Nos. 36428-0-II; 36791-2-II.The Court of Appeals of Washington, Division Two.
May 13, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-00446-5, Anna M. Laurie, J., entered June 15, 2007, together with a petition for relief from personal restraint.
Judgment affirmed and petition denied by unpublished opinion per Hunt, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
HUNT, J.
Richard Brown appeals his conviction for delivery of a controlled substance. He argues that he received ineffective assistance of counsel because his trial counsel failed to object to overly prejudicial evidence. In his Statement of Additional Grounds, (SAG)[1] Brown argues that (1) the State violated double jeopardy principles by charging him three times for the same crime; (2) the State erred by failing to charge him with a lesser included offense; (3) the trial court violated his constitutional right to confront witnesses against him; and (4) the State failed to prove its special allegation that the commission of his crimes took place within one thousand feet of either a school, or school bus stop. Brown also challenges his sentence in a personal restraint petition, consolidated with his direct appeal.
We affirm Brown’s conviction and deny his personal restraint petition.
Facts
I. Controlled Drug Buys
On October 16, 2006, Detective Martin Garland met with a confidential informant, Dawnell Skinner, to arrange a controlled buy from Richard Brown. Skinner had sold crack cocaine to an undercover informant and had herself become an informant in order to avoid serving time in jail. After searching Skinner and giving her $100 cash, Detective Tim Westfall drove her in an undercover vehicle to a gas station. Brown arrived at the gas station, in a car registered in his name. Westfall carried a Nextel cell phone set to “walkie talkie” mode in order to report back to Garland, who tracked the investigation remotely. Westfall watched Skinner get into the vehicle with Brown and another male, and drive away. Later that day, Garland met with Skinner, who gave him crack cocaine she claimed to have purchased from Brown.
About a week later, on October 25, Garland asked Shirley Forgey, Skinner’s roommate, to serve as a confidential informant and to purchase crack cocaine from Brown. Forgey agreed so that Skinner could “get [the] credit” and move out of Forgey’s home. Garland searched Forgey and her vehicle, and gave her $100 cash to buy crack cocaine from Brown. Forgey arranged to meet with Brown at an apartment and drove herself there, with Garland following. Brown arrived and entered the same unit that Forgey had entered. Forgey soon exited the apartment, drove back to her home, and gave Garland crack cocaine she said she had purchased from Brown with the $100 from Garland.
On January 9, 2007, Garland again asked Skinner to serve as a confidential informant and to participate in a controlled buy with Brown. Skinner agreed, called Brown, and arranged to Page 3 meet him at her home. After Officer Lee Ann Cecil searched Skinner and found no drugs, Garland gave Skinner $100 cash. When Brown arrived outside Skinner’s home, she joined Brown in his vehicle. Afterwards she returned to her residence and gave Garland crack cocaine she said she had purchased from Brown.
About two months later, another detective spotted Brown’s vehicle and informed Garland. Under Garland’s instructions, the detective stopped Brown’s vehicle and arrested him for his participation in the controlled buys with Skinner and Forgey. The detective transported Brown to the Kitsap County Jail, where Officer Karen Pierson found $750 cash in Brown’s shoes while booking him. Canine handler Officer Billy Renfro and his dog conducted a currency sniff on the cash; the dog alerted an odor of controlled substances.
II. Procedure
The State charged Brown with three counts of delivery of a controlled substance, for each of the three controlled buys.[2]
At trial, Garland testified about his role in organizing all three controlled buys with Brown. Garland described the procedure for each of the controlled buys, including: (1) his searching the confidential informant; (2) his monitoring the arranged meeting; and (3) the informant’s returning of the purchased narcotics at the end of the buy. Garland also testified that during all three controlled buys, he watched as Brown arrived in a car registered to him (Brown), and afterwards Skinner and Forgey were in possession of crack cocaine. On cross examination, Garland admitted that he did not personally witness the informants’ interactions with Brown and was not physically present during the buys.
Westfall and Cecil also testified about their responsibilities in the controlled buy procedures. Westfall recalled that, during the controlled buy he witnessed on October 16, 2006, there was another male in the car with Brown.
