No. 20988-1-IIIThe Court of Appeals of Washington, Division Three. Panel Three.
Filed: November 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Douglas County Docket No: 01-1-00194-2 Judgment or order under review Date filed: 03/25/2002
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, 1314 S Grand Blvd Ste 2, Spokane, WA 99202-1174.
Counsel for Respondent(s), Eric C. Biggar, Douglas County Prosecutors Office, P.O. Box 360, Waterville, WA 98858-0360.
Nancy Anne Harmon, Attorney at Law, Douglas Co Prosc Atty Ofc, P.O. Box 360, Waterville, WA 98858-0360.
BROWN C.J.
Eric K. Johnson appeals his Douglas County conviction of possession of a controlled substance — methamphetamine. Through counsel, he contends the court unconstitutionally commented on the evidence and prejudiced his right to a fair trial when it misstated the crime charged in an oral instruction to the jury. He also raises issues in a pro se brief. We affirm.
FACTS
Mr. Johnson was charged with a single count of methamphetamine possession. The case proceeded to a jury trial on January 10, 2002. East Wenatchee Police Officer Greg Renggli testified that shortly after midnight on November 17, 2001, he saw Eric Johnson, whom he recognized as having outstanding warrants, standing with another man on the sidewalk outside the Clearwater Saloon. Officer Renggli called for backup officers, but Mr. Johnson disappeared.
When Officer Bruce Nash arrived, he and Officer Renggli went inside the saloon to search for Mr. Johnson. Peering out the window across the street, they saw him and the other individual walking away. Officer Nash led Officer Renggli around a corner in a foot pursuit of the subjects, while Officer Christie Patterson headed them off in her patrol vehicle. From a distance of 20 to 25 feet in an extremely well-lit area, Officer Nash then saw Mr. Johnson make a throwing motion with his cupped right hand.
Officer Nash then saw an object leave Mr. Johnson’s hand in a direction behind his companion. Mr. Johnson then broke left and started to run, just as Officer Renggli angled around the corner into a position to call him to a halt and place him under arrest for the warrants. Officer Nash then advised Officer Renggli he had seen Mr. Johnson throw an object before Officer Renggli contacted him. Officer Nash looked in the area where the object was thrown and found a small plastic baggie containing what proved to be methamphetamine. None of the officers saw Mr. Johnson’s companion make any motions with his hands.
At the time of the offense, Mr. Johnson denied throwing anything. At trial, Mr. Johnson testified any movement with his hands was merely hitching his pants. He said it was his companion who threw the baggie of methamphetamine.
The court’s written Instruction No. 2, as submitted to the jury, correctly stated the defendant was `charged by information with the crime of one count of unlawful possession of a controlled substance (methamphetamine).’ Clerk’s Papers at 6. But the court misread the instruction to the jury prior to closing argument stating the defendant was charged `with a crime of one count of unlawful delivery of a controlled substance methamphetamine.’ Report of Proceedings at 158. The court did correctly recite the charge as unlawful possession when reading the `to convict’ instruction to the jury. No one noted the misstatement at trial. The jury found Mr. Johnson guilty as charged. Mr. Johnson appealed.
ANALYSIS
A. Misread Instruction
The issue is whether the trial court committed prejudicial error when misreading Instruction No. 2.
Article IV, section 16 of the Washington State Constitution provides, `Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.’ See State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). The purpose of this provision is to prevent the trial judge’s opinion from influencing the jury. Id.; State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990). A statement by the court is a comment on the evidence if the court’s attitude toward the merits of the case or its evaluation relative to the disputed issue is inferable from the statement. Lane, 125 Wn.2d at 838. For purposes of our analysis, we assume without deciding that the misreading was a comment on the evidence. This presents a constitutional issue that may be raised initially on appeal. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321
(1997).
The misstatement of Instruction No. 2 did not convey the judge’s personal opinion on the merits of the case or the evidence presented. The judge accurately read the `to convict’ instruction to the jury. The jurors were given the correct written instructions for deliberations. In its opening remarks, the court stated the defendant was charged with unlawful possession of a controlled substance. The court twice instructed the jurors they were not to consider the filing of the information or its contents as proof of the matters charged. The jury was instructed to disregard any comments made by the court. Overall, the instructions were not confusing or misleading.
