No. 47777-3-I.The Court of Appeals of Washington, Division One.
Filed: October 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 001041124, Hon. Ann Schindler, November 13, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric J. Nielsen, Nielsen Broman Assoc. Pllc, 810 3rd Ave, Ste 320, Seattle, WA 98104-1622.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Kathryn Y. Kim, W554, 516 3rd Ave, Seattle, WA 98104.
PER CURIAM.
Dan Chisolm was convicted of delivery of cocaine. He argues that the trial court improperly excluded evidence of a field test for cocaine, failed to instruct the jury regarding guilty knowledge, and erroneously decided not to give a missing witness instruction. He also argues that his trial counsel was ineffective. Because the trial court’s decisions were correct and because defense counsel adequately represented Chisolm, we affirm.
FACTS
On the night of April 8, 2000, Seattle police officers ran a `buy-bust’ drug operation in the area of Second Avenue and Virginia Street. At about 9 p.m., undercover officer Aratani encountered Chisolm and asked if he could buy `two for forty,’ or two rocks of cocaine for $40. Chisolm said yes, and the men walked to a doorway in a nearby alley. Chisolm gave Aratani two small white rocks that appeared to be cocaine. Aratani gave Chisolm $40 of Seattle Police Department buy money. As they walked away, Aratani gave a prearranged `good buy’ signal. Uniformed officers stopped Chisolm, who had the buy money in his mouth. Chisolm was charged with delivery of cocaine.[1] Before trial, the State moved to exclude evidence of an inconclusive field drug test. Defense counsel argued that he should be able to cross-examine Aratani about the test result to show that the police officers were biased when they charged Chisolm with delivery of cocaine even though the field test was inconclusive. The court ruled that if Officer Aratani admitted that the field test was a basis for the arrest, the test would be relevant. But, defense counsel would have to lay a foundation other than the inconclusive result itself.
At trial, defense counsel did not attempt to cross-examine the officers as to the basis for the arrest or the inconclusive field test. A Washington State Crime Lab expert testified that he tested the rocks and that the smaller one contained cocaine. The larger rock contained aspirin, acetaminophen, and caffeine. Chisolm testified that on April 8 he obtained two rocks made to look like cocaine from a friend. He said that he put these rocks in his mouth and that they did not have the distinctive taste of cocaine. Chisolm stated he knew the taste of cocaine because he was an addict. He decided to sell the rocks for money so that he could buy cocaine for himself. Chisolm also stated that the officers were racially biased and had switched the rocks to substitute one that did contain cocaine for one that did not. He said the smaller rock tested was not the one he had that night because it was a different color.
DISCUSSION 1. Right to Present a Defense and Cross-Examine Witnesses.
Chisolm asserts that the trial court violated his right to present a defense and to defend against the State’s allegations when it excluded evidence regarding the field test for cocaine. He argues that the trial court erred in excluding cross examination of police officers about the field test results and in sustaining objections to his own attempted testimony about the test.
The sixth amendment of our federal constitution and article I, section 22 of the Washington Constitution provide defendants the rights of compulsory process and confrontation of adverse witnesses.[2] These rights essentially allow a defendant to present a defense by challenging the testimony of the State’s witnesses and providing evidence to establish his own defense.[3] But this right is not absolute; it does not guarantee the right to present irrelevant evidence.[4] The trial court has wide discretion to decide whether evidence is admissible; reversal is required only where no reasonable person would agree with the trial court’s decision.[5]
At trial, Chisolm asserted that the inconclusive test result showed the bias of the police officers and motive to switch a rock that did not contain cocaine for one that did. Defense counsel cross-examined the officers, but did not elicit any statement that the field test result influenced or was a basis for the decision to arrest Chisolm. The officers’ testimony showed that Chisolm gave Aratani two rocks that appeared to be cocaine, took the buy money, and tried to walk away. Officer Aratani, who made the buy, stated that he did not know Chisolm and had no personal feelings or grudge towards him.
Chisolm did not make any showing regarding an independent foundation for bias. He merely asserted that the officers were biased and that they had switched one of the rocks that did not contain cocaine for one that did contain the drug. He produced no evidence to show how the test was performed, who performed it, whether one or both rocks were tested, or if only one was tested, which one. From the officers’ testimony it appears that Chisolm was arrested immediately after the exchange of rocks for money while he was attempting to walk away. Any field test would necessarily have been performed after his arrest.
In any event, the arrest was appropriate because Chisolm exchanged rocks that appeared to be cocaine for money. Whether the rocks actually contained cocaine was irrelevant. The arrest was proper based on the exchange, and the prosecutor’s charging decision was presumably based on the results of the Washington State Crime Lab tests.[6] The trial court correctly decided to exclude evidence about the field test.
2. Jury Instruction on Guilty Knowledge.
Chisolm argues that the trial court erroneously gave an instruction on guilty knowledge that inadequately described this element of the offense. He suggests that an instruction set out in two federal cases should have been given here. That instruction stated that a defendant had knowledge when he was aware of the high probability that he possessed an illegal drug, but not when he actually believed the substance was not an illegal drug or if he was simply careless.[7] The Ninth Circuit held that this instruction was invalid because the high probability language would only be appropriate in cases where a defendant deliberately avoided acquiring actual knowledge.[8]
The trial court in this case gave the following instruction:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.[9]
Chisolm did not object to this instruction at trial, but an instructional error affecting a constitutional right may be raised for the first time on appeal.[10] Guilty knowledge, or knowledge that the substance delivered is illegal, is an element of the crime of delivery of a controlled substance.[11] The instruction given by the trial court has consistently been upheld by the courts of this state.[12] The instruction in this case was appropriate and adequately informed the jury that guilty knowledge is an essential element of the offense. The trial court did not err in giving it.
3. Ineffective Assistance of Counsel.
Chisolm argues that his counsel failed to adequately represent him at trial. He alleges that counsel should have called Regg as a witness; that counsel allowed the prosecutor to cross-examine him about independent lab reports although the trial court had ruled that those reports were hearsay; and that counsel failed to inform the trial court of the guilty knowledge element of the offense.
To establish ineffective assistance of counsel, a defendant must establish that counsel’s performance was deficient and resulted in prejudice such that the outcome of the trial would have been different absent the deficiency.[13] There is a strong presumption that counsel’s representation was effective and that counsel has made decisions of trial strategy by exercising reasonable professional judgment.[14] A defendant has the burden of showing that, considering the entire record and circumstances, counsel’s performance was inadequate.[15]
A decision not to call witnesses is usually one of trial strategy.[16]
Defense counsel stated at trial that the reason he did not call Regg as a witness was that his testimony would tend to incriminate him and that he would probably invoke Fifth Amendment protection for most of the facts he could reasonably be expected to testify to. Defense counsel’s decision not to call Regg was a reasonable decision based on reasonable trial strategy and does not support a finding of ineffective assistance of counsel. Defense counsel’s decision to refrain from objecting to cross examination of Chisolm about an independent lab test was also appropriate trial strategy. The test showed that the smaller rock contained cocaine. The decision avoided calling any more attention than had already been called to the independent test, which the defense did not present as evidence.
The trial court was aware of the guilty knowledge element of the offense and instructed the jury accordingly. Defense counsel included an instruction defining knowledge in his proposed instructions, as well as an instruction listing guilty knowledge in the elements of the offense. The court gave both the elements instruction and a definition of knowledge. Chisolm has not shown any prejudice resulting from any action or inaction on the part of his counsel. It is highly unlikely that the result of the trial would have changed had the alleged ineffective decisions not been made.
4. Missing Witness Instruction.
Chisolm argues that the trial court should have given a missing witness instruction, presumably referring to the fact that Regg did not testify. Apparently, Chisolm is under the impression that such an instruction would support his case. Actually, the opposite is true. Such an instruction allows the jury to infer that a witness’s testimony would be unfavorable to the defendant where it would be logical to call the witness but the defendant did not do so.[17] The inference is available when the defendant was able to produce a witness and has implied in his own testimony that the witness would corroborate his theory of the case.[18]
Some courts hold that the inference is not available when the witness’s testimony would be subject to Fifth Amendment protection.[19] At trial, the prosecutor proposed a missing witness instruction regarding Chisolm’s failure to call Regg. The trial court did not give the instruction because Regg’s testimony would have been protected by the Fifth Amendment. Had the instruction been given, the jury would have been allowed to infer that Regg’s testimony would have been unfavorable to Chisolm. The trial court’s decision to disallow the instruction was appropriate.
5. Prosecutorial Misconduct.
In his assignment of error 5, Chisolm alleges:
Misconduct by the prosecuter [sic], coercive and misleading statements by the prosecuter [sic] during trial, and in closing arguments coached jury into a verdict of guilty, denying defendant of a fair trial.
But Chisolm does not set out any particular incidence of misconduct in his argument. Because the assignment of error is not supported by argument or citation to the record, we will not review it.[20]
CONCLUSION
The trial court correctly excluded evidence regarding the field test and correctly instructed the jury as to the guilty knowledge element. Defense counsel adequately represented Chisolm at trial. The trial court appropriately decided not to give a missing witness instruction.
Affirmed.
(1967); State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996).
(1990).