Opinion
No. 65103-0-I.
March 21, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-00235-8, Steven J. Mura, J., entered March 15, 2010.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Lau, JJ.
Markusen appeals her conviction of intimidating a public servant and bail jumping. She contends she was denied effective assistance of counsel when her lawyer opened the door to highly prejudicial evidence against her. We affirm.
FACTS
On February 24, 2009, Whatcom County Sheriff Deputy Magnus Gervol pulled over a pickup truck with a loud muffler and a trailer hitch obstructing the license plate. The driver, Teena Markusen, admitted that her license was suspended. Gervol placed her under arrest. Markusen became very agitated. She began yelling and swearing at Gervol. While Markusen was handcuffed in the back of Gervol's patrol car, a second deputy arrived with a K-9 partner to assist Gervol in searching her car.
The State charged Markusen with intimidating a public servant and bail jumping.
At trial, Gervol testified that Markusen made numerous threats after he placed her under arrest. According to Gervol, Markusen said, "`I'm going to be there when you get beat up.'" She allegedly told Gervol she knew where he lived and would do whatever it took to get him in trouble and claimed to know his family, threatening to plant drugs on them. Gervol testified that she offered to tell him about "`people committing crimes'" if he let her go because "driving suspended isn't a big deal" and anyone else would have let her go. Gervol recalled Markusen screaming or yelling these statements at the top of her lungs. He testified that the threats continued throughout the 20-30 minute drive to the jail where, upon arrival, Markusen told staff she "wanted to kill somebody." Gervol believed Markusen's statements were attempts to coerce him into releasing her.
Markusen testified in her own defense at trial. She denied making the threatening statements. She acknowledged she was very angry at being arrested. She admitted yelling and swearing but insisted she made no attempts to influence Gervol's behavior. Markusen testified that Gervol's aunt and uncle were two of her best friends and that she "never even insinuated [she] was going to hurt him or his family." Further, she did not believe Gervol would unarrest her if she yelled and cursed, stating that "[n]obody in their right mind would. I was just mad." She claimed Gervol was the one making intimidating statements about her family "doing illegal things." She believed he was deliberately trying to anger her.
Markusen felt her comment to jail personnel was also misconstrued: "They asked me if I was suicidal and I said no, I'm not suicidal. I said if anything I felt like killing somebody but I didn't say I was going to or any of that. I was just mad. They kept poking at me and poking at me."
The defense theory of the case embraced the fact that Markusen had recently cleaned up her life and turned over a new leaf. Markusen claimed she had recently abandoned a 35 year drug habit and moved into a safe house. After being unemployed for years because she had "messed [her] life up," she finally had a job. She also claimed to have just paid off the fines needed to remove the suspension on her license. Markusen explained why she was so emotional when she was arrested: "I just went to the courthouse that day. I had just paid on my fines and I was going to get my license back. Then when I did get arrested and put in jail, I lost my job, I lost my license again, everything."
The jury found Markusen guilty as charged. Markusen appeals.
DISCUSSION
Markusen claims that she received ineffective assistance of counsel when her attorney opened the door to otherwise inadmissible statements about her past contacts with Gervol. This conduct occurred during defense counsel's cross-examination of Gervol.
The parties do not dispute that the evidence was otherwise inadmissible under ER 404(b). But, generally, once a party has raised a material issue, the opposing party is permitted to explain, clarify, or contradict the evidence.See State v. Price, 126 Wn. App. 617, 642, 109 P.3d 27 (2005).
The relevant portion of the cross-examination went as follows:
Q So we have two deputies, [and] a K-9 and you want us to believe you actually felt threatened by this woman?
A Yes. Would you like me to explain?
Q I'm just asking were you actually afraid of her?
A Yes.
On redirect, the State asked if Gervol wished to explain why he felt threatened. Gervol responded:
Yes, if I may. As I stated before, I have had previous unrelated contacts with Miss Markusen. On a previous contact I know that she's associated with convicted felons, members of the Bandito motorcycle club that have been arrested for RICO [Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961- 1968] felonious crimes. She's had access to a firearm, too, on previous occasions and she's assaulted me on a previous occasion in 2004.
Markusen did not object.
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). Even a poor cross-examination will seldom, if ever, amount to a Sixth Amendment violation. See In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 P.2d 593 (1998). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). And, under the prejudice prong, a defendant must show a reasonable probability that, but for counsel's error, the result would have been different. Id. at 335. Markusen cannot satisfy either prong of this test.
Markusen argues that her counsel's decision to ask Gervol whether he felt threatened could not have been a legitimate trial tactic.
First, she argues the question was inappropriate because it did not address a necessary element of her crime. Specifically, the State did not have to establish whether Gervol was afraid of Markusen, because her charge did not involve Gervol's mental state.