Although both the State and the court subpoenaed Skinner, the State could not locate her to testify at trial. But Forgey appeared and testified that she had bought crack cocaine from Brown in a controlled buy arranged by Garland.[3]
Pierson testified about finding the $750 cash in Brown’s shoe when she booked him into the Kitsap County Jail. Renfro described the currency sniff that he and his dog performed on the cash found in Brown’s shoe. Although Renfro concluded that the currency contained an odor of controlled substances, he conceded that there was no way to know “how long money would have to be away from the cocaine before it wouldn’t be tainted anymore.” Report of Proceedings (RP) at 119. Renfro also agreed with Brown’s attorney that the money could acquire the odor of controlled substances from “the bank or from anyone in normal, everyday retail transactions.” RP at 120.
Brown called no witnesses.
During closing arguments, Brown’s attorney pointed out that the cash found in Brown’s shoe did not “get us any closer to the issue at hand . . . [which was d]id Richard Brown deliver crack cocaine on the three days the State has alleged in this particular information?” RP at 209. Emphasizing that there were no allegations directly arising from the cash found in Brown’s shoe, Brown argued that the State had failed to prove the money was associated with the State’s charges in any way.
The jury (1) found Brown not guilty of Count I, delivery of a controlled substance, for the controlled buy on October 16, 2006; (2) found Brown guilty of Count II, delivery of a controlled substance, for the buy involving Forgey on October 25; and (3) failed to agree on a verdict on Count III, delivery of a controlled substance, for the controlled buy on January 9, 2007. The trial court declared the jury deadlocked on Count III, which charge the State later dismissed. The trial court sentenced Brown to 90 months confinement on Count II.
Brown appeals his conviction on Count II.
Analysis
I. Ineffective Assistance of Counsel
Brown first argues that his trial counsel rendered ineffective assistance when he failed to object to the currency sniff evidence as overly prejudicial. We disagree.
A. Standard of Review
To prove ineffective assistance of counsel, an appellant must show that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
An attorney’s representation is deficient when his performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008
(1998). We strongly presume effective assistance of counsel and will reverse on this ground only if the defendant shows there was no legitimate strategic or tactical rationale for his or her trial attorney’s decisions. Strickland, 466 U.S. at 689. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1241 (1995). Brown fails to meet this test here.
B. Failure to Object
To prove that a failure to object constituted ineffective assistance of counsel, a defendant must show that: (1) the failure to object fell below prevailing professional norms; (2) the trial court would likely have sustained the objection; and (3) the result of the trial would have been different had the evidence not been admitted. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004) (citing State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001)). We give “exceptional deference . . . when evaluating counsel’s strategic decisions,” and will not find performance ineffective unless his or her decisions fell outside the wide range of professionally competent assistance. Davis, 152 Wn.2d at 714
(quoting State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)).
1. Legitimate trial tactic
Brown argues that there was no legitimate trial strategy for his counsel’s failure to object to the currency sniff revealing the odor of controlled substances on the cash found in his shoe. We disagree.
In light of our deference to trial counsel’s decisions, we hold that Brown’s counsel’s failure to object to Renfro’s testimony was defensible legitimate trial strategy.[4] Davis, 152 Wn.2d at 714. Instead of objecting and implying to the jury that Renfro’s testimony could be damaging, defense counsel used cross examination and closing argument to show that the currency sniff had no connection to the State’s charges against Brown. Moreover, had defense counsel objected to Renfro’s testimony, counsel would not have been able to emphasize that Brown had no controlled substances on his person when the police arrested him.
We hold, therefore, that Brown fails to show his trial counsel’s performance fell below the level of professional competence.
2. No prejudice
Having found that Brown failed to meet the first prong of the ineffective assistance of counsel test, we need not consider Brown’s additional argument that the result of the trial would have been different if the currency sniff evidence had not been admitted. Even assuming, without deciding, that the trial court might have sustained an objection, the result of the trial would not have been different. Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (citing State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335, review denied, 109 Wn.2d 1008 (1987)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). The jury found Brown guilty on only Count II, the charge for which the confidential informant, Forgey, testified at trial. Thus it appears that the jury found credible Forgey’s testimony that she purchased crack cocaine from Brown. But the jury found Brown not guilty of Count I and failed to reach a unanimous verdict on Count III, both charges stemming from controlled buys made by Skinner, who did not appear and did not testify. Because the jury’s verdicts appear to have depended on the informant-buyer’s testifying at trial, it is unlikely that the verdict would have been different even if the jury had not heard Renfro’s testimony about the currency sniff.
III. Additional Arguments
Finally, we address Brown’s SAG arguments.
A. Double Jeopardy
Brown first argues that the State violated double jeopardy principles by charging him with three counts of delivery of a controlled substance. This argument fails.
The prohibition on double jeopardy protects against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct 1432, 1436, 63 L.Ed.2d 715 (1980)). Here, however, Brown was not subjected to multiple punishments for the same offense. On the contrary, the three counts of delivery of a controlled substance arose from three distinct controlled buys on three entirely separate occasions; they did not arise from one single underlying event. See In re Lord, 152 Wn.2d 182, 194, 94 P.3d 952 (2004) (citing State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)) (“If one crime is over before another charged crime is committed, and different evidence is used to prove the second crime, then the two crimes are not the `same offense’ and a perpetrator may be punished separately for each crime”).
We hold, therefore, that the State did not violate double jeopardy principles by charging Brown with three counts of delivery of a controlled substance.
B. Lesser Included Offense
Brown next argues that the trial court erred by failing to instruct the jury on a lesser included offense for the charge of delivery of a controlled substance. Again we disagree.
A court properly instructs the jury on a lesser included offense where (1) each of the elements of the lesser offense is a necessary element of the greater offense, and (2) the evidence in the case supports an inference that the lesser offense was committed. State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997). In order to satisfy the second prong, there must be affirmative evidence that the defendant committed only the lesser offense. State v. Brown, 127 Wn.2d 749, 754, 903 P.2d 459 (1995) (citing State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808
(1990)). Here, there was no evidence that Brown committed any lesser offenses, such as simple possession.
We hold, therefore, that the trial court did not commit error in failing to instruct the jury about a lesser included offense for delivery of a controlled substance.
C. Confrontation Clause
Third, Brown argues that the trial court violated his constitutional right to confront his accuser when it allowed testimony by Detective Quist, who could not remember some aspects of his testimony. The record, however, includes no testimony by a witness named “Detective Quist.” Thus, this argument fails.[5]
D. Stipulated Facts
Brown next argues that (1) the State failed to prove delivery of a controlled substance within a school zone; (2) the State misused the straight line method to measure 1000 feet; and (3) the State failed to demonstrate the accuracy of the system used to measure the 1000 feet. Brown waived this argument when both he and the State stipulated at trial to the distances at issue, without objection from Brown.
E. Matters Outside the Record
We cannot address matters outside the trial record on direct appeal McFarland, 127 Wn.2d at 338 n. 5. Therefore, we cannot consider Brown’s additional arguments that (1) the State failed to provide an authenticated police report; (2) the jury took unauthenticated exhibits into the jury room; (3) the trial court violated his constitutional rights by holding an in limine motion outside his presence; and (4) the State unlawfully seized $1,750.
F. Insufficient Grounds for Review
Although a defendant is not required to cite to the record or authority in his SAG, he must still “inform the court of the nature and occurrence of [the] alleged errors,” and this court is not required to search the record to find support for the defendant’s claims. RAP 10.10(c). See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). This Brown has failed to do with respect to his remaining arguments: (1) he received ineffective assistance of counsel because counsel and eighty percent of the bar is Caucasian; (2) the police violated his Miranda rights by using an informant to buy drugs; (3) we should dismiss and strike the State’s brief because the State failed to establish the rule of lenity; (4) his counsel should have objected at the sentencing because “delivery” is unconstitutionally vague; (5) the court permitted the jury to determine his sentence based on unspecified emotional factors; (6) evidence was kept from the jury; (7) the court improperly admitted evidence of reputation or character; (8) trial counsel provided ineffective assistance of counsel because he told Brown not to speak; (9) the prosecutor and defense counsel conspired to withhold evidence of his unlawful arrest; (10) his constitutional rights were violated because of prosecutorial mismanagement; (11) he received ineffective assistance of counsel because his trial counsel failed to question an unspecified witness; and (12) we should expunge his record.
IV. Personal Restraint Petition
Brown also filed a motion to modify his 90-month sentence on Count II. The trial court transferred this motion to us to treat as a personal restraint petition under CrR 7.8(c)(2). We consolidated this personal restraint petition with Brown’s direct appeal. Although Brown’s petition references attached briefs, he submitted no briefs with his personal restraint petition. Nor do we have any indication of his reasons for seeking modification of his sentence beyond those addressing the school-zone-sentence enhancement in his direct appeal.
Because Brown’s personal restraint petition lacks support, we deny his petition. See RAP 16.4(c) (listing seven grounds upon which a petitioner may claim his restraint is unlawful).
We affirm Brown’s conviction on Count II and deny his personal restraint petition.
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.
VAN DEREN, A.C.J. and PENOYAR, J., concur.