No. 27003-0-II.The Court of Appeals of Washington, Division Two.
Filed: June 14, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clallam County, No. 001001788, Hon. Kenneth D. Williams, February 7, 2001, Judgment or order under review.
Counsel for Appellant(s), Manek R. Mistry, Backlund Mistry, 331 N.W. Park St, Chehalis, WA 98532.
Counsel for Respondent(s), Rick L. Porter, Deputy Pros Attorney, Clallam Co Pros Aty’s Ofc, 223 E 4th St, Port Angeles, WA 98362.
QUINN-BRINTNALL, J.
The police raided the home that Kimberly McCartney shared with her boyfriend. They arrested McCartney when she returned to the house and she was later charged as an accomplice to possession with intent to deliver the methamphetamine found there. McCartney appeals the jury verdict, claiming that the trial court erred by admitting evidence of her prior drug possession convictions. She also claims ineffective assistance of counsel. Because overwhelming untainted evidence established McCartney’s guilt, we find no error warranting reversal and affirm.
FACTS
McCartney lived with her boyfriend, Mark Sharp, in a house that she rented in Port Angeles, Washington. She and Sharp had been a couple for about two years. But McCartney alone rented the house about two months prior to her arrest when Sharp was in jail on a prior charge. Although reluctant, McCartney allowed Sharp to move into her house when he was released from jail.
The police became aware that Sharp was involved in drug trafficking through the use of an informant and a `controlled’ drug purchase. They obtained a warrant and raided the Sharp/McCartney house on May 23, 2000. The police found methamphetamine and marijuana inside the residence and in the backyard shed. One officer testified, `We found a substantial amount of methamphetamine that was packaged for sale. We found drug paraphernalia or devices or objects that are used to ingest illegal substances. . . . [P]robably 80 percent [of the paraphernalia] was found in the bedroom.’ Report of Proceedings at 33, 35. The police also found a note on the headboard of the bed that they believed was a `crib note,’ a paper which `the people dealing drugs [use] to keep track of the people who they sell to and how much they owe basically. . . .’ Report of Proceedings at 109. To avoid focusing more attention on the note in front of the jury, the defense stipulated that the handwriting on the note was McCartney’s.
McCartney gave a taped statement to the police when she was arrested. On the tape she acknowledged that she had been read her Miranda[1]
rights and that she voluntarily waived them. McCartney related the details of one of Sharp’s drug deals the previous night. Although she denied seeing this actual transaction, McCartney did say that she had seen an actual hand-to-hand drug transaction between the two men before. She also offered a `guess’ at the amount Sharp paid for the drugs and where he got the drugs he sold to the man. She stated that she tried not to look because she did not want to know and did not want the drug sales to happen.
In that same statement, McCartney denied ever having been in the shed behind the house and asserted that Sharp did his drug dealing from that shed and in the sewing room. But McCartney gave at least partial names for several of Sharp’s customers and stated she knew that 10 to 15 people a day came to buy drugs from Sharp. She also indicated that she had seen Sharp `shooting up’ the night before, on May 22. Suppl. Clerk’s Papers at 130.
McCartney acknowledged to the police that she knew Sharp was selling drugs, but that Sharp was very abusive to her and she could not stop him. She said,
I was against it from the start; but I know that, I know that I’m responsible for what happened in my home, too, and that it is up to me to report things; but you don’t know how mean that he could be and, but when he’s nice, he’s really nice. . . . It’s complicated.
Suppl. Clerk’s Papers at 135.
She also told the officer that she had used and sold drugs in the past but that she stopped after being arrested and going through treatment over a year and a half before. She admitted, however, to smoking `crank’ a couple of days before the May 23 interview. But she insisted that she had been clean for a year and a half notwithstanding that one incident. McCartney said that she smoked the crank because she wanted to get along with Sharp so that he would not hit her any more or `break [her] stuff.’ Suppl. Clerk’s Papers at 133.
At trial, McCartney stipulated to admission of the transcription of the taped statement she gave to the police on May 23, 2000. During direct examination of Detective Grall, the prosecutor and the detective recited a number of McCartney’s (taped) statements for the jury, including her claim that she was a former drug abuser and that she had recently relapsed and smoked methamphetamine. Defense counsel did not object.
During the testimony of McCartney’s neighbor, Mark Frederick, the prosecutor asked Frederick if he knew that the defendant `used to sell drugs’? Report of Proceedings at 131. Defense counsel objected, and the court sustained due to a lack of foundation. When the prosecutor attempted to defend the question, he said, in front of the jury, `I think it goes to the credibility of the statement. Because she in fact was a drug dealer and a drug user, it seems somewhat odd that she is suddenly complaining to a neighbor about her boyfriend doing the same thing.’ Report of Proceedings at 132. Prosecution rephrased the question as, `During your conversations with Ms. McCartney about Mr. Sharp’s drug use, did she ever tell you that at any time that she sold drugs in the past?’ Report of Proceedings at 133. Defense counsel again objected, but this time the court overruled. Frederick answered, `She had told me she had done it in the past, yes.’ Report of Proceedings at 133.
