State Of Washington v. James A. Shea ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, ) NO. 73939-5-1 ro
Respondent, )
DIVISION ONE
v.
JAMES A. SHEA, UNPUBLISHED OPINION
Appellant. ) FILED: November 23, 2015
Lau, J. — A jury convicted James Shea on one count of obstructing a law
enforcement officer, one count of hit and run with injury, and one count of possession of
methamphetamine. Shea appeals, arguing his conviction should be reversed because
(1) the State failed to present evidence that he made a false statement to support the
obstruction charge, (2) the trial court erred when it admitted evidence found in Shea's
wallet pursuant to an unconstitutional search, (3) the trial court erred when it admitted
self-incriminating statements, and (4) counsel's deficient performance denied him his
constitutional right to effective assistance of counsel. Finding no errors, we affirm
Shea's judgment and sentence.
No. 73939-5-1/2
FACTS
On November 22, 2013, Office Robert Auderer was at Bob's Tavern in Shelton,
Washington. Officer Auderer was off-duty and wearing civilian clothing. He left the
tavern when he heard commotion outside. He noticed a yellow Mustang had struck a
pedestrian, Grant Manning. The front tire of the car was on top of Manning's foot. The
driver, later identified as James Shea, backed the car off Manning's foot and drove
away, despite bystanders shouting at him to stop. Manning suffered an injury to his foot
and knee. Manning required knee surgery due to the injury.
Officer Auderer followed Shea in his personal vehicle and called 911. Shea
parked outside of his residence. Officer Auderer parked nearby. As Shea was exiting
his car, Officer Auderer identified himself as a police officer and told Shea that he had
been involved in an accident and was not free to leave. Officer Auderer testified that he
"immediately was met with profanity." Report of Proceedings (RP) (March 27, 2014) at
140. Shea also said something to the effect of "I barely hit that guy. I barely hit him.
He wasn't even hurt." RP (March 27, 2014) at 154. Shea began rifling through his
pockets. Officer Auderer asked Shea multiple times to keep his hands out of his
pockets, but Shea persisted. As a safety precaution, Officer Auderer grabbed Shea by
the arm and led him away from his vehicle.
Around this time, three to five of Shea's friends arrived. Some came from inside
Shea's residence while others arrived in a car that had been following Shea. Shea's
friends surrounded Officer Auderer and questioned his actions. One individual
threatened Officer Auderer with physical violence. Officer Auderer described the scene
as "intense," explaining that Shea's friends "surrounded me while I'm still trying to hold
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onto [Shea] and keep his hands out of his pockets, [and] trying to tell dispatch where I
am." RP (March 27, 2014) at 141. Eventually, Officer Auderer was able to remove his
Shelton Police Department commission card, bearing a picture of his face, his
signature, and a badge declaring he was a Shelton Police Officer. Officer Auderer
showed his commission card to Shea and Shea's friends, and one of them exclaimed
that Officer Auderer "is a Shelton cop." RP (March 27, 2014) at 144.
Officer Auderer continued to try to restrain Shea, but Shea was uncooperative:
It was a constant tug of war with [Shea]. He—all I wanted him to
do—the only thing I wanted Mr. Shea to do was to keep his hands where I
could see him and wait for uniformed officers to get up there so we could
complete the investigation, and he refused.
RP (March 27, 2014) at 144. Other officers arrived including Officer Backus. Officer
Backus was in uniform and driving a black and white patrol car with blue lights
activated. Officer Auderer then asked Shea to place his hands behind his back. Shea
continued to disobey Officer Auderer and Officer Backus' commands. During the
struggle, Shea attempted to empty his pockets. At one point, he removed his wallet and
threw it towards one of his friends.
After Officer Auderer and Officer Backus detained Shea, Officer Auderer
retrieved the wallet Shea had thrown. The wallet contained Shea's ID card. Officer
Auderer testified that a second ID, a driver's license, had been taken out of the wallet
and was on the ground nearby. The wallet also contained methamphetamine.
The State charged Shea with one count of possession of methamphetamine, one
count of hit and run with injury, and one count of obstructing a law enforcement officer.
