Opinion
No. 26817-9-III.
January 27, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-04010-3, Tari S. Eitzen, J., entered January 23, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Kulik, J.
UNPUBLISHED OPINION
Derek Roberts appeals his conviction for second degree theft arising out of a shoplifting spree at a Spokane County Wal-Mart. He claims his lawyer's assistance at trial was unconstitutionally ineffective because the lawyer made no opening statement, called no witnesses, requested no jury instructions, and stated that he had not read the State's proposed jury instructions. Mr. Roberts fails to show how any of this affected the outcome of his trial and therefore prejudiced him. We affirm the conviction.
FACTS
The State charged Derek Roberts with one count of retail theft with extenuating circumstances in the second degree and one count of second degree theft other than a firearm or a motor vehicle. The extenuating circumstances allegation was that Mr.
Roberts had an implement or device designed to overcome the store security systems.
The State showed that Mr. Roberts went to Wal-Mart on September 17, 2007. He tried to return six items in a pair of plastic Wal-Mart shopping bags at the store's customer service counter. The customer service manager refused to accept Mr. Roberts' return because Mr. Roberts' bags did not have the pink sticker that the Wal-Mart greeter normally affixes to bags containing merchandise customers wish to return. Soon after, a Wal-Mart asset protection officer saw Mr. Roberts take a packaged cellular phone charger from the shelf in the electronics department. The Wal-Mart employee followed Mr. Roberts into the restrooms where he saw Mr. Roberts enter the stall farthest from the door. Through a crack between the bathroom stall door and the wall, the officer saw Mr. Roberts use a knife to cut the cell phone charger out of its packaging. Report of Proceedings (RP) at 104. He then observed Mr. Roberts stuff the packaging into the stall's toilet paper dispenser and place the unopened charger into one of his Wal-Mart bags. Mr. Roberts left the stall. The officer followed Mr. Roberts past the cash registers and out of the store. Mr. Roberts plugged the charger into the wall outside the store. The officer confronted Mr. Roberts. Upon request, Mr. Roberts returned the charger to the Wal-Mart officer. Mr. Roberts then accompanied the officer to the Wal-Mart security office to await the arrival of local law enforcement. The police officer who arrived took the Wal-Mart bags from Mr. Roberts, and store security totaled the value of the bags' contents at $279.33.
At trial, defense counsel did not make an opening statement. The State presented its case. The defense rested without offering any witnesses. The court and defense counsel had the following exchange outside the jurors' hearing:
THE COURT: Mr. Knox [defense counsel], not to help you, but didn't you reserve opening?
MR. KNOX: Yes.
THE COURT: So you've made no opening and no witnesses. Do you think this creates a concern?
MR. KNOX: I didn't know what was going to happen.
THE COURT: You're not going to even do an opening?
MR. KNOX: If I make an opening, I am committed to it, and I wasn't ready.
THE COURT: No, I mean now.
MR. KNOX: I can't open because I have no evidence to present.
THE COURT: Okay. So I guess at this point, then, we send the jurors back to the jury room and do our jury instructions.
MR. KNOX: Sure.
RP at 154-55.
The court subsequently asked defense counsel whether he had consulted with Mr. Roberts and whether they had decided together that the defense would not present any witnesses. Mr. Roberts' counsel responded affirmatively. The jury retreated to the jury room. The State then moved to withdraw count 1 — retail theft. The court granted the motion. The court asked whether defense counsel had any objections to the State's proposed jury instructions. Mr. Roberts' counsel responded that he had not read the proposed instructions. The court ordered a recess. Mr. Roberts' attorney read the instructions. Court resumed. Mr. Roberts' counsel offered no objections or exceptions to the jury instructions.
The jury deliberated for approximately one hour and unanimously found Mr. Roberts guilty of second degree theft.
DISCUSSION
Mr. Roberts contends that his attorney was unprepared and that he provided deficient representation because he declined to give an opening statement, offer evidence, or prepare for trial by making adequate investigations into the facts or reading the State's proposed jury instructions.