The case was about Officer Nash seeing Mr. Johnson toss a baggie of methamphetamine to the ground. No officer saw Mr. Johnson’s companion throw or drop anything. The jury believed the officers’ testimony on that point. Thus, sufficient evidence existed to convict. State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). The jury decides credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The misstatement was at most a harmless irregularity, not a prejudicial comment on the evidence. See State v. Smissaert, 41 Wn. App. 813, 815 n. 1, 706 P.2d 647 (1985) (misreading of instruction harmless error when jury received proper written instruction).
B. Pro Se Contentions
Pro se, Mr. Johnson first contends his trial counsel, Paul Cassel, had a conflict of interest because he had previously been in practice with the trial judge. This frivolous contention is merely a conclusory, unsubstantiated factual statement.
Mr. Johnson next asserts Mr. Cassel had a conflict of interest in this methamphetamine possession case because the State charged him with bail jumping for failure to appear at sentencing, yet the court appointed Mr. Cassel as counsel in that case on the day of sentencing for the possession conviction. The State later successfully moved to disqualify Mr. Cassel in the bail jumping case because it intended to, and in fact did, call him as a witness at that trial on the question whether Mr. Johnson received notice of his sentencing date.
Thus, Mr. Cassel’s conflict was in the bail jumping case, not the possession case. Mr. Johnson makes no showing that Mr. Cassel’s representation had any adverse impact on the conviction or sentence in the possession case. The jury rendered its verdict on January 10. The court imposed a 60-day sentence on March 25, with credit for time served. Mr. Johnson had apparently already served that amount of time prior to entry of the judgment and sentence. Thus, any lack of communication by Mr. Cassel about the date of the sentencing hearing did not harm Mr. Johnson in the possession case.
Next, Mr. Johnson contends Mr. Cassel gave him ineffective assistance for failing to (1) interview or call as a witness his companion `Michael’ who was with him at the time of his arrest; (2) request a court-appointed investigator; and (3) attempt to introduce into evidence a diagram of the area between the Clearwater Saloon and the point of his arrest that he says would show inconsistencies in the officers’ trial testimony and thus undermine their credibility.
Under the standards in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Mr. Johnson makes no showing his counsel performed deficiently or that he was prejudiced in any event. The facts were simple and straightforward; no investigator was needed. The decision to call witnesses is generally tactical and will not support an ineffective assistance claim. See, e.g., State v. Early, 70 Wn. App. 452, 461, 853 P.2d 964 (1993). Officer Nash testified he saw Mr. Johnson throw the baggie of methamphetamine. It was a legitimate tactic for counsel to not call a likely inculpatory witness. Mr. Johnson received effective assistance of counsel.
Mr. Johnson next argues the diagram drawn for illustrative purposes during Officer Renggli’s trial testimony was inaccurate, apparently attacking the State’s evidence. He offers his own drawn diagram, which he says proves (1) Officer Nash could not have been within 25 feet of him; (2) the area was not well lit; (3) Officer Nash’s testimony that he threw the baggie toward a dirt hill is false; and (4) Officer Renggli must have rounded the corner first because he first contacted Mr. Johnson. Since Officer Renggli did not see him throw anything, Officer Nash could not have seen him throw anything either. Therefore, Mr. Johnson asserts Officer Nash’s testimony is not credible.
But these arguments all pertain to weight and credibility — matters within the jury’s sole province. Camarillo, 115 Wn.2d at 71. Trial counsel performed within professional norms under Strickland by pursuing the sound, albeit unsuccessful, strategy that Officer Nash was mistaken that he saw Mr. Johnson throw the contraband. There is no constitutional right to successful assistance of counsel. State v. Garcia, 45 Wn. App. 132, 141, 724 P.2d 412 (1986).
Affirmed.
A majority of the panel has determined 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.
SWEENEY and SCHULTHEIS, JJ., concur.