The jury convicted Shea on all three counts. Shea appeals.
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ANALYSIS
Sufficiency of the Evidence
Shea contends the State failed to present sufficient evidence to prove the
obstruction charge beyond a reasonable doubt. He argues that to prove obstruction the
State must show that he made a false statement to police officers. We disagree.
In a criminal prosecution, the State must prove each element of the charged
crime beyond a reasonable doubt. In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25
L. Ed. 2d. 368(1970).
The test for determining the sufficiency of the evidence is whether,
after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt.
When the sufficiency of the evidence is challenged in a criminal case, all
reasonable inferences from the evidence must be drawn in favor of the
State and interpreted most strongly against the defendant. A claim of
insufficiency admits the truth of the State's evidence and all inferences
that reasonably can be drawn therefrom.
State v. Salinas. 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992) (internal citations omitted).
We defer to the factfinder on issues of conflicting testimony, witness credibility, and
persuasiveness of the evidence. State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d
970 (2004).
Relying on State v. Williams. 171 Wash. 2d 474, 251 P.3d 877 (2011), Shea argues
that a conviction for obstructing a law enforcement officer requires proof that he made a
false statement.1 Because the State failed to show that he made any false statement to
a police officer, there was insufficient evidence to support the obstruction charge.
1 We note that Shea also relies on an unpublished opinion from this court in
violation of GR 14.1(a). We will not consider Shea's argument insofar as it relies on this
citation.
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Shea's reliance on Williams is misplaced. Williams does not require evidence of
a false statement to prove obstruction. The court in Williams held that an obstruction
charge cannot be based solely on a defendant's false statement. Williams. 171 Wash. 2d
at 486. In Williams, the defendant provided a false name when police officers asked
him to identify himself. Williams. 171 Wash. 2d at 476. The court held that this false
statement alone could not support a conviction for obstruction:
In order to avoid constitutional infirmities, we require some conduct
in addition to making false statements to support a conviction for
obstructing an officer.
Williams, 171 Wash. 2d at 486. Williams illustrates that conduct is the primary
requirement, not speech.
Indeed, neither the plain language of the statute nor case law requires proof of a
false statement to sustain a conviction for obstructing a law enforcement officer. RCW
9A.76.020(1) provides that "A person is guilty of obstructing a law enforcement officer if
the person willfully hinders, delays, or obstructs any law enforcement officer in the
discharge of his or her official powers or duties." RCW 9A.76.020(1). In State v. Steen.
164 Wash. App. 789, 265 P.3d 901 (2011) the court held that a defendant who made no
statements whatsoever nevertheless obstructed law enforcement when his conduct
demonstrated willful obstruction:
Under RCW 9A.76.020(1)'s plain language, a person may commit
obstruction by willfully disobeying a lawful police order in a manner that
hinders, delays, or obstructs the officer in the performance of his or her
duties .... Accordingly, the jury could have found that Steen's conduct
here—ignoring the officers' lawful orders to exit the trailer with his hands
up while the officers were performing their community caretaking
functions—was willful conduct that amounted to obstruction.
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Steen, 164 Wash. App. at 800-01. A person may commit obstruction through his conduct
alone—evidence of a false statement is not necessary. Steen. 164 Wash. App. at 801.
Here, the record shows that the State presented sufficient evidence to prove that
Shea willfully obstructed the officers' performance of their duties. Both Officer Auderer
and Officer Backus testified that Shea repeatedly disobeyed lawful orders they gave
pursuant to their official duties. Officer Auderer testified that he repeatedly ordered
Shea to remove his hands from his pockets, to keep his hands where he could see
them, and to remain in place. He further testified that Shea repeatedly ignored these
orders. Officer Backus provided similar testimony. Viewing this testimony in the light
most favorable to the State, "any rational trier of fact could have found guilt beyond a
reasonable doubt." Salinas. 119 Wash. 2d at 201; see also Steen. 164 Wash. App. at 800-01
("a person may commit obstruction by willfully disobeying a lawful police order in a
manner that hinders, delays, or obstructs the officer in the performance of his or her
duties"). Sufficient record evidence supports Shea's obstruction conviction.
