Opinion
No. 61308-1-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06342-7, Gregory P. Canova, J., entered February 19, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Derrick Smith challenges his conviction for possession of a stolen vehicle. During the trial, an officer testified that Smith said, "I know I'm going to jail" at the time of the arrest. His attorney objected, and the court instructed the jury to disregard the testimony. Smith now argues that his counsel was ineffective for failing to demand a mistrial. Because Smith fails to show that his attorney's conduct was not a legitimate strategic choice or that he was prejudiced, we reject his ineffectiveness argument. Smith also raises several arguments in a pro se statement of additional grounds, but we conclude they are without merit. Accordingly, we affirm.
FACTS
On July 25, 2007, Nick Favicchio called the police to report that his 1987 Toyota van had been stolen. The van was distinctive in appearance and on August 1, 2007, friends of Favicchio saw the van in the same neighborhood where it had been taken. When they saw the van enter a McDonald's drive-through line, they called the police. Seattle Police Officers James Sather, Erick Schickler, and Michael Lerned arrived and took Smith, who was driving the van, into custody. At the time, there was an outstanding warrant for Smith's arrest on an unrelated charge.
Smith was charged with knowingly possessing a stolen vehicle. The only issue at trial was whether Smith knew the van he was driving was stolen. Officer Sather testified that "[t]he ignition system was slightly moveable, and there was a shaved key removed. . . . It was a silver key, with the teeth worn way down, so all it has to do to move the ignition is you just have to move it forward, and it starts the ignition." 2 Verbatim Report of Proceedings (VRP) (Jan. 7, 2008) at 9. Officer Schickler testified that he saw a ragged-looking key in the ignition, but that it did not fit properly because "about half the silver part of the key that's supposed to slide into the ignition was sticking out." 1 VRP (Jan. 3, 2008) at 42. He also testified that the ignition was damaged and when he touched the key, it fell out into his hand. Officer Schickler also stated that car thieves often use shaved keys because they can fit multiple ignitions. Favicchio, who responded to the McDonalds to recover his van, testified that "[t]here was a key that didn't go to the ignition that was not mine." 2 VRP (Jan 7, 2008) at 27.
He also testified that "the key that was in the ignition was not seated all the way into the ignition, and it was a — I don't think it was an ignition key, either. . . . [I]t didn't look like any sort of ignition key that I had ever seen." Id.
Officer Schickler testified that the inside of the van was "incredibly cluttered" and "completely jam-packed" with items. 1 VRP (Jan. 3, 2008) at 44. The items included bags of personal clothing, bathroom items, food wrappers, and tools. Favicchio testified that most of the items did not belong to him. The property recovered from the van was placed into evidence. In response to an inquiry from the prosecutor's office, Detective Dornay of the Seattle Police Department went to the evidence area to look for keys found in the van. He recovered a set of keys and photocopied them for the trial. Officer Schickler testified that the photocopied keys were a set of keys found inside the van, but that they did not include the shaved key he saw in the ignition.
Favicchio testified that the flap over his van's gas cap had been pried out about an inch and a half. He noted that the ignition key is normally required to access the gas cap and refuel the van. Favicchio also testified that he did not know Smith and had not given him or anyone else permission to drive his van.
During the prosecutor's examination of Officer Sather, the two had this exchange about the arrest at the McDonald's drive-through:
Q. Once you approached, block the car, what happened next — and approached the car, what happened next?
A. As I approached, I observed the vehicle move forward. I turned my lights on, I got out of my vehicle. The vehicle stopped. I observed Mr. Smith with his left on the steering wheel, and his right hand had a breakfast sandwich.
Q. And then what happened?
A. Other officers arrived. We started getting closer. I told the occupants of the vehicle not to move. I moved into a position of precover. Mr. Smith said, "Yeah, I know I'm going to jail. All I want to do is eat my sandwich. Can I eat my sandwich?"
2 VRP (Jan. 7, 2008) at 6-7. Defense counsel objected. Neither the State nor Smith's defense counsel was aware of this statement by Mr. Smith. After a sidebar, which was not put on the record, defense counsel moved the court to strike and instruct the jury. The court said, "Ladies and gentlemen, the jury will disregard the answer to the last question given by the officer, and the answer is stricken." Id. at 7-8.
At the conclusion of the case, the court instructed the jury, "If I've ruled that any evidence is inadmissible, or if I've asked you to disregard any evidence, then you must not discuss that evidence during your deliberations, or consider it in reaching you verdict." Id. at 35. The written instructions to the jury also stated, "If evidence was not admitted or was stricken from the record, then you are not to consider it in reaching your verdict." The jury convicted Smith of the crime as charged and he now appeals.
