Opinion
No. 36469-7-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-00911-1, Chris Wickham, J., entered June 22, 2007.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Hunt, J.
Adam Malmberg appeals his conviction for unlawful marijuana possession with intent to deliver arguing the trial court erred in denying his motion to suppress, he received ineffective assistance of counsel, the prosecutor engaged in misconduct, and cumulative error denied him a fair trial. He raises other issues in his statement of additional grounds. We reverse and remand for a new trial.
RAP 10.10.
FACTS
In the early morning of May 19, 2006, Tumwater Police Officer Clinton Armitage stopped David Romero for suspicion of driving under the influence. Two passengers, including Malmberg, remained in the car while Armitage conducted sobriety tests with the driver. Malmberg sat in the back of the car, behind the driver's seat. The backup officer looked through the passenger side window and saw a marijuana pipe on the front seat.
After Romero failed the sobriety tests, Armitage arrested him for driving under the influence of narcotics. The officers searched the car incident to the arrest and seized the marijuana pipe, five baggies containing marijuana, and scales found between the driver's and front passenger's seat. After Armitage read Romero his Miranda rights, Romero said that he and Malmberg had planned to sell the marijuana and they had packaged it. Armitage then arrested Malmberg.
A portable breath test later revealed no alcohol in Romero's body.
Armitage found marijuana on Romero, but not on Malmberg.
Miranda v. Arizona, 384 U.S. 436, 471-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Malmberg with unlawful possession of marijuana with intent to deliver. At trial, the State relied on Armitage's and Romero's testimony and an expert witness whose analysis identified the contents of the baggies as marijuana. The jury convicted Malmberg and he appeals.
ANALYSIS
Malmberg contends that he received ineffective assistance because his counsel failed to move to suppress the marijuana pipe and failed to request a cautionary jury instruction about accomplice testimony.
The federal and state constitutions guarantee effective assistance of counsel. See U.S. Const. amend. VI ; Washington Const. art. I, § 22. To prove ineffective assistance of counsel, appellant must show that his counsel's deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Varga, 151 Wn.2d 179, 198, 86 P.3d 139 (2004). Prejudice occurs when, but for 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).
Malmberg first argues that his counsel should have moved to suppress the unlawfully seized marijuana pipe. The pipe was in open view to the officers who stood outside the car; the trial court would not have granted a motion to suppress it and, therefore, Malmberg cannot establish ineffective assistance of counsel on this ground. State v. Kennedy, 107 Wn.2d 1, 9-10, 726 P.2d 445 (1986) (evidence discovered from an open view is not the product of a search).
Second, he argues that his counsel's failure to request a cautionary jury instruction based on Romero's testimony as an accomplice prejudiced the outcome of the trial. The State counters that Armitage's testimony corroborates Romero's, thus, defense counsel's failure to offer a cautionary instruction was not reversible error. Malmberg's argument persuades us.
The trial court must give cautionary instructions when an accomplice gives uncorroborated testimony. State v. Everybodytalksabout, 145 Wn.2d 456, 480, 39 P.3d 294 (2002). In State v. Sherwood, 71 Wn. App. 481, 485, 860 P.2d 407 (1993), we acknowledged Harris, where the Supreme Court emphasized the need for accomplice testimony jury instructions as follows:
"(1) [I]t is always the better practice for a trial court to give the cautionary instruction whenever accomplice testimony is introduced; (2) failure to give this instruction is always reversible error when the prosecution relies solely on accomplice testimony; and (3) whether failure to give this instruction constitutes reversible error when the accomplice testimony is corroborated by independent evidence depends upon the extent of corroboration. If the accomplice testimony was substantially corroborated by testimonial, documentary or circumstantial evidence, the trial court did not commit reversible error by failing to give the instruction."
State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988).
When police stopped Romero, they discovered the marijuana and paraphernalia in the front seat, and Malmberg sitting in the back seat. Armitage testified that he saw a marijuana pipe in the front seat, that Romero told him he would find more if he searched, and that he and Malmberg planned to sell it. Romero's testimony created the connection between the back seat and the front seat necessary for the jury to find constructive possession. See State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008) (constructive possession requires the person charged to have dominion and control over the drugs). Nothing in Armitage's testimony independently corroborates Romero's testimony. Thus, the State relied solely on Romero's testimony to establish Malmberg's constructive possession. Defense counsel's failure to request a cautionary accomplice instruction prejudiced the outcome of the trial because his inaction forced the jury to consider a version of events supported only by the testimony of a self-interested party. See Harris, 102 Wn.2d at 155.
Instead, Armitage relied on Romero's statements to implicate Malmberg, both at the pretrial hearing and at trial.
Reversed and remanded for a new trial.
In his statement of additional grounds, Malmberg essentially argues that the State failed to establish he constructively possessed the marijuana and relied too heavily on Romero's statements to police. We addressed this argument above and agree that his trial counsel prejudiced the outcome of trial by not requesting a cautionary jury instruction. Because we reverse on ineffective assistance grounds, we do not address his other arguments.
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.
HUNT, J. and VAN DEREN, C.J., concur.