Search of the Wallet
Next, Shea argues the trial court erred when it failed to exclude the evidence
discovered in his wallet. He contends Officer Auderer lacked any legal authority to
search the wallet because it posed no safety or evidentiary concern and was in the
possession of a third party. We conclude that the search was valid because Shea
voluntarily abandoned the wallet during the seizure.2
2The State argues we should decline to address this issue because he failed to
claim the error below. See RAP 2.5(a). Indeed, Shea never sought to exclude the
evidence from his wallet, and he has failed to assert that this error falls into any
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Both State and Federal Constitutions prohibit unreasonable searches. See
Wash. Const, art. I § 7; U.S. Const, amend IV. A warrantless search is unconstitutional
unless it falls under one of "'a few jealously guarded exceptions.'" State v. Samalia. 186
Wash. App. 224, 228, 344 P.3d 722 (2015) (quoting State v. MacDicken. 179 Wash. 2d 936,
940, 319 P.3d 31 (2014)). Two exceptions apply here.
First, a police officer may search voluntarily abandoned property without a
warrant or probable cause. State v. Evans. 159 Wash. 2d 402, 408, 150 P.3d 105 (2007)
("Needing neither a warrant nor probable cause, law enforcement officers may retrieve
and search voluntarily abandoned property without implicating an individual's rights
under the Fourth Amendment or under article I, section 7 of our state constitution."
(quoting State v. Reynolds. 144 Wash. 2d 282, 287, 27 P.3d 200 (2001)). Whether an
individual has voluntarily abandoned property depends "upon a combination of act and
intent." Evans. 159 Wash. 2d at 408. "Intent may be inferred from words spoken, acts
done, and other objective facts, and all the relevant circumstances at the time of the
alleged abandonment." State v. Duaas. 109 Wash. App. 592, 595, 36 P.3d 577 (2001).
The main question is "whether the defendant in leaving the property has relinquished
her reasonable expectation of privacy so that the search and seizure is valid." Duqas.
109 Wash. App. at 595 (quoting United States v. Hoev. 983 F.2d 890, 892-93 (8th Cir.
1993)).
The record here shows that Shea voluntarily abandoned his wallet. Officer Shea
testified that, while he was attempting to detain him, Shea attempted to empty out
exception under RAP 2.5(a). Regardless, as discussed below, we conclude the search
was valid.
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No. 73939-5-1/8
everything in his pockets. This included throwing his wallet onto his yard. Shea also
admitted to abandoning his wallet during trial: "I took my wallet—it was dangling on the
chain. I took it and tossed it into my yard, which was where I was at." RP (March 27,
2014) at 257. One of Shea's friends took a brief cell phone video during the incident. A
transcript of the video shows that after Shea threw his wallet he said, "here, Dave."
Exhibit (Ex.) 1 at 1. But whether Shea was simply throwing his wallet on the ground or
trying to give it to another person, in either case it is reasonable to infer that he
voluntarily relinquished his reasonable expectation of privacy regarding the wallet.
Officer Auderer therefore was permitted to search the wallet without a warrant or
probable cause. Evans. 159 Wash. 2d at 408-09.
A second exception to the warrant requirement applies here. Under an
extension to the incident to arrest exception—the "time of arrest" rule—after a valid
arrest, a police officer may search "those personal articles in the arrestee's actual and
exclusive possession at or immediately preceding the time of arrest." State v. Bvrd. 178
Wash. 2d 611, 623, 310 P.3d 793 (2013). The officer need not show that "the search was
motivated by particularized concerns for officer safety or evidence preservation." Bvrd,
178 Wash. 2d at 614. For example, in Bvrd. the court held that the "time of arrest" rule
allowed a police officer to search a purse on the defendant's lap when she was detained
but was placed on the ground nearby prior to her arrest. Bvrd. 178 Wash. 2d at 625
("because Byrd's purse was on her lap at the time of her arrest, it was an article of her
person.").
