State Of Washington, V Rory Lee Mickens ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
June 6, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48409-9-II
Respondent,
v.
RORY LEE MICKENS, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Rory Lee Mickens appeals his convictions for two counts of unlawful
delivery of methamphetamine and two counts of unlawful possession of methamphetamine and
heroin. Mickens consented to allow a judge pro tempore to hear his case and now contests that
the judge pro tempore did not have jurisdiction. Mickens also contends that the prosecutor
committed misconduct, that he received ineffective assistance of counsel, and that the trial court
incorrectly instructed the jury and violated his time for trial right. Lastly, Mickens challenges the
sufficiency of the evidence for all of his convictions. He asks that we not impose appellate costs.
We affirm Mickens’s convictions.
FACTS
A.C., a confidential informant, conducted controlled buys for the Cowlitz-Wahkiakum
County Task Force for thirteen years in exchange for money. A.C. occasionally stayed at
Mickens’s house. In June 2015, while in jail, A.C. told police that he could buy drugs from
Mickens.
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On July 14, A.C. met with Kelso Police Officer Jeffery Brown to conduct a buy. Brown
searched A.C., did not find any money or drugs, and gave him money to buy the drugs. Brown
and Detective Kimberly Moore surveilled A.C. as he walked to Mickens’s house, and Sergeant
Kimber Yund observed A.C. enter. A.C. purchased forty dollars’ worth of methamphetamine.
Mickens pulled a straw with methamphetamine in it from his backpack and gave it to A.C. A.C.
exited the house, met Brown, and gave him the methamphetamine. Brown searched A.C. again
and did not find anything on him.
On July 21, A.C. conducted a second buy from Mickens. This buy was similar to the
previous one. Mickens provided A.C. with a bag of methamphetamine that he pulled from his
backpack. A.C. left the house, met Brown, and gave him the methamphetamine. Brown searched
A.C. again and did not find anything on him.
After the buys, Brown obtained a search warrant for Mickens’s house. While executing
the search warrant, Moore observed Mickens in the hallway holding a crowbar. Moore repeatedly
told Mickens to put it down. Mickens eventually complied. The officers detained Mickens.
Brown searched the detached garage and a room added onto the structure. The door to the room
had a glass window with the name “Rory” written on it. C Report of Proceedings (RP) at 34.
Brown found a spoon with heroin, drug paraphernalia, including a scale with methamphetamine
on it, and a $20 bill.
The State charged Mickens with two counts of delivering methamphetamine and two
counts of possession: one for methamphetamine and one for heroin.1
1
RCW 69.50.401(1), (2)(b); RCW 69.50.4013(1).
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I. CONTINUANCE MOTION
The State moved to continue the case.2 The State argued good cause existed because one
of the police officers involved in the case had a scheduled vacation and Mickens’s counsel had
another trial that day. The State also noted that the time for trial did not expire until October 12,
and the court could reset the case within the time for trial. Mickens’s attorney stated that “in any
event, even if I weren’t in trial, I would not be prepared for my client’s trial next week because we
haven’t had adequate time to prepare after receiving the [confidential informant] packet.” RP
(Sept. 17, 2015) at 4.
The trial court found good cause and granted the motion because Mickens’s attorney was
in trial on another matter, Mickens only recently received the confidential informant packet, and
the police officer was not available for the scheduled trial date. The trial court set the new trial
date for November 9.
II. APPOINTMENT OF JUDGE PRO TEMPORE
Judge James Stonier signed a written oath to serve as a judge pro tempore in Cowlitz
County. The superior court entered an order approving Stonier to “sit as a Judge Pro Tem pursuant
to RCW 2.28.180, in such cases as the Court may direct and the parties may approve.” Clerk’s
Papers (CP) at 67.
Thereafter, the State and Mickens signed an agreement for Stonier to serve as judge pro
tempore on the case. The lawyers for the parties and Mickens personally also agreed to the
appointment.
2
The actual motion is not included in the clerk’s papers.
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III. TRIAL
On the first day of trial, the State informed the trial court that it had only just located A.C.
Because somebody had threatened A.C., the police moved him out of state to protect him. The
State advised that Mickens could interview A.C. before trial. Mickens’s attorney stated that he
felt comfortable interviewing A.C. at that time or during an extended lunch break. He interviewed
A.C. over the lunch break.
A. CROWBAR EVIDENCE
In opening statements, the prosecutor stated “out of the corner of her eye [Moore] sees
[Mickens] come out and he’s holding a crow bar in his hand up in a—up above his head like this
(Counsel demonstrates). She’s ordered him to . . . drop it, he’s not dropping it, there’s sort of a,
you know, continued commands to drop the crow bar. Eventually he puts it down and he’s
detained.” RP (Nov. 12, 2015) at 5-6. Mickens did not object.
