Opinion
No. 35752-6-II.
April 1, 2008.
Appeal from a judgment ofthe Superior Court for Cowlitz County, No. 05-1-01467-6, James J. Stonier, J., entered December 26, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Following a mistrial, a second jury found Daphne Lynn Kraabell guilty of (1) three counts of unlawful delivery of a controlled substance, methamphetamine, counts I, II, III; (2) one count of unlawful possession of a controlled substance, methamphetamine, count IV; and (3) one count of unlawful possession of a controlled substance with intent to deliver, count V, in violation of RCW 69.50.401. The court sentenced Kraabell, who had previously served 21 months for an unlawful delivery of a controlled substance with intent to deliver conviction, to a standard range sentence of 48 months on counts I through IV, and 18 months on count V with drug treatment to be obtained during the 9 to 12 months community custody following her incarceration.
The trial court erroneously imposed a 48-month sentence on count IV, the unlawful possession charge, and 18 months on count V, the unlawful possession with intent to deliver charge. We agree with the State that this appears to have been a clerical error subject to correction under CrR 7.8(a) or RAP 7.2(e).
Kraabell appeals her conviction and sentence claiming that her retrial violated double jeopardy and her counsel was ineffective for (1) requesting a mistrial during the first trial; (2) not requesting that the court instruct the jury to use caution regarding the testimony of an alleged accomplice, Kraabell's business and romantic partner, Sherrie Volenski; and (3) not requesting that the court impose an exceptional sentence below the standard range. Because Kraabell's defense counsel's representation was not ineffective, we affirm.
FACTS
When Lenore Smith was incarcerated in the Cowlitz County jail pending trial on burglary charges, she sent word to Detective Christopher Trevino of the Longview Police Department that she was interested in working as a confidential informant for the Street Crimes Unit. The Street Crimes Unit entered into a contract with Smith whereby the State would dismiss the charges against her if she successfully performed five controlled buys and testified truthfully at any resulting trials for cases of unlawful possession of a controlled substance with intent to deliver. Trevino selected Kraabell from a list of potential dealers that Smith had provided.
Under Detective Trevino's direction and supervision, Smith bought methamphetamine from Kraabell with money that the Street Crimes Unit provided. The transactions occurred on November 1, 3, and 6, 2005, at the home that Kraabell and Volenski shared at 1537 Nichols Boulevard in Longview, Washington. Kraabell had equipped the home with a surveillance system that allowed her to monitor the premises from her upstairs bedroom in the home. With Trevino listening over her shoulder, Smith called Kraabell's cell phone and made arrangements with her to purchase methamphetamine from Volenski at the couple's residence.
The court authorized an electronic body wire to record the second and third drug purchases, which occurred on November 3 and 6. Although the body wire equipment successfully transmitted the conversation during transactions, the conversations were not recorded due to defects in the equipment.
At 5:45 am on November 18, Detective Trevino and members of the Lower Columbia Special Weapons and Tactics (SWAT) Team served a search warrant at 1537 Nichols Boulevard. Kraabell and Volenski were arrested in the upstairs bedroom of the home which was equipped with several surveillance cameras. The women were transported to the Cowlitz County jail for booking. During the jail booking process, Kraabell was strip searched and surrendered two small clear baggies to the corrections officer who conducted the search. One of the baggies contained methamphetamine and the other, which had small green marijuana leaves printed on it, was of the same type used to package the methamphetamine that Smith had purchased at 1537 Nichols Boulevard.
On November 23, 2005, at around 5 pm, Detective Trevino and Sergeant Steve Rehaume went to 1537 Nichols Boulevard where they again arrested Kraabell. During an on-site pat down search incident to this arrest, Rehaume recovered a 35 millimeter film canister containing a crystalline substance and $1,100 in cash. After Rehaume advised Kraabell of her Miranda rights, she acknowledged that the crystalline substance in the canister was methamphetamine. Kraabell was transported to the Longview Police Department where Trevino asked her how long it would take her to use a half an ounce of methamphetamine. Kraabell said that it would not take that long, but stated "it's not all for me." 2 Report of Proceedings (RP) at 74. Kraabell also stated that she was intending to use the $1,100, which had come from Volenski's mother, to pay Volenski's bail. Rehaume testified that Volenski had already been bailed out when Kraabell was arrested.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State's witnesses testified at trial as set out above. The defense called Angela Rogers. Rogers testified that she had been living with Kraabell and Volenski in the fall of 2005. Rogers recalled specifically that Kraabell had stopped Volenski from using methamphetamine on November 23, 2005, by grabbing a baggie of methamphetamine from her. Rogers testified that she saw Kraabell put the baggie containing the methamphetamine in her front pants pocket about 15 or 20 minutes before police arrived and arrested Kraabell.