ANALYSIS
Smith argues that his right to effective representation by counsel was denied because his attorney did not demand a mistrial in response to Officer Sather's testimony that Smith said, "I know I am going to jail." To demonstrate ineffective assistance of counsel, Smith must satisfy both prongs of a two-prong test. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). First, he must establish that his counsel's representation was deficient. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To show deficient performance, he has the "heavy burden of showing that his attorneys `made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. . . .'" State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). His attorney's conduct must have fallen below an objective standard of reasonableness considering all the circumstances. State v. Meckelson, 133 Wn. App. 431, 436, 135 P.3d 991 (2006), review denied, 159 Wn.2d 1013 (2007). Matters that go to trial strategy or tactics do not show deficient performance; Smith bears the burden of establishing there were no legitimate strategic or tactical reasons behind his attorney's choices. State v. Rainey, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001). Second, Smith must show that his attorney's deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Hendrickson, 129 Wn.2d at 78. We employ a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335.
We must evaluate counsel's performance in light of the record as a whole. State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021 (1988). Counsel objected to the irregular testimony and successfully moved that it be stricken from the record and the jury instructed to disregard it. Smith now contends that this was insufficient and that his attorney should have demanded a mistrial. But Smith fails to demonstrate that this choice was not based on a legitimate trial strategy. There may be sound tactical reasons not to request a mistrial. State v. Dickerson, 69 Wn. App. 744, 748, 850 P.2d 1366 (1993). Here, for example, the State could have attempted to introduce Smith's statement "I know I'm going to jail" in a new trial. If it were admitted, Smith would then be in a difficult position. He could choose to allow the jury to hear that there was an outstanding warrant for his arrest to explain away the statement or he could chose to let the statement stand uncontested. Smith's attorney may well have believed that moving to strike the answer and have the jury instructed to disregard it was the better strategic option. Because his motion was successful, the State did not mention Smith's statement in its closing argument to bolster its argument that he knew the van was stolen.
It appears that the statement was made spontaneously, not in response to custodial interrogation, and Smith offers no rationale for why the statement would have been inadmissible in a retrial.
Smith also fails to demonstrate that he was prejudiced by his attorney's failure to request a mistrial. Contrary to Smith's contention, it is not clear that the trial court would have been "compelled" to grant a mistrial motion if his attorney had moved for one. See Appellant's Br. at 7-8. "A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant receives a fair trial." State v. Jungers, 125 Wn. App. 895, 901-02, 106 P.3d 827 (2005). Declaration of a mistrial is a "drastic measure," and there are other options a trial court may choose to exercise based on the individual situation. State v. Falk, 17 Wn. App. 905, 908, 567 P.2d 235 (1977). For example, a continuance or limiting instruction may be preferred to mistrial. See State v. Linden, 89 Wn. App. 184, 196, 947 P.2d 1284 (1997); State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). And because the trial court is in the best position to assess whether a remark can be cured by admonition or requires a mistrial, we review the decision to grant or deny a mistrial under the abuse of discretion standard. Dickerson, 69 Wn. App. at 748; State v. Escalona, 49 Wn. App. 251, 255, 742 P.2d 190 (1987). In deciding whether a trial irregularity should result in a mistrial, courts examine (1) its seriousness, (2) whether it involved cumulative evidence, and (3) whether an instruction could cure the irregularity. Escalona, 49 Wn. App. at 254.
On the record here, we are not convinced that the trial would have had a different outcome if Smith's attorney had requested a mistrial because Smith fails to show that the trial court would have granted the motion or that it would have been an abuse of discretion for it to deny the motion. It was undisputed that Smith was driving the van at the time of the arrest. Officer Sather testified that the key he found in the ignition had teeth that were worn away and that the key did not fit the ignition properly. Officer Schickler testified that the ignition was damaged and that when he touched the key, it fell out into his hand. Favicchio testified that the key was not his and that the gas cap flap had been tampered with. Officer Schickler noted that car thieves commonly use "shaved keys." He also testified that the van was filled with bags of personal clothing, bathroom items, food wrappers, and other items, and Favicchio testified that most of the items were not his. Thus, to the extent that Smith's statement suggested he may have known the van was stolen, it was cumulative of other evidence in the case. Given the context and the strength of the State's case, the irregular testimony was not so serious that it could not be cured by the Court's instruction to disregard it. The jury is presumed to follow instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994). Because Smith fails to establish either prejudice or that his attorney's performance was deficient, his ineffective assistance claim fails.
Smith also filed a lengthy pro se statement of additional grounds for review. Most of his argument concerns perceived inadequacies in the State's case against him. For example, he complains that the ignition key described by Officer Sather, Officer Schickler, and Favicchio was not introduced into evidence and that Detective Dornay retrieved the wrong key from the evidence area because he incorrectly assumed it was the key found in the van's ignition. Smith notes, "[I]f you're a professional at doing something you don't assume anything, you get facts." Statement of Additional Grounds, at 29. This point notwithstanding, we defer to the trier of fact to weigh the persuasiveness of evidence and to assess the credibility of the witnesses. State v. Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992). Here, there is ample evidence in the record to support the jury's verdict. Smith also complains that too many continuances were granted, that the word "inaudible" appeared several times in the verbatim transcripts of the proceedings, that the RCW provision listed on the judgment and sentence form was incorrect, and generally that he did not receive a fair trial. After reviewing the record, we conclude that none of Smith's complaints have merit.
For the foregoing reasons, we affirm.