STATE v. MICHSCHL, 47763-3-I (Wash.App. 1-14-2002)

No. 47763-3-I.The Court of Appeals of Washington, Division One.
Filed: January 14, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Snohomish County, No. 99-1-02076-1, Hon. Ronald L. Castleberry, November 30, 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), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.

George F. Appel II, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4060.

PER CURIAM.

Appellant Larry Mickschl comes before this court on appeal from his conviction for conspiracy to deliver a controlled substance and a firearm enhancement. He argues that he was denied his constitutional right to effective assistance of counsel when his trial attorney failed to object to improper criminal profile testimony. Contrary to Mickschl’s assertions, the testimony at issue did not constitute improper criminal profile testimony. Even if this testimony were objectionable, however, Mickschl has not demonstrated that he suffered prejudice from its admission. For these reasons, we do not find that Mickschl was denied his right to effective assistance of counsel. Mickschl’s conviction and sentence are affirmed.

FACTS
While working as an informant for the Mukilteo Police Department, former drug dealer Ed Bleitz agreed to assist undercover police officers and Drug Enforcement Agency (DEA) agents in a buy-bust operation. In July 1998, Bleitz called a suspected drug dealer to set up a drug transaction.

The dealer agreed to sell methamphetamine to Bleitz and mentioned that he would bring the person he was getting the drugs from to the transaction. Bleitz and the dealer agreed to meet at a park in Mukilteo. Later that day, Bleitz, several police officers, and two DEA agents went to the park to wait for the dealer. As Bleitz, an undercover officer, and DEA Agent Stapleton waited for the dealer to arrive, the other officers and the other agent hid nearby. A short time later, the dealer arrived at the park as the sole passenger in a truck driven by Mickschl. When Bleitz approached the truck and asked the dealer about the drugs, the dealer reached across the seat to Mickschl and was handed a dark bag. As he handed the bag to the dealer, Mickschl cautioned that he did not want to be `screwed.’ The dealer put the bag in his front pocket and approached the undercover officer and Agent Stapleton. The dealer asked the officer whether he had the money, and the officer replied that it was in his car.

When the officer asked the dealer if he could see the drugs, the dealer suggested that they sit in the officer’s car. As the dealer was about to open the bag, he noticed a DEA agent approaching the car and threw the bag out the driver’s side window. The other officers emerged from their positions and arrested the dealer and Mickschl. The officers recovered the bag, and the contents tested positive for methamphetamine. The officers also found a loaded pistol in the truck on the seat next to Mickschl. Mickschl was charged and convicted of conspiracy to deliver a controlled substance while armed with a firearm and was given a standard range sentence. This appeal followed.

DISCUSSION
At trial, the prosecutor asked DEA Agent Stapleton how many times the drug supplier was present in the hundreds of arrests he had made involving drug transactions. Agent Stapleton answered, `Approximately 70 to 80 percent of the time. I don’t have a specific number, but it’s very common for the supplier to come along[.]’ Mickschl argues that Agent Stapleton’s testimony constituted improper criminal profile testimony and that defense counsel was ineffective in failing to object to its admission.

To prove ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient i.e., `that counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.’ State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must also show that the deficient performance prejudiced the defense i.e., `that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ Lord, 117 Wn.2d at 883 (quoting State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986)). Mickschl has not established either prong of the ineffective assistance test.

ER 702 allows opinion testimony from qualified experts if it `will assist the trier of fact to understand the evidence or to determine a fact in issue[.]’ Under this rule, courts have permitted expert testimony from law enforcement officers describing typical drug transactions. State v. Avendano-Lopez, 79 Wn. App. 706, 711, 904 P.2d 324 (1995) (officer’s testimony describing the characteristics of a typical drug dealer helped the trier of fact understand `the arcane world of drug dealing and certain drug transactions’); see also, State v. Cruz, 77 Wn. App. 811, 894 P.2d 573 (1995) (wide-ranging testimony from undercover officer describing drug use, drug transactions, and law enforcement techniques). Expert testimony is generally prohibited, however, if it leads the jury to identify the defendant `as a member of a group more likely to commit the charged crime’ due to its minimal probative value and highly prejudicial nature. State v. Braham, 67 Wn. App. 930, 936, 841 P.2d 785
(1992); see also, State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984); State v. Maule, 35 Wn. App. 287, 667 P.2d 96 (1983). `[T]estimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.’ City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).

Here, Agent Stapleton’s testimony was properly admitted to assist the jurors in understanding the evidence regarding the drug transaction. Agent Stapleton did not describe Mickschl as a member of a group with a propensity for criminal activity, nor did he opine as to Mickschl’s involvement in the charged crime.[1]

Because the testimony that was allowed did not constitute improper criminal profile testimony, defense counsel’s failure to object to its admission did not amount to deficient performance.

Even if we were to find that Agent Stapleton’s testimony was improper, Mickschl’s ineffective assistance argument would still fail because he has not demonstrated that he was prejudiced. To prove prejudice, the defendant must show that, `but for the ineffective assistance, there is a reasonable probability that the outcome would have been different.’ State v. Rodriquez, 103 Wn. App. 693, 701, 14 P.3d 157 (2000), review denied, 143 Wn.2d 1021 (2001) (quoting State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990)). In this case, Agent Stapleton’s testimony was only a small part of a significant body of evidence implicating Mickschl as the supplier in the drug transaction.

The jury heard testimony from former drug dealer Ed Bleitz, who agreed to assist law enforcement officers by setting up a drug transaction. He testified that when he contacted a suspected drug dealer to arrange for a purchase, the dealer told him that he would bring his supplier to the transaction. The dealer arrived at the arranged meeting place as the sole passenger in a car driven by Mickschl. When Bleitz asked the dealer about the drugs, the dealer reached across the seat and Mickschl handed him a bag later found to contain methamphetamine. Bleitz testified that as Mickschl handed the bag to the dealer, Mickschl stated that he did not want to be `screwed.’

The clear inference to be drawn from Bleitz’s testimony is that Mickschl was the supplier in the drug transaction. Thus, even if Agent Stapleton’s testimony were improper, Mickschl could not demonstrate that he was prejudiced by its admission.

Because Mickschl has failed to establish that he received ineffective assistance of counsel, his conviction and sentence are affirmed.

Affirmed.