State Of Wash, Resp/cross App v. Benjamin Chambers, App/cross Resp ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 77921-4-1
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BENJAMIN BRADLEY CHAMBERS, 17*
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Appellant. FILED: June 10, 2019 r-
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ANDRUS, J. — Benjamin Chambers appeals his conviction and sentence for
one count of possession of a controlled substance and one count of violating a
domestic violence court order. Chambers argues the trial court erred in denying
his motion for a mistrial after a police officer testified he identified Chambers from
a jail booking photograph. Chambers also contends counsel was ineffective in
failing to stipulate to the existence of the no-contact order or request redaction,
and that cumulative error requires reversal. But Chambers has not made the
requisite showing of prejudice to warrant a new trial. We affirm.
FACTS
On September 30, 2017, while on patrol in north Everett, police officers
observed a man and a woman walking towards a Volkswagen Passat. A routine
license plate check revealed a recent domestic assault incident involving that
vehicle, a man named Benjamin Chambers, and a woman named Tara Miller. The
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records also indicated that a no-contact order existed protecting Miller from
Chambers, and that both had outstanding warrants.
Police stopped the vehicle and informed Chambers that he was under arrest
on an active warrant. Chambers turned towards Miller and said "What's going on?
Did you do this?" Chambers told police he knew about the no-contact order, but
claimed he did not know it restrained him from speaking with Miller.
Officers handcuffed Chambers and walked him back to the patrol car to
conduct a search incident to arrest. Chambers was wearing a fleece North Face
jacket that appeared to fit him. As police were about to commence the search,
Chambers spontaneously stated that the jacket was not his. He claimed Miller
gave it to him about 20 minutes prior to the stop, and that he did not know what
was in the pockets. In the left front pocket of the jacket, officers found a clear
plastic baggie containing numerous other small baggies bearing a printed alien
head logo. Officers also found another baggie with the same logo in Chambers'
left pants pocket. In the right pocket of the jacket, police located two small plastic
bindles containing substances later determined to be heroin and
methamphetamine.
The State charged Chambers with two counts of possession of a controlled
substance and one count of violating a domestic violence court order. During
motions in limine, the State moved to admit a certified copy of the domestic
violence no-contact order. Defense counsel objected to admission of the order on
grounds not at issue in this appeal. The court admitted the no-contact order into
evidence. Defense counsel subsequently moved for an order precluding the State
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from referencing prior convictions. The court granted the motion with the exception
of the admitted no-contact order, noting that it contained a "post-conviction"
notation. Defense counsel stated that he did not object to that language, given
that the no-contact order did not include details regarding the nature of the
underlying conviction. Defense counsel also indicated he would not object to
limited testimony that the records check revealed a warrant for Chambers' arrest,
provided that witnesses avoid specifying details regarding the warrant.
At trial, Officer Oleg Kravchun testified that the license plate check showed
the vehicle had been involved in an incident in Marysville:
The first person that I saw was a Benjamin Chambers that was
involved in the incident, and the second was a Tara Miller. Kind of
matched it was a female and a male walking to the car.
I did a records check of Mr. Chambers, saw that he had an active
warrant. And also saw that he had a no-contact order that was
issued out of Marysville with Tara Miller. I pulled up a — as soon as
you click up on the name pretty much it shows a jail booking photo
of Mr. Chambers --
Defense counsel moved to strike Officer Kravchun's reference to Chambers' jail
booking photograph, arguing that it violated the court's order not to reference prior
convictions. The court ruled that the statement did not violate the order, but agreed
that the jail booking photograph should not be mentioned again. Defense counsel
moved for a mistrial. The court denied the motion:
Okay. Again, because there was no specific motion to preclude that
which is clearly written in Officer Kravchun's report, I did rule that and
I believe by agreement that prior bad acts of the defendant would not
be admitted, prior criminal conduct would not be admitted, that that
evidence that there was a warrant would be admitted. So I'm not
going to find an intentional violation -- or a violation, but certainly not
intentional.
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I am going to instruct that henceforth there is now a court order that
there shall be no mention of jail booking photographs as to the
defendant. . . . They should just be referred to as photographs of the
defendant. And, again, because of the fact that the warrant was
agreed -- it was agreed that that would be mentioned, the fact that
there was a booking photograph at some point I do not find so
prejudicial as to warrant a mistrial. I think that any prejudice can be
cured by instructing the jury to disregard that and not consider it
evidence.
The trial court instructed members of the jury to disregard testimony that any
photograph viewed by Officer Kravchun may have been a booking photograph,"as
where that photo came from is not relevant in any way to any decision you need
to make or relevant to this case."
