Opinion
No. 36317-8-II.
August 12, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03225-1, John R. Hickman, J., entered May 11, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Chanara Soeun appeals his first degree robbery, first degree theft, and third degree assault jury convictions. Soeun argues that his trial counsel rendered ineffective assistance when (1) he stipulated that a CrR 3.5 hearing was unnecessary, and (2) he failed to move for a mistrial based on the detective's testimony. We affirm.
FACTS I. Crimes
On June 11, 2006, Eli and Carrie Adamson left their residence in a relative's truck to buy hardwood flooring at a hardware store. After they left, Chanara Soeun stole the Adamsons' white Honda Accord parked in their driveway. A neighbor watched Soeun steal the car and called the Adamsons on their cellular phone. Carrie Adamson turned the truck around, while Eli Adamson spoke with police on their cellular phone.
On their way home, the Adamsons passed Soeun driving their Honda towards them in the opposite lane. Carrie Adamson turned the truck around again, followed Soeun into a cul-de-sac, and pulled the truck up next to the white Honda when Soeun parked it in front of his residence.
Eli Adamson got out of the truck, yelled at Soeun to get out of the car, pulled open the driver's side door, and grabbed Soeun by his hair. Soeun shifted the Honda into reverse and stepped on the gas pedal.
The moving Honda pulled Eli Adamson under it and ran over his ankle while he managed to pull Soeun from the driver's seat and out of the car. The Honda made two revolutions in reverse, running over Eli Adamson's torso and coming to a stop when it hit a telephone pole. Soeun fled the scene.
A hospital treated Eli Adamson's injuries, which included a broken ankle, a broken shoulder, and soft tissue damage.
The Tacoma Police Department assigned the case to Detective John Bair. From previous contacts with Soeun, Detective Bair knew that Soeun lived at the cul-de-sac where the assault had occurred. He also knew that Soeun matched the eye witnesses' physical descriptions of the Honda thief. After the Adamsons identified Soeun in a photo montage, Detective Bair arrested him, and read Soeun his Miranda rights. Soeun admitted that he lived in the cul-de-sac, but claimed that he had been working at the time of the incident.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure
The State charged Soeun with first degree robbery, first degree theft, and third degree assault.
During a pretrial hearing, the trial court asked counsel whether a CrR 3.5 hearing was necessary. The State told the trial court that it intended to offer Soeun's statement about his residence address, but would not elicit Soeun's other statements. Soeun's counsel stipulated that a CrR 3.5 was unnecessary because the State was confining its use of Soeun's statements to his address.
The trial court also ruled that the State could not offer evidence about Soeun's gang affiliation.
A. Trial
During trial, the State asked Detective Bair to give "an overview of [his] law enforcement career." Detective Bair testified that he had been in law enforcement since 1989 and he had extensive training and experience in numerous areas, including computer forensics, cellular phone forensics, robbery, gangs, vehicle theft, and violent crimes. Detective Bair further testified:
Q. [C]an you just give the jury a little background information about how cases get assigned to you?
A. I'm currently assigned to the Criminal Investigation Division Gang Unit, and the way the cases get to me is after an offense occurred, which is usually a violent offense, such as a drive-by shooting or gang related incident, our supervisor reads those reports first, and based upon the elements in a case will assign those to the detective that possibly might know the most about the case given its background.
In this case, this one was assigned to me based on that criteria.
Report of Proceedings (RP) (April 15, 2007) at 291-92. Defense counsel did not object to the State's question about Bair's law enforcement career or to Bair's answers.
The jury found Soeun guilty as charged. The trial court sentenced Soeun to a standard range sentence of 60 months confinement for first degree robbery, 12 months for first degree theft, and 13 months for third degree assault, to run concurrently.
Soeun appeals.
ANALYSIS I. Effective Assistance of Counsel
Soeun argues that his trial counsel rendered ineffective assistance when (1) he stipulated that a CrR 3.5 hearing was unnecessary, and (2) he failed to move for a mistrial based on the Detective's testimony that he worked in the gang unit. These arguments fail.
A. Standard of Review
We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). 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). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).
