Opinion
42079-1-II
01-23-2013
STATE OF WASHINGTON, Respondent, v. COURTNEY LAMAR JONES, Appellant.
UNPUBLISHED OPINION
Van Deren, J.
Courtney Lamar Jones appeals his convictions for one count of attempted first degree assault and two counts of first degree unlawful possession of firearm, asserting that (1) the evidence was insufficient to support his attempted first degree assault conviction, (2) his counsel was ineffective for failing to request a lesser included second degree assault jury instruction, and (3) the trial court erred by admitting into evidence a rifle the State alleged Jones used during the commission of his offenses. In his statement of additional grounds for review (SAG), Jones argues that (1) his defense counsel was ineffective for failing to subpoena the alleged assault victim to testify at trial and (2) the alleged victim's failure to testify violated his Sixth Amendment right to confrontation. We affirm.
U.S. Const.
Facts
On August 11, 2010, Kayla Hartford, the mother of Jones's child, called Jones and told him that Edward Williams tried to run her over with a car as she was stepping outside her apartment in Lakewood, Washington. That same day, Jones and his girl friend, "Angel, " drove to a Lakewood hotel to give Jacalyn Slager a ride to a Wal-Mart store. When Slager got in Jones's car, she overheard Jones arguing with someone on his cell phone. Jones did not drive to the Wal-Mart as planned and instead drove to Hartford's neighborhood. On the way, Jones stopped to pick up David Ward. Jones instructed the group to change seats when they arrived at a stop light. Jones instructed Slager to drive and Angel to remain in the front passenger seat. When Jones joined Ward in the back seat, Jones gave Ward a silver and black handgun. Slager stated that she had seen Jones with the same handgun once or twice before.
After Jones gave Ward the handgun, the group drove to Hartford's apartment. Slager stated that a woman named "Bri, " whom Slager described as Williams's "baby's mom, " lived in the same neighborhood as Hartford. Report of Proceedings (RP) at 364. When the group arrived in Hartford's neighborhood, Jones told Slager to drive slowly, and Jones began looking for someone. When Jones saw a group of men on the sidewalk, he said, "checkmate, " and told Slager to drive to Hartford's apartment. RP at 365. Jones went inside Hartford's apartment for less than a minute and then returned to the vehicle with a "long, black" assault rifle. RP at 367. Jones told Angel to get out of the car; then Jones sat in the front passenger seat. Jones then instructed Slager to drive slowly toward Bri's apartment while Jones again appeared to look for someone. Ward stated that he believed Jones was planning on shooting at someone.
As the group drove toward Bri's apartment, several gunshots were fired at their vehicle. When the gunfire erupted, Slager, Ward, and Jones ducked down as their vehicle struck a fence or tree, which caused Ward to drop the handgun. Ward and Jones ran to a nearby apartment occupied by Kurtus Phillips and Courtney Smith. Jones took the assault rifle into the apartment.
When Danielle Green heard gunshots outside her apartment building, she exited her apartment and saw Jones's vehicle crash into a fence. Green saw two men flee the vehicle and witnessed one of the men toss a "longer gun" to the other man. RP at 478. When Green went to the stopped vehicle to assist Slager, she saw Slager grabbing cell phones or pagers and putting them in her purse. Green also saw a handgun in the vehicle. Green stated that Slager was "panicking" and was saying "something about I can't believe that they brought me into this, " before walking away. RP at 483.
Corey Delanoy was at Green's residence when they heard the gunshots. Delanoy stated that he saw two men exit the stopped vehicle and that one of the men was carrying what looked like a semiautomatic rifle. Delanoy called 911. Several other area residents also heard the gunshots, witnessed Jones's vehicle crash, and saw two men leave the vehicle with one of the men carrying an assault rifle.
When police officers arrived, they found an abandoned vehicle that had "crashed into a rock with multiple gunshot holes around it." RP at 258. The vehicle's windows had also been shot out. Officers found a live Wolf-brand 7.62-caliber rifle round and a silver and black handgun on the front passenger floorboard. Officers also found a second live Wolf-brand 7.62-caliber rifle round and a court document with Jones's name on it just outside the vehicle.
Police officers located and arrested Jones and Slager at a Lakewood hotel located approximately two miles from the shooting. Police officers subsequently arrested Ward at a different location.
Jones agreed to a video-recorded police interview. During the interview, Jones stated that he knew Williams through a relationship that he had with Williams's estranged wife and through a prior altercation. Jones admitted in the police interview that he was involved in the shooting incident and that he possessed a nine millimeter handgun and an SKS rifle during the incident. Jones also stated that Ward and Slager were with him during the incident and that he had been looking for Williams before the shooting. Jones further stated in his interview that he had pointed a weapon at Williams and that he was going to shoot him. The State charged Jones with one count of attempted first degree assault and two counts of first degree unlawful possession of a firearm.
Before trial, Jones moved to exclude admission of an SKS assault rifle, arguing that the State could not establish that it was the same rifle Jones had possessed during the shooting incident. The State responded that it could establish the requisite foundation for admission of the SKS rifle. The trial court denied Jones's motion to exclude the SKS rifle and ruled that it would admit the rifle for demonstrative purposes only. But the trial court also ruled that it would admit the rifle as substantive evidence, subject to the State's presentation of foundational evidence at trial.
At trial, Slager testified that the SKS rifle designated as State's exhibit 25 was the same rifle Jones had possessed during the August 11 shooting incident and that she had seen the same rifle in a photograph on Jones's cell phone. But when asked on cross-examination whether she was certain that it was the same rifle that Jones had possessed, Slager stated, "I don't know." RP at 380. Ward testified that it was the same rifle he saw Jones possess on August 11.
Hartford testified that she did not have any knowledge about Jones leaving an assault rifle at a neighbor's apartment but, when confronted about a conversation she had with Jones, she later admitted that Jones instructed her to retrieve the rifle from the neighbor. Hartford also admitted that Jones was angry with her because she had been unable to retrieve the rifle.
Lakewood Police Investigator Sean Conlon testified that the Lakewood Police Department recovered an SKS assault rifle matching the description of the rifle witnesses saw at the August 11 shooting incident. Two rifle magazines were found along with the SKS rifle. Conlon stated that one of the recovered magazines contained the same caliber Wolf-brand ammunition that was found in and around Jones's vehicle, which brand has a distinctive "gray casing as opposed to a brass casing." RP at 304. Forensic testing could neither confirm nor rule out that the Wolf-brand ammunition found in and around Jones's vehicle had been cycled through the SKS rifle designated as exhibit 25.
The jury returned verdicts finding Jones guilty of one count of attempted first degree assault and guilty of two counts of first degree unlawful possession of a firearm. The jury also returned special verdicts finding the aggravating factors that Jones committed the attempted first degree assault while armed with firearms. Jones timely appeals his convictions.
Analysis
Jones first contends that sufficient evidence did not support his attempted first degree assault conviction because the State failed to present evidence that he (1) intended to inflict bodily harm and (2) took a substantial step toward the commission of a first degree assault. Jones further contends that the State failed to present sufficient showing the absence of self-defense. He also argues that his counsel was ineffective for failing to request a lesser included second degree assault jury instruction, and that the trial court erred by admitting into evidence a rifle the State alleged Jones used during the commission of his offenses. In his SAG, Jones argues that his defense counsel was ineffective for failing to subpoena the alleged assault victim to testify at trial and that the alleged victim's failure to testify violated his Sixth Amendment right to confrontation. We disagree.
Sufficiency of the Evidence
Sufficient evidence exists to support a conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A defendant claiming insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533 (1992).
A. Substantial Step/Intent to Inflict Great Bodily Harm
To convict Jones for attempted first degree assault, the State had to prove beyond a reasonable doubt that Jones, "with intent to inflict great bodily harm, " took a substantial step toward "[a]ssault[ing] another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm." RCW 9A.36.011(1)(a); RCW 9A.28.020. Criminal intent "may be inferred from all the facts and circumstances." State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). A substantial step is conduct that strongly indicates the defendant's criminal purpose. State v. White, 150 Wn.App. 337, 343, 207 P.3d 1278 (2009). Evidence demonstrating mere preparation is insufficient to prove a defendant took a substantial step toward the commission of an offense. White, 150 Wn.App. at 343. But "[a]ny slight act done in furtherance of a crime constitutes an attempt if it clearly shows the design of the individual to commit the crime." State v. Price, 103 Wn.App. 845, 852, 14 P.3d 841 (2000).
RCW 9A.28.020 provides in relevant part:
Here, the State presented evidence that Jones had an ongoing dispute with Williams over Jones's relationship with Williams's estranged wife. And, upon hearing that Williams nearly hit Hartford with his car, Jones became upset, changed his plans to take Slager to Wal-Mart, and drove to the neighborhood where Williams had nearly hit Hartford with his car. On the way to Hartford's neighborhood, Jones picked up Ward and handed him a firearm.
When Jones arrived in Hartford's neighborhood, he appeared to look for someone and, upon seeing a group of men, said "checkmate." RP at 365. Jones did not confront Williams at that time but went to Hartford's apartment and returned to his vehicle shortly thereafter with an SKS assault rifle. Jones then instructed his girl friend to exit the vehicle and told Slager to drive slowly toward the apartment where the mother of Williams's child lived. Then, Jones again appeared to look for someone moments before his vehicle was fired upon by a group of men, including Williams. We hold that this is sufficient evidence from which any reasonable juror could infer that Jones intended to assault Williams with a firearm and that the evidence was sufficient to show Jones took a substantial step toward the commission of a first degree assault.
Jones argues that under our decision in State v. Oakley, 158 Wn.App. 544, 550, 242 P.3d 886 (2010), review denied, 171 Wn.2d 1021 (2011), the State was required to present evidence that Jones had attempted to fire his firearm at another to support an attempted first degree assault conviction. In Oakley, we held that sufficient evidence supported a drive-by shooting conviction where the State presented evidence that the defendant pointed a gun at another and attempted to fire but the gun failed to discharge. 158 Wn.App. at 550.
Contrary to Jones's assertion, Oakley does not stand for the proposition that a criminal defendant must attempt to fire a weapon to constitute a substantial step toward the commission of an assault. Rather, the State need only demonstrate that the defendant's conduct strongly indicated his or her criminal purpose with evidence showing more than mere preparation to commit the charged offense. The State met this burden and, thus, sufficient evidence supported a jury finding that Jones took a substantial step toward the commission of a first degree assault with intent to inflict great bodily harm.
B. Absence of Self-Defense
Due process requires that the State prove every element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368; State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). It is a defense to the charge of assault that the force used was lawful. RCW 9A.16.020 provides:
The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
. . . .
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.
When a criminal defendant raises the issue of self-defense, the unlawfulness of the force becomes another element of the offense that the State must prove beyond a reasonable doubt. State v. L.B., 132 Wn.App. 948, 952, 135 P.3d 508 (2006). The use of force is lawful when used by a person who reasonably believes he or she is about to be injured or in the aid of another about to be injured, and when the force used is not more than necessary. L.B., 132 Wn.App. at 952. Under RCW 9A.16.010(1), "'[n]ecessary' means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended."
Here, the State's evidence showed that there was no current threat to Jones or another person when Jones took a substantial step toward the commission of a first degree assault. Specifically, the evidence at trial showed that any threat to Hartford's safety caused by Williams's conduct in trying to run her over with his car had already passed before Jones began looking for Williams, gave Ward a handgun, obtained an assault rifle for himself, and then slowly proceeded to a location where Jones believed he would find Williams. The evidence at trial also showed that Jones had already completed a substantial step toward the commission of a first degree assault before he was fired upon by Williams's group. Accordingly, we hold that the State presented sufficient evidence showing Jones's criminal acts were not committed in self-defense. Ineffective Assistance of Counsel
Next, Jones contends that his counsel was ineffective for failing to request a lesser included second degree assault jury instruction. But Jones cannot overcome the strong presumption that his counsel was effective because the record clearly shows that his defense counsel's decision to not request a lesser included jury instruction was a legitimate trial strategy. Our Supreme Court's recent decision in State v. Grier, 171 Wn.2d 17, 42-3, 246 P.3d 1260 (2011) supports this conclusion because Grier endorses an all-or-nothing approach as a legitimate, reasonable, trial tactic in t he effort to achieve an acquittal.
We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126 Wn.App. 297, 319, 106 P.3d 782 (2005). To prevail on an ineffective assistance of counsel claim, Jones must show both that (1) his counsel's performance was deficient and (2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). Performance is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Prejudice results if the outcome of the trial would have been different had defense counsel not rendered deficient performance. McFarland, 127 Wn.2d at 337. We strongly presume that counsel is effective and the defendant must show the absence of any legitimate strategic or tactical reason supporting defense counsel's actions. McFarland, 127 Wn.2d at 337. To rebut this presumption, the defendant bears the heavy burden of "establishing the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" Grier, 171 Wn.2d at 42 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
Here, Jones's defense counsel first requested a lesser included jury instruction, apparently to avoid an ineffective assistance of counsel claim on appeal, but withdrew the request after the trial court advised him of our Supreme Court's opinion in Grier. The following discussion took place during discussion of jury instructions:
[The State]: I don't know, [defense counsel], if a lesser included of assault—attempted assault two is something that the defense would like. I could include that in the proposed packet.
[Defense counsel]: Your Honor, I—I've talked to my client about that. I understand what the case law says, that I am supposed to offer a lesser included, that it's ineffective assistance of counsel if I don't.
[The court]: Not anymore.
[Defense counsel]: Not anymore? Okay. Then I'm not going to—
[The court]: The State Supreme Court reversed the Court of Appeals, Division II, 9 to 0.
[Defense counsel]: So I'm not asking for a lesser included.
[The court]: So you have to follow the case. It's a very recent case that came down—
[Defense counsel]: I better read that tonight.
[The State]: Could I just—could the record be rounded out a little bit as to why it is that you're not requesting it so it's clear that there is a tact—you know, a personal—
[Defense counsel]: It's a defense tactical decision, Your Honor. And I will—if the Court will give me the name of that case, I will read that tonight so that I am familiar with that holding.
. . . .
[The Court]: State v. Grier.RP at 1011-1012 (emphasis added).
In Grier, our Supreme Court clarified that an all-or-nothing strategy may be a legitimate trial tactic that does not constitute ineffective assistance of counsel. 171 Wn.2d at 42. Just as Jones argues here, Grier asserted that her defense counsel was ineffective for withdrawing lesser included jury instructions. Grier, 171 Wn.2d at 20. Our Supreme Court disagreed and held that Grier failed to demonstrate ineffective assistance, reasoning that she and her counsel could have decided that the all-or-nothing approach was the best strategy to achieve an acquittal. Grier, 171 Wn.2d at 43.
Jones acknowledges our Supreme Court's decision in Grier, but contends that there was no conceivable legitimate tactic supporting his defense counsel's decision to pursue an all-or-nothing strategy. But our Supreme Court rejected this same argument in Grier, stating, "[A]ssuming that defense counsel has consulted with the client in pursuing an all or nothing approach, a court should not second-guess that course of action, even where, by the court's analysis, the level of risk is excessive and a more conservative approach would be more prudent." 171 Wn.2d at 39. Following Grier, we hold that Jones's defense counsel's decision to pursue an all-or-nothing strategy was a legitimate trial tactic that cannot support an ineffective assistance of counsel claim, particularly when defense counsel articulated that he was making a tactical decision to not request the lesser included instruction.
