Opinion
No. 53028-3-I
Filed: December 20, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-03280-6. Judgment or order under review. Date filed: 09/12/2003. Judge signing: Hon. Catherine D Shaffer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Bo Burns-Informational only (Appearing Pro Se), 4822 SE 252 Pl Apt 306, Kent, WA 98032.
Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Brian Martin McDonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance on the part of his or her counsel and resulting prejudice that deprived him or her of a fair trial. Bobby Joe Burns argues that his trial counsel's failure to investigate and failure to interview potential witnesses prejudiced him at trial. He also claims his substitute counsel was ineffective for failing to develop a record to establish trial counsel was ineffective. Because Burns fails to show prejudice for any of these claims, we disagree and affirm.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
After Burns' arrest on May 31, 2002 for assaulting his girlfriend's brother, he was transported to the Auburn jail. Corrections Officer Michael Orton, the booking officer on duty, asked Burns for his phone number. Burns did not respond, and then spit on the officer's right arm. Officer Orton yelled, `He got me and he spit on me.' Officer Jeff Crawford heard the shout in response to the incident and then moved Burns to a holding cell.
The State charged Burns with one count of third-degree assault for spitting on Officer Orton. This charge was severed for trial from several other counts related to the assault of his girlfriend's brother. A jury convicted Burns as charged.
Following the trial, substitute counsel for Burns moved for a new trial. The motion was based on the claim that trial counsel provided ineffective assistance.
After a hearing, the court denied the motion for a new trial and entered written findings of fact and conclusions of law in support of its ruling.
Burns appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Burns argues that his counsel at trial was ineffective in failing to conduct pre-trial interviews of several officers present at the time of the incident, and failing to obtain a videotape that possibly showed the booking area of the jail. He also claims trial counsel failed to seek additional records that might relate to the assault, and failed to review photographs of the booking area. None of these arguments is persuasive. Both the state and federal constitutions guarantee the right to effective assistance of counsel in criminal proceedings. Strickland v. Washington established a two-part test for ineffective assistance of counsel. First, the defendant must show deficient performance. This court's scrutiny of counsel's performance is highly deferential, and we will indulge in a strong presumption of reasonableness. If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim. Deficient performance is not shown by matters that go to trial strategy or tactics.
Strickland, 466 U.S. at 684-86; State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).
Strickland, 466 U.S. at 688-89.
Strickland, 466 U.S. at 688-89.
State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Hendrickson, 129 Wn.2d at 77-78.
Second, the defendant must show prejudice — `that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' To meet the second prong, defendant must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' If an appellant fails to establish either element of the ineffective assistance of counsel claim, we need not address the other element.
Hendrickson, 129 Wn.2d at 78 (quoting Strickland, 466 U.S. at 687).
Thomas, 109 Wn.2d at 226 (quoting Strickland, 466 U.S. at 694).
Hendrickson, 129 Wn.2d at 78.
Witness Interviews
Burns claims trial counsel's failure to interview certain witnesses was deficient performance. The decision not to interview certain witnesses can be a legitimate strategy.
To assure the defendant of counsel's best efforts then, the law must afford the attorney a wide latitude and flexibility in his choice of trial psychology and tactics. If counsel is to be stultified at trial by a post trial scrutiny of the myriad choices he must make in the course of a trial: whether to examine on a fact, whether and how much to cross-examine, whether to put some witnesses on the stand and leave others off — indeed, in some instances, whether to interview some witnesses before trial or leave them alone — he will lose the very freedom of action so essential to a skillful representation of the accused.
State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967).
Here, Burns' defense counsel chose such a tactic, asserting that a pre-trial interview would have undermined trial strategy. Defense counsel stated, `in doing an interview with them, it may have better prepared them to negate what I was trying to do with what I perceived to be the issue, that it was impossible for Bobby to spit on the officer's arm `This tactic, as applied to this case, is not deficient performance.