B. Stipulation on CrR 3.5 Hearing
Soeun argues that his counsel rendered ineffective assistance when he stipulated that the State could elicit Soeun's statement about his residential address from Detective Bair without inquiring into "the voluntary nature" of this statement in a CrR 3.5 hearing. We disagree.
Because we presume that counsel was effective, we presume that Soeun's counsel would not have stipulated to Soeun's statement if he had an indication that Soeun's statement was involuntary or there was impermissible coercion. McFarland, 127 Wn.2d at 335. On the contrary, the record shows that Soeun received Miranda warnings and there is no evidence of coercion. Thus, Soeun has not overcome the presumption that counsel was effective, and he has failed to show his counsel's performance was deficient.
Soeun also fails to show prejudice. Bair testified that he had independent knowledge of Soeun's residential address. Thus, even if Soeun's statement had been involuntary and, therefore, inadmissible, the State offered other evidence establishing Soeun's residence. Accordingly, we hold that Soeun has failed to show deficient performance or prejudice to establish ineffective assistance of counsel.
C. Mistrial Motion
Soeun next argues that his counsel rendered ineffective assistance when he failed to move for a mistrial after Bair testified that he was assigned to the Criminal Investigation Gang Unit. Again, we disagree.
We recently held that a prosecutor's violation of a pretrial court order prohibiting evidence of the defendant's gang activity prejudiced the defendant and was reversible error. State v. Ra, 142 Wn. App. 868, 881, 175 P.3d 609 (2008). In Ra, however, the prosecutor "deliberately questioned" the detective about his gang unit and the reason "the case was assigned to him." 142 Wn. App. at 880.
The State petitioned the Supreme Court for review of Ra on March 18, 2008. The Supreme Court has set a hearing to consider whether to grant the petition for January 6, 2009. Thus, we do not stay Soeun's case pending the Supreme Court's decision in Ra, which we find distinguishable.
Here, in contrast, Detective Bair testified, in response to the prosecutor's general questions about his law enforcement career, that (1) he had worked in law enforcement since 1989; (2) he had experience and had training in several different areas, including auto theft, robbery background training, and gang-related training; (3) he is currently assigned to the Criminal Investigation Gang Unit; and (4) his supervisor assigns him cases that are violent or gang related. Thus, unlike Ra, the prosecutor did not deliberately question the detective about and focus on his gang-unit assignment.
We also note that Bair did not testify that Soeun belonged to a gang or had any gang affiliation.
But the crucial differences between Ra and Soeun's trials were the prosecutors' arguments to the jury. The Ra "prosecutor argued that Ra belonged to a culture of violence and that he elevated his status in his group, becoming the `baddest of the bad,' by carrying a firearm and shooting someone." 142 Wn. App. at 880. We held that the jury was unlikely to miss the prosecutor's suggestion that Ra was in a gang and that the State's argument about Ra's being the "baddest of the bad" was an invitation to determine his guilt based on his prior bad acts and propensity to commit crimes. Ra, 142 Wn. App. at 880-81.
At Soeun's trial, in contrast, the prosecutor made no such inferences. Although Bair testified that he was assigned to the gang unit, he also testified that he was assigned cases based on their violence level. Unlike Ra's prosecutor, the prosecutor here did not argue that Soeun was in a gang, that he had a bad character, that he was in any type of culture of violence or in any group, or that he had committed the crimes to elevate his status in any group. Unlike the prosecutor in Ra, the prosecutor here did not invite the jury to determine Soeun's guilt based on his character or prior bad acts. Thus, the prosecutor did not violate the pretrial order prohibiting evidence of Soeun's gang affiliation.
Because neither Detective Bair nor the prosecutor violated the pretrial order, the trial court would have properly denied any mistrial motion on this basis. Thus, Soeun cannot show that his counsel was deficient for having failed to move for a mistrial. Soeun has not established the first prong of the ineffective assistance test, deficient performance; therefore, we need not address the second prong, prejudice.
Accordingly, we hold that Soeun has failed to establish ineffective assistance of counsel. 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.
PENOYAR, A.C.J. AND ARMSTRONG, J., concur.