ER 901
Next, Jones asserts that the trial court erred by admitting the SKS rifle as substantive evidence at trial because the State failed to present evidence sufficient to satisfy ER 901's authentication requirement. We disagree.
We review a trial court's admission of evidence for an abuse of discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Magers, 164 Wn.2d at 181.
"It is fundamental that evidence must be authenticated before it is admitted." State v. Bashaw, 169 Wn.2d 133, 140, 234 P.3d 195 (2010), overruled on other grounds by State v. Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). Under ER 901(a), the proponent of evidence must produce proof "sufficient to support a finding that the matter in question is what the proponent claims." And under ER 901(b)(1), this requirement may be fulfilled by a witness's "[t]estimony that a matter is what it is claimed to be." "The State satisfies ER 901 . . . if it introduces sufficient proof to permit a reasonable juror to find in favor of authenticity or identification." State v. Payne, 117 Wn.App. 99, 106, 69 P.3d 889 (2003).
Jones argues that the evidence was insufficient to support the trial court's determination that the State satisfied ER 901's authentication requirement because (1) police did not find Jones's fingerprints on the admitted rifle, (2) the admitted SKS rifle did not have any distinctive markers, (3) Slager testified on cross-examination that she was unsure whether it was the same rifle she saw Jones possess on August 11, and (4) Hartford's testimony that the admitted rifle looked thinner than Jones's assault rifle. But this evidence was not relevant to the trial court's determination that the State met ER 901's authentication requirement because in making its preliminary decision that evidence is admissible under ER 901, the trial court "considers only the evidence offered by the proponent and disregards any contrary evidence offered by the opponent." Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 86, 272 P.3d 865, review denied, 174 Wn.2d 1016 (2012). Accordingly, Jones's argument goes to the weight of the admitted evidence, not its admissibility. And here, both Ward and Slager testified that the admitted rifle was the same rifle that they saw Jones possess on August 11, thus satisfying the authentication requirement under ER 901(b)(1).
Moreover, even if the State did not satisfy it burden to authenticate the rifle under ER 901(b)(1), it presented evidence sufficient for the trial court to admit the rifle under ER 901(b)(4)because the same distinctive Wolf-brand ammunition police recovered from in and around Jones's vehicle was found in a magazine that police recovered with the SKS rifle admitted. Accordingly, we hold that the trial court did not abuse its discretion by admitting the SKS rifle as substantive evidence at trial.
ER 901(b)(4) provides that evidence may be authenticated by "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."
SAG
Next, Jones argues in his SAG that his counsel was ineffective for failing to call Williams as a trial witness. Generally, the decision not to call witnesses is a trial strategy that will not support an ineffective assistance of counsel claim. State v. Byrd, 30 Wn.App. 794, 799, 638 P.2d 601 (1981). And to succeed on an ineffective assistance of counsel claim based on defense counsel's decision not to call a witness, the defendant must demonstrate that his or her counsel's decision created a reasonable probability that the outcome of the trial would have differed. State v. Sherwood, 71 Wn.App. 481, 484, 860 P.2d 407 (1993). Jones does not explain how the outcome of his trial would have differed had his defense counsel called Williams as a witness and, therefore, he does not show how he was prejudiced by his counsel's decision. Accordingly, his ineffective assistance of counsel claim fails.
Finally, Jones appears to argue that his defense counsel's decision not to call Williams as a witness violated his constitutional right to confront witnesses against him. To the extent that Jones is asserting that he had a constitutional right to confront Williams that was violated by his counsel's failure to call Williams as a witness, his assertion fails because none of Williams' statements were used against Jones at trial.
We affirm Jones' convictions.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: Hunt, J., Quinn-Brintnall, J.
(1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.
(2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission.