simple possession. The undisputed evidence established that the heroin was found on Collins' person and the affirmative defense of unwitting possession was not asserted. Thus, no further proof was needed to establish the crime.
We affirm the judgment and sentence.
WE CONCUR: