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finding that the defendant waived his right to confrontation on a piece of evidence by failing to file a timely objection
Summary of this case from State v. LuiOpinion
No. 29465–0–III.
2011-09-29
STATE of Washington, Respondent,v.Michael D. SCHROEDER, Appellant.
Janet G. Gemberling, Jill Shumaker Reuter, Gemberling & Dooris PS, Spokane, WA, for Appellant.Mark Erik Lindsey, Spokane County Prosecuting Attorney, Andrew J. Metts III, Spokane County Pros. Office, Spokane, WA, for Respondent.
Janet G. Gemberling, Jill Shumaker Reuter, Gemberling & Dooris PS, Spokane, WA, for Appellant.Mark Erik Lindsey, Spokane County Prosecuting Attorney, Andrew J. Metts III, Spokane County Pros. Office, Spokane, WA, for Respondent.
KORSMO, A.C.J.
¶ 1 Michael Schroeder appeals his convictions for second degree unlawful possession of a firearm and possession of a controlled substance. We conclude that he has waived any confrontation challenge to the admission of a laboratory report and that he has not shown his counsel performed ineffectively. The convictions are affirmed.
FACTS
¶ 2 Responding to reports that a man driving a pickup truck had waved a gun at his ex-girlfriend, Officer Kevin Vaughn soon located the truck parked in the neighborhood. The door was open and a man was standing outside the vehicle, rummaging inside. Officer Vaughn approached with his gun drawn and ordered the man to show his hands. Mr. Schroeder did not comply until the third time the command issued. At that point, the officer
put Mr. Schroeder on the ground and handcuffed him.
¶ 3 The officer searched the interior of the truck and found a silver handgun in the console. After discovering that Mr. Schroeder was a felon, Officer Vaughn arrested Mr. Schroeder for unlawful possession of a firearm and felony harassment. During a subsequent search of Mr. Schroeder, the officer discovered two white pills in a pocket. The officer radioed the pills' description and imprinted numbers to dispatch, which reported that they were Hydrocodone.
¶ 4 A laboratory report identifying the pills as Hydrocodone was introduced at trial with defense counsel's statement that she had no objection. The analyst who tested the pills was not called to testify. The officer also testified without objection that dispatch had identified the pills as Hydrocodone.
¶ 5 Defense counsel ignored the drug possession charge in closing argument and concentrated on the remaining counts. The defense theory of the case was that Mr. Schroeder had borrowed the truck and did not know the gun was inside. He also had never displayed the weapon. The jury acquitted Mr. Schroeder of harassment, but convicted on the other two charges.
¶ 6 After receiving a standard range sentence, Mr. Schroeder timely appealed to this court.
ANALYSIS
¶ 7 Mr. Schroeder argues that his right to confrontation of witnesses was violated by the admission of the laboratory results without testimony from the analyst who performed the testing. He also contends his counsel provided ineffective assistance by not demanding the analyst's testimony and not seeking suppression of evidence found in the truck. Well settled standards govern our review of these claims.
¶ 8 Laboratory Report. Arguing from the decision in Melendez–Diaz v. Massachusetts, 557 U.S. ––––, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), Mr. Schroeder contends that his confrontation rights were violated when the laboratory report was admitted without accompanying testimony from the scientist who had tested the Hydrocodone. In Melendez–Diaz, the court applied its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), to certificates filed by a state laboratory analyst who identified the controlled substance at issue in that case as cocaine. Mr. Melendez–Diaz had objected to the admission of the certificates under Crawford and demanded that the analyst testify. 557 U.S. at ––––, 129 S.Ct. at 2530–2531, 174 L.Ed.2d at 320. The Massachusetts trial court had rejected the argument under state law and admitted the certificates in lieu of testimony from the analyst. Id.
¶ 9 The United States Supreme Court reversed in a 5–4 opinion, concluding that the certificates were the equivalent of testimony by affidavit, a practice prohibited by Crawford and the Sixth Amendment's confrontation clause. Id. at ––––, 129 S.Ct. at 2531–2532, 174 L.Ed.2d at 320–322. In response to the government's policy argument that an extreme burden would arise from having analysts testify at every trial, the court made several observations, including two pertinent to this case. First, the Court reminded the parties: “The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections.” Id. at –––– n. 3, 129 S.Ct. at 2534 n. 3, 174 L.Ed.2d at 323 n. 3. Second, the Court stressed that the States were free to require that confrontation rights be asserted prior to trial:
The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.... It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses.... There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. Id. at ––––, 129 S.Ct. at 2541, 174 L.Ed.2d at 331 (citations omitted).
¶ 10 These two observations control the disposition of Mr. Schroeder's first claim. First, unlike Mr. Melendez–Diaz, Mr.
Schroeder did not object to the admission of the crime laboratory certificate at his trial. He thus waived his right to confrontation on that piece of evidence. Id. at –––– n. 3, 129 S.Ct. at 2534 n. 3, 174 L.Ed.2d at 323 n. 3. Second, Mr. Schroeder never demanded that the laboratory technician testify in his case.
¶ 11 CrR 6.13(b) governs test reports prepared by experts. When presented in proper form, the reports are admissible without further foundation. CrR 6.13(b)(1). However, the report will be excluded if the notice requirements of CrR 6.13(b)(3) are not complied with. The last of three exclusions is applicable to this case:
(3) Notice Requirements. The court shall exclude such report if:
...
(iii) at least 7 days prior to the trial date or, upon a showing of cause, such lesser time as the court deems proper, the defendant has served a written demand upon the prosecutor to produce the expert witness at the trial.
CrR 6.13(b)(3)(iii).
¶ 12 This rule comports with Melendez–Diaz. The states are allowed, as part of their procedural rules, to require that the defendant demand the presence of the expert in a timely fashion. Melendez–Diaz, 557 U.S. at ––––, 129 S.Ct. at 2541, 174 L.Ed.2d at 331. Washington has done so in CrR 6.13(b). Mr. Schroeder never demanded that the analyst testify at trial. For this reason, also, he waived his confrontation rights on this issue.
¶ 13 Mr. Schroeder waived his right to confront the laboratory analyst by failing to object to the admission of the test certificate and by failing to demand that the State produce the witness at trial. His first claim is without merit.
¶ 14 Affirmed.
¶ 15 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
******UNPUBLISHED TEXT FOLLOWS******
¶ 17 Ineffective Assistance of Counsel. Mr. Schroeder next argues that his attorney did not provide effective assistance. He claims that counsel erred in two particulars: (1) waiving his right to confront the laboratory analyst and (2) not challenging the initial seizure and search of the truck.
¶ 18 The Sixth Amendment guarantees the right to counsel. An attorney must perform to the standards of the profession; 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 Wash.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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's performance failed to meet a standard of reasonableness and (2) actual prejudice resulted from counsel's failures. Id. at 690–692, 104 S.Ct. 2052. When a claim can be disposed of on one ground, a reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wash.App. 266, 273, 166 P.3d 726, review denied, 162 Wash.2d 1007, 175 P.3d 1094 (2007).
Determining that a decision was strategic or tactical does not mean that counsel's action necessarily satisfied Strickland's reasonableness standard. State v. Grier, 171 Wash.2d 17, 33–34, 246 P.3d 1260 (2011).
¶ 19 As with Mr. Schroeder's initial issue, our decision on the first of his ineffective assistance claims is governed by Melendez–Diaz. Mr. Schroeder argues that counsel failed by not requiring the laboratory analyst to testify. This clearly was a tactical decision. As Melendez–Diaz demonstrates, it was also a reasonable tactic.
¶ 20 In another of its responses to the government's burdensomeness argument, the Melendez–Diaz majority turned to empirical evidence of the impact of its Crawford decision on trial practices. It concluded that Crawford, and state rule changes to implement it, had not resulted in a significant increase in the number of expert witnesses called to testify. 557 U.S. at ––––, 129 S.Ct. at 2542, 174 L.Ed.2d at 332. The Court then noted:
The absence of such evidence is telling.
But it is not surprising. Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion. Id. Noting “these strategic considerations,” the majority concluded that its ruling would be unlikely to create difficulties. Id.
¶ 21 These “strategic considerations” more than adequately explain why Mr. Schroeder's counsel did not err in failing to demand the analyst's presence. There appears to be no question that the pills were Hydrocodone. The defense approach to the trial was to ignore the minor drug charge and challenge the State's case on the gun-related counts, a strategy that resulted in one acquittal. We conclude that Mr. Schroeder has not borne his heavy burden of establishing that trial counsel erred.
We thus need not address whether counsel's action resulted in prejudice. Foster, 140 Wash.App. at 273, 166 P.3d 726.
FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
¶ 22 Mr. Schroeder also argues that counsel erred in not challenging his armed seizure by Officer Vaughn, contending that the force used was excessive for an investigative stop. Police can briefly detain someone to investigate his or her involvement in criminal activity; a frisk for weapons is justified when the officer has articulable suspicion the person may be armed. Terry v. Ohio, 392 U.S. 1, 29–30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officer safety is the justification for this type of search. Id.
¶ 23 Mr. Schroeder contends that an armed seizure is inappropriate for an investigative detention. However, it is permissible to conduct an investigative stop at gunpoint when there is “specific fear that particular persons may be armed because of the nature of the criminal activity of which they are suspected.” State v. Belieu, 112 Wash.2d 587, 603, 773 P.2d 46 (1989). That was clearly the situation here. Mr. Schroeder was suspected of having recently waved a gun from the truck at his former girl friend. Officer Vaughn caught up to him within a short period of time. The officer had a “specific fear” that his suspect was armed. It was quite reasonable for the officer to approach with his own gun drawn. There was no error. Id.
¶ 24 Mr. Schroeder also argues that it was inappropriate to conduct the stop (and subsequent search of the truck) before identifying Mr. Schroeder as the gunman the officer was seeking. This argument misses the point of a weapons search in an investigative stop. The search for the gun was necessary to protect the officer; identification of Mr. Schroeder could reasonably wait until the weapon had been secured.
¶ 25 This case is largely identical to State v. Glenn, 140 Wash.App. 627, 166 P.3d 1235 (2007). There, a seven-year-old boy informed his mother that a man had driven by and pointed a gun at him. Id. at 631, 166 P.3d 1235. The mother, seeing a passing car that matched the boy's description, copied the license plate and reported it to police. Id. Responding officers interviewed the boy, who pointed to a passing car and identified it as the vehicle from which a man had pointed a gun. Id. Officers stopped the car nearby; the vehicle's plates matched those reported by the mother. When approaching, both officers drew their guns and ordered the driver out of the car. Id. The driver was handcuffed, read his Miranda rights, and placed in the patrol car. Id. A search of the driver did not reveal a gun. Id. at 632, 166 P.3d 1235. Other officers arrived, and, due to the nature of the call, searched the vehicle to try and find a weapon for officer safety purposes in the event they had to return the driver to his car. Id.
While the searchers did not find a weapon, they did find 250 grams of marijuana. Glenn, 140 Wash.App. at 632, 166 P.3d 1235.
¶ 26 On appeal, the defendant argued that the warrantless search of his vehicle was improper. The court rejected the argument and concluded that where police have a credible report that a gun has been displayed from a vehicle, the officer safety exception justifies a search of that vehicle during an investigative stop. Id. at 636, 166 P.3d 1235.
¶ 27 This case is indistinguishable from Glenn other than the fact that there the victim had identified the vehicle to the officers before the stop. That fact does not change the nature of the analysis. In both cases the suspect was accused of having pointed a gun from a moving vehicle. In Glenn, the court concluded that the search of the interior to attempt to locate the reported gun was justified. It is here, too.
¶ 28 Because neither theory supports a motion to suppress, counsel acted reasonably in not filing such a motion. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Mr. Schroeder has not shown that his counsel erred. Thus, he cannot establish that his trial counsel performed ineffectively.
¶ 29 Affirmed.