Opinion
No. 54256-7-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-07859-6. Judgment or order under review. Date filed: 04/26/2004. Judge signing: Hon. Joan B. Allison.
Counsel for Appellant(s), Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
A jury convicted Rodney Garrott of residential burglary and first degree trafficking in stolen property. Garrott moved for a new trial based on ineffective assistance of trial counsel, and the trial court denied the motion. We reverse and remand for a new trial. Without objection by defense counsel, and in violation of the rule against hearsay, the State was permitted to introduce a pawnshop record that was never authenticated as a business record. Moreover, without knowing the answer ahead of time, defense counsel asked a police detective whether he had forgotten to put anything in his report. The detective responded that he had forgotten something. When asked what it was, the detective stated that he forgot to write down that he had shown a photomontage containing Garrott's picture to the pawnshop clerk, and that the clerk had identified Garrott as the person who pawned the stolen property in this case. There cannot have been any legitimate trial strategy for failing to make the proper hearsay objections under the business records act because defense counsel was aware that the pawnshop clerk would not be testifying at the trial. And if defense counsel had reviewed the affidavit of probable cause or interviewed the detective ahead of time, he would have known about the photomontage and the clerk's identification of Garrott. By eliciting the information about the photomontage, defense counsel provided the State with the vital missing link in its case the means of connecting Rodney Garrott with the pawnshop transaction at issue. Without the inadmissible business records evidence and the 'gift' of the missing link, the jury could not have convicted Garrott. Accordingly, Garrott was prejudiced, and we reverse and remand for a new trial.
FACTS
Rodney Garrott was charged with residential burglary and first degree trafficking in stolen property. The charges were based on Jodi Mangold's report to police that her Seattle home had been burgled on June 16, 2003, and that a stereo, clock, and radio were taken. A neighbor told Mangold that a black man had been carrying a black bag near Mangold's home while Mangold was away from the house that afternoon. Mangold told police that she suspected her former boyfriend, a black man, might be the burglar, because her house had been left so neat and tidy after the crime. Mangold went looking for her belongings at local pawnshops. She found her stereo at one of the shops and notified police. In due course, Garrott, a black man who was about the same age as Mangold's ex-boyfriend, but who was not the ex-boyfriend, and who was a stranger to Mangold, was charged and brought to trial.
At trial, only Mangold, the two officers investigating the case, and a latent fingerprint examiner testified. Mangold testified that when she left her home around 5:15 p.m. on June 16, 2003, she left her doors locked, but she left one of her screened back windows open because of the hot weather. She stated that she returned around 6.45 p.m. that same evening and noticed that her stereo and amplifier were missing, the screen was off her back window, and her back door to the outside was open. She also found that a radio and a crystal clock were missing. Mangold stated that she called police to report the matter and later drove around to local pawnshops looking for her belongings. She stated that one of the pawnshops verified that it had her stereo, and that she gave this information to the police.
Mangold also testified that she told the police that she believed her ex-boyfriend might have been involved in the robbery because the house was so 'tidy' and nothing had been disturbed except for the window screen and the missing property. Mangold also gave the police the name, given to her by the pawnshop, of the person who had brought in her stereo, a name that was different from that of her ex-boyfriend. Mangold stated that she also checked with neighbors to see if they had seen anyone at her house. Mangold testified that a neighbor reported seeing a black male carrying a big black bag near Mangold's house while Mangold was gone. No objection was made to any of this testimony. On cross-examination by Garrott's attorney, Mangold stated that her ex-boyfriend was a black male around 40 years old, born in 1963. The record shows that Garrott is a black male, also born in 1963.
Officer Christine Nichols testified that she responded to Mangold's burglary report and came to Mangold's home. Officer Nichols stated that Mangold told her the home was burgled while she was not there, and that a screen had been removed from her kitchen window. Officer Nichols made a list of the items that were missing, and lifted a fingerprint from the inside of the open window. Officer Nichols testified that Mangold mentioned that she thought her ex-boyfriend might be involved in the crime, and that she wrote this information in her report.