Kraabell also testified. In her testimony, she admitted using, but denied selling, methamphetamine. She testified that she used the cell phone with the number that Smith called while at the police station and that Smith had called her three times. She also admitted that Smith came to her home on November 1, and that she had told Smith that Volenski was downstairs. She admitted possessing methamphetamine for her personal use on November 18, and to giving it to the jail officer who had testified. She also admitted having methamphetamine in her possession when she was arrested on November 23, but claimed that she had just taken it from Volenski because she had just bailed her out and was concerned that Volenski would violate the terms of her release. Kraabell acknowledged that the methamphetamine she possessed on November 23 was in a plastic baggie inside a 35 millimeter film canister and that was how it was when she had taken it from Volenski. Kraabell testified that she had sold all her personal belongings to get bail money for Volenski, and that the $1,100 was half of the second payment she owed the bail bondsman. Kraabell testified that Detective Trevino turned around the things she had told him, but on cross-examination admitted that she did not specifically recall what she had said during the interview.
A jury found Kraabell guilty on all counts. The trial court imposed a 48-month concurrent standard range sentence followed by 9 to 12 months community supervision and drug treatment. Kraabell appeals.
On appeal, Kraabell contends that she did not knowingly and voluntarily agree to her counsel's request for a mistrial and that, therefore, the second trial violated her right to be free from double jeopardy. She also argues that her counsel was ineffective for failing to request an accomplice testimony instruction, 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.05 (2d ed. 1994) (WPIC), and not arguing for an exceptional sentence downward.
DISCUSSION
Double Jeopardy
Kraabell argues that the State must prove that her request for a mistrial was knowing and voluntary, otherwise double jeopardy bars her second trial and requires dismissal of her convictions. We disagree.
The double jeopardy clause of the Fifth Amendment to the United States Constitution bars retrial on the same or lesser charge after the discharge of the jury without the accused's consent unless the discharge was necessary in the interests of justice. State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006).
The record clearly reflects that Kraabell not only consented to the declaration of a mistrial, but also requested it:
THE COURT: And you're asking for a mistrial and waiving any objections under jeopardy?
[Defense counsel]: Yes.
THE COURT: Is that correct, Ms. Kraabell? Have you discussed this with your attorney?
[KRAABELL]: Yes.
THE COURT: Is that right?
[KRAABELL]: Yes.
THE COURT: All right. And you're agreeing with this? You're agreeing with a mistrial?
(ATTORNEY/CLIENT DISCUSSION OFF THE RECORD)
[KRAABELL]: Yes.
1 RP at 182-83.
Double jeopardy does not bar a second trial following the defendant's request that a mistrial be declared. State v. Juarez, 115 Wn. App. 881, 886-87, 64 P.3d 83 (2003). Nothing in the record supports Kraabell's claim that her constitutional due process right to be free from double jeopardy was violated. Nor are we persuaded by Kraabell's apparent argument that her counsel was ineffective for advising her to agree with the request for a mistrial.
Effective Assistance of Counsel
Kraabell claims her counsel was ineffective for (1) requesting a mistrial during the first trial; (2) not requesting that the court instruct the jury to use caution regarding the testimony of an alleged accomplice, Kraabell's business and romantic partner, Volenski; and (3) not requesting that the court impose an exceptional sentence below the standard range.
A defendant is guaranteed effective assistance of counsel under both the federal and state constitutions. See U.S. Const. amend VI; Wash. Const. art. I, § 22. To prove counsel was ineffective, appellant must show that (1) counsel's performance was deficient and (2) that deficient performance prejudiced her. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A legitimate tactical decision does not evidence deficient performance. Hendrickson, 129 Wn.2d at 77-78. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A. Mistrial
Although appellate counsel takes issue with trial counsel's decision to request a mistrial, the decision was clearly a tactical one. Surprised by one witness's inability to identify a lock box, a corrections officer's testimony that she had asked Kraabell a question during booking that resulted in Kraabell surrendering the drugs from her pants pocket before the body cavity search was conducted, and Kraabell's revelation that witnesses not previously disclosed to her could refute some of the State's testimony, trial counsel agreed with the court that on Thanksgiving eve the jury was unlikely to have their attention fully on the case and requested a mistrial. As noted above, the court ensured that Kraabell agreed with her counsel's request before it granted the defense motion for mistrial. The record does not support Kraabell's claim that under these circumstances counsel's performance was deficient. See Hendrickson, 129 Wn.2d at 78 (ruling that if either part of the test is not satisfied, the court need not inquire further).
B. Cautionary Instruction Regarding Accomplice Testimony
When the State relies solely on the uncorroborated testimony of an accomplice, the trial court must instruct the jury to carefully examine it in the light of other evidence. State v. Harris, 102 Wn.2d 148, 154-55, 685 P.2d 584 (1984), overruled on other grounds in State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1990), and State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991); State v. Sherwood, 71 Wn. App. 481, 485, 860 P.2d 407 (1993), review denied, 123 Wn.2d 1022 (1994). Pattern jury instructions set out the appropriate wording for such an instruction. WPIC 6.05 reads:
The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.
Assuming the instruction was appropriate, its absence in this case could not have affected the jury's verdict. Smith was a confidential informant, not an accomplice; a person who purchases drugs does not deliver drugs. State v. Morris, 77 Wn. App. 948, 949-50, 896 P.2d 81 (1995) (ruling that mere purchase of drugs does not constitute delivery); also see State v. Pacheco, 125 Wn.2d 150, 158-59, 882 P.2d 183 (1994) (ruling that conspiracy does not occur when an undercover agent merely pretends to agree with the defendant).
Smith testified that she called Kraabell to arrange drug purchases, but that it was always Volenski who provided the drugs and took the money. Volenski testified that she was Kraabell's "conspirator" in these sales. Volenski specifically testified to the November 1 purchase and that Smith had purchased drugs from her on at least two other occasions, but she did not testify to the dates of the other purchases.
Other evidence, independent of Smith's and Volenski's testimony, proved that Kraabell was possessing and dealing methamphetamine. On November 18, a search warrant was served on Kraabell's residence. Police found $985 in Kraabell's pants pocket, and a strip search during the booking process at the jail revealed that Kraabell had two plastic baggies in her clothing. One contained methamphetamine; the other, which had marijuana leaves printed on it, was empty. The empty baggie was of the same type that Smith received in the controlled buys on November 3 and 6. When she was arrested again on November 23, Kraabell had $1,100 and a 35 millimeter film canister with methamphetamine in it. Kraabell told Detective Trevino that the methamphetamine was not all for her. Volenski was Kraabell's accomplice, but both Smith's testimony and independent physical evidence discovered during searches of Kraabell pursuant to lawful arrests corroborated Volenski's testimony and provided independent evidence of Kraabell's drug possession and sales activity. Error, if any, in not requesting that the court instruct the jury to view Volenski's testimony with caution could not have prejudiced Kraabell and was harmless.
C. Sentencing
Citing State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208, review denied, 122 Wn.2d 1007 (1993), Kraabell also argues that her counsel was ineffective for failing to request an exceptional sentence downward. Again, we disagree.
In Sanchez, this court upheld the trial court's decision to impose an exceptional sentence downward in a multiple delivery case:
Because the difference between the first buy and all three buys was trivial or trifling, the sentencing judge was permitted to use RCW 9.94A.390(1)(g) in order to reconcile (1) the absence of additional effects from the second and third buys with (2) the multiple use policy of RCW 9.94A.400(1)(a). Thus, the sentencing judge did not err when he imposed a sentence greater than the standard range for one delivery, but less than the standard range for three deliveries.
But it does not follow that simply because a court upholds an exceptional sentence in one case that defense counsel is ineffective for not requesting an exceptional sentence downward in another.
We merely hold that although the prosecutor has discretion to charge and obtain convictions on multiple controlled buys, the sentencing court has power to determine whether the resulting standard range sentence is "clearly excessive" as a result of the multiple offense policy in RCW 9.94A.400. If it is, the sentencing court has power to grant an exceptional sentence downward, pursuant to RCW 9.94A.390(1)(g).
Nothing in our holding necessarily applies to drug transactions that are not police-initiated controlled buys, or that involve different sellers or purchasers, or that involve large quantities of drugs, or that have a law enforcement purpose other than to generate an increase in the offender's standard range. None of those fact patterns is present here.
Sanchez, 69 Wn. App. at 262-63.
Moreover, unlike Sanchez, Kraabell was found to have committed two additional charges not involving Smith's controlled buys. The possession of a controlled substance charged in count IV involved two baggies, one containing methamphetamine and the other matching those from the second and third buys, and resulted from the search of Kraabell's home on November 18. The other charge, count V, involved the methamphetamine found in a baggie inside a film canister that Kraabell had in her pants pocket when she was arrested on November 23. In addition, Kraabell had a prior conviction for possession of methamphetamine with intent to deliver for which she was sentenced to 21 months in prison. She completed the community custody portion of that sentence shortly after Smith made the first controlled buy.
In light of Kraabell's obvious inability to stay away from using and dealing methamphetamine, defense counsel's decision to ask the court to consider a drug offender sentencing alternative (DOSA) sentence or, in the alternative, impose a sentence at the low end of Kraabell's standard range (because Volenski received a 90-day sentence in exchange for her testimony) was reasonable and her performance did not fall below that of an ordinary reasonably prudent defense counsel. Kraabell's claim that her counsel's representation at sentencing was ineffective is meritless.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. and PENOYAR, J., concur.