State Of Washington, V Daryl C. Reid ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, No. 46137- 4- 11
Respondent,
V.
UNPUBLISHED OPINION
DARYL C. REID,
MAXA, P. J. — Daryl Reid appeals his conviction of unlawful possession of a controlled
substance in a corrections facility. We hold that ( 1) there was a proper chain of custody
supporting the admission of drug evidence; ( 2) defense counsel' s request of an unwitting
possession jury instruction did not constitute ineffective assistance of counsel; and ( 3) Reid' s
assertions in his statement of additional grounds ( SAG) of prosecutorial misconduct, ineffective
assistance of counsel, judicial misconduct, insufficiency of the evidence, and cumulative error
have no merit. Accordingly, we affirm Reid' s conviction.
FACTS
On November 9, 2013, Reid was an inmate in the Cowlitz County Jail and shared a cell
with Jeremiah Landis. On that day, the jail conducted a linen exchange in which the prisoners
would turn in their soiled linens and, as part of the process, be subject to a cell search.
Corrections Officer Joel Treichel searched Reid and Landis' s cell. In a linen bucket beneath
Reid' s bed, he discovered papers bearing Reid' s name and a small baggie containing what
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appeared to him to be drugs. Officer Treichel gave the substance to Deputy Sheriff Derek Baker,
who took it to the evidence room and arranged for it to be sent to the crime lab for testing. A
forensic scientist determined that the substance he tested was methamphetamine.
The State charged Reid with unlawful possession of a controlled substance, with a
correctional facility enhancement.
At trial, Reid objected to the admission of the drug evidence, arguing that the State had
failed to make a proper foundation. He argued that because Officer Treichel did not identify the
evidence at trial, there was no chain of custody from Officer Treichel to Deputy Baker, who
submitted it into evidence. The trial court overruled the objection and admitted the evidence.
The forensic scientist then testified that the substance he tested was methamphetamine.
Officer Treichel explained that when he entered the cell, Reid' s bed was on the bottom of
the bunk bed and his bucket was beneath the head of his bed. Landis' s bed was on the floor on
the opposite side of the cell and Landis' s bucket was near Landis' s mattress.
Reid testified that he moved into his cell on November 5 after being released from the
infirmary for a back injury. He explained that he carried his bucket of linens into his room,
rolled the linens out onto the bed, and laid down to rest his back for the next few days. He
testified that he never put anything into the bucket and did not even know whose bucket was
whose because they were both under the bed. He denied that the drugs were his, suggesting that
Landis planted them there because he was a creep and a jailhouse thief who took his food and
possessions.
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Reid requested an unwitting possession instruction, and the trial court gave that
instruction. During rebuttal closing argument, the State told the jury that because this was an
unwitting possession case, Reid was agreeing that he was in possession of the bag of drugs.
The jury found Reid guilty of possession of a controlled substance, and found by special
verdict that he possessed the controlled substance within the county jail. Reid appeals.
ANALYSIS
A. CHAIN OF CUSTODY
Reid argues that Officer Treichel' s description of the baggie seized from his cell is
different than Deputy Baker' s description of the one he placed in evidence.' Reid argues that
because no one identified the baggie seized from his cell as the same one admitted into evidence,
the trial court abused its discretion in admitting the drugs in the baggie as evidence at trial. We
hold that the trial court did not abuse its discretion in admitting this evidence because the State
established a sufficient chain of custody for its admission.
We review a trial court' s decision to admit evidence for an abuse of discretion. State v.
Garcia, 179 Wash. 2d 828, 846, 318 P.3d 266 ( 2014). A trial court abuses its discretion where its
decision is manifestly unreasonable or based on untenable grounds or reasons. Id.
I We disagree with Reid' s characterization that the descriptions were markedly different. Officer
Treichel testified that he found a two inch square baggie that appeared to contain drugs. Deputy
Baker described it as " a small Ziplock baggie" with " a crystalline substance inside of it"
wrapped with electrical tape with another pharmaceutical -- a known pharmaceutical wrapping
that was opened attached to it, as well." Report of Proceedings at 54.
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Before a trial court admits evidence, the proponent must authenticate or identify it "to
support a finding that the matter in question is what its proponent claims." ER 901( a). The
chain of custody should show that it is improbable that the evidence has either been
contaminated or tampered with. State v. Roche, 114 Wash. App. 424, 436, 59 P.3d 682 ( 2002).
Minor discrepancies regarding the chain of custody affect the weight of the evidence, not its
admissibility. State v. Campbell, 103 Wash. 2d 1, 21, 691 P.2d 929 ( 1984).
Officer Treichel testified that he discovered a " little baggie" that looked similar to other
bags of drugs he had discovered before. Report of Proceedings ( RP) at 34. He then held on to
the baggie until he handed it to Deputy Baker. Deputy Baker then explained that he took the
evidence to the Sheriff' s Office and submitted it to the state patrol crime lab for testing. At trial,
he identified the baggie of drugs as the same one that he took from the jail and sent to the crime
lab for analysis.
The State did not ask Officer Treichel to identify the baggie at trial. However, the
testimony presented at trial .tracked the baggie from Officer Treichel to Deputy Baker and then to
the forensic scientist. And both Deputy Baker and the forensic scientist identified the baggie at
trial. Any discrepancies in the chain of custody here were minor and do not affect the
admissibility of the drugs in the baggie.
The State did show a proper chain of custody of the baggie. Therefore, we hold that the
trial court did not abuse its discretion in admitting the drugs in the baggie into evidence at trial .2
2 Reid also argues that without the drug evidence, the State failed to prove that he possessed a
controlled substance. Because we hold that the trial court properly admitted the evidence, this
claim fails.
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B. INEFFECTIVE ASSISTANCE OF COUNSEL
Reid claims that he was denied his constitutional right to effective assistance of counsel
because defense counsel proposed an unwitting possession instruction. He argues that this
instruction was inconsistent with his trial testimony that he did not have a linen bucket and that
the drugs likely belonged to his cellmate. He further argues that counsel' s conduct was
prejudicial because it relieved the State of its burden of proving possession by essentially.
conceding possession. We hold that defense counsel' s decision to offer alternatives to the jury
was a legitimate trial strategy.
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wash. 2d 870, 883, 204 P.3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,
the defendant must show both that ( 1) defense counsel' s representation was deficient, and ( 2) the
deficient representation prejudiced the defendant. State v. Grier, 171 Wash. 2d 17, 32- 33, 246 P.3d
1260 ( 2011). Representation is deficient if after considering all the circumstances, it falls. below
an objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable
probability that except for counsel' s errors, the result of the proceeding would have differed. Id.
at 34.
We begin with a strong presumption that counsel' s representation was effective. Id. at
33. To demonstrate deficient performance the defendant must show that, based on the record,
there are no legitimate strategic or tactical reasons for the challenged conduct. State v. Emery,
174 Wash. 2d 741, 755, 278 P.3d 653 ( 2012). The law affords trial counsel wide latitude in the
choice of tactics. In re Pers. Restraint ofStenson, 142 Wash. 2d 710, 736, 16 P.3d 1 ( 2001).
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Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance
of counsel. State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 ( 2009).
The State' s evidence at trial established that there were two buckets in the cell when
Officer Treichel conducted his search. One was beneath Reid' s bed and the other was across the
room next to Landis' s mattress. The bucket beneath Reid' s bed had paperwork bearing Reid' s
name and underneath that paperwork was the baggie of methamphetamine.
However, Reid testified that he had never seen the baggie of methamphetamine until
Officer Treichel showed it to him. He explained that he never used the bucket, Landis had stolen
his food and clothes, his stuff was in Landis' s bucket, and at some point there was only one
bucket. Reid denied that he ever used the bucket after carrying his linens into the cell,. that he
had any paperwork, and that Landis' s mattress was on the floor, claiming that Landis used the
top bunk.