Further, and more importantly, Burns fails to show how he was prejudiced by his attorney's decision not to conduct pre-trial interviews. There is no evidence that the officers' stories would have favored Burns, had his counsel interviewed them prior to trial. In ruling on Burns' motion for a new trial, the judge stated, `There's, more importantly, absolutely nothing to indicate that an interview of the jail officer would have revealed anything different than what he testified to.' We agree. Furthermore, Burns' attorney conducted a competent cross examination. He elicited testimony that was helpful in arguing that Burns' demeanor did not suggest someone who was intoxicated or angry. On cross examination, Officer Crawford testified that Burns had been cooperative and followed instructions. Here, a failure to interview the officers who were present at — the time of the incident did not lead to a reasonable probability of a different outcome — there was no prejudice.
Next, Burns alleges a third officer who was in the vicinity of the booking area, but did not witness the event, should have been interviewed. There is no evidence in the record that this officer witnessed the incident. The judge in Burns' motion for a new trial concluded that to interview an officer who did not witness the incident would not have yielded any helpful evidence. She stated, `There's really nothing to indicate that any other officer was involved or was watching what was going on in this case.' We agree and conclude that Burns was not prejudiced by the decision not to interview the third officer.
Because Burns fails to show either deficient performance or prejudice based on counsel's decision not to interview witnesses, there is no showing of ineffective assistance of counsel for this claim.
Video Tape
Burns next alleges that the failure to procure the surveillance videotape of the booking area constituted deficient performance which prejudiced him.
Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
We disagree.
The basic problem with this claim is that there is no showing of prejudice because there is no evidence that the videotape contained exculpatory evidence. Absent prejudice, there is no claim for ineffective assistance of counsel.
See United States v. Reed, 756 F.2d 654, 657 (8th Cir. 1985) (defendant was not prejudiced by defense counsel's failure to uncover evidence when such evidence is not exculpatory).
Internal Incident Report
Burns next argues his attorney failed to obtain an internal incident report regarding the events of that evening. However, Burns failed to offer any evidence such a record existed. Additionally, at Burns' motion for a new trial, his new counsel presented no evidence that an internal incident report existed. Furthermore, even if such a record existed, new counsel presented no evidence that such records would have been helpful to Burns. Again, the failure to show exculpatory evidence bars this claim because there is no showing of prejudice.
Photographs
Finally, Burns argues that his attorney's failure to view photographs of the booking area, or visit it prior to trial constituted ineffective assistance of counsel. We disagree.
Again, Burns fails to demonstrate prejudice by this alleged failure. The photographs of the booking area were admitted into evidence at trial. Furthermore, uncontradicted testimony in the record reveals Burns' attorney did review the photographs for trial. Counsel competently argued that the pictures presented by the prosecution at trial supported Burns' trial strategy of denial. And in closing arguments Burns' attorney argued that given the physical set up of the booking window it was impossible for Burns to spit on the booking officer. In short, there is no prejudice.
Substitute Counsel
Burns next argues that his substitute counsel was ineffective because she failed to develop a record of actual prejudice from trial counsel's actions. Specifically, Burns claims his substitute counsel had the burden to conduct an interview with Officer Orton, attempt to obtain an internal incident report from the jail, or follow up on the videotape in order to establish actual prejudice in the performance of Burns' trial counsel. We disagree.
The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record established in the proceedings below. Where, as here, the claim of ineffective assistance of counsel is brought on direct appeal, we will not consider matters outside the trial record. If a defendant wishes to raise issues that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (emphasis added).
State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10, cert. denied, 501 U.S. 1237, 111 S. Ct. 2867, 115 L. Ed. 2d 1033 (1991); State v. Blight, 89 Wn.2d 38, 45-46, 569 P.2d 1129 (1977). Accord State v. Stockton, 97 Wn.2d 528, 530, 647 P.2d 21 (1982) (matters referred to in the brief but not included in the record cannot be considered on appeal).
McFarland, 127 Wn.2d at 335 (see Washington State Bar Ass'n, Appellate Practice Desk Book sec. 32.2(3)(c), at 32-6 (2d ed. 1993) (citing State v. Byrd, 30 Wn. App. 794, 800, 638 P.2d 601 (1981))).
We affirm the judgment and sentence.
COX, C.J., APPELWICK, J. and BAKER, J.