Officer Steven L. Berg, a Seattle police detective, testified on direct examination that he was assigned to do a follow-up investigation of the burglary case. He stated that he talked to Mangold, and that she told him she had discovered her missing stereo at a local pawnshop. Detective Berg testified that pawnshops are required by law to fill out a form when they take items for pawn, and must send that form to the police upon request. When Detective Berg stated that he was familiar with pawnshops' creation and keeping of these records, and that such forms are required to be filled out at the time the property is taken in, Garrott's attorney objected as to foundation. But the trial court allowed Detective Berg to testify because the detective was familiar with the way that records were kept at this particular pawnshop, and knew 'the details of filling out the form.' The State presented Detective Berg with a pawn slip; Detective Berg identified it and testified that the slip complied with the legal requirements of such forms. The pawn slip was admitted into evidence as State's Exhibit 4, and Garrott's attorney did not further object.
The pawn slip listed a transaction date of June 16, 2003. Without objection, Detective Berg testified that it listed the stereo that Mangold had reported as stolen, and that the person named on the slip was 'Louis Garrott Rodney, date of birth 3-6-64.' Detective Berg stated that he had seen Mr. Garrott before and was familiar with his date of birth, and that '[t]he name on the pawn slip is an a.k.a., an alias for Rodney Louis Garrott, with the same date of birth.' Again, Garrott's attorney did not object. Detective Berg stated that he recovered the stereo system from the pawnshop, and that Mangold later identified it as hers.
Later, Garrott's attorney asked Detective Berg if he had written everything he did during his investigation into his report. Detective Berg admitted that he forgot to make one entry on his follow-up report, and Garrott's attorney asked him what that was. Detective Berg stated that when he found out who had pawned the stereo, he took a photomontage to the pawnshop and that the man at the pawnshop identified Garrott as the person who pawned the stereo. Counsel perhaps being too stunned to react did not move to strike the response, or for a curative instruction, or for a mistrial. Detective Berg also testified that although he had not spoken directly to Officer Nichols, he was aware from her report that Mangold had initially believed her ex-boyfriend might have done the burglary. Detective Berg admitted that he neither contacted nor otherwise investigated the ex-boyfriend. A fingerprint examiner identified the print lifted from the window of Mangold's home as a print belonging to Garrott.
At half-time, Garrott's attorney moved to dismiss both counts. Apparently forgetting about the testimony about the photomontage containing Garrott's picture, and Berg's testimony about the form containing Garrott's 'alias' and birth date, counsel argued that because the pawnshop clerk had not been present to testify that Garrott arrived at the pawnshop with the stolen items, there was no way to tie Garrott to the stolen property. The court denied the motion. The defense rested.
In closing argument, Garrott's attorney argued that the State had not met its burden to prove beyond a reasonable doubt that Garrott committed the crimes. Garrott's attorney pointed out that the pawnshop clerk had not testified, that Mangold had originally believed her ex-boyfriend was the burglar, and that both the ex-boyfriend and Garrott were black men around the same age.
The jury found Garrott guilty of both counts. At sentencing, Garrott moved for a new trial, alleging ineffective assistance of counsel. The trial court appointed new counsel. Garrott pointed out that his original attorney failed to object to the admission of the pawnshop record, and to hearsay police testimony regarding Garrott's 'alias' and birth date, and that his own defense lawyer brought out police testimony regarding the photomontage presented to the pawnshop clerk, and testimony from the robbery victim about a neighbor's observances. Garrott asserted that this evidence was improperly admitted, either because it was hearsay or without foundation, and that some of the evidence violated his constitutional right to confrontation.
After a hearing, the trial court denied the motion for a new trial. The judge stated:
There certainly may have been weaknesses in [defense counsel's] presentation and his [assistance] indeed, may have been ineffective. That's primarily an appellate issue.
The Court is in — really not in a position to judge the many decisions — there was certainly nothing obvious to me that was ineffective. It wasn't as though he was not paying attention to the trial or that he didn't have a good command of the facts. I don't know whether his decisions were strategic or, again, fell below some standard that is anticipated for trial counsel[.]'
Report of Proceedings 4/23/04 at 14.
Garrott was sentenced to 18 months for the residential burglary conviction and 13 months for the trafficking in stolen property conviction, the terms to be served concurrently. He appeals.