Chambers asserted a defense of unwitting possession to the controlled
substance charges. He did not testify or call any witnesses at trial. The jury found
Chambers guilty as charged.'
ANALYSIS
1. Motion for Mistrial
Chambers asserts the trial court erred in denying his motion for a mistrial
after Officer Kravchun referred to his jail booking photograph. We review a trial
court's decision to deny a motion for mistrial for abuse of discretion. State v. Wade,
186 Wash. App. 749, 773, 346 P.3d 838 (2015). A trial court abuses its discretion
only when the decision is manifestly unreasonable or based on untenable grounds.
State v. Allen, 159 Wash. 2d 1, 10, 147 P.3d 581 (2006).
1 The court subsequently dismissed the second possession charge under the
merger doctrine.
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"Courts look to three factors to determine whether a trial irregularity
warrants a new trial: '(1) the seriousness of the irregularity; (2) whether the
statement was cumulative of evidence properly admitted; and (3) whether the
irregularity could be cured by an instruction.'" State v. Perez-Valdez, 172 Wash. 2d
808, 818, 265 P.3d 853 (2011)(quoting State v. Post, 118 Wash. 2d 596, 620, 826
P.2d 172,837 P.2d 599(1992)). "Application of these factors requires a balancing
approach; they cannot be viewed in isolation from each other." State v. Garcia,
177 Wash. App. 769, 783, 313 P.3d 422 (2013). We consider these factors with
deference to the trial court. Perez-Valdez, 174 Wash. 2d at 818.
"A defendant is entitled to a fair trial but not a perfect one." State v. Davis,
175 Wash. 2d 287, 345, 290 P.3d 43 (2012)(quoting Brown v. United States, 411
U.S. 223, 231, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973). Thus, the "court should
grant a mistrial only when the defendant has been so prejudiced that nothing short
of a new trial can ensure that the defendant will be fairly tried." State v. Emery,
174 Wash. 2d 741, 765, 278 P.3d 653(2012). "The trial court is in the best position
to determine if a trial irregularity caused prejudice." State v. Wade, 186 Wash. App.
749, 773, 346 P.3d 838 (2015).
Statements introducing irrelevant evidence that a defendant previously
committed a similar crime are typically considered serious irregularities. State v.
Escalona, 49 Wash. App. 251, 255, 742 P.2d 190(1987)(witness testified defendant
had a criminal record and stabbed someone); State v. Young, 129 Wash. App. 468,
474-75, 119 P.3d 870(2005)(trial court disclosed defendant's prior conviction for
second degree assault). In contrast, a single inadvertent reference to an
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individual's past incarceration may not be sufficiently serious to warrant a mistrial.
State v. Condon, 72 Wash. App. 638, 648-49, 865 P.2d 521 (1993)(witness testified
defendant called her"when he was getting out of jail"); State v. Hopson, 113 Wash. 2d
273, 284,778 P.2d 1014(1989)(witness stated victim had known defendant "three
years before he went to the penitentiary the last time").
Chambers argues a new trial is required because Officer Kravchun's
reference to jail booking photographs improperly invited the jury to convict based
on criminal propensity. He contends the prejudicial impact was exacerbated by
the "post-conviction" notation on the no-contact order, making it clear to the jury
that he was previously convicted of a crime.
We conclude that this trial irregularity was not sufficiently serious to require
a new trial. The jury heard no specific information about the nature of the charge,
the type of offense, or any other details regarding Chambers' criminal history.
Moreover, the jury had already heard testimony that Chambers had an active
warrant, was recently involved in an incident with Miller, and was the restrained
party of a no-contact order protecting her. The existence of a jail booking
photograph added little or nothing to the prejudicial effect of this unchallenged
evidence. In this context, the testimony was not so serious that the trial court's
instruction could not cure any resulting prejudice. We presume that juries follow a
trial court's curative instructions. Perez-Valdez, 172 Wash. 2d at 818-19.
