|
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
39998-9 |
| Title of Case: |
State Of Washington, Respondent V. Davon Jones, Appellant |
| File Date: |
01/04/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pierce County Superior Court |
| Docket No: | 08-1-00390-8 |
| Judgment or order under review |
| Date filed: | 11/13/2009 |
| Judge signing: | Honorable Rosanne Nowak Buckner |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Marywave Van Deren |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Spencer Douglas Freeman |
| | Freeman Law Firm, Inc. |
| | 1107 1/2 Tacoma Ave S |
| | Tacoma, WA, 98402-2005 |
Counsel for Respondent(s) |
| | Brian Neal Wasankari |
| | Pierce County Prosecuting Atty |
| | 930 Tacoma Ave S Rm 946 |
| | Tacoma, WA, 98402-2171 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 39998-9-II
Respondent,
v.
DAVON VALTINO JONES, UNPUBLISHED OPINION
Appellant.
Hunt, P.J. -- Davon Valtino Jones appeals (1) his convictions for unlawful
delivery of a controlled substance within 1,000 feet of a school bus route and for unlawful
possession of a controlled substance with intent to deliver, under RCW 69.50.401; and (2)
the trial court's order revoking his bail pending appeal. Jones argues that we should
reverse his convictions because the trial court erred in failing to sever the charges against
him and because he received ineffective assistance of counsel. Jones also argues that the
trial court lacked any basis for revoking his bail pending appeal. We affirm.
FACTS
I. Controlled Drug Buy and Later Drug Possession
In May 2007, Tacoma Police Department Officer Kenneth Bowers began
conducting a narcotics investigation targeting David Monroe Jones, the older brother of
Davon Valtino Jones,1 whom the police suspected was David's "associate" and
No. 39998-9-II
"coconspirator." 1 Verbatim Report of Proceedings (VRP) at 49, 109. Bowers used a
confidential informant (CI) to conduct "controlled buy[s]"2 with David, who became a
target of the investigation after the CI told the police that David was "[s]omebody that
[the CI] had been buying drugs from." 1 VRP at 175.
A. June 7, 2007 Controlled Buy
At a police station on June 7, 2007, Bowers and another police officer searched
the CI, gave the CI money to purchase drugs, and placed a small microphone on the CI's
body. By phone, the CI arranged with David to purchase a quarter ounce of crack
cocaine; Bowers and the other officer listened in on this conversation with the aid of the
CI's body microphone. Then Bowers and the other officer drove the CI to the controlled
buy location, which was within 1,000 feet of two school bus stops. The police officers
remained inside their vehicle and lost sight of the CI after the CI exited the vehicle and
walked around the corner of a building.
A separate police "technical intelligence unit," however, maintained visual
observation of the CI after the CI walked around the building's corner. 1 VRP at 55.
This unit had special video and audio surveillance equipment, which the unit used to make
audio and visual recordings of the controlled buy. The CI made contact with a gray-and-
black Chevrolet Suburban vehicle in the parking lot. Based on his communication with the
surveillance unit, Bowers understood that the CI was standing "outside the passenger side
of [the Suburban] and ma[king] contact with an individual."3 1 VRP at 57.
1 For clarity, we refer to appellant Davon Valtino Jones as "Jones" and to David Monroe
Jones as "David." We intend no disrespect.
2 1 VRP at 50.
2
No. 39998-9-II
According to the CI, four individuals were inside the Suburban, two of whom
surveillance saw exit the Suburban, stand "around for a minute," and then walk into the
store. 2 VRP at 210. According to the CI, Jones, who "usually" drove the Suburban and
whom the CI had seen driving it "[s]everal times," remained sitting in the driver's seat;
David remained in the backseat on the passenger side. 1 VRP at 180-81. Through a
passenger-side window, the CI began to speak with David about the drug transaction; but,
according to the CI, David "didn't have enough of the [crack cocaine] rock, so he asked
[Jones] if he had some. And [Jones] took it out and counted out some rocks and handed
it to David, and David handed it to [the CI]." 1 VRP at 182. The CI asked how much the
crack cocaine cost and gave David all the money the police had supplied.
At some point during this encounter, the microphone on the CI's body recorded a
"discussion about two grams or three grams." 2 VRP at 204. The surveillance videotape
showed Jones exiting through the Suburban's driver's door immediately after this
discussion, David exiting soon after, and the CI walking away from the Suburban at the
same time. The CI walked back to the police vehicle and handed the officers a plastic
baggie containing a substance that field-tested positive for cocaine. The officers removed
the body microphone from the CI, searched the CI, and found no money or contraband on
the CI's person.4 The CI then completed a "handwritten statement form as to [the CI's]
3 The surveillance videotape confirmed this.
4 According to Bowers, the police arrested neither David nor Jones that day because (1)
the investigation was in its "infancy" and the police wanted to "extend the investigation to
see if there [were] other people involved in the crimes"; and (2) the police did not want to
reveal the CI's cooperation with the police by conducting an arrest immediately after the
controlled buy. 1 VRP at 99, 115.
3
No. 39998-9-II
view of the controlled buy and what [the CI] did and what was said to [the CI]." 1 VRP
at 60.
