Opinion
No. 64854-3-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 09-1-01637-7, Michael T. Downes, J., entered January 11, 2010.
Affirmed by unpublished opinion per Cox, J., concurred in by Ellington and Appelwick, JJ.
Leland O'Brien challenges the constitutionality of his convictions for unlawful possession of a firearm. He asserts that he was denied effective assistance of counsel and the prosecutor committed misconduct. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. To prevail on a claim of prosecutorial misconduct he must show that the prosecutor's conduct was both improper and prejudicial. Because O'Brien fails to demonstrate any error, we affirm.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)).
In the early morning of August 29, 2009, Lynnwood police responded to a 911 call from O'Brien's neighbor. The neighbor told police that O'Brien pulled out a handgun, cocked it, and then waived it at him. Police obtained a search warrant for O'Brien's home. During the search, officers found seven rifles, three shotguns, six handguns, various drug paraphernalia, and three bags of green leafy vegetable matter that they believed was marijuana.
During a criminal history check, police discovered that O'Brien was convicted of Assault 4 Domestic Violence in 2001. As a result of that conviction, O'Brien was not allowed to possess firearms.
The State charged O'Brien with four counts of Unlawful Possession of a Firearm in the Second Degree ("UPF"). O'Brien agreed to a stipulated bench trial on agreed documentary evidence. That evidence included a certified copy of the court docket from his 2001 assault conviction as proof of that conviction. The State did not provide a certified copy of the judgment and sentence for that conviction.
Prior to the stipulation, defense counsel argued that the docket was not admissible because the best evidence rule required a certified judgment and sentence to prove the underlying felony conviction. The State argued that this was inconsistent with the nature of a stipulated trail, where all of the stipulated evidence is automatically admissible. Eventually, defense counsel conceded admissibility, but reserved the right to argue that the court docket did not prove the constitutional validity of the prior conviction and was therefore insufficient.
The trial court convicted O'Brien on all charges. O'Brien appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
O'Brien argues that his counsel was ineffective because she stipulated to the admission of the certified court docket, rather than demanding the State offer a certified judgment and sentence. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the outcome of the trial would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland, 466 U.S. at 687; McFarland, 127 Wn.2d at 334-35.
McFarland, 127 Wn.2d at 336.
In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, defense counsel's representation was reasonable. The record indicates that she agreed to the stipulation in order to shield O'Brien from additional UPF charges. Before the final stipulation, which included the agreed admissibility of the certified copy of the court docket in the previous case, the prosecutor admitted that he "could add more charges . . . could add more counts." During sentencing, defense counsel reiterated that "there were legal and technical reasons why we agreed to a stipulated bench trial. . . ." Additionally, the trial court made the following observation:
Report of Proceedings (Jan. 4, 2010) at 13.
Report of Proceedings (Jan. 6, 2010) at 63.
The record should reflect, finally, that this court is satisfied that there are legitimate tactical reasons for each side to have entered into the stipulation that was entered into in this case. From at least the defendant's perspective, it's very clear to this court that if the matter had proceeded other than as it proceeded today, i.e., if it had been something other than a stipulated bench trial, that the defendant would have been facing the State attempting to amend the charges to take him to trial on perhaps up to 16 counts of unlawful possession of a firearm and perhaps some possession of marijuana charges, as well, which was certainly mentioned in the discovery, as opposed to going to trial on the four counts that he has proceeded to trial on here today.
Report of Proceedings (Jan. 4, 2010) at 44-45.
We agree with the trial court. O'Brien has not rebutted the strong presumption that defense counsel's stipulation to the admissibility of the court docket was not a legitimate tactical decision given the potential for the addition of more counts.
Because defense counsel's stipulation was reasonable, O'Brien has failed the first prong of the analysis and no further inquiry is required.
Strickland, 466 U.S. at 697; Foster, 140 Wn. App. at 273.
