91 Wn. App. 575, STATE v. SAUNDERS

[No. 21177-7-II. Division Two. July 10, 1998.]

THE STATE OF WASHINGTON, Respondent, v. LEE C.

SAUNDERS, Appellant.

[1] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Test. A criminal defendant's assistance of counsel is constitutionally ineffective if (1) counsel's representation was deficient (i.e., counsel's performance fell below an objective standard of reasonableness) and (2) counsel's deficient representation prejudiced the defendant (i.e., there is a reasonable probability that but for counsel's deficient performance the result of the proceedings would have been different).

[2] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Presentation of Damaging Evidence - Test. When an ineffective assistance of counsel claim is based on counsel's presentation of evidence that would appear to undermine the defense theory of the case, the defendant must show (1) that counsel's conduct was not motivated by a legitimate strategic or tactical reason, (2) that the evidence would likely have been excluded upon a defense objection had it been offered by the State, and (3) that the result of the trial would have been different had the evidence not been presented.

[3] Criminal Law - Witnesses - Impeachment - Prior Convictions - Burden of Proof - Balancing Test. A testifying defendant's prior felony conviction for an offense not involving dishonesty or false statement may not be admitted for impeachment purposes under ER 609(a)(1) unless the State proves that its probative value outweighs any undue prejudice that would result from its admission.

[4] Criminal Law - Witnesses - Impeachment - Prior Convictions - Relevance and Prejudice - Factors. A testifying defendant's prior felony conviction for an offense not involving dishonesty or false statement may not be admitted for impeachment purposes under ER 609(a)(1) unless the trial court balances the following factors on the record: (1) the length of the defendant's criminal record, (2) the remoteness of the prior conviction, (3) the nature of the prior crime, (4) the age and circumstances of the defendant, (5) the centrality of the credibility issue, and (6) the impeachment value of the prior conviction.

[5] Criminal Law - Witnesses - Impeachment - Prior Convictions - Impeachment Value - What Constitutes. A testifying defendant's prior felony conviction for an offense not involving dishonesty or false statement may not be admitted for impeachment purposes under ER 609(a)(1) unless the specific nature of the crime has some relevance to the defendant's ability to tell the truth (i.e., unless it is probative of the defendant's veracity).

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[6] Criminal Law - Witnesses - Impeachment - Prior Convictions - Drug Related Conviction. In general, a testifying defendant's prior conviction of a Uniform Controlled Substances Act offense is not probative - of the defendant's ability to tell the truth and may not be admitted as impeachment evidence under ER 609(a)(1).

[7] Criminal Law - Witnesses - Impeachment - Prior Convictions - Relevance and Prejudice - Testifying Defendant. Evidence of a testifying defendant's prior felony conviction is highly prejudicial insofar as it tends to shift the jury's focus away from the merits of the charge and toward the defendant's general propensity for criminality.

[8] Criminal Law - Witnesses - Impeachment - Prior Convictions - Review - Prejudice - Nature of Crime. When assessing the prejudicial effect of admitting a testifying defendant's prior felony conviction for impeachment purposes under ER 609(a)(1), a trial court must consider whether the particular nature of the prior felony conviction or its similarity to the current charge suggests even greater prejudice than might otherwise be the case.

[9] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Deficient Performance - Presentation of Damaging Evidence - Prior Drug Conviction. In the trial of a defendant charged with possessing a controlled substance in which the defendant claims unwitting possession, defense counsel's presentation of evidence of the defendant's prior conviction for the identical offense constitutes deficient performance (i.e., performance that falls below an objective standard of reasonableness).

[10] Criminal Law - Right to Counsel - Effective Assistance of Counsel - Prejudice - Quantum of Evidence - Effect. Whether a criminal defendant was prejudiced by counsel's deficient performance is determined in light of the evidence in the record. Prejudice may be established if the evidence in the record does not overwhelmingly establish the defendant's guilt.

Nature of Action: Prosecution for two counts of possessing a controlled substance. The defendant claimed that the possession was unwitting.

Superior Court: The Superior Court for Thurston County, No. 95-1-01736-7, Christine A. Pomeroy, J., on August 28, 1996, entered a judgment on a verdict of guilty.

Court of Appeals: Holding that trial counsel was ineffective for eliciting evidence on direct examination of the defendant that the defendant had a prior conviction for possessing a controlled substance and that the defendant was prejudiced thereby, the court reverses the judgment.

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Rodney G. Franzen, for appellant (appointed counsel for appeal).

Bernardean Broadous, Prosecuting Attorney, and James M. Gilligan, Deputy, for respondent.

ARMSTRONG, J. - Lee C. Saunders was convicted of possession of methamphetamine and possession of heroin. Saunders contends that his trial counsel was ineffective for eliciting on direct examination his prior conviction for possession of methamphetamine, We agree and, therefore, reverse and remand for a new trial.

FACTS

Lee Saunders was stopped for speeding in Yelm, Washington. A driver's check alerted the officer that there was an outstanding warrant for Saunders' arrest. After arresting Saunders, the officer searched the vehicle, which was not owned by or registered to Saunders. During the search, the officer found a blue wallet sitting on top of a duffel bag in the back seat of the vehicle. Along with these items, there were some clothes and tools. Saunders testified that the tools and a jeans jacket were his, but that the remainder of the items, including the blue wallet, were not.

Inside the blue wallet were three syringes, a silvercolored spoon with a residue of heroin, a small piece of cotton, and a ziplock bag containing methamphetamine, The officer also found a set of scales among the items in the back seat.