Here, it is undisputed that Shea had actual and exclusive possession either at or
immediately preceding the time of the arrest. Officer Auderer identified himself as a
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No. 73939-5-1/9
police officer and told Shea that he was under arrest. Shortly after, Shea abandoned
his wallet. At trial, Shea admitted he owned the wallet and threw it as he was being
detained. Further, it is also undisputed that the arrest was valid. Officer Auderer had
probable cause to arrest Shea because he personally witnessed the hit and run incident
with Manning. See State v. Ward. 24 Wash. App. 761, 766, 603 P.2d 857 (1979)
("Probable cause for making a warrantless arrest exists when the facts and
circumstances are such as to warrant a prudent or cautious man in believing that the
suspect had committed or is committing an offense."). The trial court properly admitted
the evidence from the wallet because Officer Auderer's search of Shea's wallet was a
valid search incident to arrest. See Bvrd. 178 Wash. 2d at 625.
Shea cites State v. Bovce. 52 Wash. App. 274, 758 P.2d 1017 (1988).3 Bovce is
unpersuasive. In Bovce, the defendant was pulled over for speeding. Bovce. 52 Wn.
App. at 275. After a license and registration check, the officer discovered Boyce's
outstanding warrant and the car he was driving had been reported stolen. Bovce. 52
Wash. App. at 275. A second officer arrived and drove Boyce to the King County Jail.
Bovce. 52 Wash. App. at 275. Another officer searched the car and found a briefcase
containing cocaine. Bovce, 52 Wash. App. at 276. The court held the search incident to
arrest exception inapplicable: "once Boyce was removed from the scene, there simply
were no special circumstances present that justified a warrantless vehicle search as
there was no possibility that Boyce could destroy evidence or grab a weapon." Bovce.
52 Wash. App. at 279.
3 We note that, like his previous argument, Shea relies heavily on an unpublished
opinion from this court in violation of GR 14.1. We do not consider his argument insofar
as it relies on this case.
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Bovce is distinguishable. First, because the briefcase in Boyce's backseat was
not part of his person, the officers must justify the search with either safety or
evidentiary concerns. Bovce. 52 Wash. App. at 279. Shea's wallet was part of his person,
so no justification by Officer Auderer was necessary for the search. As the Bvrd court
explained, "The search incident to arrest exception encompasses two distinct rationales.
A search of the arrestee's immediate area must be justified by concerns for officer
safety or evidence preservation, while a search of the arrestee's person and articles of
his or her person is justified by the authority of a lawful arrest." Bvrd. 178 Wash. 2d at 625.
Second, Bovce was decided 19 years before Bvrd, which expressly permits the
circumstances here—after a valid arrest, a police officer may search a personal article
in the arrestee's "actual and exclusive possession at or immediately preceding the time
of arrest" even in the absence of safety or evidentiary concerns. Bvrd. 178 Wash. 2d at
623. Bovce does not control here. Officer Auderer's warrantless search of Shea's
wallet constituted a valid search incident to arrest.
Self-Incriminating Statements
Shea argues the court erred when it admitted self-incriminating statements
contained in a cell phone video depicting Shea's interaction with police officers. In the
audio portion, Shea states "I didn't fucking hit him hard enough. He bumped into my
car." Ex. 1 at 9. He contends Officer Auderer coerced this statement and thereby
violated his Fifth Amendment privilege against self-incrimination. We conclude that the
trial court correctly determined the statement was voluntary and therefore properly
admissible.
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The Fifth Amendment to the United States Constitution states that "[n]o person ..
. shall be compelled in any criminal case to be a witness against himself." U.S. Const,
amend. V.; see also Wash. Const, art. I § 9. To preserve an individual's right against
compelled self-incrimination, police must inform a suspect of his rights before custodial
interrogation. Miranda v. Arizona. 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). The parties agree that Shea received no Miranda warnings before he made the
self-incriminating statement on the cell phone video.
However, a defendant's Miranda rights attach only when the defendant is subject
to custodial interrogation. The State seems to concede that Shea was in custody. But
the record shows that Shea was not subject to interrogation within the meaning of
Miranda.
Interrogation occurs "whenever a person in custody is subjected to either express
questioning or its functional equivalent [such as] any words or actions on the part of the
police (other than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the suspect." State
v. Wilson. 144 Wash. App. 166, 184, 181 P.3d 887 (2008) (quoting Rhode Island v. Innis.
