STATE v. TUCKETT, 143 Wn. App. 1041 (2008)

No. 36128-1-II.The Court of Appeals of Washington, Division Two.
March 18, 2008.

Appeal from a judgment of the Superior Court for Mason County, No. 06-1-00026-9, James B. Sawyer II, J., entered March 30, 2007.

Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C. J., and Penoyar, J.

QUINN-BRINTNALL, J.

A jury found Benjamin Tuckett guilty of indecent liberties for an attack on Angela Atkins. Because Tuckett had violated the Olympia municipal lewd conduct ordinance while awaiting trial on the Atkins assault, the court sentenced Tuckett to 68 months, the high end of the standard range. On appeal, Tuckett contends that he was denied a fair trial when the officers who interviewed him about Atkins’s attack testified that they stopped questioning him when he asked for an attorney in the middle of the interview. Because overwhelming evidence supports the jury’s verdict, the officers’ improper testimony could not have affected the outcome of the trial, and we affirm.

FACTS
On January 25, 2006, at about 11:45 pm, Nicole Fortner was driving home on Olympic Highway South when she slammed on her brakes to avoid hitting a girl who jumped in front of her car. A man in a maroon hooded sweatshirt appeared to Fortner to be pulling on the girl’s shirt. The girl, Atkins, came running to the passenger side of Fortner’s car “flailing” and screaming “call 911, 911.” 2 Report of Proceedings (RP) at 44, 45. Fortner could not identify the man but said that he was 5’11” tall, wearing jeans, and driving a sporty car.

On January 25, 2006, Atkins worked at Ernie’s Fir Cone Tavern until 11:30 pm and then began driving home along Olympia Highway South. She ran out of gas in front of the Shelton Eagles. As she was walking to the Now Station, a young man she knew as Ben with whom she had gone to school, passed her. He said “hey, how’s it goin’?” 2 RP at 56. Because she was in a foul mood she “blew him off.” 2 RP at 56. The young man turned around and began following her. Atkins had decided to put some distance between Ben and herself when he grabbed her around the neck and waist. Atkins fought back, convinced that if she allowed him to get her off the main road, she would be raped and maybe killed. She went “dead weight” and was lying face down on the ground. 2 RP at 59. She hit her face on the sidewalk about three or four times. Her attacker put his hand inside her shirt under her bra as he tried to undo her pants. When Atkins said, “Ben, get off me; I know who you are, we went to school together,” he told her to “shut up and calm down and everything would be okay.” 2 RP at 57-58. Atkins continued to fight and was eventually able to elbow her assailant out of the way and then jump into the road in front of a lady’s car that was coming down the hill.

In an interview on the night of the attack, Atkins named the man who attacked her as “Ben” but she could not recall his last name. She said that he was wearing khaki pants, a hooded sweatshirt, and left the scene in a maroon car with round tail lights. Five days later, on January 30, she picked Tuckett from a six-person driver’s license photo montage. A short while after he was selected from the montage, Detectives Harry Heldreth and Tasesa Maiava asked Tuckett if he would voluntarily come to the police station for an interview about the Atkins assault. He agreed. Tuckett signed a written waiver of his Miranda[1] rights and Maiava asked him to explain his whereabouts during the time of the assault.

Tuckett denied being involved in Atkins’s assault and gave the investigating officers the following timeline of his activities that evening.

He was at work in Tumwater at the Tumwater Valley Bar and Grill on that night. He basically had left there and was not quite sure if it was around 11:00 pm or 11:30 pm when he had left. He had clocked out at 10:30 pm but did not leave the Bar and Grill until later. He left when his co-worker, Diana Michel, locked up for the night. He said that he traveled to downtown Olympia to another tavern on Fourth Avenue and realized he did not have his identification. So he left that tavern, telephoned a friend from a pay phone, and went to Lacey to spend the night with her. Tuckett told Detective Maiava that his sister’s boyfriend was driving Tuckett’s Chevy Impala. Tuckett described the clothes he was wearing: a blue short-sleeved Valley Bar and Grill Hawaiian print shirt, khaki-colored shorts, white Adidas sneakers, and a black military fleece jacket.

The investigation and resulting evidence did not corroborate Tuckett’s account. According to Valley Bar and Grill time logs, Tuckett clocked out at 9:02 pm on January 25, 2006. He took off his Hawaiian shirt and put on a gray or brown sweatshirt so that he could sit at the bar after work and have a couple of drinks while he rolled silverware. Tuckett’s co-worker, Michel, told police that night that Tuckett stayed at the Bar and Grill for about an hour after he’d clocked out and left around 10:30 pm. At trial, Michel testified that he left the bar about a half hour before she did at around 11 or 11:30 pm. She locked up at 11:49 pm. She also testified that he did not leave at the same time she did. Phone records confirmed that someone called Tuckett’s friend in Lacey from the Shelton Safeway pay phone at 12:33 am. The friend testified that Tuckett called her and asked if he could stay at her home that night. She told him that he could and he drove his maroon Impala to her house that night. Tuckett’s sister testified that Tuckett left her home around 1:00 pm on January 25, wearing his Hawaiian shirt and khaki shorts. She said that he did not stay at her home the night of January 25, and that her husband had borrowed Tuckett’s car, a maroon Impala, on the night of January 26. She also testified that Tuckett did not own a maroon hooded sweatshirt; that his hooded sweatshirts were black and dark green. Another of Tuckett’s friends, Chad Beman, testified that Tuckett had come to his house before work and was wearing a Hawaiian shirt and khaki shorts. He was not wearing a sweatshirt. Beman was certain that this was the same day Tuckett was arrested. Tuckett was arrested on January 30, 2006, five days after Atkins was attacked.

The jury found Tuckett guilty of indecent liberties and he was sentenced to 68 months, the high end of the standard range. Tuckett appeals.

DISCUSSION
Tuckett argues that the investigating officers’ testimony that the interview was terminated when Tuckett asked for an attorney denied him the right to a fair trial and that his counsel was ineffective for not only failing to object but for exploring the exercise of his right to request an attorney during cross-examination. Although references to Tuckett’s mid-interview request for counsel may have been improper, because overwhelming evidence supports the jury’s verdict, this testimony did not affect the outcome of the trial, and any error was harmless.

To establish ineffective assistance of counsel, Tuckett must show both that (1) his counsel’s performance was deficient and (2) the deficient performance resulted in serious errors that deprived the defendant of a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Tuckett must overcome a strong presumption that his counsel’s representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel’s performance is deficient when it 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). And to show prejudice, he must establish “there is a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.”McFarland, 127 Wn.2d at 335. “`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'” State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 694)) (emphasis omitted). Deficient performance is not shown by matters involving trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 917 P.2d 563 (1996).

In this case, the prosecution questioned investigating officers about Tuckett’s statements and elicited evidence that Tuckett’s request for counsel terminated the interview. Tuckett’s counsel did not object to the prosecutor’s question. But it is clear from the record that he made a tactical decision and decided instead to emphasize Tuckett’s cooperation with the investigating officers and the lawfulness of the exercise of his right to an attorney.

On cross-examination by the defense counsel, the investigating officers testified that no evidence of guilt could be inferred from Tuckett’s request to speak to an attorney. In addition, during closing argument, Tuckett’s counsel emphasized Tuckett’s willingness to cooperate with police and the truthfulness of his client’s account of his activities that evening. Empathizing with the victim of the attack, Tuckett’s counsel demonstrated the defense theory of the case — that Atkins was mistaken when she firmly but falsely believed that Tuckett was her assailant and that Fortner’s description of the man as 5’11” tall and wearing blue jeans did not fit Tuckett and was, in fact, the more accurate account. Tuckett’s counsel made a clear tactical decision not to object to the officer’s testimony and to emphasize Tuckett’s cooperation as evidence of his innocence. But even if we assume that an ordinary reasonably prudent attorney would not have employed such a tactic and that the deficient performance prong of the Strickland test is satisfied, trial counsel may not be declared ineffective unless this performance prejudiced Tuckett.

In order to show prejudice, Tuckett must show that, but for his counsel’s failure to object, the trial’s outcome would have been different. McFarland, 127 Wn.2d at 337. Although it is clear that the trial court would have sustained an objection to the investigating officer’s response that, when Tuckett asked for an attorney, the interview was ended, it is also clear from the record that the prosecutor attempted to cut off the inappropriate and somewhat non-responsive answer by interrupting the officer, something she did at no other time during the trial. Thus, it appears from this record that, had the proper objection been made, it would have resulted in the court telling the jury to ignore the answer but little else.

The prejudicial effect of the jury’s learning that Tuckett terminated his interview when, according to him, police mistakenly failed to corroborate his account of his activities that evening must be viewed against the backdrop of the evidence. On this record, it is clear that the result of the trial would not have been different if the jury had not learned that, although Tuckett voluntarily spoke with investigating officers for several hours, when they told him they were unable to confirm his account of the evening’s events, he ended the interview by asking to speak to his attorney. Moreover, the prosecution did not refer to Tuckett’s request to speak with an attorney or draw negative inferences from this request. The defense counsel elicited testimony that Tuckett continued to cooperate with the police investigation giving additional information that could be used to support his account until it was clear that Detective Heldreth simply refused to investigate further. Defense counsel made clear that Tuckett was simply exercising a right from which the jury could not draw a negative inference because Tuckett fully cooperated until his cooperation appeared futile.

Akin to the prejudice prong of the Strickland ineffective assistance of counsel analysis is the standard for determining whether an error of constitutional magnitude is harmless. The State bears the burden of showing any constitutional error was harmless beyond a reasonable doubt State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). A constitutional error is harmless only if we are convinced beyond a reasonable doubt that any jury would reach the same result absent the error, and the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Easter, 130 Wn.2d at 242 (citing State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995); State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990)).

Here, the victim called her assailant by his first name, “Ben,” during the attack and identified him to responding police on the night of the attack as a person named “Ben” that she knew from high school. She told them her assailant’s car was maroon and had round taillights. A few days later, she called the police and indicated that these lights were of the type she had seen on a Chevy Impala and that she had remembered “Ben’s” last name was something like Tucker.

She selected a photo of her attacker from a six-person driver’s license photo montage on January 30, 2006, and the name of the person in the photo she identified was Tuckett. Department of Motor Vehicle records showed that a maroon Chevy Impala was registered to Tuckett. Detectives Heldreth and Maiava asked Tuckett to voluntarily give them an account of his activities on the night in question which he agreed to do. The victim’s evidence, together with independent and computer evidence that belied Tuckett’s account of the timing of his activities that evening, establish that the result of the trial would have been no different had defense counsel timely objected to the investigating officers’ testimony that they ended the interview after Tuckett requested that he be allowed to speak with an attorney. Tuckett’s counsel’s tactical decision did not prejudice him and Strickland‘s prejudice prong is not met. Accordingly, Tuckett has not established that he was deprived of his Sixth Amendment right to effective assistance of counsel.

In addition, overwhelming evidence supports the jury’s verdict and establishes that the error in referring to Tuckett’s mid-interview request for counsel was harmless beyond a reasonable doubt. Accordingly, 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:

VAN DEREN, A.C.J.

PENOYAR, J.