Opinion
65995-2-I
03-05-2012
STATE OF WASHINGTON, Respondent, v. JOSEPH ARON DEMMON, Appellant.
UNPUBLISHED OPINION
Leach, J.
Joseph Demmon appeals his conviction for first degree burglary. He claims counsel provided ineffective assistance by failing to object to a police officer's testimony that he searched for and found the vehicle Demmon drove from the crime scene in Everett's "higher crime areas." Because Demmon cannot demonstrate the prejudice necessary to prevail on an ineffective assistance of counsel claim, we affirm.
Background
On April 10, 2009, Joseph Demmon and Emerson Miller devised a plan to rob Demmon's acquaintance "Ricky" at Ricky's house on Everett's Bedrock Avenue. At approximately 10:30 a.m., Demmon and Miller drove to Ricky's house, where they hoped to find "money and Oxycontins." When they arrived, they knocked on the door. Fourteen-year-old Nathan Mationg and his adult cousin Andrea Leffingwell went to the door, and Mationg looked through the peephole. He saw two individuals he did not recognize, later identified as Demmon and Miller. Mationg reluctantly opened the door after one of the men said his name.
Leffingwell was at the house to baby-sit Mationg and his two younger brothers.
Demmon and Miller then forced their way through the open door and into the house, where they struggled with Mationg and Leffingwell. Demmon placed Mationg in a headlock and began choking him. Miller pulled out what appeared to be a handgun and pointed it at Leffingwell, who had fallen to the floor.During the struggle, Demmon and Miller demanded money from Mationg and Leffingwell. Mationg eventually broke free from Demmon and ran out of the house.
Miller testified that he was carrying an "Airsoft pistol, " which is a type of BB gun that looks real.
After Mationg left, Demmon went upstairs, where he attempted to force open a locked closet. Miller told Demmon to hurry. Demmon came back downstairs empty-handed. As Demmon and Miller were leaving the house, Miller grabbed a laptop computer from the living room. Demmon and Miller ran to a silver car and drove away. Mationg, who had had gone to a neighbor's house, chased after the car and memorized its license plate number. Mationg related the number to his neighbor, who was on the phone with a 911 operator.
City of Everett Police Sergeant Richard Wolfington heard the call for assistance at the Bedrock Avenue house over dispatch and drove toward the scene. At some point, officers who were already on the scene advised that the suspects had left the area in a silver Infinity with the license plate number 615-YMG. Sergeant Wolfington then began to search for the vehicle, which he located in front of room 124 at the Sunrise Motor Inn.
Sergeant Wolfington called for backup at the motel. When Officer Jeff Hendrickson arrived, Sergeant Wolfington tasked him with discovering who was in room 124. Hendrickson reviewed the motel's surveillance video footage, which showed two individuals exiting the silver Infinity. One entered room 124 and the other entered room 223. The motel's records indicated that Demmon had rented room 124 using a photo ID. When officers searched room 124, they found Demmon's identification. Additionally, in searching the silver Infinity, officers found a bottle of prescription drugs in Demmon's name. Officers found the laptop in room 223, which Miller had occupied.
The police did not find any property from the Bedrock Avenue house in Demmon's room.
The State charged Demmon with first degree robbery and first degree burglary. Miller pleaded guilty to first degree robbery and received a reduced sentence in exchange for his agreement to testify against Demmon at trial. At Demmon's trial, Mationg, Leffingwell, and Miller testified to the events that occurred at the Bedrock Avenue house. Sergeant Wolfington also testified, and the State asked him how he located the car that the suspects drove from the crime scene. This colloquy followed:
A: [T]he officers on scene advised that a car had reportedly left the area with the suspects in it and so I began to look for the car with the description that they had given.
Q: Now, when you are attempting to locate a specific vehicle, specifically within a general area of Everett, how do you go about doing that?
A: Depending on the time and proximity of when the information came out, and if it's fresh information and they just left the scene, then I would head towards the scene. If the information was a little bit older and they've had time to leave, then I will usually check the main thoroughfares. And if they are not on those, then often I will go check some of our higher crime areas . . . .
Q: On April 10th, what did you do?
A: After I didn't happen to pass the car or see it on any of our main roads, I began to check some of our higher crime areas.
Q: When you say higher crime areas, do you mean specific apartment complexes, motels, streets? What do you mean by higher crime areas?
A: Yes, sir, particular apartment complexes, some of our hotels, things like that.
Q: Did you eventually find that car?
A: I did.
Q: And where did you find it and approximately what time did you find it?
A: It was at the Sunrise Motor Inn, at approximately 11:45 hours.
Demmon's counsel did not object to Sergeant Wolfington statements about looking for the suspects' vehicle in Everett's "higher crime areas."
A jury acquitted Demmon of first degree robbery but found him guilty of first degree burglary. Demmon appeals, claiming he received ineffective assistance of counsel.
Standard of Review
Claims of ineffective assistance of counsel involve mixed questions of fact and law that we review de novo.
In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
Analysis
The state and federal constitutions guarantee criminal defendants the right to effective assistance of counsel. To establish ineffective assistance, a defendant must show (1) that counsel performed deficiently and (2) that the deficient performance resulted in prejudice. Counsel's performance is deficient if it falls below an objective standard of reasonableness. Prejudice occurs when it is reasonably probable that, but for counsel's error, the outcome of the proceedings would have been different. If the defendant fails to establish either prong, we need not inquire further.
U.S. Const. amend. VI; Wash. Const. art. I, § 22.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
To establish deficient performance based on counsel's failure to object to certain evidence, a defendant must show that the trial court would have likely sustained the objection. Here, however, we need not consider whether an objection to Sergeant Wolfington's testimony would have been sustained. Even assuming that counsel's failure to object constitutes deficient performance, Demmon cannot demonstrate prejudice.
Hendrickson, 129 Wn.2d at 79-80; see also State v. Saunders, 91 Wn.App. 575, 578, 958 P.2d 364 (1998).
The State presented overwhelming evidence that Demmon committed burglary. A person is guilty of first degree burglary if
with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.
Here, Miller testified that he and Demmon planned to rob Ricky at his house. Mationg and Leffingwell testified that Miller and Demmon forcibly entered the Bedrock Avenue house, tried to restrain them, and demanded money. They also testified that Miller was armed with what appeared to be a gun. Miller's testimony about what occurred at the Bedrock Avenue house was consistent with that of Mationg and Leffingwell. Additionally, Mationg positively and unequivocally identified Demmon both directly after the incident and in court. Finally, Everett police officers linked Demmon to the vehicle the suspects drove from the crime scene. Considering the strength of this evidence, we cannot say with reasonable probability that the jury would have acquitted had they been prevented from considering the testimony that officers searched for the car in a "higher crime area."
Demmon contends that Sergeant Wolfington's testimony made it more likely that the jury would convict based on Demmon's criminal propensity. But this argument assumes that the State's evidence was weak. As discussed above, the State's evidence was overwhelming. Given the strong evidence against him, it is not reasonably probable that the jury would have acquitted Demmon of burglary had his counsel successfully objected to Sergeant Wolfington's testimony. Demmon's ineffective assistance claim fails.
Conclusion
Because Demmon cannot demonstrate the prejudice necessary to establish ineffective assistance of counsel, we reject his claim and affirm his conviction.