Confronted with this conflict between the State' s evidence and Reid' s testimony, defense
counsel made a tactical decision to propose an unwitting possession instruction. In order for the
jury to believe Reid' s testimony, it would have had to disregard Officer Treichel' s testimony
about the physical layout of the cell, the location of the buckets, the presence of Reid' s
paperwork, and where Landis had been sleeping. Defense counsel reasonably could have
assessed the evidence and decided that the jury most likely would believe that Reid had
dominion of his bucket and consequently possessed the methamphetamine. Defense counsel' s
choice was to explain that even if Reid possessed the methamphetamine, he did so unwittingly.
Under these circumstances, this choice was reasonable. Using this instruction allowed the jury
an alternative explanation based on Reid' s testimony that the drugs probably belonged to Landis.
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Defense counsel made a reasonable tactical decision to request an unwitting possession
instruction. Therefore, we hold that Reid did not establish ineffective assistance of counsel. 3
C. SAG ISSUES
Prosecutorial Misconduct
Reid asserts that prosecutorial misconduct denied him a fair trial because the State ( 1)
allowed a corrections officer to sit on the jury, (2) did not call Landis as a witness, ( 3) engaged in
perjury" by asking him whether he made certain statements, ( 4) improperly commented on a
witness' s credibility, and ( 5) argued in closing argument that there was no dispute that the bucket
in which the drugs were found belonged to Reid. We disagree.
To prevail on a claim of prosecutorial misconduct, a defendant must show that the
prosecutor' s conduct was both improper and prejudicial. In re Pers. Restraint of Glasmann, 175
Wash. 2d 696, 704, 286 P.3d 673 ( 2012). We review the prosecutor' s conduct and whether
prejudice resulted therefrom " by examining that conduct in the full trial context, including the
evidence presented, ` the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the jury.' " State v. Monday, 171 Wash. 2d
667, 675, 257 P.3d 551 ( 2011) ( internal quotation marks omitted) ( quoting State v. McKenzie,
157 Wash. 2d 44, 52, 134 P.3d 221 ( 2006)). A prosecutor has wide latitude in making arguments to
3 Because we hold that defense counsel' s performance was not deficient, we do not address
Reid' s claim that trial counsel' s decision prejudiced him because it allowed the State to argue
during closing argument that Reid had conceded possession. See Kyllo, 166 Wash. 2d at 862
failure on either prong of test ends inquiry). In any event, we disagree with Reid' s
characterization of the State' s closing argument. The State' s argument merely set out the two
theories for the jury to consider.
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the jury and may draw reasonable inferences from the evidence. State v. Fisher, 165 Wash. 2d 727,
747, 202 P.3d 937 ( 2009).
First, Reid apparently argues that the State should have requested that a correctional
officer be dismissed from the jury. However, simply because a potential juror is a governmental
employee does not disqualify that person from sitting on the jury. And nothing in the record
before us shows any error in the jury selection process. See RCWA 4.44. 120 ( impanelling the
jury, voir dire, and challenges for cause). We hold that the State did not commit misconduct by
not requesting that the correctional officer be dismissed.
Brady4
Second, Reid argues that the State violated by not calling Landis as a witness
when he had knowledge regarding the case. However, the State has no duty to call any specific
witness. If Reid wanted Landis to testify, he could have called him as a defense witness. We
hold that the State did not engage in any misconduct in not calling Landis as a witness.
Third, Reid argues that the prosecutor committed " perjury" or used perjured testimony.
SAG at 4. He argues that the State improperly asked him if he responded to Officer Treichel by
asking, " What are you doing to me right now?" RP at 80. Because Reid testified during his
direct testimony about what he said .to Officer Treichel when Officer Treichel showed him the
baggie of drugs, the State had the right to question Reid about what statements he made. And
there is no indication in the record that the State had no factual basis for asking the question. We
hold that the State did not engage in perjury.
4
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).
