Opinion
No. 60939-4-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-01226-0, James H. Allendoerfer, J., entered November 14, 2007.
Affirmed by unpublished per curiam opinion.
A jury found Rodney E. Johnson guilty of possession of stolen property in the first degree. Johnson contends that he is entitled to reversal on two grounds: (1) that the trial court abused its discretion by admitting the police officer's testimony that he recognized Johnson and arrested him on an unrelated matter, and (2) that his lawyer provided ineffective assistance of counsel by failing to object to the admission of evidence about uncharged crimes. We conclude the trial court did not abuse its discretion in admitting the police officer's testimony under the res gestae exception to ER 404(b), and that based on Johnson's theory at trial, Johnson cannot establish ineffective assistance of counsel. We also conclude that the arguments Johnson raises pro se are without merit, and affirm.
FACTS
Jack Wilbur lives in Stanwood, Washington and owns a special edition 1978 Chevrolet Corvette. The Corvette is painted a distinctive yellow color and was worth at least $15,000 in 2005.
Jack Wilbur and his spouse were out of town on October 2, 2005. The Corvette was in Wilbur's garage. The garage has sensors that detect sound when the garage doors are opened. An alarm system company monitors the sensors. At around 2:00 p.m. on October 2, the alarm system company called Jack Wilbur's son, Chad Wilbur, to report that an air compressor was running in the garage. Shortly thereafter, the company called Chad to tell him a garage door had been opened and they were calling the police.
When Chad arrived at the house, he discovered the Corvette had been stolen along with various other items, including an air compressor, chain saw, leaf blower, and a large, heavy tool box containing many hand tools.
Dalyce Star worked as the night clerk at a store in Trafton. At around 8:00 p.m., Star observed an older, yellow Corvette drive into the parking lot. The driver, Rodney Johnson, parked the Corvette at the side of the store. Susan Jones was driving a pickup truck that was closely following the Corvette. She pulled up to the gas pump, got out of the truck, and went to the side of the building where the Corvette was parked. Johnson and Jones then entered the store. Johnson picked up a Gatorade and then sat down and talked to Jones. When Star saw that Johnson was smoking, she told him he had to leave and smoke outside. Before going outside, Johnson told Jones to pay for the Gatorade and put gas in the truck. After Johnson went outside to put out the cigarette, he went back into the store. When Jones returned, Star said that she was very nervous and in "a real hurry." Star also overheard Jones tell Johnson the police were in the parking lot and heard Johnson reply, "don't worry about it, just act like you don't know me." Johnson left the store first.
Snohomish County Deputy Sheriff Lawrence Adamski recognized Johnson when he came out of the store and arrested him on an outstanding felony warrant. Deputy Adamski also recognized Jones and asked another deputy to arrest her on an outstanding warrant. While searching Johnson, Deputy Adamski found an automobile cigarette lighter with a distinctive yellow "C" on it. Shortly thereafter, Deputy Adamski learned that the yellow Corvette was stolen. When Deputy Adamski looked inside the Corvette, he saw that a cell phone was plugged into the cigarette lighter outlet. Deputy Adamski said that Johnson later asked him what would happen with "Susan's truck."
The police impounded the Corvette and the pickup truck. The police found the stolen items from Wilbur's garage in the pick up truck. When Chad Wilbur inspected the Corvette, he said that the key ignition had been replaced in the steering column, and two tiny spring clips that held the steering wheel to the steering column were missing. The cigarette lighter, which had a distinctive "C" on it, was also missing.
By amended information, the State charged Johnson with possession of stolen property in the first degree for the stolen Corvette.
Possession of a stolen vehicle became a separate crime in 2007. See RCW 9A.56.068; RCW 9A.56.150.
Before trial, Johnson moved to exclude the evidence of his arrest on the warrant for an unrelated felony under ER 404(b). There was no dispute that when Deputy Adamski arrested Johnson, he did not know the Corvette was stolen. However, because of the need to explain why Deputy Adamski discovered the evidence linking Johnson to the Corvette, the court ruled that Deputy Adamski could testify that he recognized Johnson and arrested him on an unrelated matter.
Johnson's theory at trial was that he did not know the Corvette was stolen. Bret Berlin was the only witness who testified on behalf of the defense. According to Berlin, Johnson and Jones were with him at his mother's house that afternoon helping him haul away some of his possessions. Berlin said that they then left his mother's house to drive to Johnson's house in Arlington Heights. According to Berlin, when they arrived, Johnson's neighbor asked Johnson to haul away some other items for him and to drive a yellow Corvette to Darrington. Berlin said that the neighbor gave Johnson money for gas and then loaded a number of items into Jones' truck. Berlin testified that he heard the neighbor specifically tell Johnson "[t]hat nothing was stolen and the — because there was a question about keys for this car that was sitting there, was the most memorable thing to me. He said no, the keys are in the car." Johnson and Jones then left. Johnson drove the Corvette and Jones drove the pickup truck.
The jury found Johnson guilty as charged of possession of stolen property in the first degree. Based on an offender score of 11, the court imposed a standard range sentence of 57 months. Johnson appeals.
ANALYSIS
Johnson contends the trial court abused its discretion by admitting testimony that Deputy Adamski recognized Johnson and arrested him on an unrelated matter. Johnson asserts the testimony is prohibited by ER 404(b) and is not relevant to the crime of possession of stolen property.
We review the trial court's decision to admit evidence for abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). The court abuses its discretion only if the decision is manifestly unreasonable or based on untenable grounds or reasons. In re Pers. Restraint of Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004).