Chambers asserts that State v. Henderson, 100 Wash. App. 794, 998 P.2d
907(2000)supports the conclusion that the jail booking photograph reference was
a serious irregularity warranting a new trial. But that case is distinguishable. In
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Henderson, the prosecutor asked a police officer whether a photo montage that
included the defendant was "put together with photographs that were already on
hand." Henderson, 100 Wash. App. at 803. The defendant did not object, and the
court gave no limiting instruction. Henderson, 100 Wash. App. at 803. During closing
argument, the prosecutor again indicated that the sheriff's department had a
photograph of the defendant "on hand." Henderson, 100 Wash. App. at 803. The
court held that the cumulative prejudicial impact of this and three other instances
of prosecutorial misconduct warranted a new trial. Henderson, 100 Wash. App. at
804-05. Here, unlike in Henderson, the trial court promptly instructed the jury to
disregard the improper reference, and it did not come up again during the rest of
the trial. And the Henderson court remanded for a new trial on the basis of
cumulative error resulting from multiple instances of prosecutorial misconduct,
whereas Chambers' case involves a single trial irregularity arising from witness
testimony.
The trial court's curative instruction sufficed to address any prejudice arising
from this trial irregularity. The trial court did not abuse its discretion in denying
Chambers' motion for a mistrial.
2. Ineffective Assistance of Counsel
Chambers contends that he received ineffective assistance of counsel
because his attorney did not seek a stipulation to the existence of the no-contact
order or, alternatively, move to redact the "post-conviction" notation. A claim of
ineffective assistance of counsel presents a mixed question of fact and law which
we review de novo. State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009).
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To establish a claim of ineffective assistance of counsel, a defendant must
establish (1) that his attorney's representation fell below an objective standard of
reasonableness and (2) resulting prejudice, i.e., a reasonable probability that, but
for counsel's deficient performance, the result of the proceeding would have been
different. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). If
a defendant fails to establish either element, the inquiry ends. State v.
Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996). There is a strong
presumption of effective representation of counsel. In re the Pers. Restraint of
Davis, 152 Wash. 2d 647, 673, 101 P.3d 1 (2004). To rebut this presumption, the
defendant has the burden to establish that there are no legitimate strategic or
tactical reasons for the conduct. McFarland, 127 Wash. 2d at 335-36.
Chambers asserts that reasonable counsel would have proposed a
stipulation to the existence of the no-contact order or redaction of the "post
conviction" reference. He contends that counsel's deficient performance likely
affected the outcome of the trial.
We agree with Chambers that the trial court would likely have accepted a
proposed stipulation or ordered a proposed redaction of the no-contact order. See
State v. Taylor,4 Wn. App.2d 381, 388-89,421 P.3d 983(2018)(trial court abused
its discretion when it admitted defendant's no-contact order and denied his offer to
stipulate). However, we need not consider whether counsel's representation was
deficient because the record does not support Chambers' contention of prejudice.
The prejudicial effect of the no-contact order must be viewed in the context
of the evidence. Here, as previously discussed, Chambers agreed that evidence
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of his outstanding warrant, the recent prior incident with Miller, and the existence
of the no-contact order was admissible. Furthermore, overwhelming evidence
supported Chambers' conviction on both charges. The unrefuted evidence
demonstrated that Chambers was present at the scene with Miller in violation of
the no-contact order and that he possessed controlled substances in his jacket
pocket. Although Chambers asserted an unwitting possession defense, he did not
call any witnesses or testify. The jacket he was wearing appeared to fit him, and
it contained plastic baggies that matched those found in his pants pocket. In light
of this evidence, there was no reasonable probability that the no-contact order
affected the jury's verdict.
Chambers asserts that the jury was likely to convict him because the no-
contact order introduced prejudicial evidence of criminal propensity. But the cases
he relies upon are distinguishable because they involved evidence of the
defendant's prior similar crimes. State v. Bacotgarcia, 59 Wash. App. 815, 822, 801
P.2d 993 (1990) (promoting prostitution); Escalona, 49 Wash. App. at 255-56
(testimony that defendant previously stabbed someone); State v. Mack, 80 Wash. 2d
19, 24, 490 P.2d 1303 (1971)(armed robbery). Here, in contrast, the no-contact
order did not specify any details of the underlying conviction.
Chambers has not shown that the no-contact order likely affected the
outcome of the trial. His ineffective assistance of counsel claim fails.
3. Cumulative Error
Chambers contends that the cumulative effect of the booking photograph
reference and the "post-conviction" language in the no-contact order deprived him
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of a fair trial. "Under the cumulative error doctrine, a defendant may be entitled to
a new trial when cumulative errors produce a trial that is fundamentally unfair."
State v. Emery, 174 Wash. 2d 741, 766, 278 P.3d 653(2012). "Cumulative error may
warrant reversal, even if each error standing alone would otherwise be considered
harmless." State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 (2006). As
discussed above, Chambers has not shown that the challenged statements
affected the outcome of his trial. He has not demonstrated prejudicial error.
Affirmed.
WE CONCUR:
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