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Fourth, Reid argues that the prosecutor improperly commented on and vouched for
Officer Treichel' s credibility.. However, the State has wide latitude in closing argument and
nothing here indicates that the prosecutor vouched for a witness. The record shows that the
prosecutor presented reasons why the jury should find Officer Treichel more believable than
Reid. This was proper argument based on the evidence. See State v. Russell, 125 Wash. 2d 24, 87,
882 P.2d 747 ( 1994) ( a prosecutor " is entitled to make a fair response to the arguments of
defense counsel."). We hold that the State did not improperly comment on a witness' s
credibility.
Fifth, Reid argues that the prosecutor improperly stated in closing argument that there
was no dispute that the drugs were in Reid' s bucket because of the unwitting possession
instruction. However, the prosecutor merely stated that an unwitting possession defense applies
only if the defendant agrees that the drugs were in his possession. This is a correct statement of
the law. State v. Staley, 123 Wash. 2d 794, 799, 872 P.2d 502 ( 1994). The prosecutor specifically
acknowledged that Reid testified that he did not know he was in possession of the drugs. The
prosecutor' s point was that Reid' s arguments were inconsistent. We hold that there was nothing
improper about this argument.
We hold that Reid' s assertion of prosecutorial misconduct fails.
2. Ineffective Assistance of Counsel
Reid argues that he was denied his right to effective assistance of counsel because
defense counsel ( 1) waived opening statement, ( 2) failed to call Landis as a witness, ( 3) failed to
cross- examine Deputy Baker about the chain of custody, ( 4) allowed the trial judge to take
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possession of discovery from another related case, and ( 5) failed to object at five critical times
during the trial. We disagree.
As noted above, to prevail on an ineffective assistance of counsel claim, the defendant
must show both that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient
representation prejudiced the defendant. Grier, 171 Wash. 2d at 32- 33. And legitimate trial
strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel.
Kyllo, 166 Wash. 2d at 863.
a. Tactical Decisions
Defense counsel' s decisions to waive opening statement, not to call Landis as a witness,
and not to cross- examine Deputy Baker regarding the chain of custody clearly were tactical
decisions. See In. re Pers. Restraint of Davis, 152 Wash. 2d 647, 715, 101 P.3d 1 ( 2004) ( waiver of
opening statement is not ineff6ctive assistance of counsel); Stenson, 142 Wash. 2d at 736
discussing matters that are tactical decisions, such as calling and cross- examining witnesses, and
not decisions in which trial counsel must accede to his client). Further, Reid cannot show how
these decisions prejudiced him. For instance, Reid merely speculates about what testimony
Landis would have given. Nothing in the record shows that he would have testified favorably.
Similarly, Reid fails to show what evidence would have been introduced by cross- examining
Deputy Baker on,the chain of custody.
We hold that Reid did not receive ineffective assistance of counsel on these matters.
b. Judge Taking Possession of Evidence
During a preliminary hearing, Reid possessed discovery materials from another criminal
charge against him. Reid was concerned that if he returned these materials to the State, these
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materials could be altered and he asked the court if he could keep a copy. Because he was not
allowed to take the materials back to his jail cell, the trial court took possession of the materials
to keep them for Reid. Reid apparently argues that his attorney was deficient in allowing this
arrangement.
Regardless of whether this arrangement was proper, whether defense counsel should have
objected and whether the judge' s possession of these materials caused him any prejudice in this
case are outside the record. As a result, we do not consider this assertion. State v. McFarland,
127 Wash. 2d 322, 335, 899 P.2d 1251( 1995).
c. Failure to Object
Reid asserts that defense counsel provided ineffective assistance by not objecting when
1) the trial court seated a corrections officer on the jury, (2) the prosecutor questioned Reid
about his statement to Officer Treichel, ( 3) the prosecutor vouched for the credibility of a
witness, ( 4) the prosecutor stated in closing argument that possession of the bucket was
undisputed, and ( 5) the prosecutor misstated the law on unwitting possession. We disagree.
As stated above, it was not improper for the prosecutor to question Reid about his
statements to Officer Treichel, the prosecutor did not vouch for the credibility of Officer
Treichel, and the prosecutor did not misstate that Reid did not dispute his possession of the
drugs. Therefore, defense counsel was not deficient in failing to object and Reid' s ineffective
assistance claims based on these actions have no merit. But two assertions require additional
discussion.