The parties argued whether McCartney’s prior drug possession convictions, a 1998 conviction for methamphetamine and a 1992 conviction for cocaine, would be admissible. In a pre-trial motion in limine, the defense argued that the drug convictions were too prejudicial. The court said,
I certainly can understand that it would be to the substantial prejudice of the defendant to have a prior conviction for the same substance. On the other hand, that may or may not be fair to the fact-finding process. It’s certainly relevant and would normally be admissible, so it seems to me for me to make the balancing test I need to know where we are in the nature of the case before I can do that.
Report of Proceedings at 8-9.
During McCartney’s trial testimony, the State asked McCartney about her prior drug dealing without objection. However, when the State asked about her criminal history in front of the jury, the defense objected. The jury was led out of the courtroom and the following exchange occurred:
[State]: Your Honor reserved ruling on this particular issue until now, but I would point out — The Court: It’s okay. I’ll let it in. The testimony is she went to treatment and I think it’s fair game to ask why she went to treatment. It may have been under the guise of conviction, may not have been. It’s relevant to the issues.
Report of Proceedings at 190.
The parties then reviewed all of McCartney’s prior convictions. The defense said, `Your Honor ruled prior truth and veracity offenses come in. Your Honor ruled that the 1998 conviction clearly comes in, so what we don’t have is a ruling on the 1992 conviction.’ Report of Proceedings at 192-93. The court responded, `I’ll allow that under the circumstances.’ Report of Proceedings at 193. The jury then returned and heard that McCartney had been convicted of the two drug possession charges, seven different charges of third degree theft, and one instance of unlawful issuance of bad checks (crimes involving dishonesty). The jury convicted McCartney after a two-day trial.
McCartney appeals, arguing that the evidence of her prior convictions for methamphetamine possession were erroneously admitted and that she received ineffective assistance from her counsel.
ANALYSIS Evidence of Prior Convictions
Generally, ER 609 governs the admissibility of evidence of prior convictions. It provides:
For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.
ER 609(a)(part).
There is nothing inherent in ordinary drug convictions to suggest that the person convicted is untruthful. Thus, prior drug convictions are not probative of a witness’s veracity. State v. Hardy, 133 Wn.2d 701, 709-10, 946 P.2d 1175 (1997). To make the determination regarding admissibility of a witness’ prior conviction, the trial court must consider: `(1) the length of the defendant’s criminal record; (2) the remoteness of the prior conviction; (3) the nature of the prior crime; (4) the age and circumstances of the defendant; (5) the centrality of the credibility issue; and (6) the impeachment value of the prior crime.’ State v. Millante, 80 Wn. App. 237, 245, 908 P.2d 374 (1995), review denied, 129 Wn.2d 1012 (1996) (citing State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980)). The court must state, on the record, how the proffered evidence is probative of veracity to allow appellate review. Hardy, 133 Wn.2d at 709. Nonconstitutional harmless error analysis (`within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected’) is used in analyzing challenges to the prior conviction evidence under ER 609(a)(1). Hardy, 133 Wn.2d at 712 (quoting State v. Ray, 116 Wn.2d 531, 546, 806 P.2d 1220 (1991)) (holding the same nonconstitutional analysis applies to both ER 404 and ER 609(a) rulings). See also State v. Brown, 113 Wn.2d 520, 554, 782 P.2d 1012 (1989) (overruling the constitutional harmless error standard for ER 609(a) rulings in State v. Jones, 101 Wn.2d 113, 125, 677 P.2d 131 (1984)).
McCartney argues that her 1992 and 1998 felony drug convictions were erroneously admitted at trial. She argues that `the combination of the two convictions and the present allegation suggested to the jury that Ms. McCartney was a `career criminal.’ This is exactly the sort of `propensity’ evidence that is forbidden under the rule.’ Br. of Appellant at 6 (citation omitted). The State responds that because McCartney stipulated to her statement to the police, `essentially admitting past illegal drug activities,’ no balancing was required under ER 609(a). Br. of Respondent at 7. The State then hedges its argument and states, `While admission of the Appellant’s two prior drug convictions may arguably have been erroneous, there was ample evidence for the jury to convict irrespective of the prior convictions.’ Br. of Respondent at 7. We agree with the State on this latter point only.
The trial court failed to consider the six Alexis factors on the record prior to admitting either conviction. Although the trial court indicated pretrial that the required balancing test would be performed outside the jury’s presence, when the evidence was offered in trial, it summarily admitted them when offered. Regarding the 1998 conviction, the court solely stated that it was `relevant’ to the issue of McCartney’s being in treatment. Regarding the 1992 conviction for possession of cocaine, the court simply stated that `under the circumstances’, it would allow that one in. Report of Proceedings at 193.
This court reviews admission of prior conviction evidence under an abuse of discretion standard, but the trial court must address the six factors on the record to establish that it exercised its discretion on tenable grounds. The 1998 conviction may have been admissible to the extent it related to the nature of McCartney’s motivation for going to treatment and impeached her claim that, but for Sharp’s causing her duress, she would not involve herself with drugs. The 1992 conviction for a different drug nearly 10 years earlier was even more tenuous but may have had some tendency to negate McCartney’s duress claim. But by failing to analyze the Alexis factors on the record, the trial court abused its discretion by admitting McCartney’s prior drug convictions.
Nevertheless, the erroneous admission of McCartney’s prior convictions on this record is harmless. Millante, a case involving the admission of previous assault convictions in a first degree murder case, notes, `To merit reversal, [defendant] would have to demonstrate that, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.’ Millante, 80 Wn. App. at 246. In that case, Millante testified that he had been involved in drug transactions for several years and evidence of a previous conviction for attempted robbery was automatically admissible under ER 609. Millante, 80 Wn. App. at 246-47. Thus, the court found that the jury’s attention had already been drawn to Millante’s criminal disposition, and the error in admitting evidence of his previous assaults was harmless. Millante, 80 Wn. App. at 246-47.
Similarly here, McCartney’s seven convictions for third degree theft were properly admitted under ER 609(a)(2). Plus, McCartney stipulated to the admission of her statement to the police, which included her admission to having sold drugs in the past and smoking methamphetamine a few days before her arrest. She also testified that she knew 10 to 15 people per day came to her house to buy drugs and that her handwriting was on the crib note found on the headboard of the bed she and Sharp shared. Additionally, police testimony established that there was a substantial amount of drugs and paraphernalia in the house but that 80 percent of the evidence was in their bedroom. Thus, while the court erred by failing to conduct a balancing test on the record before admitting evidence of McCartney’s prior drug possession charges, untainted overwhelming evidence established that the outcome of the trial would have been the same. Thus, we affirm the conviction.
Ineffective Assistance of Counsel
Competency of counsel will be determined upon review of the entire record. State v. White, 81 Wn.2d 223, 225, 500 P.2d 1242 (1972). To establish ineffective assistance of counsel, the claimant must show deficient performance and resulting prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Performance of counsel is deficient when it falls `below an objective standard of reasonableness’ under prevailing professional norms. In re Personal Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In addition, the defendant must show there were not legitimate strategic or tactical rationales for the challenged attorney conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251
(1995). The failure of trial strategy or tactics is not sufficient to establish ineffective assistance of counsel. State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982). We engage a strong presumption that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121
(1996).
McCartney argues that she received ineffective assistance of counsel because her attorney encouraged the admission of damaging evidence. She argues that her case is factually similar to State v. Saunders, 91 Wn. App. 575, 958 P.2d 364 (1998), in which this court held that the attorney provided ineffective assistance by eliciting damaging drug information when there was no plausible strategy, it was terribly prejudicial, and some evidence was inadmissible under ER 609. The State responds that in light of all of the damaging physical evidence against McCartney, the defense engaged in a tactical and credible defense of duress that enabled McCartney to present the damaging evidence in an attempt to distance herself from responsibility for Sharp’s actions.
McCartney’s reliance on Saunders is misplaced. In that case, the police stopped an auto mechanic test-driving a vehicle. Saunders, 91 Wn. App. at 577. They found drugs and drug paraphernalia in a container in the back seat. The mechanic claimed they were not his. On direct examination, Saunders’ own attorney asked if he had any prior convictions for similar offenses. Saunders, 91 Wn. App. at 578. This court held,
First, the record reveals no reasons of tactics or strategy for offering the evidence. Counsel did not challenge the evidence in a pretrial motion and so had no reason to believe the evidence would come in if offered by the State. In fact, the State had not attempted to prove the conviction in its case. And we can discern no reason from the record why counsel `would not have objected to such damaging and prejudicial evidence.’
Saunders, 91 Wn. App. at 578-79 (citation omitted).
In this case, McCartney’s counsel had to defend against all the evidence and McCartney’s statement. McCartney’s counsel introduced the statement and did not object to the testimony because it was consistent with McCartney’s position that she had been immersed in the drug culture at one time, had gotten out of it, and would not have returned but for Sharp’s influence and control. That this strategy was unsuccessful is insufficient to show ineffective assistance of counsel. Renfro, 96 Wn.2d at 909. Under the circumstances McCartney’s counsel provided effective assistance. Had he done as McCartney now suggests, it would not have affected the outcome in this case.
We affirm.
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.
WE CONCUR: ARMSTRONG, J., HUNT, C.J.
(1966).