O'Brien argues that he relied on defense counsel's advice when agreeing to the stipulation. He claims that this decision to stipulate was not made knowingly or intelligently because defense counsel was confused about the preservation of a best evidence argument. This is unpersuasive. Although defense counsel was initially confused about the best evidence argument, she conceded admissibility before the stipulation. She stated: "I agree [that the court docket is admitted as evidence]. I also think that I can — despite the agreement that the evidence is admissible — make the argument that the State is still required to show the constitutional validity of the prior conviction." This record indicates that defense counsel understood that the court docket was admissible.
Report of Proceedings (Jan. 4, 2010) at 15.
O'Brien also argues that he was denied the "well-reasoned and fully-informed advice of counsel" before accepting the stipulation and that this denial overshadows any legitimate tactical reasons for accepting the stipulation. However, O'Brien bears the burden to show that defense counsel's performance was deficient. Even assuming defense counsel was confused on this issue, O'Brien has not shown a sufficient basis to rebut the strong presumption that counsel's representation was reasonable. Therefore, O'Brien's argument is not persuasive.
McFarland, 127 Wn.2d at 337.
PROSECUTORIAL MISCONDUCT
O'Brien argues that the prosecutor committed misconduct by misrepresenting case law to the trial court. We disagree.
Prosecutorial misconduct requires a "showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial." The defendant bears the burden of showing both prongs of prosecutorial misconduct.
Hughes, 118 Wn. App. at 727 (citing Stenson, 132 Wn.2d at 718).
Id.
Under the Rules of Professional Conduct, "a lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal."
RPC 3.3(a)(1); State v. Coppin, 57 Wn. App. 866, 874 n. 4, 791 P.2d 228 (1990).
Here, during closing argument, the court and the prosecutor had the following colloquy:
THE COURT: Let me ask you a question, Mr. Darrow [Prosecutor].
One of the things that [defense counsel] argued was that the Best Evidence Rule suggests that you can't even use a docket to support conviction unless you can show there's some reason why you don't have a Judgment Sentence or some other better evidence.
I'm curious as to what your response to that is.
[PROSECUTOR]: Well, there's no caselaw that establishes that at all . She did cite some caselaw pursuant to this Rivers and other caselaw talking about that State Patrol records and so forth should be used for identification purposes; but that's what they are being used for in this case. The issue that was contained in some of those cases is the fact that there's no court approval seal; but on page 50 [of the stipulated evidence], you see this is a court-certified record, which was the issue in these other cases. So the fact of conviction is being supported by a self-authenticating document on page 50.
I must say, as I indicated before we started the trial, I don't think the Best Evidence Rule is really in play here, because that is a rule of admissibility; and as we've already discussed, these documents are admissible by virtue of the fact that this is a stipulated trial. So I have to say I don't think that analysis is really applicable.
Report of Proceedings (Jan. 4, 2010) at 37-38 (emphasis added).
O'Brien argues that the prosecutor misrepresented the case law by stating that there was no case law establishing that a docket is not admissible unless the State gives a reason why a judgment was not available. O'Brien argues that State v. Rivers stands for that exact proposition.
130 Wn. App. 689, 698-99, 128 P.3d 608 (2005).
However, the prosecutor did not simply state that there was no applicable case law. He specifically mentioned and distinguished Rivers. The State's failure to agree with O'Brien that Rivers was controlling was not a misrepresentation of the law. Therefore, O'Brien has not shown that the State's conduct was improper.
O'Brien argues that State v. Davenport requires reversal of his conviction. In that case, the supreme court held that the State committed prosecutorial misconduct during closing argument. The prosecutor explained to the jury that the defendant acted as an accomplice and could be held liable for the acts of another participant even though the defendant was never charged as an accomplice. Because the comment was a statement of law not contained in the jury instructions, it was improper.
100 Wn.2d 757, 675 P.2d 1213 (1984).
Id. at 761-64.
Id. at 759-60.
Id. at 760.
Here, the prosecutor's conduct was not improper because he acknowledged and distinguished O'Brien's reliance on Rivers. Davenport is not persuasive to control this bench trial.
We affirm the judgment and sentence.