446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L Ed. 2d 297 (1980)).
Here, the record shows that Officer Auderer did not subject Shea to express
questioning or its functional equivalent. A transcript of the cell phone video reveals that
Shea disputed the legitimacy of his arrest. In response, Officer Auderer explained why
he was arresting Shea. Upon hearing Officer Auderer's explanation, Shea made the
self-incriminating statement at issue:
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No. 73939-5-1/12
[Officer Auderer]: Is [the victim] gone? Okay. Well, he's [Shea] still
going [under arrest].
[Shea]: For what?
[Officer Auderer]: I'll do the—for resisting and obstructing, first off.
[Shea]: No, no, no, no.
[Officer Auderer]: And fleeing the scene of an accident.
[Shea]: I did not. He [the victim] walked off and said what the
fuck—
[Officer Auderer]: I saw him motion for you to stop.
[Shea]: -and I said what the fuck myself.
[Officer Auderer]: I saw him motion for you to stop.
[Shea]: No. He said what the fuck and walked off to the
sidewalk. He said nothing about motioning. I didn't
fucking hit him hard enough. He bumped into my car.
Ex. 1 at 8-9. The transcription shows that Officer Auderer was responding to Shea's
request to explain the reason for his arrest. Justifying the circumstances of an arrest is
a "normally attendant" aspect of taking a suspect into custody, and Officer Auderer
could have reasonably believed his explanation was unlikely to elicit an incriminating
response. State v. Wilson. 144 Wash. App. at 184. Therefore, these comments were not
express questions or their functional equivalent. Wilson. 144 Wash. App. at 184.
Accordingly, Shea's Miranda rights did not apply.
But even if Shea's Miranda rights applied, his statement is nevertheless
admissible because it was voluntary. A trial court may admit a suspect's self-
incriminating statement where the "inculpatory statement, though technically in violation
of Miranda, was voluntary." State v. Baruso. 72 Wash. App. 603, 610, 865 P.2d 512
(1993) (quoting Oregon v. Elstad. 470 U.S. 298, 318, 105 S. Ct. 1285, 84 L Ed. 2d 222
(1985)). To determine whether a self-incriminating statement was voluntary, courts
employ a totality-of-the-circumstances test. State v. Unqa. 165 Wash. 2d 95, 101, 196
P.3d 645 (2008). The test "specifically applies to determine whether a confession was
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No. 73939-5-1/13
coerced by any express or implied promise or by the exertion of any improper
influence." Unga, 165 Wash. 2d at 101.
Here, the trial court concluded that Shea's statements on the cell phone video
were voluntary due to the lack of any evidence of improper influence:
The Court will find that [the statements] were given voluntarily; that
there were no promises or threats made to the defendant to get him to say
anything about this particular topic, that they were spontaneous; they
weren't the product of a[n] interrogation of any type. He was in custody at
the time, but again, they were voluntary, so—and spontaneous, so the
Court will allow that portion of the tape to be heard by the jury.
RP (March 26, 2014) at 127.4 As discussed above, the record supports the trial court's
conclusion that Shea's statements on the cell phone video were voluntary. Officer
Auderer said nothing suggestive of a custodial interrogation, nor did he offer improper
promises or threats. The trial court properly admitted the statement.
Ineffective Assistance of Counsel
Finally, Shea argues he was deprived of his constitutional right to effective
assistance of counsel. Shea contends his trial counsel was ineffective by (1) failing to
move to suppress the contents of his wallet, (2) failing to move to dismiss the
obstruction charge, (3) failing to move to suppress his earlier confession to Officer
Auderer, and (4) failing to move to strike juror 7.
We review claims for ineffective assistance of counsel de novo. State v.
Sutherbv. 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). "To prevail on a claim of
ineffective assistance of counsel, counsel's representation must have been deficient,
4 Our review is limited to the court's oral ruling following the CrR 3.5 hearing. No
written findings of fact or conclusions of law as require by CrR 3.5(c) is found in the
record. See Wilson. 144 Wash. App. at 183.
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and the deficient representation must have prejudiced the defendant." State v. Aho,
137 Wash. 2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington, 466 U.S. 668,
687,104 S. Ct. 2052, 80 L Ed. 2d 674 (1984). "To establish ineffective representation,
the defendant must show that counsel's performance fell below an objective standard of
reasonableness. To establish prejudice, a defendant must show that but for counsel's
performance, the result would have been different." State v. McNeal. 145 Wash. 2d 352,
362, 37 P.3d 280 (2002) (citation omitted). Failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim. Strickland. 466 U.S. at 700. For the
reasons discussed below, Shea has failed to show that counsel's performance was
either deficient or prejudicial.
Counsel's Failure to Move to Suppress the Contents of Shea's Wallet
Shea has failed to show that counsel was ineffective when he failed to move to
suppress the contents of the wallet.
When a defendant's claim for ineffective assistance of counsel is based on
counsel's failure to make a motion to suppress evidence, the defendant "must show that
the trial court likely would have granted the motion if made." State v. McFarland. 127
Wash. 2d 322, 334, 899 P.2d 1251 (1995). As discussed above, the trial court properly
admitted the evidence.
Counsel's Failure to Move to Dismiss the Obstruction Charge
Shea argues that because the State presented no evidence that Shea made a
false statement, counsel was ineffective when he failed to move to dismiss the
obstruction charge. As discussed above, the State need not present evidence of a false
statement to sustain a charge of obstructing a law enforcement officer. The defendant's
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conduct alone is sufficient. He fails to establish the trial court would have granted this
motion.
Counsel's Failure to Move to Suppress Shea's Earlier Confession
Shea also argues counsel was ineffective when he failed to move to suppress
his earlier confession to Officer Auderer. As discussed above, Shea made a
spontaneous, voluntary self-incriminating statement on the cell phone video. Before the
video, Officer Auderer testified that Shea made a separate incriminating statement
when he first confronted him about the hit and run incident. Officer Auderer stated that
after he followed Shea to his house, he identified himself as a police officer and told him
he was under arrest for hitting a pedestrian. Shea responded by saying something to
the effect of "I barely hit that guy. I barely hit him. He wasn't even hurt." RP (March 27,
2014) at 154.
As discussed above, this confession was a voluntary, spontaneous statement. It
was not the product of questioning or its functional equivalent. The confession was
admissible. Unga, 165 Wash. 2d at 101. Similar to his other claims, Shea fails to show
that the trial court would likely have granted a motion to suppress the confession.
McFarland. 127 Wash. 2d at 334.
Counsel's Failure to Seek Removal of Juror 7
Finally, Shea contends counsel was ineffective when he failed to seek removal of
juror 7. Early in the trial, juror 7 realized he works with the son of one of the witnesses.
The juror had no prior knowledge of the case, and he told the bailiff that it would make
no difference in how he understood the case. Neither the State nor defense counsel
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asked to question the juror further about whether he would be able to serve as an
impartial juror. Shea contends this failure prejudiced him.
But Shea cannot show that counsel's decision was either deficient or caused
prejudice. Shea fails to cite either the record or any legal authority. We may decline to
address this claim. See RAP 10.3(a)(6); Cowiche Canvon Conservancy v. Boslev. 118
Wash. 2d 801, 809, 828 P.2d 549 (1992) (argument unsupported by reference to the
record or citation to authority will not be considered).
In any event, we are reluctant to find ineffective assistance of counsel except in
the most extreme cases. "[S]crutiny of counsel's performance is highly deferential and
courts will indulge in a strong presumption of reasonableness." State v. Thomas. 109
Wash. 2d 222, 226, 743 P.2d 816 (1987). Counsel's performance is not deficient if any
legitimate tactical reason supports the challenged conduct. McFarland. 127 Wash. 2d at
336. Here, Shea has failed to overcome the strong presumption that counsel acted
reasonably when he declined to seek removal of juror 7. Counsel may have reasonably
concluded that despite the juror's indirect relationship to one of the witnesses, the
juror's other qualities justified retaining the juror.
Shea also fails to show that the juror's removal would have changed the
outcome. His ineffective assistance of counsel claim fails.
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CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence.
J
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