Mr. Roberts asserts that defense counsel has a duty to make reasonable investigations or make a reasonable determination that particular investigations are unnecessary. In re Pers. Restraint of Rice, 118 Wn.2d 876, 889, 828 P.2d 1086 (1992). And Mr. Roberts' trial counsel's decision not to investigate was not reasonable under all of the circumstances. See Hawkman v. Parratt, 661 F.2d 1161, 1168-69 (8th Cir. 1981) (trial counsel's decision not to investigate the facts and to limit his investigation to discussing the case with his client was ineffective assistance); accord, State v. Thomas, 109 Wn.2d 222, 230-31, 743 P.2d 816 (1987) (counsel's failure to investigate defense expert's qualifications was an unreasonable omission); State v. Jury, 19 Wn. App. 256, 576 P.2d 1302 (1978) (counsel's failure to learn the facts of the case by interviewing witnesses was an unreasonable omission).
Mr. Roberts further contends that the second Strickland prong is satisfied because "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The State responds that a defense counsel's effectiveness is not determined by the result of the trial. State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993). A reviewing court must strongly presume that the counsel's actions constituted sound trial strategy. Rice, 118 Wn.2d at 888-89. The State argues that Mr. Roberts incorrectly relies on defense counsel's single statement that he "didn't know what was going to happen" to support his argument that trial counsel had inadequately investigated the case prior to trial. RP at 155.
But Mr. Roberts neither names any witnesses nor identifies any circumstances that should have been investigated and he fails to show how the outcome would likely have been different. Moreover, Mr. Roberts faced the risk of jurors becoming aware of his prior criminal history. So defense counsel's decision not to give an opening statement, not to offer witnesses, and to carefully cross-examine the State's witnesses may well have been a good strategy. It may have avoided opening the door to harmful information.
We review ineffective assistance of counsel claims de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prevail, Mr. Roberts must show both that his counsel's performance was deficient and that he was prejudiced by that deficient performance. Thomas, 109 Wn.2d at 225-26 (citing Strickland, 466 U.S. at 687). A defense attorney performs deficiently when his representation falls below an "objective standard of reasonableness based on consideration of all of the circumstances." Thomas, Id. at 226. To satisfy the prejudice prong of the Strickland test, an appellant must show that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either part of the Strickland test is not satisfied, the inquiry need not proceed further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Mr. Roberts does not support his argument that the outcome of his trial was prejudiced by his counsel's incompetence with any specific contention that other evidence was available but not offered or that the jury instructions were problematic. In the context of a very brief, relatively uncomplicated trial, Mr. Roberts' counsel offered plausible alternative theories to the jury to cast doubt on the State's version of events.
During cross-examination of the Wal-Mart customer service manager, defense counsel's questioning showed that the manager was ultimately unsure whether Mr. Roberts legitimately brought the items into the store with him or whether he gathered the items he tried to return in the store. Defense counsel reinforced this doubt in his closing argument when he pointed out that the manager returned the items to Mr. Roberts after she declined to process his return rather than confiscate them.
And in his closing arguments, Mr. Roberts' attorney critiqued the prosecution's theory of the case on two grounds. First, he asserted there would not have been enough time between when the customer service manager said Mr. Roberts was at the returns counter and when the security officer said he saw Mr. Roberts take the charger off the shelf for Mr. Roberts to get from one end of the store to the other. And, second, defense counsel claimed that the State never requested video footage from any of Wal-Mart's 130 cameras, a potential source of proving its theory that Mr. Roberts stole each of the items in his shopping bag from various departments around the store.
Mr. Roberts has not satisfied his burden under the second Strickland prong. We need not then analyze whether the performance of Mr. Roberts' counsel was actually deficient.
We affirm Mr. Roberts' conviction for second degree theft.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KULIK, J., concur.