First, defense counsel could have used a peremptory for cause challenge to dismiss a
corrections officer from the jury when the State was relying on the testimony of corrections
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officers. However, whether to seek dismissal of a juror is a classic example of a tactical
decision. Stenson, 142 Wash. 2d at 736. Defense counsel may have had a strategic reason to want
this particular juror on the jury panel. And there is no indication in the record that this juror
demonstrated any objectionable bias that would have required his removal. Therefore, we hold
that defense counsel was not deficient in failing to dismiss this juror.
Second, regarding the prosecutor' s statements about the unwitting possession instruction,
the trial court instructed the jury:
A person is not guilty of possession of a controlled substance if the possession is
unwitting. Possession of a controlled substance is unwitting if a person did not
know that the substance was in his possession.
The burden is on the defendant to prove by a preponderance of the evidence that
the substance was possessed unwittingly. Preponderance of the evidence means
that you must be persuaded, considering all of the evidence in the case, that it is
more probably true than not true.
Clerk' s Papers at 48.
The prosecutor did not make an objectionable statement when it explained to the jury that
Reid could only show unwitting possession by first admitting that he possessed the .controlled
substance. The prosecutor also did not make an objectionable statement when he explained the
elements of unwitting possession as his explanation followed the trial court' s instruction.
Therefore, we hold that Reid' s ineffective assistance claims based on defense counsel' s failure to
object during the State' s closing argument have no merit.
We hold that Reid' s assertion of ineffective assistance of counsel fails.
3. Judicial Misconduct
As noted above, the trial court took possession of discovery materials from another
criminal case to hold them for Reid. Reid asserts that this, coupled with allowing a corrections
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officer to sit on the jury, violated Canon 3( C)( 1) of the Code of Judicial Conduct (CJC) 5 and
constituted judicial misconduct. We disagree.
First, Reid fails to explain why the trial court' s action of keeping a document for Reid at
Reid' s request violated judicial canons and denied him a fair and impartial tribunal. Second,
although the trial court took possession of the materials, another judge presided over his trial.
Therefore, he cannot show how the trial court' s conduct caused him any prejudice. And third, as
noted above, Reid fails to show any impropriety in the jury selection process. Accordingly, we
reject Reid' s claim ofjudicial misconduct.
4. Insufficiency of the Evidence
Reid appears to argue that the drug evidence should have been suppressed because the lab
technician did not weigh the drugs before and after testing them, and that without this evidence
the State could not prove its case. We disagree.
The record shows that the forensic scientist did not weigh the substance or determine its
potency. However, Reid does not explain why that failure rendered the testing evidence
inadmissible. Although the forensic scientist could have been more thorough in his testing
method, that fact relates to the weight rather than the admissibility of the testing evidence.
Reid claims that the forensic scientist' s failure to weigh the drugs prevented him from
performing independent testing on them. However, this claim depends on matters outside the
5
Reid is relying on former CJC 3( C)( 1) ( 1995), which stated that " U] udges should disqualify
themselves in a proceeding in which their impartiality might reasonably be questioned." This
exact language no longer exists in the current CJC, but the same principle is embodied in Canon
2( 2014).
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record and therefore we do not consider it. McFarland, 127 Wash. 2d at 335 ( this court may only
consider matters that are made part of the record).
5. Cumulative Error
Reid contends that the cumulative error doctrine entitles him to relief because the
combined effect of the alleged errors denied him a fair trial. Under the cumulative error
doctrine, we may reverse a defendant' s conviction when the combined effect of trial errors
effectively denies the defendant his or her right to a fair trial, even if each error alone would be
harmless. State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 ( 2006). But because Reid has
failed to show any prejudicial errors affecting his conviction, we reject this assertion.
We affirm Reid' s conviction.
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 in accordance with RCW
2. 06. 040, it is so ordered.
MAXA, P. J.
We concur:
JJ
LTr,,J.
SUTTON, J.
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