Opinion
No. 53693-1-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-03238-7. Judgment or order under review. Date filed: 01/09/2004. Judge signing: Hon. Robert H. Alsdorf.
Counsel for Appellant(s), Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Catherine Marie McDowall, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Michael Goeman appeals his drug delivery conviction and sentence, raising a number of issues. We resolve each issue in the State's favor and therefore affirm. Statements by Goeman's co-conspirators in the buy-bust deal are not testimonial and were properly admitted through the police officers' trial testimony. The law does not require that the to-convict instruction include accomplice liability as an element of the charged crime. When Goeman stipulated to his criminal history, he affirmatively acknowledged his prior conviction for bank robbery, and the fact of a prior conviction need not be presented to the jury in determining a defendant's sentence. Where there is no evidence in the record about comparability of a prior out-of-state crime, there is no basis on which to review comparability. And because Goeman had a prior robbery conviction from 1993, he was subject to impeachment if he chose to testify.
FACTS
Seattle police officer Greg Neubert was working as an undercover buy officer in a police department buy-bust operation in downtown Seattle. A man later identified as Noonan approached him, and Officer Neubert said he wanted to buy some black tar heroin. Noonan agreed to help Officer Neubert and took him up the street. Noonan said he was looking for a woman who had a narcotics connection and would not rip them off, and soon contacted her. This woman was later identified as Rowe.
Noonan told Rowe that Officer Neubert was looking for forty dollars' worth of black tar heroin and asked whether she or her husband was going to make the deal. Rowe said she would do it and proceeded to walk up the street. As they walked, Noonan noted that Rowe's husband was walking towards them. This man was Michael Goeman. Rowe approached him and they talked briefly. Rowe told Goeman about the transaction, and Goeman pointed north, telling Rowe he should take Officer Neubert in that direction. They all walked up the street with Rowe and Officer Neubert side by side and the other men behind. Officer Neubert gave Rowe forty dollars of police department buy money and received what was later determined to be black tar heroin. Officer Neubert gave a signal to observing officers. He heard Noonan ask Goeman if he would get credit for this deal.
As he approached to make the arrests, Officer James Pitts saw Rowe hand some money to Goeman. Officer Pitts took the cash out of Goeman's hand and arrested Noonan, Rowe and Goeman. He determined that three of the bills he took from Goeman were police department buy money.
Goeman was charged with one count of Violation of the Uniform Controlled Substances Act (VUCSA). In a single hearing, he was sentenced for this crime and for a separate crime that would have been a third strike. Goeman agreed to enter a guilty pleas on several non-strike crimes, and the parties jointly recommended a total 240 month sentence on all the crimes under both cause numbers. Goeman agreed with the State that his offender score was six. This offender score included a prior federal robbery conviction. No evidence supporting this prior conviction was presented to the court.
TESTIMONIAL STATEMENTS
Relying on Crawford v. Washington, Goeman contends that the State violated his Sixth Amendment right to confrontation in presenting Noonan's and Rowe's statements made during the drug transaction through Officer Neubert's testimony. The United States Supreme Court in Crawford held that `[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.'
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Crawford, 124 S. Ct. at 1374.
In describing testimonial statements, the Court noted that "[t]estimony,' . . . is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." The Court stated that `testimonial' hearsay included `at a minimum . . . prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations,' and that one description of testimonial included `statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'
Crawford, 124 S. Ct. at 1364 (second alteration in original) (quoting 1N. Webster, An American Dictionary of the English Language (1828)).
Crawford, 124 S. Ct. at 1374.
Crawford, 124 S. Ct. at 1364 (quoting Brief of National Association of Criminal Defense Lawyers et al. as Amicus Curiae 3).
The Court also said that certain types of statements are not testimonial: `[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial for example, business records or statements in furtherance of a conspiracy.' As in United States v. Reyes, Noonan's and Rowe's statements were made to an undercover officer while the conspiracy, in this case the drug transaction, was ongoing. And as in Reyes, the defense had the opportunity to cross-examine the person who recounted the co-conspirators' statements, Officer Neubert. Goeman argues that the trial court did not admit the statements under the co-conspirator exception, but as res gestae of the crime. But this court will affirm the trial court's decision to admit evidence on any ground supported by the record. The statements were not testimonial, and the trial court did not err in admitting them.
Crawford, 124 S. Ct. at 1367 (emphasis added).
362 F.3d 536 (8th Cir.), cert denied, 124 S. Ct. 2926 (2004).
State v. Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995).
SUFFICIENCY OF THE EVIDENCE
Goeman contended in his opening brief that the State failed to prove the crime as set out in the jury instructions because the to-convict instruction required the jury to find that he personally delivered the heroin and knew that the substance delivered was heroin. He now concedes that the issue of the requirement that he personally delivered the heroin is controlled by the recent decision in State v. Teal. But he argues that, regardless of Teal, the to-convict instruction also required proof that he knew the substance delivered was heroin, and that the State did not meet this burden of proof.
152 Wn.2d 333, 96 P.3d 974 (2004).
In Teal, the to-convict instruction set out the elements of the charged crime. Separate instructions set out the requirements of accomplice liability. The Court stated that `jury instructions are sufficient when, read as a whole, they accurately state the law, do not mislead the jury, and permit each party to argue its theory of the case.' Teal applies to the knowledge element of the crime just as it applies to the delivery element because Goeman was charged with committing the crime, as embodied in its elements, as an accomplice. The to-convict instruction in this case listed knowledge that the substance delivered was heroin as an element, and Teal applies to all the elements set out in the to-convict instruction. As in Teal, `[i]n reading the jury instructions as a whole, including the court's . . . accomplice liability instruction, the jury could decide [Goeman's] guilt or innocence as an accomplice to' delivery of heroin. The State proved all the required elements of the crime.
Teal, 152 Wn.2d at 339.
Teal, 152 Wn.2d at 339.
COMPARABILITY OF PRIOR CONVICTION
Goeman contends that because he did not explicitly acknowledge that his prior federal robbery conviction was comparable to a Washington crime, he may raise the issue of comparability for the first time on appeal. He also contends that the recent decision in State v. Freeberg is controlling in this case.
120 Wn. App. 192, 84 P.3d 292, review denied, 152 Wn.2d 1022 (2004).
This court in Freeberg considered a prior bank robbery conviction under 18 U.S.C. section 2113(a). This statute makes it a crime to, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank . . .
The Freeberg court noted that to determine comparability, the court must first compare the statutory elements of the two crimes; if the out-of-state crime does not contain an element included in the Washington crime, the court then looks to the elements set out in the indictment to determine whether the element required under the Washington statute was alleged as part of the crime actually charged. In Freeberg, this court concluded that 18 U.S.C. section 2113(a) did not include the element of specific intent to steal, and the element was not included in the indictment. The federal crime was not comparable in that case. In this case, there is nothing in the record showing what federal statute was used to charge Goeman for his prior bank robbery. The statute used in Freeberg is not the only federal bank robbery statute; 18 U.S.C. section 2113 (b) does include the element of specific intent.
The statute states that `[w]hoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank' is guilty of bank robbery.
Citing State v. Ross, Goeman argues that a defendant must expressly and explicitly acknowledge that a prior conviction was comparable to waive the issue for appeal. In Ross, one defendant conceded that a challenged Oregon conviction was properly included in his offender score, and one defendant included two prior federal convictions in his calculation of his offender score. The Court concluded that both defendants had affirmatively acknowledged that their prior crimes were comparable to Washington crimes and were properly included in their offender scores. The Court stated that `a defendant's affirmative acknowledgement that his prior out-of-state and/or federal convictions are properly included in his offender score satisfies SRA requirements[.]'
152 Wn.2d 220, 95 P.3d 1225 (2004).
Ross, 152 Wn.2d at 230 (citing State v. Ford, 137 Wn.2d 472, 483 n. 5, 973 P.2d 452 (1999).
In Ford, the Court held that, although merely failing to object to the State's assessment of the offender score does not waive the issue, when a defendant includes out-of-state convictions in his own proffered offender score he concedes that these convictions `are properly included without further proof of classification.' At sentencing, defense counsel stated that Goeman `stipulated on the criminal history;' thus, he affirmatively acknowledged the comparability of the federal conviction.
137 Wn.2d at 483, n. 5.
Goeman also cites In re Goodwin for the proposition that a sentence that is illegal on its face may be challenged for the first time on appeal. But he fails to show how the asserted illegality in this case was apparent on the face of the judgment and sentence: the judgment and sentence merely includes in the list of prior convictions a conviction for bank robbery on March 29, 1993, in Seattle, Washington. Goeman also cites Freeberg for the argument that a federal robbery conviction is per se not comparable to a Washington crime. But as in Freeberg, this court would have to go behind the face of the judgment and sentence and consider either the federal statutory definition of bank robbery or the "elements of the crime stated in the indictment" to determine whether the prior robbery was comparable to a Washington crime. Any illegality was not evident on the face of the judgment and sentence, and Goeman waived the issue for appeal by stipulating to his criminal history.
146 Wn.2d 861, 50 P.3d 618 (2002).
Freeberg, 120 Wn. App. at 198 (quoting State v. Bunting, 115 Wn. App. 135, 143, 61 P.3d 375 (2003)).
CONSTITUTIONALITY OF SENTENCE
Goeman contends that the trial court violated his right to a jury determination of all elements of the charged crime when it failed to present the prior out-of-state conviction to the jury and used it to enhance his punishment. But the rule is that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." At sentencing, Goeman stipulated to his criminal history, including the fact of the prior conviction he now challenges. And prior convictions do not have to be presented to a jury. Goeman received all necessary constitutional safeguards. It is not `impermissible for judges to exercise discretion taking into consideration various factors relating both to offense and offender in imposing a judgment within the range prescribed by statute.' In this case, the prior robbery conviction was not used to increase, but to initially determine the prescribed standard range, including the statutory maximum. Goeman received a standard range sentence for this crime. The trial court did not run afoul of Goeman's Sixth Amendment rights.
Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Apprendi, 530 U.S. at 488.
Apprendi, 530 U.S. at 481.
INEFFECTIVE ASSISTANCE OF COUNSEL
Goeman contends trial counsel failed to provide him effective assistance when he did not contest the comparability of the prior robbery conviction. To establish a claim of ineffective assistance of counsel, the defendant has the burden of proving both that trial counsel's performance was deficient and that the deficiency prejudiced the defense. There is a strong presumption that trial counsel was effective, which can be overcome only by a showing of `deficient representation based on the record established in the proceedings below.' The prejudice prong of the test requires the defendant to prove there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 335.
State v. Brett, 126 Wn.2d 136, 199, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996).
There is nothing in the record in this case about the elements of the robbery charged in the federal proceeding at issue here. And although Freeberg concluded that one of the federal robbery statute is broader than the Washington statute, this was not determinative. After reaching this conclusion, the Freeberg court considered the facts alleged in the indictment to determine whether the federal crime was comparable to a Washington crime. As stated above, there is more than one federal bank robbery statute, and at least one includes the element of specific intent. On the basis of the record in this case, and given the presumption of effective assistance of counsel, we must conclude that defense counsel did not challenge comparability because the federal statute used for Goeman's prior conviction was comparable to the Washington statute. The record of proceedings below does not establish that counsel's representation was deficient, or that the result would have been altered but for counsel's performance.
ADDITIONAL GROUNDS FOR REVIEW: RIGHT TO TESTIFY
In a pro se statement of additional grounds for review, Goeman contends that the trial court violated his right to testify when it ruled that the State could use his prior federal robbery conviction for impeachment if he chose to testify. Goeman asserts that there was no prior federal conviction at that time because he had not yet been convicted of the crime discussed by counsel.
The record shows that the only bank robbery listed on the judgment and sentence occurred in 1993; therefore, regardless of whether Goeman had not yet been convicted of any more recent bank robberies, the State could have used the 1993 conviction for impeachment purposes. When asked whether he had been previously convicted of bank robbery, Goeman would have had to answer in the affirmative.
INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Goeman contends that he did not receive effective assistance of counsel because defense counsel failed to object to impeachment with charges rather than convictions, and because defense counsel failed to request a missing witness instruction or to obtain Officer David Toner's presence at trial. He states that if he had testified, he would have said that the police department buy money could have come from a store that he and Rowe entered, and that Officer Toner, who was observing the buy-bust operation but did not testify, would have supported this version of events. But as we have noted several times, Goeman had a prior conviction for bank robbery from 1993, and he was subject to impeachment with that conviction. He presents no evidence other than his assertion to show that Officer Toner's testimony would corroborate his own. Further, the other evidence in the record establishes overwhelming evidence of guilt, and Goeman fails to show that this error prejudiced him.
CONCLUSION
Affirmed.
AGID, KENNEDY and BAKER, JJ.