Under ER 404(b), evidence of other crimes is not admissible unless relevant for another purpose such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In determining whether evidence of prior misconduct is admissible under ER 404(b), the trial court must identify the purpose for introducing the evidence, determine whether the evidence is relevant to prove the charged crime, and weigh the probative value against its prejudicial effect. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
Here, the trial court admitted the evidence under the res gestae exception to ER 404(b). The res gestae or "same transaction" exception to ER 404(b) allows the admission of evidence of other crimes or bad acts to "complete the story of a crime or to provide the immediate context for events close in both time and place to the charged crime." State v. Lillard, 122 Wn. App. 422, 432, 93 P.3d 969 (2004). The trial court considered the necessity of explaining the search incident to arrest and concluded that the evidence discovered in the search was relevant to prove Johnson possessed the stolen Corvette. The court ruled the probative value outweighed the prejudice, but limited Deputy Adamski's testimony about why he arrested Johnson.
RCW 9A.56.140(1) states that, ?`Possessing stolen property' means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto."
I think we're engaging in too much fiction here, which bothers me. I think this is a venue where we're supposed to deal within the truth as long as it's not unfairly prejudicial. So I'm going to allow [Deputy Adamski] to say he recognized Mr. Johnson, that he took him into custody on an unrelated matter, and in the course of that a statement was made. So, if you could refer to it as just some unrelated matter without saying it's a felony.
Johnson's reliance on State v. Thrift, 4 Wn. App. 192, 193-95, 480 P.2d 222 (1971), to argue that testimony about an unrelated arrest is inadmissible is unpersuasive. In Thrift, the police detained Thrift on suspicion that he had violated the Uniform Narcotic Drug Act. 4 Wn. App. at 193-94. At trial, Thrift objected to the police officer testifying that Thrift was arrested on an outstanding warrant on an unrelated crime. Thrift, 4 Wn. App. at 193-94. On appeal, we held that the officer's testimony about the unrelated arrest was inadmissible because it was not relevant or necessary to prove an essential element of the charged crime of violation of the Uniform Narcotic Drug Act. Thrift, 4 Wn. App. at 194-95. But here, unlike in Thrift, the context of Johnson's arrest was relevant and necessary to explain why Deputy Adamski discovered the evidence linking Johnson to the charged crime. We conclude that the trial court did not abuse its discretion when it admitted Deputy Adamski's testimony about recognizing Johnson and arresting him on an unrelated matter.
Johnson also contends that his lawyer provided ineffective assistance of counsel by not objecting to evidence about the stolen items in Jones's truck because the evidence was inadmissible under ER 404(b), and was irrelevant and unfairly prejudicial.
A criminal defendant has the right under the Sixth Amendment to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). To reverse a conviction for ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland, 466 U.S. at 687. If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Counsel's performance is deficient if it falls below an objective standard of reasonableness. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). When reviewing a claim of ineffective assistance of counsel, there is a strong presumption that counsel's representation was effective and competent. McNeal, 145 Wn.2d at 362. A decision made by trial counsel for legitimate strategic or tactical reasons cannot support an ineffective assistance of counsel claim. McNeal, 145 Wn.2d at 362.
Johnson's defense was that a neighbor asked him to drive the Corvette and take some other items in Jones's truck to Darrington. Because the evidence about items in the truck was inextricably related to Johnson's defense, Johnson cannot establish ineffective assistance of counsel. Based on Johnson's defense, the failure to object to testimony about the stolen items in the truck was a legitimate strategic decision and Johnson cannot establish ineffective assistance of counsel.
We decline to address whether the evidence was inadmissible under ER 404(b).
In his statement of additional grounds, Johnson argues that the trial court abused its discretion in granting a continuance, and that the decision violated his speedy trial rights. The State filed a motion to continue the trial to interview recently disclosed defense witnesses and also stated that Johnson was not available for trial because of a scheduled surgery. The court granted the continuance. Johnson filed a motion to dismiss under CrR 8.3(b) arguing that the court erred in granting the continuance and violated his right to speedy trial. The court denied the motion. The court ruled the State justifiably relied on representations concerning Johnson's medical condition and his availability for trial, and that the State was entitled to interview the witnesses that Johnson had only recently disclosed. We conclude the court did not manifestly abuse its discretion in granting the State's motion to continue. State v. Woods, 143 Wn.2d 561, 604, 23 P.3d 1046 (2001).
Johnson also asserts that the trial court abused its discretion when it did not dismiss a juror he challenged for cause. During voire dire, Johnson's lawyer posed a hypothetical question about relying on a police officer's identification that was contradicted by a defendant's testimony. In response, Juror No. 15 stated,
Trained professionals, people that have spent their lives in law enforcement, becoming a police officer, and that's their job and so if they're saying that they feel beyond a shadow of a doubt that that's the person they saw or they say the person involved, then that would weigh heavily in my decision.
Juror No. 15 also agreed that he would "give more value to police witnesses than civilian witnesses, everyday folks." Johnson then challenged Juror No. 15 for cause. The court denied the challenge.
The way I understood the context . . . was if there was an absolute he said/she said circumstance where one witness says one thing and the other witness says the other, what would you do when you know you have to make a decision. No. 15 indicated that he would probably then consider the police officer's objectivity and professional experience as the overriding element and would vote to support the police officer. I find that disqualifies him as a juror. I think that's an approach that is within the realm of reasonableness and responsibility, so I'll decline your challenge to No. 15.
We conclude the court did not abuse its discretion in denying Johnson's challenge for cause. RCW 4.44.190; State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991).
We affirm.