Opinion
No. 36818-8-II.
December 2, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00362-7, Richard L. Brosey, J., entered August 29, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
Michael McBroom appeals his convictions of unlawful methamphetamine possession and unlawful use of drug paraphernalia, arguing that the trial court erred in declining to appoint new counsel where a conflict of interest denied him effective assistance. We affirm.
FACTS
A Lewis County sheriff's deputy approached a suspect vehicle parked near a trailer home in response to a dispatch seeking a Red Ford Aerostar van. Apparently, the van owned by McBroom left a gas station without paying.
After checking McBroom's name, the deputy found that he had three outstanding warrants for his arrest. The deputy entered the trailer; handcuffed McBroom; and, once outside, placed him under arrest. A search incident to arrest revealed a baggie containing a powdery substance that later tested positive for methamphetamine.
The State charged McBroom with possession of a controlled substance and unlawful use of drug paraphernalia. The trial court appointed counsel to defend him.
RCW 69.50.4013(1) and .412(1), respectively.
McBroom insisted that his counsel have the powder retested. McBroom also insisted that his counsel make several specific motions before the court. Defense counsel refused and explained to McBroom that his right to counsel did not include the power to design the trial strategy.
Defense counsel attempted to stipulate to the testing report; McBroom objected, and the trial court declined to accept the stipulation. The State called the laboratory technician and defense counsel cross-examined him.
McBroom became convinced that his counsel had no intention of putting up an effective defense and had "already sold [him] down the river." Report of Proceedings (RP) (July 18, 2007) at 13. According to defense counsel, his relationship with McBroom had "broken down" and communications between the two were far from cordial. RP (July 11, 2007) at 4. Shortly before trial, while engaged in a colloquy with the court, McBroom told his counsel and the court that he had filed a Washington State Bar complaint. He asked that the trial court appoint substitute counsel. After discussion, the trial court denied McBroom's request.
The jury convicted McBroom as charged and he appeals.
ANALYSIS
Request for Another Lawyer
McBroom first contends that the trial court erred in declining to assign new counsel. He cites State v. Cross, 156 Wn.2d 580, 606-07, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006), arguing that a complete collapse of the attorney-client relationship requires the trial court to appoint new counsel "even in the absence of prejudice." Appellant's Br. at 11. We disagree with McBroom's characterization of Cross.
The Cross court noted that it "generally review[s] trial court decisions relating to attorney/client differences for abuse of discretion." 156 Wn.2d at 607. A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Thus, we turn to our review and analyze the (1) extent of the conflict, (2) adequacy of the trial court's inquiry, and (3) timeliness of the motion in order to determine whether the trial court abused its discretion. Cross, 156 Wn.2d at 607.
McBroom made a timely pretrial motion.
In doing so, we engage in a deferential review of counsel's trial strategy, presuming reasonableness. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Generally, a client does not have a right to good rapport with his counsel. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 725, 16 P.3d 1 (2001). Moreover, our Supreme Court has also stated that a conflict over strategy does not equate with a conflict of interest. Cross, 156 Wn.2d at 607; Stenson, 142 Wn.2d at 722 ("Case law does not support the application of the concept of a conflict of interest to conflicts between an attorney and client over trial strategy.").
We first consider McBroom's disagreement with his defense counsel concerning McBroom's requests that certain motions be brought and testing be DONe. A review of the record discloses that McBroom cannot show that any conflict exists here beyond trial strategy and tactics.
Next, we turn to the adequacy of the trial court's inquiry. At a pretrial hearing to set a trial date, defense counsel informed the trial court that his client "ha[d] an issue." RP (July 12, 2007) at 3. McBroom reiterated his desire for another attorney, explaining that defense counsel refused to file specific motions at his request, have the substance found by police retested, and that his counsel would not "show [him] anything." RP (July 12, 2007) at 4.
The trial court allowed McBroom to describe his dissatisfaction at length and thereby gave him a full opportunity to air his grievances with defense counsel and engaged in an inquiry. Only after this did the court refuse to grant McBroom's request. The trial court engaged in an adequate inquiry. It did not abuse its discretion in declining to appoint new counsel.
Conflict of Interest
McBroom next contends his filing a Bar complaint against defense counsel created a conflict of interest. McBroom argues that defense counsel's continued representation after the Bar complaint constitutes a conflict based on McBroom's assumption that the complaint adversely influenced defense counsel's conduct at trial.
Our Rules of Professional Conduct define a conflict of interest as "aris[ing] from the lawyer's responsibilities to another client, a former client or a third person or from the lawyer's own interests." RPC 1.7 cmt. 1.
McBroom refers to several instances at trial, asserting that they indicate behavior influenced by his Bar complaint. He notes that during trial, defense counsel (1) failed to object to police testimony about "possible warrants" after having obtained a ruling that the police were not to mention McBroom's possible warrants in front of the jury, (2) did not cross-examine or otherwise attempt to discredit expert testimony that the substance seized from McBroom was methamphetamine, (3) did not attempt to call witnesses capable of corroborating McBroom's testimony, and (4) for "hint[ing] at closing arguments that Mr. McBroom was an unsavory person." Appellant's Br. at 20.
First, McBroom's description of defense counsel's failure to object is misleading. The referenced interaction occurred outside the jury's presence and in response to an inquiry from the trial court. Moreover, defense counsel moved for a mistrial after a witness, who was aware of the court's rule against mentioning McBroom's warrants, referred to them before the jury.
Second, although defense counsel engaged in a perfunctory cross-examination of the forensic expert, counsel's examination nevertheless fits within the confines of trial strategy.
Third, McBroom fails to provide evidence of documentation to show that "no attempt" was made to call favorable witnesses. Before trial, McBroom did ask for "time to at least subpoena a witness," and he never otherwise identified anyone. RP (July 12, 2006) at 1.
Although some "omissions of potentially exculpatory evidence . . . constitute deficient[] and prejudicial[] performance by counsel" offensive to the Sixth Amendment guarantee of counsel's assistance, nothing in the record before us shows such an omission on defense counsel's part. Lord v. Wood, 184 F.3d 1083, 1096 (1999). We cannot, therefore, determine that such testimony, if available, was evidence "at [counsel's] fingertips . . . that could have undermined the prosecution's case." Lord, 184 F.3d at 1096.
Finally, McBroom mischaracterizes the record when he claims that defense counsel referred to him as an unsavory character. Put in context, defense counsel said to the jury: "You may think he's a good guy. You may think he's a bad guy. . . . We DON't put people on trial for what kind of person they are or whether we think they're a good person or bad person." RP (July 18, 2007) at 95-96.
Here, McBroom has not shown that his filing a Bar complaint created a conflict resulting in counsel's adverse performance. State v. Martinez, 53 Wn. App. 709, 715-16, 770 P.2d 646 (1989). In sum, McBroom's grievance with his defense counsel appears to be that counsel did not follow his demands. Because the four instances, which are presented as instances in which defense counsel appeared to be affected by this potential conflict of interest, are all reasonable strategic decisions, his argument fails.
Affirmed.
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.
ARMSTRONG, J. and HUNT, J., concur.