Markusen was charged with intimidation of a public servant. The to convict instruction required the jury to find the following elements:
(1) That on or about the 24th day of February 2009, the defendant, by use of a threat, attempted to influence a public servant's decision or other official action as a public servant; and
(2) That the threat was made or received in the State of Washington.
Also, the court instructed the jury as to the definition of a "true threat."
Consistent with the First Amendment of the U.S. Constitution, Washington courts interpret statutes criminalizing threatening language as proscribing only true threats, which are not protected by the First Amendment. State v. Tellez, 141 Wn. App. 479, 482, 170 P.3d 75 (2007).
Threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person; or to accuse any person of a crime or cause criminal charges to be instituted against any person.
To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk.
Markusen was the speaker of the threat. The State only had to address Markusen's mental state and the mental state of a reasonable person in her position.
Markusen is, thus, correct that whether Gervol was actually afraid was not an element of her charge. But, that does not mean counsel lacked a legitimate purpose in asking the question. There was at least one tactical reason to question whether Gervol was actually afraid — in furtherance of Markusen's theory that Gervol was the one intimidating her. The question juxtaposed two officers and a police dog against an unarmed woman. It begged the question of whether fear was reasonable under those facts.
Markusen notes that defense counsel should have known about her past encounters with Gervol. She argues that counsel, aware of this danger, should not have pursued this point in cross-examination, because sufficient facts were on the record to make the argument in closing. But, a "yes" answer had the potential to undermine the officer's credibility. A "no" answer would have undermined the appropriateness of punishing her for her statement. A defense attorney could reasonably make the tactical decision to ask the question.
Markusen cites to her pretrial testimony that Gervol pulled her over "all the time," and was "always making reference to [her] son." She provided no reference to the specific contacts that Gervol brought up at trial. Instead, it seems Markusen chose not to bring these prior contacts to the attention of her counsel.
Markusen chose to argue a theory of the case that acknowledged her past. For example, Markusen openly stated that she had been on drugs for 35 years. She suggested that she had socialized with a bad crowd. Accordingly, the damage that could be caused by revealing her past interaction with Gervol was relatively low given her testimony that she had turned her life around. In contrast, the need to undermine Gervol's testimony was great. There was no evidence to corroborate Gervol's allegations. This was thus the quintessential "he said, she said" type of case that necessitated discrediting Gervol's testimony. See State v. Roberts, 25 Wn. App. 830, 834-35, 611 P.2d 1297 (1980). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). A reasonable defense attorney, with this in mind, could decide that attempting this cross-examination was in his client's best interest.
Markusen makes no claim to have altered her theory of the case, or presented different testimony regarding her past, in light of Gervol's testimony.
The second deputy on the scene did not corroborate Gervol's claims that Markusen's statements were threatening. Markusen was in the car by the time he arrived. He heard her shouting but did not know what she was saying.
Markusen's counsel was not deficient for aggressively challenging Gervol, whose testimony was the crux of the State's case.
But, even if we were to find it deficient, Markusen fails to show she was prejudiced by counsel's performance.
The type of evidence counsel opened the door to could be damaging to a criminal defendant's case. But, here, the evidence conforms to Markusen's theory of the case. Both charges against her were explained or refuted based upon the fact that she had turned her life around. This theory, alone, implicitly acknowledges Markusen's troubled past.
Markusen explained that excitement over having turned her life around had caused her to forget her court date. Regarding the intimidation charge, Markusen explained she was particularly angry that day, because it had been difficult to get her life back together and the arrest would set her back.
Furthermore, Markusen chose to highlight details of her past on the stand. She explained, "I hadn't had a job in years because I messed my life up and I just got everything straightened out." She described her situation on the day she was pulled over:
I was trying to get my stuff together. . . . I've been doing drugs for like 35 years and I just got myself off drugs. I just found a house so I could get away from all the people that I was doing this with. And got myself a job. And I was all excited about that and I had to get moved into my new house.
On cross-examination, she reiterated, "I just got myself off of drugs, got away from everybody, getting away from everybody. I was staying at a safe house at that time and just got my own place."
And, Markusen openly discussed prior contacts with Gervol. She brought up her family's relationship with him and implied that Gervol's threatening behavior was related to this family history.
Markusen has not shown the outcome of the case would have been different if her counsel had not opened the door to Gervol's statements. Markusen's history was relevant to her defense. As the State points out, whether or not her counsel intended to open the door to the particular statements made by Gervol, this evidence merely added to the evidence brought by Markusen herself in support of her theory.
Markusen fails to prove ineffective assistance. We affirm.
WE CONCUR: