No. 26768-7-III.The Court of Appeals of Washington, Division Three.
January 8, 2009.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-1-00222-4, Robert L. Zagelow, J., entered December 17, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Sweeney, J.
UNPUBLISHED OPINION
KORSMO, J.
Rita Young challenges her Walla Walla Superior Court conviction for delivering methamphetamine within 1,000 feet of a school. She contends that her trial counsel erred in several ways. We conclude she has not established prejudicial error and affirm the conviction.
FACTS
Ms. Young sold 1/8 oz. of methamphetamine to a police informant. They met outside a Walmart store and then drove a short distance in Ms. Young’s vehicle before stopping and conducting the transaction. Two officers were able to observe portions of the encounter from a distance, including what looked like an exchange between the two. As typically seen in a controlled purchase situation, the informant was searched before the sale to confirm there were no other drugs on him, and then again after the sale.
The informant and both officers testified at trial. One of the officers had been with the informant in the Walmart. The other officer described how he had waited in the parking lot for the two in the store to meet up with the defendant. He summarized what took place during the wait, including reference to the defendant indicating she was on her way. There was no objection to the testimony. The informant testified without objection that he had purchased methamphetamine from Ms. Young on a couple of occasions.
The defense rested without presenting evidence. In closing argument, the prosecutor referred repeatedly to the evidence as being “uncontested” or “unrefuted.”
Defense counsel opened her closing remarks with those statements in mind:
Mr. Acosta stood here and said this is uncontested, this is uncontested, this is uncontested. Every single thing was contested by the questions I asked, by the responses that we got, by the statements of the police officers as well as Mr. Mazetta.
The jury convicted Ms. Young as charged. She appealed to this court, contending that her counsel failed to provide adequate representation at trial.
ANALYSIS
Ms. Young contends that her counsel failed her in several ways. In particular, she challenges the failure to object to the prosecutor’s “uncontested” remarks, failed to object to testimony that she had previously dealt drugs, and failed to object to hearsay testimony of an officer about what went on while awaiting Ms. Young’s arrival. The challenges appear to implicate strategic decisions by counsel. They do not establish error or prejudice.
The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel’s failure to live up to those standards will require a new trial when the client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Whether or not the prosecutor erred in making the repeated comments that the testimony was “uncontested” or “unrefuted” is not a question we need decide. It can be error to suggest that evidence is “uncontested” when the statement amounts to shifting the prosecutor’s burden of proof by suggesting that a defendant could have produced evidence to rebut the government’s case. E.g., State v. Traweek, 43 Wn. App. 99, 106-107, 715 P.2d 1148, review denied, 106 Wn.2d 1007 (1986), overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). It is not error to make such arguments if it is clear the prosecutor is commenting on the government’s own case and does not suggest the defense has a burden to produce evidence. State v. Crawford, 21 Wn. App. 146, 151-152, 584 P.2d 442 (1978), review denied, 91 Wn.2d 1013 (1979). The appellant argues the first construction of this argument, while respondent argues the second. We do not decide that issue, however, for the simple reason that defense counsel directly addressed the matter in her opening remarks. She used the prosecutor’s comments as a vehicle to directly tell the jury that while the defense had presented no evidence of its own, it contested the case through cross-examination and was not conceding a single point. This was an effective way to educate the jury that even though there were no defense witnesses called to testify, the defense still disputed what actually took place. The decision not to object and, instead, to turn the prosecutor’s remarks around was clearly a strategic decision. Under Strickland, this simply is not a basis for finding counsel erred.
The decision not to challenge the alleged hearsay statement from the officer in the parking lot similarly was clearly a strategic decision. It is doubtful that the officer actually repeated any hearsay since the only statement expressly noted was one attributed to the defendant. Statements by a party-opponent are not hearsay by definition. ER 801(d)(2). Instead, it appears that the officer’s basis of knowledge, which could have been contested, was hearsay in nature. However, it is understandable that there was no objection. The informant and the officer, who was with him in the store, were both scheduled to testify. If counsel had objected, the same information could have been elicited directly from them. The effect would be to emphasize the evidence that really was not in dispute. This, too, was clearly a strategic decision by counsel.
We also believe that counsel’s failure to object to the testimony that the defendant had sold methamphetamine to the informant on a “couple” of prior occasions was a strategic decision. It made great sense to simply ignore the testimony rather than highlight it for the jury. If the defense had tried to contest the nature of the relationship between the informant and Ms. Young, the trial court may well have admitted more detailed testimony about the prior dealings. The evidence was arguably relevant to show that the informant had not targeted Ms. Young at random and that it was she, not the informant, who produced the controlled substance. Moreover, the focus of the defense was on the failure of the police to properly control the whole sale, thus highlighting the credibility of the informant. Letting the information about prior dealings, which the jury might well have suspected anyway, pass uncontested made it a non-issue at trial. This, too, was a strategic decision of counsel.
Because the alleged failures of counsel fell within the scope of her professional judgment, the claim of ineffective assistance must be rejected. The highly deferential standard that must be applied in this area leaves this court without a basis for criticizing trial counsel’s performance.
The conviction is 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.
Kulik, A.C.J., and Sweeney, J., Concur.