At trial the defense argued that the possession was unwitting. Saunders testified that he is an auto mechanic

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and had just finished working on the vehicle and was test driving it when he was stopped. During Saunders' testimony, his counsel asked if he had any prior convictions for similar offenses. Saunders answered that he had been convicted of possession of methamphetamine in 1990. On cross examination, the prosecutor established that the conviction actually occurred in 1992.

ANALYSIS

Strickland Test

[1] To demonstrate ineffective assistance of counsel, the defendant must show: (1) that his counsel's performance was deficient, defined as falling below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant, i.e., there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 6941 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). Deficient performance is not shown by matters that go to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).

[2] More specifically, where the defendant claims ineffective assistance based on counsel's failure to challenge the admission of evidence, the defendant must show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995); (2) that an objection to the evidence would likely have been sustained, McFarland, 127 Wn.2d at 337 n.4; Hendrickson, 129 Wn.2d at 80; and (3) that the result of the trial would have been different had the evidence not been admitted, Hendrickson, 129 Wn.2d at 80.

First, the record reveals no reasons of tactics or strategy for offering the evidence. Counsel did not challenge the evidence in a pretrial motion and so had no reason to believe the evidence would come in if offered by the State. In fact,

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the State had not attempted to prove the conviction in its case. And, we can discern no reason from the record why counsel "would not have objected to such damaging and prejudicial evidence." Hendrickson, 129 Wn.2d at 78.

Second, evidence of the prior conviction would probably have been ruled inadmissible if challenged. Evidence Rule 609 governs the admission of the prior convictions of a witness. Part (a) of the rule provides that prior convictions are admissible "[f]or the purpose of attacking the credibility of a witness in a criminal or civil case." Convictions that are

admissible are those for crimes "punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted" and where "the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered." ER 609(a)(1).

[3-6] Assuming a challenge to the evidence, the State bears the burden of proving that the probative value of the prior conviction outweighs any prejudice. State v. Calegar, 133 Wn.2d 718, 722, 947 P.2d 235 (1997). The trial court is required to balance the following factors on the record: (1) the length of the defendant's criminal record; (2) the remoteness of the prior conviction; (3) the nature of the prior crime; (4) the age and circumstances of the defendant; and (5) the impeachment value of the prior conviction. State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980). But "few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity." Calegar, 133 Wn.2d at 723 (quoting State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)). And there is "nothing inherent in ordinary drug convictions to suggest the person convicted is untruthful and . . . prior drug convictions, in general, are not probative of a witness's veracity under ER 609(a)(1)." State v. Hardy, 133 Wn.2d 701, 709-10, 946 P.2d 1175 (1997).

[7-9] In addition to evaluating its probative value, the

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trial court must weigh the prejudice to the defendant. Calegar, 133 Wn.2d at 722. Evidence of a prior conviction is inherently prejudicial when the defendant is the witness because it shifts the jury focus from the merits of the charge to the defendant's general propensity for criminality Hardy, 133 Wn.2d at 710 (quoting Jones, 101 Wn.2d at 120). And greater prejudice may result from the nature of the conviction; the more similar the prior crime to the one presently charged, the greater the prejudice. Hardy, 133 Wn.2d at 711. Here, the prior conviction was for possession of methamphetamine, an ordinary drug conviction not probative of Saunders' veracity, and the same crime for which he was being prosecuted. Although Calegar and Hardy had not been decided at the time of Saunders' trial, the path to their results had been sufficiently marked by Jones, 101 Wn.2d 113, Alexis, 95 Wn.2d 15, and State v. King, 75 Wn. App. 899, 878 P.2d 466 (1994), to alert defense counsel that evidence of the conviction was probably inadmissible. McFarland, 127 Wn.2d at 337 n.4. Here, counsel not only failed to object, he brought out the conviction himself In doing so, counsel's performance fell below an objective standard of reasonableness.

Prejudice

[10] The prejudicial effect of a prior drug conviction is viewed against the backdrop of the evidence in the record. Hendrickson, 129 Wn.2d at 80 (no prejudice where overwhelming evidence of guilt).

Here, the evidence against Saunders was not overwhelming. The defense was unwitting possession and Saunders' credibility was a key issue.1 The car was not his; he testified that he was working on the vehicle and that only some of the items in the back seat were his. Thus, if the jury believed that the wallet did not belong to Saunders, it could


1 The officer testified that Saunders claimed everything in the vehicle except the blue wallet, including a set of scales and the clothing in the back seat. Saunders testified that the only items that he told the officer he owned were some tools, which he was using to work on the car, and a jeans jacket.


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have accepted his unwitting possession defense. We find that there is a reasonable probability that the outcome would have been different but for the introduction of Saunders' prior conviction. Strickland, 466 U.S. at 694; see also Hardy, 133 Wn.2d at 712-13.2

Because the introduction of Saunders' prior conviction on direct examination constituted ineffective assistance of counsel, we reverse and remand for a new trial.

MORGAN and SEINFELD, JJ., concur.


2 While Hardy was a case in which evidence was improperly admitted, rather than an ineffective assistance claim, Hardy is instructive because the test for prejudice to the defendant is the same; whether there was a reasonable probability of a different result. Compare Strickland, 466 U.S. at 694, with Hardy, 133 Wn.2d at 712-13. In Hardy the case turned on the defendant's credibility because there was not overwhelming evidence against the defendant. The Washington State Supreme Court ruled that admission of Hardy's prior conviction damaged the defendant's credibility sufficiently that there was a reasonable probability that there would have been a different result had the conviction not been admitted. Hardy, 133 Wn.2d at 713.