DISCUSSION I. Ineffective Assistance of Counsel
The federal and state constitutions guarantee all defendants the right to effective representation at trial. State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987) (citing U.S. Const. amend. 6; Wash. Const. art. 1, sec. 22). The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is used to determine ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Thomas, 109 Wn.2d at 225-26 (citing Strickland, 466 U.S. at 687). Regarding the first prong, defense counsel's representation is not deficient unless it falls below an objective standard of reasonableness based on consideration of all the circumstances. State v. Maurice, 79 Wn. App. 544, 551-52, 903 P.2d 514 (1995). Scrutiny of counsel's performance is deferential and courts recognize a strong presumption that a counsel's performance is within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Thomas, 109 Wn.2d at 226. '[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.' Strickland, 466 U.S. at 690-91. To meet the second Strickland prong, a defendant has the burden to show that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Thomas, 109 Wn.2d at 226 (citing Strickland, 466 U.S. at 694). Where the defendant has shown ineffective assistance of counsel, reversal of a conviction and remand for a new trial is required. See Thomas, 109 Wn.2d at 232.
Garrott claims both (1) that his trial attorney's failure to object to inadmissible and prejudicial evidence fell below an objective standard of reasonableness and (2) that a reasonable probability exists that, but for the errors, the result of his trial would have been different. Thus, he claims that the trial court erred in denying him a new trial. We agree. The State cites State v. Williams, 96 Wn.2d 215, 634 P.2d 868 (1981), and argues that the standard of review is abuse of discretion. However, this court reviews an ineffective assistance of counsel claim de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003) (citing State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000)).
A. Admission of Pawnshop Form
Garrott argues that admission of the pawnshop form violated his Sixth Amendment constitutional right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that the form was not admissible under the business record exception to the hearsay rule, RCW 5.45.020. Because we conclude that counsel was constitutionally ineffective for failing to object under the business records act, and that the ineffectiveness was prejudicial, we do not need to reach the Crawford issue to resolve this appeal.
The first trial was held before Crawford was decided. Following our remand, the trial court likely will need to reach the Crawford issue. Additional briefing will need to be done before a determination is made whether the content of the form is 'testimonial' and if it is, whose 'testimonial statement' it may be that of the pawnshop clerk, or of the person who pawned the stereo, or both. The parties have not cited the legal authority for requiring the pawnshop forms to be filled out and we have not reviewed that authority. From the testimony at trial, it appears that the clerk at the shop is to fill in the name, address, age, and birth date of the person who wishes to pawn the item, and the item is described in considerable detail here including the brand, model number, and serial number of the stereo. Then comes the following statement: 'To the KING COUNTY POLICE DEPT, I certify that I am the true and legal owner of the item(s) described herein; or that I have the name and address of the true and legal owner and that the item(s) are not stolen.' Trial Exhibit 4. Immediately below this statement is a signature line. The only person who signs the pawn slip is the person pawning the item here, allegedly, the appellant Rodney Garrott.
According to the testimony of Detective Berg, the proper procedure was for the pawnshop form to be prepared by the pawnshop clerk, an individual who did not testify at this trial. Although we think that Detective Berg, based on his training and experience, was qualified to explain the proper procedure for filling out the form, he was not present when the stereo was pawned, and he did not fill out the form; neither, insofar as the record reflects, is he a person qualified to fill out the form. The form bears a name that is similar to Garrott's name, and which Detective Berg testified, without objection, was Garrott's alias; an address that nobody at trial identified as Garrott's address; and a birth date purporting to be that of the person that pawned the stereo, which the detective, without objection, testified was Garrott's birth date. The form bears an illegible signature that nobody at trial identified as Garrott's signature. Thus but for the testimony elicited by the defense regarding the photomontage the only nexus between this form and Garrott is that the detective testified, improperly but without objection, that Garrott's alias and date of birth are on the form.
Hearsay is 'a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.' ER 801(c). The parties have assumed, below and on appeal, that the pawn slip is a business record within the meaning of RCW 5.45.010 and .020. Without so holding, we will treat it as such for purposes of this appeal. Thus, the pawnshop form was hearsay unless it meets the requirements of the business record statute, which provides in part:
A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
Although the pawnshop slip may have been made in the 'regular course of business,' the custodian of the pawnshop slip the pawnshop clerk or the owner of the shop or some other employee or records custodian of the shop did not testify at trial. The State argues that Detective Berg was an 'other qualified witness,' thus the slip was properly admitted through him. The State is incorrect.