On June 26, the CI identified Jones' face in a photomontage. The officers'
investigation continued. 5 On the morning of January 22, 2008, Bowers advised his fellow
officers that they had probable cause to arrest Jones for unlawful delivery and unlawful
possession of a controlled substance during the June 7, 2007 controlled buy and provided
the officers the license plate number for the vehicle that the police suspected Jones was
then driving.
B. January 22, 2008
While on patrol later that day, January 22, 2008, Tacoma Police Officer Kenneth
P. Smith pulled over a vehicle that the police suspected Jones of driving, a 2000 Dodge
Intrepid four-door sedan. Jones' passenger presented Smith with a Maryland state
identification card. Neither Jones nor the passenger were registered owners of the Dodge
Intrepid. Jones' license had been suspended.
Smith advised Jones he was under arrest for driving with a suspended license, for
"an interlock violation," and for delivery of a controlled substance;6 removed Jones from
the Intrepid; placed Jones in handcuffs; and read Jones his Miranda7 rights. 2 VRP at
259. Smith searched Jones, found $280 in currency on his person, and placed him in the
5 According to Bowers, there was a "continuing investigation between the first incident [of
June 7, 2007] and then the arrest [of January 22, 2008]." 1 VRP at 99.
6 The police later "updated" the charges to add one count of unlawful possession of a
controlled substance with intent to distribute. 1 VRP at 98.
7 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
No. 39998-9-II
backseat of the patrol car. Smith did not arrest the passenger at this point.
Smith called in Deputy William Brand, a Pierce County Deputy Sheriff and
"narcotics detection K-9 handler." 2 VRP at 223. The drug-sniffing dog alerted the
officers to the presence of narcotics in "the back side of [the] console between the driver's
seat and in front of the passenger seats." 1 VRP at 84. Brand and Smith observed what
appeared to be crack cocaine in a compartment in the central console. Smith called
Bowers and advised him of the situation. The police then arrested the passenger.
According to Smith's police report, Jones then said, "No, let him [the passenger]
go. That's all my stuff; he [the passenger] is just saying that [the crack cocaine belonged
to the passenger] because he has nowhere to go; let him go[.]" 2 VRP at 255. The police
transported Jones to the Pierce County Jail and impounded the Intrepid. When Bowers
arrived at the secure impound facility, he obtained a search warrant for the Intrepid,
searched it, and discovered "a quantity of crack cocaine in a compartment inside the
console in the interior of [the] vehicle." 1 VRP at 84.
II. Procedure
The State charged Jones with one count of unlawful delivery of a controlled
substance,8 based on the June 7, 2007 controlled buy, and one count of unlawful
possession of a controlled substance with intent to deliver,9 based on the January 22, 2008
events. The State amended its complaint to add the following "aggravat[ing]"
circumstances to the unlawful delivery charge: (1) Jones was under community custody at
8 RCW 69.50.401.
9 RCW 69.50.401
5
No. 39998-9-II
the time of the offense;10 and (2) Jones committed the delivery offense within 1,000 feet of
a school bus route stop.11 CP at 8. The State also added the community-custody
aggravating circumstance to the possession charge.
A. Pretrial Motions, including Motions To Sever
On April 14, 2009, Jones moved to sever the trials of the delivery and the
possession counts. A superior court judge denied the motion.12 On October 12, Jones
again moved for severance, this time before a different judge; this judge also denied the
motion, telling Jones that the severance motion "was more likely an issue for the trial
judge based on the specific facts of the case."13 1 VRP at 18.
On October 13, Jones moved to sever a third time, this time before a third judge,
who ultimately presided over Jones' trial. This judge similarly denied the motion, swore in
the jury the next day, and began trial. Jones did not again renew his motion to sever after
trial began.
In a separate pretrial motion, Jones argued that the trial court should require the
State to make an offer of proof outside the presence of the jury before introducing any
evidence of Jones' alleged activity on dates other than June 7, 2007, and January 22,
2008. The trial court granted this motion.
10 Former RCW 9.94A.525(19) (2007); former RCW 9.94A.525(19) (2008).
11 RCW 69.50.435.
12 This judge swore in the jury that same day. The next day, however, the judge declared a
mistrial after finding an actual conflict of interest concerning Jones' then-trial counsel and
the State's confidential informant. Jones moved to dismiss the charges based on, among
other things, double jeopardy. The trial court denied this motion.
13 This judge was not the trial court judge.
6
No. 39998-9-II
B. Trial
1. State's case in chief
The State called as witnesses: Officers Bowers, Smith, Brand, and another
Tacoma Police Department officer who conducted audio and video surveillance during the
June 7, 2007 controlled buy; the Tacoma School District's transportation department's
lead routing specialist; and the CI. These witnesses testified to the facts set forth above.
a. Testimony about Jones' involvement in other controlled buys
Cross-examining Bowers, Jones' trial counsel asked whether Bowers had any
information about Jones' involvement in "any activity" other than the June 7, 2007
controlled buy. 1 VRP at 109. The State objected that the question violated "part of the
pretrial rulings."14 1 VRP at 109. Jones' trial counsel responded, "I believe I limited the
question and made it possible for the officer to answer with the only known answer in the
evidence." 1 VRP at 109. The trial court overruled the State's objection and allowed
Bowers to answer the question. 1 VRP at 109. Jones' trial counsel then asked Bowers,
"[D]uring the course of these buys, the only time [Jones] was around, so to speak, that he
was seen, that he was alleged transacted [sic] with, that day was June 7th, 2007?" 1 VRP
at 109. Bowers responded, "I'll say the only alleged transaction is correct, yes." 1 VRP
at 109.
Before redirect examination, the State asked the trial court to excuse the jury. The
State argued that, despite Jones' pretrial motion, Jones' trial counsel's questioning of
14 The State was likely referring to the trial court's grant of Jones' pretrial motion to
require the State to make an offer of proof outside the presence of the jury before
introducing evidence of Jones' alleged activity on dates other than June 7, 2007, and
January 22, 2008.
7
No. 39998-9-II
Bowers had "opened the door" to evidence about Jones' activity on dates other than June
7, 2007, and January 22, 2008. 1 VRP at 118. The State explained the strong likelihood
that Jones was involved in the following "activity" other than the events of June 7, 2007,
and January 22, 2008: On May 14, 2007, the CI had arranged a controlled buy with
David and a Chevrolet Suburban (with the same license plate and number as the one on
the Suburban used during the June 7, 2007 controlled buy) appeared during this controlled
buy.15 The State argued the Suburban was "believed to belong to [Jones]," so "the [S]tate
would like permission to inquire about that with Officer Bowers since the defense has
opened the door." 1 VRP at 118. Jones' trial counsel argued that the police were unable
to identify the driver of the Suburban on May 14 and that it was "highly prejudicial to
insinuate that . . . Jones was driving it." 1 VRP at 119. Disagreeing, the trial court
granted the State's motion, ruling that Jones' trial counsel "did open up this area" to the
State's questioning. 1 VRP at 120. This ruling permitted the introduction of evidence
surrounding the May 14, 2007 controlled buy.
The jury returned to the courtroom and both parties elicited testimony from
Bowers and the CI about the May 14 controlled buy: On May 14, 2007, Bowers and
another police officer searched the CI, provided the CI with money to purchase narcotics,
and placed a microphone on the CI's body. The CI called David and asked if he could sell
the CI crack cocaine. David agreed and arranged for the CI to meet him in a parking lot.
Bowers and the other officer accompanied the CI to the controlled-buy location,
apparently in separate vehicles.
15 The State did not charge Jones for his involvement in this June 7, 2007 controlled buy.
8
No. 39998-9-II
The police made audio and video recordings of the following events: David
arrived in a 1996, four-door Chrysler vehicle and spoke with the CI in the parking lot The
CI gave David the money for the drugs. David told the CI that he believed a police
vehicle was nearby and that he (David) was calling his brother. The CI got back into the
CI's own vehicle.
In separate vehicles, David and the CI drove to a different location, a McDonald's
parking lot, and a "black-over-gray 2000 Chevrolet Suburban," bearing the same license
plates, vehicle description, and window tint as the Suburban from the June 7 controlled
buy, "ended up pulling into the parking lot with [David and the CI] or near them." 1 VRP
at 125-26. As the Suburban pulled into the parking lot, Bowers could not identify the
driver through the dark tinted windows.16 Bowers apparently could not see the Suburban
after it had parked17 and could observe only "a portion of the Chrysler" during this time. 1
VRP at 126. David got into the Suburban with Jones and the CI apparently then
purchased drugs. After the Chrysler and the Suburban left the McDonald's parking lot,
the CI returned to Bowers and handed over the cocaine that the CI purchased.
16 Also according to Bowers, police officers followed this Suburban "for some period of
time" after the controlled buy, but the officers were never able to identify Jones as the
driver. 1 VRP at 129.
17 According to Bowers, Jones was not the registered owner of the gray-and-black
Suburban. According to David, Jones owned a "[g]ray and black" Chevrolet Suburban. 2
VRP at 274. Bowers also knew of Jones' driving only one vehicle, the gray-and-black
Suburban. Similarly, according to the CI, Jones "usually" drove the Suburban, which the
CI had seen Jones driving "[s]everal times." 1 VRP at 180. The CI also testified that
Jones had been driving the Suburban on May 14.
9
No. 39998-9-II
b. Surveillance video evidence
On the second day of trial (before the CI had testified), the State explained its plan
to introduce a police surveillance videotape of the June 7, 2007 controlled buy. The State
averred, "[T]he defense would like to lay a foundation and admit the video" from the May
14 controlled buy. 1 VRP at 133. Jones' trial counsel confirmed this statement,
explaining,
Because we opened the 5/14 [controlled buy through the testimony of
Bowers on the first day of trial], I wanted to make sure that the video of
that event was presented so that on cross-examination with the [CI] that
we could clarify some things.
1 VRP at 133.
During direct examination of the CI, the State played the June 7 surveillance
videotape for the jury. During cross-examination of the CI, Jones' trial counsel played the
May 14 surveillance videotape for the jury.18
2. Defense case
a. David's testimony
After the State rested, David testified on Jones' behalf that the June 7, 2007
controlled buy had occurred differently than the way the CI and Bowers had described it:
According to David, (1) Jones never handed him (David) any narcotics during the
transaction; (2) he (David) was "trying to hide" the drug transactions from Jones; and (3)
the CI's purchasing of the crack cocaine occurred after Jones had exited the vehicle. 2
VRP at 281. David did confirm, however, that Jones had given him (David) a ride to the
18 Jones' trial counsel played this May 14 video again during closing arguments, apparently
to show the jury that Jones was not visible at any point during the video.
10
No. 39998-9-II
controlled-buy location "because [the CI] was going to purchase some drugs from [him
(David)]." 2 VRP at 273.
David further testified that he had been sitting in the front passenger seat of a gray-
and-black Suburban, Jones had been driving, and their cousin "Floyd" had been sitting in
the backseat. 2 VRP at 279. The CI approached the Suburban and "just straight hopped
in the backseat" without approaching the window. 2 VRP at 277. A few minutes later,
David told the CI to "get out" of the Suburban so the drug purchase "wouldn't be
obvious." 2 VRP at 274. The CI then exited the Suburban and, "three minutes" later,
Jones got out of the Suburban, too. 2 VRP at 275. Then the CI got back inside the
Suburban and David "gave [the CI] the drugs." 2 VRP at 275. After this, David exited
the Suburban and went into a nearby store. The CI also got out of the Suburban soon
afterward.
b. Jones' testimony
Regarding the June 7, 2007 controlled buy, Jones testified that (1) the gray-and-
black Chevrolet Suburban that he had been driving belonged to his girlfriend; (2) he had
driven David, their cousin, and himself to the controlled-buy location, only because he
(Jones) wanted to purchase a shirt; (3) "someone that [he] didn't know opened [his] back
door" and got inside the Suburban; (4) when David said, "[G]et out," this stranger
complied; (5) David told Jones that the person who had just exited the vehicle "owe[d]
[David] some money or whatever"; and (6) he (Jones) then got out of the Suburban went
inside a nearby store, came back out, and drove the Suburban out of the parking lot. 2
VRP at 297-298. Jones denied having seen David hand the CI any drugs.
11
No. 39998-9-II
Regarding the January 22, 2008 arrest, Jones claimed that the Dodge Intrepid was
his sister's vehicle, that he was driving it for the first time, and that his cousin was a
passenger. According to Jones, after the police discovered drugs hidden in the Intrepid,
Jones' cousin said "that the drugs were his [Jones' cousin's]," and the police then arrested
Jones' cousin. 2 VRP at 301. Jones denied ever telling the police that the drugs belonged
to him.
c. Prior convictions
Also on direct examination, Jones' trial counsel elicited the following testimony
from Jones:
[Jones' trial counsel]: So Officer Smith pulled you over [on January 22,
2008].
Then what happened, sir?
[Jones]: He told me to get out [of] the car because I was being arrested. I
asked him what for. He said for driving on [a] suspended license and no
interlock device.
[Jones' trial counsel]: You were required to have the interlock device on
the vehicle?
[Jones]: Yes.
[Jones' trial counsel]: Why was that?
[Jones]: From a previous DUI I had gotten on New Year's 2005.
[Jones' trial counsel]: For the sake of the argument, have you ever been
arrested for or convicted of a drug crime?
[Jones]: For possession of marijuana. I probably was convicted in 2005,
but it occurred in 2004.
2 VRP at 300.
After Jones' trial counsel's completed his direct examination of Jones, the State
asked the trial court to excuse the jury and said:
Your Honor, with regard to the defendant's criminal history, I
believe defense counsel asked him whether he had been arrested for or
convicted of a drug offense and he said misdemeanor marijuana. He was
actually arrested for unlawful possession of a controlled substance with
intent to deliver. It was eventually amended three times -- four times. It
12
No. 39998-9-II
was amended four times down to bail jumping and misdemeanor marijuana,
but he was actually arrested for intent to deliver marijuana, and the [S]tate
would like to explore that. Actually, explore is a little bit broad. I just
wanted to bring out that's why he was actually arrested and charged.
[. . .]
[T]he [S]tate would like to explore the original charge because he admitted
the conviction for marijuana. The [S]tate would like to go into the original
charge, not the facts, but the original charge and then when he ended up
pleading guilty to, which was not only misdemeanor marijuana, but also the
bail jumping felony. I do have a certified copy of all of the informations, as
well as the judgment and sentence on that case.
2 VRP at 302, 304.
Jones' trial counsel argued against any questioning about Jones' bail jumping
conviction: "The bail jumping, I don't believe, has anything to do with the nature of the
offense." 2 VRP at 304-05. Jones' trial counsel did not, however, object to any
questioning about Jones' marijuana possession conviction. The State responded, "I
believe that's misleading to let the jury believe that that [the marijuana-related conviction]
was [Jones'] only conviction from that case." 2 VRP at 305. Jones' trial counsel
countered, "[T]he felony bail jumping is irrelevant and . . . more prejudicial than
probative." 2 VRP at 305. Disagreeing with Jones, the trial court ruled, "The prejudice is
more on the side of the fact that the door has been opened with regard to the subject," and
permitted the State to ask Jones about both his marijuana possession and his bail-jumping
convictions. 2 VRP at 306.
During cross-examination, Jones testified that he also pleaded guilty to a bail
jumping charge.19 Jones further explained that the State had originally charged him with
19 The State charged Jones with marijuana possession in 2004, but Jones was not
convicted of this possession charge (and the subsequent bail-jumping charge) until
13
No. 39998-9-II
unlawful possession of a controlled substance with intent to deliver but that he had
eventually pleaded guilty to unlawful possession (apparently without the 'intent to deliver'
element).
On redirect, Jones attempted to justify his bail-jumping conviction claiming that,
over a period of two years, he had "somewhere around 30" court appearances stemming
from his previous marijuana possession charge and that his bail-jumping charge had arisen
from his being "late" for one of these court appearances. 2 VRP at 314.
d. Prior plea agreement
After Jones testified, the State asked the trial court to excuse the jury and
requested permission to introduce "the third amended information, the fourth amended
information, the plea, and the judgment and sentence" from Jones' marijuana possession
and bail jumping convictions. 2 VRP at 315. According to the State, the third amended
information charged Jones with three counts of bail jumping because Jones had missed
three court appearances, not one (as Jones had testified); the State sought "to admit those
things as proper impeachment."20 2 VRP at 315.
Jones' trial counsel responded, "We have no objection to the certified copy of the
judgment and sentence or to the certified copy of the defendant's plea." 2 VRP at 315.
But Jones' trial counsel did object to the State's introducing the third amended
information on the grounds that three bail-jumping charges were "part of the negotiation
process" and "[g]enerally negotiations of a case aren't admitted for the sake of the
December 2005.
20 In 2004 and 2005, the State apparently dropped two of the bail-jumping counts in the
fourth amended information because Jones had agreed to plead guilty to one charge of bail
jumping.
14
No. 39998-9-II
argument into evidence." 2 VRP at 316. The trial court disagreed with Jones' trial
counsel and ruled, "It would appear that the third and fourth amended informations are
relevant to the issue of whether there was more than just one bail jump in this case, so for
that reason it outweighs the prejudicial effect and I will allow for inquiry into this exhibit."
2 VRP at 317.
The State moved to admit a certified copy of Jones' plea agreement from his 2005
marijuana possession and bail-jumping convictions, which the trial court allowed. On
further recross-examination, the State pointed out that in his plea agreement, Jones had
admitted to "fail[ing] to appear" at a court appearance. 2 VRP at 321. This admission
contradicted Jones' earlier testimony that he had simply been "late" for a court
appearance. 2 VRP at 314.
3. Jury instructions
The trial court instructed the jury that (1) it could convict Jones of unlawful
delivery of a controlled substance under an accomplice theory of liability;21 (2) that if it did
not convict Jones of unlawful possession of a controlled substance with intent to deliver, it
could convict him of the lesser included charge of unlawful possession of a controlled
substance;22 and (3) if it convicted Jones of the unlawful delivery charge, then it must
decide whether Jones "delivered the controlled substance within one thousand feet of a
school bus route stop designated by a school district." CP at 400 (Jury Instruction 23).
The trial court did not instruct the jury that it could convict Jones for the possession
21 CP at 382-83 (Jury Instructions 6 and 7).
22 CP at 391 (Jury Instruction 15).
15
No. 39998-9-II
charge under an accomplice theory. Jones did not object to the trial court's instructions.
16
No. 39998-9-II
4. Closing arguments
During closing, the State argued:
Let's just say for some reason you don't believe [the CI] and you
don't think [Jones] count[ed] out . . . the crack rocks in the car [during the
controlled buy on June 7, 2007]. [Jones] is still at least an accomplice in
this case because it's undisputed that [Jones] drove to and from this
delivery. [Jones] provided the place for delivery. Everything took place in
that Suburban. [David] handed the cocaine to [the CI]. [David] had been
convicted of that delivery.
2 VRP at 336-37.
Jones' trial counsel argued that the State had simply failed to satisfy its burden of
proof on the delivery charge related to the June 7, 2007 controlled buy because Jones'
mere presence during the June 7, 2007 controlled buy was insufficient to support an
accomplice conviction. Jones' trial counsel further argued that (1) the "credibility
associated with the CI" was the only evidence in favor of an accomplice conviction23; (2)
"the fact that [Jones] drove to the store," standing alone, was not enough to support an
accomplice conviction24; (3) Jones did not know that the Dodge Intrepid contained
narcotics on January 22, 2008; and (4) the jury could not convict Jones on this charge
because of his "unwitting possession." 2 VRP at 351.
5. Verdicts
The jury found Jones guilty of (1) unlawful delivery of a controlled substance
within 1,000 feet of a school bus route stop; and (2) unlawful possession of a controlled
substance with intent to deliver. The trial court refused to allow Jones' trial counsel to
23 2 VRP at 371.
24 2 VRP at 372.
17
No. 39998-9-II
"poll the jury to ascertain whether or not the guilty verdict on the delivery charge was
guilty as a principal or as an accomplice." 3 VRP at 393.
C. Sentencing
The trial court sentenced Jones to a total of 36 months confinement: 12 months
for each count to be served concurrently, plus an additional 24 months on the unlawful
delivery conviction because of the school-bus-route-stop special verdict. The trial court
also sentenced Jones to community custody and ordered him to undergo drug treatment.25
D. Appeal Bond
On the same day as sentencing, Jones' trial counsel (without giving prior notice or
filing a motion) advised the trial court that Jones was requesting an appeal bond of
$100,000 pending appeal of his convictions. The trial court denied Jones' request for an
appeal bond "because of the [prior] conviction for bail jumping." 3 VRP at 407.
Jones' trial counsel then said:
Your Honor, I was looking at the RCW 10.73.040,[26] and the
language looks like the court must indicate a bail amount if defendant has
filed the appeal. And I'm not -- I mean, I understand that the amount is
25 Although the State had originally alleged that Jones was under community custody at
the time he committed his crimes, the trial court later determined that Jones had actually
completed his community custody three months before the June 7, 2007 controlled buy.
26 Former RCW 10.73.040 (1999) read, in relevant part:
In all criminal actions . . . upon an appeal being taken from a
judgment of conviction, the court in which the judgment was rendered . . .
must, by an order . . . fix and determine the amount of bail to be required
of the appellant; and the appellant shall be committed until a bond to the
state of Washington in the sum so fixed be executed on his behalf by at
least two sureties possessing the qualifications required for sureties on
appeal bonds.
Despite RCW 10.73.040's language, our Supreme Court has held that RCW 10.73.040
does not require a trial court to grant bail pending appeal simply because the defendant
requested it. See State v. Smith, 84 Wn.2d 498, 500-02, 527 P.2d 674 (1974).
18
No. 39998-9-II
completely and totally up to the court's discretion, but the language says
the court must set an appeal bail.
3 VRP at 407.
The trial court responded, "It looks like I will set bail at $100,000. However, it
has to be executed on his behalf by at least two sureties on appeal bond. We need to get
that form and fill that out." 3 VRP at 407. Apparently, Jones then posted two separate
$50,000 bonds, but the Department of Corrections and the Pierce County Superior Court
"both . . . had concern that that didn't meet the verbatim conditions of release that the
court wrote." 3 VRP at 409. The parties "scheduled [a] hearing for at least clarification
of what the court's wishes were, and [Jones] was held until the hearing could be held." 3
VRP at 410.
A month later, the trial court held a hearing. The State argued that (1) the trial
court had authority to reconsider its appeal bond order under CrR 3.2(k)(1),27 and (2) the
trial court "was misled into thinking that it [the trial court] had to set bail and that is the
reason you [the trial court] set bail at $100,000." 3 VRP at 411. The State then went
through a list of reasons why the trial court should not have released Jones on an appeal
bond, including his flight risk and danger to the community.
Jones' new counsel asserted, "Mr. Jones has a right to expect the finality of an
order unless there is a change of circumstance. I think that a motion to reconsider at this
point is inappropriate." 3 VRP at 415. Jones' counsel then responded to the State's
27 CrR 3.2(k)(1) provides:
The court ordering the release of an accused on any condition
specified in this rule may at any time on change of circumstances, new
information or showing of good cause amend its order to impose additional
or different conditions for release.
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No. 39998-9-II
arguments that Jones was a flight risk and a danger to the community. The trial court
revoked Jones' appeal bond.
Jones appeals.
ANALYSIS
I. Severance
Jones first argues that the trial court erred by denying his motion to sever the
counts for separate trials. The State responds that Jones waived this issue by failing to
"'renew the [severance] motion . . . before or at the close of all the evidence,'" in violation
of CrR 4.4(a)(2). Br. of Resp't at 14 (quoting CrR 4.4(a)(2)). We agree with the State.
We review a trial court's refusal to sever charges for "manifest abuse of
discretion." State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998), (citing State
v. Kalakosky, 121 Wn.2d 525, 537-39, 852 P.2d 1064 (1993)), review denied 137 Wn.2d
1017 (1999). "On appeal from denial of a motion for severance, the defendant has the
burden of demonstrating that a joint trial was so manifestly prejudicial as to outweigh the
concern for judicial economy. To meet this burden, the defendant must show specific
prejudice." State v. Jones, 93 Wn. App. 166, 171-73, 968 P.2d 888 (1998) (affirming
denial of severance of co-defendants' trial where defendant failed to show prejudice),
(footnotes omitted), review denied, 138 Wn.2d 1003 (1999).
CrR 4.4(a) provides:
Timeliness of Motion -- Waiver.
(1) A defendant's motion for severance of offenses or defendants
must be made before trial, except that a motion for severance may be made
before or at the close of all the evidence if the interests of justice require.
Severance is waived if the motion is not made at the appropriate time.
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No. 39998-9-II
(2) If a defendant's pretrial motion for severance was overruled he
may renew the motion on the same ground before or at the close of all the
evidence. Severance is waived by failure to renew the motion.
(Emphasis added). Under the plain language of this rule, a defendant's failure to renew his
severance motion "before or at the close of all the evidence" results in a waiver where, as
here, the defendant (1) moved for severance before trial began, and (2) the trial court
denied this pretrial severance motion. See Jones, 93 Wn. App. at 171 n.2 (quoting CrR
4.4(a)(2))..
Nevertheless, Jones argues that he preserved his severance issue because (1) he
"made a pre-trial motion to sever the criminal charges on October 12, 2009," which the
pretrial judge denied; and (2) he "renewed his motion at trial in front of the trial judge."
Reply Br. of Appellant at 2. But Jones mischaracterizes the record: He did not "renew[]
his motion at trial in front of the trial judge."28 Reply Br. of Appellant at 2 (emphasis
added). Instead, Jones made his last severance motion on October 13, 2009, the day
before the trial court swore in the jury, 1 VRP at 18, 30-31, which is a "pretrial motion for
severance" under CrR 4.4(a)(2), not a renewal at trial of an earlier overruled pretrial
severance motion.29 See State v. McDaniel, 155 Wn. App. 829, 857-59, 230 P.3d 245,
review denied, 169 Wn.2d 1027 (2010). Under the plain language of CrR 4.4(a)(2), Jones
waived his severance issue.
28 Jones is correct that he moved for severance on October 12, 2009, before a judge who,
ultimately, did not preside over his trial. But this pretrial judge denied Jones' severance
motion, explaining that the motion "was more likely an issue for the trial judge based on
the specific facts of the case." 1 VRP at 18.
29 To preserve the severance issue under CrR 4.4(a), Jones would have had to "renew the
motion on the same ground before or at the close of all the evidence"; this he did not do.
21
No. 39998-9-II
II. Ineffective Assistance of Counsel
Jones next contends that he received ineffective assistance of trial counsel for
several reasons, primarily stemming from counsel's questioning of Bowers about Jones'
involvement in other controlled buys besides the June 7, 2007 controlled buy and
counsel's questioning of Jones about his criminal history. The State responds that there
was a legitimate trial strategy or tactic underlying each of trial counsel's decisions, and, in
any event, any deficient performance was not prejudicial because "the evidence against
[Jones] was overwhelming." Br. of Resp't at 34. Again, we agree with the State.
A. Standard of Review
We review an ineffective assistance of counsel claim de novo. State v. Castro, 141
Wn. App. 485, 492, 170 P.3d 78 (2007). To succeed on an ineffective assistance of
counsel claim, the defendant bears the burden of showing that (1) trial counsel's
performance was deficient and (2) trial counsel's deficient performance prejudiced the
defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011) (citing Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Jones meets
neither prong of the test here.
Trial counsel's performance is deficient if it "falls 'below an objective standard of
reasonableness.'" Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 688).
Because of the "deference afforded to decisions of defense counsel in the course of
representation," there exists a "'[s]trong presumption that counsel's performance was
reasonable.'" Grier, 171 Wn.2d at 33 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215
P.3d 177 (2009)). Legitimate trial strategy or tactics do not count as deficient
22
No. 39998-9-II
performance; but "a criminal defendant can rebut the presumption of reasonable
performance by demonstrating that 'there is no conceivable legitimate tactic explaining
counsel's performance.'" Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004)).
Once the defendant shows deficient performance, he then must establish prejudice
by showing that "'there is a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceedings would have been different.'" Grier, 171
Wn.2d at 34 (quoting Kyllo, 166 Wn.2d at 862). "'A reasonable probability is a
probability sufficient to undermine confidence in the outcome.'" Grier, 171 Wn.2d at 34
(quoting Strickland, 466 U.S. at 694).
B. Trial Counsel's Performance Not Deficient
Jones first contends that his trial counsel performed deficiently in (1) questioning
Bowers about Jones' involvement in other controlled buys besides the June 7, 2007
controlled buy; (2) failing to object to the State's presentation of the May 14, 2007
controlled buy at which the CI saw Jones and Bowers believed Jones was present; (3)
during cross-examination of the CI, playing for the jury a police surveillance videotape of
the May 14 controlled buy; and (4) failing to object to the CI's statement that Jones
"usual[ly]" drove the gray-and-black Chevrolet Suburban. Br. of Appellant at 23.
Contrary to Jones' argument, it is not obvious from the record that his trial counsel
deliberately sought to elicit evidence of Officer Bowers' belief that Jones was involved in
controlled buys in addition to the one on June 7, 2007. When Jones' trial counsel asked
Bowers about Jones' involvement in any other "activity" besides the June 7, 2007
23
No. 39998-9-II
controlled buy, the State objected; and Jones' trial responded, "I believed I limited the
question and made it possible for the officer to answer with the only known answer in the
evidence." 1 VRP at 109 (emphasis added). Thus, it appears that Jones' trial counsel
asked the question based on the assumption that Bowers would confine his answer to the
events of June 7.30
Moreover, although Jones' trial counsel sought to introduce the May 14
surveillance videotape, he did so expressly acknowledging that the trial court had already
allowed the parties to introduce this evidence. Thus, Jones' trial counsel was faced with
the decision either (1) to introduce the May 14 surveillance videotape, thus showing the
jury that Jones was not visible during the controlled buy; or (2) to forego introducing the
surveillance videotape, leaving only the testimony of the CI and Bowers to depict the
events of May 14 for the jury, which allegedly included Jones as a participant. This was a
tactical or strategic decision, which does not constitute deficient performance for purposes
of establishing ineffective assistance of counsel. Grier, 171 Wn.2d at 33-34.
We further hold that Jones' trial counsel's failure to object to the CI's testimony
30 This assumption is all the more apparent because, when Bowers said that June 7 was the
"only alleged transaction," 1 VRP at 109, involving Jones, Jones' trial counsel did not
correct Bowers by inquiring into the May 14, 2007 controlled buy. If Jones' trial counsel
had sought to "directly elicit[] evidence of the Tacoma Police Department's belief that Mr.
Jones had been involved in prior transactions," as Jones claims, then Jones' trial counsel
would have pointed out Bowers' inaccuracy by reminding Bowers about Jones' supposed
participation in the May 17 controlled buy. Br. of Appellant at 23.
That Jones' trial counsel genuinely did not seek to elicit Bowers's belief about
Jones' involvement in other controlled buys is further evident because, contrary to Jones'
assertion, Jones' trial counsel actually did object to the State's redirect examination of
Bowers about the May 14 controlled buy, arguing that it was "highly prejudicial to
insinuate that Davon Jones was driving" the Suburban involved in the May 14 controlled
buy. 1 VRP at 119.
24
No. 39998-9-II
that Jones "usually" drove the Suburban was not deficient performance. 1 VRP at 180.
As our Supreme Court has explained, an attorney is not deficient "if, in the exercise of his
professional talents and knowledge, he fails to object to every item of evidence to which
an objection might successfully be interposed." State v. Lei, 59 Wn.2d 1, 6, 365 P.2d 609
(1961). We do not conclude that Jones' trial counsel performed deficiently based on this
single failure to object, especially, where, as here, Jones has not established the second
prong of the test by showing that this alleged failure prejudiced his case.
1. Criminal history
Jones also contends that his trial counsel was deficient when he (1) elicited
evidence of Jones' prior criminal record; (2) failed to object to the State's cross-
examination of Jones' 2005 marijuana possession conviction; and (3) failed to object to
the State's introduction of a certified copy of Jones' plea agreement for his 2005
marijuana possession and bail-jumping convictions. Again, we disagree.
When Jones' trial counsel asked Jones why Officer Smith arrested him for failing
to have an interlock device on the Intrepid, Jones replied, "From a previous DUI." 2 VRP
at 300. It is "conceivable" that in asking Jones if he had "ever been arrested for or
convicted of a drug crime"31 Jones' trial counsel wanted to ask Jones about his prior drug
convictions in order to dispel any curiosity in the jurors' minds about Jones' criminal
history. Grier, 171 Wn.2d at 33. Jones had just admitted having a previous DUI; thus, it
is reasonable to assume that the jurors might have wondered whether Jones might have
other convictions. Rather than leave it up to the jurors' imaginations, Jones' trial counsel
31 2 VRP at 300.
25
No. 39998-9-II
chose to have Jones testify about them himself. In this way, the record supports that
eliciting Jones' prior convictions was "a tactical decision," not deficient performance. See
State v. Fleck, 49 Wn. App. 584, 589, 744 P.2d 628 (1987), review denied, 110 Wn.2d
1004 (1988).
Jones cites State v. Saunders, 91 Wn. App. 575, 578-81, 958 P.2d 364 (1998), in
which we reversed and remanded for a new trial based on the lack of legitimate trial
strategy for defense counsel's questioning the defendant about his prior convictions where
the defendant's credibility was a central issue. We disagree with Jones that Saunders
controls here. Here, in contrast with Saunders' counsel, Jones' counsel had a tactical
reason for asking Jones about his prior convictions, which were minimal: He wanted to
remove the jurors' speculation about the extent and severity of Jones' criminal record,
which Jones himself had already introduced when he testified that he had a "a previous
DUI." 2 VRP at 300. Thus, Jones' reliance on Saunders is misplaced.
We also disagree with Jones that his trial counsel was deficient in failing to object
to the State's cross-examination about Jones' 2005 marijuana possession conviction.32
Even if Jones' trial counsel had objected, the trial court would have overruled his
objection because it was Jones' trial counsel who had already opened the door to the
marijuana possession conviction. See State v. Renfro, 96 Wn.2d 902, 908-09, 639 P.2d
737, cert. denied, 459 U.S. 842 (1982) (citing State v. Hultenschmidt, 87 Wn.2d 212, 550
P.2d 1155 (1976)). Similarly, had Jones' trial counsel objected to the State's introduction
of a certified copy of Jones' plea agreement for his marijuana possession and bail-jumping
32 As Jones himself acknowledges, his trial counsel objected to the State's cross-
examination about Jones' 2005 bail-jumping conviction.
26
No. 39998-9-II
convictions, the trial court probably would have overruled this objection, too, because (1)
Jones' trial counsel had already opened the door to evidence of Jones' marijuana
conviction, and (2) the trial court already overruled Jones' trial counsel's objection to
evidence of Jones' bail-jumping conviction. Failure to object where the trial court likely
would have overruled the objection is not deficient performance. See State v. McFarland,
127 Wn.2d 322, 336, 899 P.2d 1251 (1995). We hold, therefore, that Jones has failed to
establish ineffective assistance of trial counsel.
III. Bail Pending Appeal
Finally, Jones argues that the trial court erred by revoking his bail pending his
appeal. Not only do we accord deference to the trial court's exercise of discretion in
matters of bail setting,33 but also, because we now affirm Jones' convictions, the issue of
bail pending appeal is moot.
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.
Hunt, P.J.
We concur:
Van Deren, J.
Johanson, J.
33 See State v. Smith, 84 Wn.2d 498, 510, 527 P.2d 674 (1974).
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No. 39998-9-II
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