RCW 5.45.020 does not require examination of the person who actually made the record. 'Testimony by one who has custody of the record as a regular part of his work or who has supervision of its creation will be sufficient to properly introduce the record.' State v. Iverson, ___ Wn. App. ___, 108 P.3d 799 (2005) (citing Cantrill v. American Mail Line, Ltd., 42 Wn.2d 590, 608, 257 P.2d 179 (1953)). The Washington Supreme Court has concluded that a trial court properly refused to admit medical records through the testimony of the defendant's psychiatrist where such records were not made by the physician or his office in the regular course of his business of treating one of his patients. State v. Weeks, 70 Wn.2d 951, 953-54, 425 P.2d 885 (1967). This court has concluded that criminal booking records are admissible as business records through the testimony of police officers who did not create them, but were familiar with the creation of such records, used the same computer system to create similar records in other cases, and routinely relied on such records in the course of their business as police officers. Iverson, 108 P.3d at 803.
Here, Detective Berg knew generally how such records were supposed to be created, was familiar with the way this particular pawnshop created similar records, and relied upon such records in his work as a police officer. But he was not a custodian of the records, and did not himself ever create such records in his work. Thus, Detective Berg was not an 'other qualified witness' under RCW 5.45.020. To hold otherwise would expand 'other qualified witness' far beyond the existing case law something we are not willing to do on the basis of the briefing for this appeal. If defense counsel had objected to the admission of Exhibit 4 on grounds that it had not been properly authenticated as a business record, the trial court would have been required to sustain the objection. Counsel's failure to object was deficient, and the deficiency was prejudicial because it allowed Garrott to be convicted on hearsay evidence incompetent evidence in that it was not authenticated under the business records act.
B. Testimony Regarding Alias Garrott's Date of Birth
Garrott additionally argues that admission of the 'alias' testimony and testimony regarding his date of birth being shown on the pawnshop form were also improperly admitted. Until the business record itself was properly authenticated, it was improper for the State to present evidence of the contents of the form. Nevertheless, there was no objection, and the State was not required to act as if there had been a proper objection. And so the State asked questions that allowed the detective to reveal the alleged alias and the birth date shown on the form. Now, the State argues that there was no prejudice, based on State v. Chase, 59 Wn. App. 501, 799 P.2d 272 (1990). The State contends that the statement by Detective Berg that the name used on the pawnshop form was Garrott's 'alias' was relevant and admissible because it tied Garrott to the pawned stereo and showed his consciousness of guilt. The defendant in Chase purposefully gave a false name when first contacted by police and the trial court found that such evidence both connected the defendant to the crime and showed consciousness of guilt. Thus, it was relevant and admissible under ER 401 and ER 404(a). Chase, 59 Wn. App. at 507.
The State misses the point. Here, relevance and admissibility are two different issues. The contents of the form are relevant; they simply are inadmissible unless properly authenticated. Nothing in Chase provides a basis for admission of the contents of the pawnshop form outside the business records act, whether or not the person who pawned the stereo used an alias, and whether or not that person had the same birth date as Garrott. Further, no testimony was given in Chase that stated the false name was an 'alias,' the testimony that was actually given here. 'It is common knowledge that the use of aliases is frequently associated in the public mind with the so-called 'criminal' cases." State v. Smith, 55 Wn.2d 482, 484, 348 P.2d 417 (1960) (erroneous and prejudicial submission to the jury of several of a defendant's 'aliases' supported reversal). Reference to the name on the pawnshop slip as Garrott's 'alias' was improper and prejudicial.
Detective Berg also testified, without objection, that he had personal knowledge that the birth date listed on the pawnshop slip was the same as Garrott's. If counsel's failure to object was strategic, counsel's focus was on the wrong target. No doubt Detective Berg was familiar with Garrott's 'rap sheet' and other details of his criminal record, and defense counsel did not want that information placed before the jury. But the proper focus was the admission of the form under the business records act. The State failed to properly authenticate the form. That being so, defense counsel should have focused on keeping the contents of the inadmissible form out of evidence altogether. By losing that focus, and concentrating instead on how the detective came to know Garrott's birth date and on keeping that information from the jury defense counsel slipped over the line between trial strategy and ineffective assistance.
Once Exhibit 4 was admitted into evidence, it was inevitable that the jury would see it. But before that time, defense counsel should have used every legitimate evidentiary weapon in his arsenal to keep the contents of the form from being revealed to the jury. Failing to use legitimate evidentiary objections in this case was not strategic; it reflects failure to understand the business records act.
C. Montage Testimony
Garrott also argues that the testimony by Detective Berg that the pawnshop clerk picked Garrott out of a montage as the person who pawned Mangold's stereo was erroneously admitted and violated his Sixth Amendment right to confrontation. The State admits that the montage testimony was erroneously admitted, but asserts that such error was harmless because there was more than enough evidence to establish that Garrott was the person who pawned Mangold's stereo. See, e.g., United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. Mont. 2004) (confrontation clause violations are subject to harmless error analysis).
But the State overlooks that the pawnshop slip and the detective's testimony revealing part of its contents would not have been admitted if defense counsel had objected on the basis of failure to authenticate the record as required by the business records act. This is not a case of two examples of ineffective assistance balancing each other out; it is a case of one example exacerbating the other. The State also asserts that the testimony was not elicited, but was made in response to the legitimate trial tactic of Garrott's counsel in pointing out that Detective Berg failed to do several things in investigating the case, including failing to write everything down on his follow-up investigation report and failing to investigate Mangold's ex-boyfriend as a suspect. However, the testimony of the montage, which connected Garrott to the pawnshop and the stolen stereo, was not related to Garrott's defense which was that somebody else stole and pawned the stereo probably the ex-boyfriend.
This may be the finest illustration we have ever seen of why trial counsel should never ask a question without knowing the answer in advance. Such pitfalls can be avoided two ways: vigorous trial preparation; or do not ask the question. Here, a proper pretrial investigation would have revealed the photomontage and the clerk's identification of Garrott. The affidavit of probable cause stated that Berg had given the pawnshop clerk a photomontage containing Garrott's photo, and that the clerk had identified Garrott. Failure to conduct an appropriate investigation can be deficient performance. See State v. Visitacion, 55 Wn. App. 166, 776 P.2d 986 (1989). This improper testimony linked Garrott to the pawnshop, to this specific pawn transaction, and to the stolen stereo much more effectively than did Detective Berg's testimony regarding the alias and the birth date shown on the form. This testimony also filled the gap caused by the pawnshop clerk's failure to appear at trial nobody but that clerk could identify Garrott as the person who pawned the stereo. The 'alias' and the birth date were circumstances that tended to connect Garrott to the transaction; the photomontage testimony was the virtual equivalent of eyewitness testimony in absentia.
In sum, trial counsel was ineffective in the constitutional sense for failing to understand and apply the authentication requirements of the business records act and for failing to investigate sufficiently to know that it was a very bad idea to ask Detective Berg if he forgot to put something into his follow-up reports. Asking a question without knowing the answer probably is not, in and of itself, ineffective assistance; but when the damning answer to that question is available in the record and easily found before the question is asked, but is not found, the failure to investigate can become ineffective in the constitutional sense. We think it was so, in this case.
D. Hearsay Testimony from Victim
The State admits that the testimony from Mangold about a neighbor's observations that a black man carrying a black bag was seen near her home on the night of the burglary was hearsay, but asserts that Garrott's attorney's failure to object was strategic. Here, we agree with the State. Garrott's theory of the case was that the State charged the wrong man, and that the ex-boyfriend may have been the burglar. Counsel properly pursued that theory, and was not ineffective for failing to object when the State brought out the fact that Mangold at first suspected her ex-boyfriend
II. Other Issues Raised
We do not need to address Garrott's contention that his trial counsel prevented him from exercising his constitutional right to testify at his trial. The issue is mooted by our decision to grant Garrott a new trial on different grounds. If Garrott wishes to testify at the new trial, he can discuss the wisdom or lack of wisdom of that course, with new counsel. Garrott submitted a statement of additional grounds for appeal. All but one of his grounds are mooted by our decision to grant him a new trial on other grounds. Garrott's contention that his speedy trial rights were violated are not mooted by this decision. However, the record before us is not sufficient for a review of the issue on direct appeal. If Garrott desires to pursue the speedy trial matter, a timely personal restraint petition may be his only remedy.
Reversed and remanded for a new trial on the basis of ineffective assistance of trial counsel as explained in this opinion.
COLEMAN and BECKER, JJ., Concur.