To avoid recalling Brown in his case, Mickens called Brown out of order, before the State
rested. Although the State had elicited no testimony about the crowbar incident, Mickens asked
Brown whether he knew that Moore came into contact with a person with a crowbar. Brown
confirmed that in his report he listed Jesse Wilson as the person holding the crow bar. On cross-
examination, Brown admitted that he made a mistake and typed the wrong name into his report.
He said that Moore had told him Mickens possessed the crowbar.
The State resumed its case by calling Moore, and Mickens moved to exclude evidence of
the crowbar. Outside the presence of the jury, the trial court stated, “if it had been raised before .
. . the jury now has it in front of them, who had the crow bar. I understand why you did that . . .
but it’s now in front of them. I would probably have excluded it entirely under [ER] 403 because
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it is highly prejudicial.” C RP at 138. The trial court did allow the State to ask Moore who held
the crowbar, but not whether it was held in a threatening manner.
B. OTHER EVIDENCE
The parties stipulated that the plastic straw and the plastic bag contained
methamphetamine.
Dustin Bailey testified that while in jail, A.C. told him that he could get out of jail if he
worked with a police task force. Bailey testified that A.C. told him that he set up Mickens. A.C.
denied telling Bailey that he set up Mickens.
C. JURY INSTRUCTIONS
The trial court instructed the jury on reasonable doubt using the WPIC 4.01 3 instruction.
Neither party excepted to this instruction.
D. CLOSING ARGUMENT
In closing argument, Mickens challenged A.C.’s credibility and argued that nothing
corroborated A.C.’s testimony. In rebuttal closing argument, the prosecutor stated,
Now, [Mickens] argues the police didn’t trust [A.C]. They never testified
they didn’t trust [A.C]. And to the contrary, if he worked as a confidential
informant for the police for thirteen years, he must’ve been pretty reliable. But they
go through their processes to try to make sure they can present the evidence in case,
but they can’t do things that put people in danger, and it would’ve been dangerous
to put a wire on [A.C.] in this situation and that’s why [Brown] didn’t do it. Because
someone finds out about the wire, and he testified to it, there’s going to be problems
for that person, which helps you out in understanding why there’s just simply no
way that this is what—that—that [A.C.] was telling [Bailey] in the jail that he was
working for Task Force and he should, too. No way. Not in the jail, not in that
environment. Just like you wouldn’t want to be found out in the house.
D RP at 216-17. Mickens did not object.
3
11 WASHINGTON PRACTICE: WASHINGTON PATTER JURY INSTRUCTIONS: CRIMINAL 4.01, at 85
(3d ed. 2008) (WPIC).
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The jury found Mickens guilty on all counts. Mickens appeals.
ANALYSIS
I. JUDGE PRO TEMPORE
Mickens argues that the trial court lacked jurisdiction to try his case because Judge Stonier
did not execute an oath to fairly try his case after a proper appointment. He further argues that the
record does not show that Judge Stonier was specifically appointed to try Mickens’s case. Finally,
Mickens argues generally that the consent of the parties is necessary but insufficient to confer
jurisdiction upon a judge pro tempore. We disagree.
A. LEGAL PRINCIPLES
The requirement that the parties consent to a judge pro tempore is jurisdictional. State v.
Belgarde, 119 Wn.2d 711, 718, 837 P.2d 599 (1992). Jurisdictional issues are reviewed de novo.
State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997). We also review issues of
constitutional and statutory interpretation de novo. State v. Elmore, 154 Wn. App. 885, 904-05,
228 P.3d 760 (2010).
“‘When interpreting a constitutional provision, we seek to ascertain and give effect to the
manifest purpose for which it was adopted.’” State v. Barton, 181 Wn.2d 148, 155, 331 P.3d 50(2014) (quoting Westerman v. Cary, 125 Wn.2d 277, 288, 892 P.2d 1067 (1994)). We “first look
to the plain language of the text ‘and will accord it its reasonable interpretation’” and the words
will be given their ordinary meaning. Barton, 181 Wn.2d at 155 (quoting Wash. WaterJet Workers
Ass’n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42 (2004)).
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B. THE TRIAL COURT HAD JURISDICTION
Members of the bar association may preside over trials in superior court as judges pro
tempore when “agreed upon in writing by the parties litigant or their attorneys of record, and is
approved by the court and sworn to try the case.” WASH. CONST. art. IV, § 7; RCW 2.08.180; In
re Dependency of K.N.J., 171 Wn.2d 568, 578, 257 P.3d 522 (2011). Thus, the express language
allows the parties’ attorneys to consent to trial by a judge pro tempore and thereby confer
jurisdiction on the judge pro tempore. State v. Osloond, 60 Wn. App. 584, 586, 805 P.2d 263(1991).
RCW 2.08.180 requires that a judge pro tempore take an oath to faithfully discharge the
duties of the office to the best of his or her ability. A judge pro tempore is appointed to hear one
particular case. Nat’l Bank of Wash., Coffman-Dobson Branch v. McCrillis, 15 Wn.2d 345, 357,
130 P.2d 901 (1942). “The essential element to the valid appointment of a judge pro tempore is
the consent of the parties.” State v. McNairy, 20 Wn. App. 438, 440, 580 P.2d 650 (1978). “It
may be conceded that the failure of a judge pro tem to take the oath of office will not render his
acts void, at least where the parties appear and do not make seasonable objection.” McCrillis, 15
Wn.2d at 356 (emphasis added). A judge pro tempore lacks jurisdiction to preside over a case
absent the consent of the parties. Belgarde, 119 Wn.2d at 718.
Here, Judge Stonier took an oath to faithfully discharge the duties of the office. The order
on his appointment stated, “It is ordered that JAMES J. STONIER is approved by the Court to sit
as a Judge Pro Tem pursuant to RCW 2.28. 180, in such cases as the Court may direct and the
parties may approve.” CP at 67.
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The parties’ lawyers signed an agreement allowing Judge Stonier hear the case as judge
pro tempore. In addition, they and Mickens orally consented to the appointment. Therefore, we
conclude that the trial court had jurisdiction to hear the case.
II. PROSECUTORIAL MISCONDUCT
Mickens argues that the prosecutor committed misconduct in rebuttal closing argument
because he vouched for A.C.’s credibility as an informant. We disagree.
A. STANDARD OF REVIEW
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). An
appellant claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was
both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012).
But when the defendant failed to object to the improper comments at trial, the defendant
must also show that the comments were “so flagrant and ill intentioned that an instruction could
not have cured the resulting prejudice.” Emery, 174 Wn.2d at 760-61. The appellant must show
that no curative instruction would have eliminated the prejudicial effect and the misconduct
resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wn.2d
at 761. The focus of this inquiry is more on whether the resulting prejudice could have been cured,
rather than the flagrant or ill-intentioned nature of the remarks.
B. THE PROSECUTOR DID NOT COMMIT MISCONDUCT
“Improper vouching occurs when the prosecutor expresses a personal belief in the veracity
of a witness or indicates that evidence not presented at trial supports the testimony of a witness.”
State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). “Whether a witness testifies
truthfully is an issue entirely within the province of the trier of fact.” Thorgerson, 172 Wn.2d at
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443. “‘It is misconduct for a prosecutor to state a personal belief as to the credibility of a witness.’”
State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (quoting State v. Warren, 165 Wn.2d 17,
30, 195 P.3d 940 (2008)).
However, “a prosecutor has wide latitude in closing argument to draw reasonable
inferences from the evidence and may freely comment on witness credibility based on the
evidence.” State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010). “This is especially so
where . . . the prosecutor is rebutting an issue the defendant raised in his closing argument.” Lewis,
156 Wn. App. at 240.
Some statements, standing alone, may sound like an expression of a personal opinion by
the prosecutor. State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006). However, when
considered within “‘the total argument, the issues in the case, the evidence discussed during the
argument, and the court’s instructions, it is usually apparent that counsel is trying to convince the
jury of certain ultimate facts and conclusions to be drawn from the evidence.’” McKenzie, 157
Wn.2d at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983)).
“‘Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not
arguing an inference from the evidence, but is expressing a personal opinion.’” McKenzie, 157
Wn.2d at 54 (quoting Papadopoulos, 34 Wn. App. at 400) (emphasis omitted). “‘In other words,
there is a distinction between the individual opinion of the prosecuting attorney, as an independent
fact, and an opinion based upon or deduced from the testimony in the case.’” McKenzie, 157
Wn.2d at 53 (quoting State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)) (emphasis
omitted).
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Mickens did not object to the statement, and thus, he must show that the comments were
“so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.”
Emery, 174 Wn.2d at 760-61.
In closing argument, Mickens challenged A.C.’s credibility and argued that none of A.C.’s
testimony was corroborated by evidence. The prosecutor then made the following rebuttal
argument which Mickens now challenges: “[Mickens] argues the police didn’t trust [A.C]. They
never testified they didn’t trust [A.C]. And to the contrary, if he worked as a confidential informant
for the police for thirteen years, he must’ve been pretty reliable.” D RP at 216-17.
Nothing in this statement personally endorsed A.C. as a witness. The prosecutor rebutted
Mickens’s challenge to A.C.’s credibility. The prosecutor argued a reasonable inference from the
evidence that if A.C. was not reliable, the task force would not have continued to work with him.
The prosecutor simply argued inferences from the evidence at trial and did not commit misconduct.
Therefore, we conclude that the prosecutor did not vouch for A.C., and Mickens’s argument to the
contrary fails.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Mickens argues that he received ineffective assistance of counsel because his attorney both
failed to move to exclude testimony that depicted Mickens as violent because he held a crowbar
and failed to object to the prosecutor’s vouching for A.C. in closing argument. We disagree.
A. STANDARD OF REVIEW
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both (1) that defense counsel’s representation was deficient, and (2) that
the deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246
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P.3d 1260 (2011) (applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). Representation is deficient if after considering all the circumstances, the performance
falls below an objective standard of reasonableness. Grier, 171 Wn.2d at 33. Prejudice exists if
there is a reasonable probability that except for counsel’s errors, the result of the proceeding would
have differed. Grier, 171 Wn.2d at 34.
An appellant faces a strong presumption that counsel’s representation was effective. Grier,
171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of
ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
“Conversely, 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)).
The defense counsel’s strategic decisions must be reasonable. Grier, 171 Wn.2d at 34.
B. FAILURE TO MOVE TO EXCLUDE TESTIMONY ON CROWBAR
To prevail on a claim that counsel’s performance was deficient by failing to make a motion,
a party must show that the trial court would have granted it. See State v. Brown, 159 Wn. App.
366, 371, 245 P.3d 776 (2011) (counsel has no duty to pursue strategies that reasonably appear
unlikely to succeed). Yet, “‘[w]hen counsel’s conduct can be characterized as legitimate trial
strategy or tactics, performance is not deficient.’” In re Pers. Restraint of Caldellis, 187 Wn.2d
127, 141, 385 P.3d 135 (2016) (quoting Kyllo, 166 Wn.2d at 863). “A criminal defendant can
rebut the presumption of reasonable performance by demonstrating that ‘there is no conceivable
legitimate tactic explaining counsel’s performance.’” Caldellis, 187 Wn.2d at 141 (quoting
Reichenbach, 153 Wn.2d at 130). Yet not all strategies or tactics are immune from attack.
Caldellis, 187 Wn.2d at 141. “‘The relevant question is not whether counsel’s choices were
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strategic, but whether they were reasonable.’” Grier, 171 Wn.2d at 34 (quoting Roe v. Flores-
Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000)). Though “the deficient
performance inquiry does not permit us to decide what we believe would have been the ideal
strategy and then declare an attorney’s performance deficient for failing to follow that strategy.”
State v. Carson, 184 Wn.2d 207, 220, 357 P.3d 1064 (2015).
We determine whether Mickens’s attorney made a legitimate strategic decision to not move
in limine to exclude the evidence of the crowbar to use the evidence to attempt to impeach Brown’s
testimony. That his strategy of impeachment opened the door to the crowbar testimony and may
not have been the best choice given the court’s statement after Mickens’s attorney’s attempt to
exclude further evidence is a matter of hindsight. The trial court even noted that it understood why
Mickens’s attorney questioned the officer on the crowbar. We conclude that Mickens’s attorney
attempted to pursue a legitimate strategy by impeaching the main officer on the case.
Therefore, we conclude that Mickens received effective assistance of counsel because a
legitimate trial strategy existed for not moving to exclude the crowbar evidence.
C. FAILURE TO OBJECT TO PROSECUTOR’S VOUCHING FOR A.C. IN CLOSING ARGUMENT
Where a defendant bases his ineffective assistance of counsel claim on trial counsel’s
failure to object, the defendant must show that the objection would likely have succeeded. State
v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007). Because we previously concluded that
that the prosecutor did not vouch for A.C. and did not commit misconduct, we also conclude that
Mickens fails to show his attorney was deficient by not objecting. Mickens’s argument on this
point fails.
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IV. REASONABLE DOUBT INSTRUCTION
Mickens argues that the trial court erred by instructing the jury on reasonable doubt because
the instruction improperly focused the jury on a search for “the truth.” Br. of Appellant at 15.
We have repeatedly rejected this argument and do so again. State v. Jenson, 194 Wn. App.
900, 902, 378 P.3d 270, review denied, 186 Wn.2d 1026 (2016). The trial court did not err by
instructing the jury on reasonable doubt.
V. APPELLATE COSTS
Mickens opposes appellate costs in light of State v. Sinclair, 192 Wn. App. 380, 367 P.3d
612, review denied, 185 Wn.2d 1034 (2016), asserting that he does not have the ability to pay
because he is indigent. We decline to address the issue. A commissioner of this court will consider
whether to award appellate costs in due course under the newly revised provisions of RAP 14.2 if
the State decides to file a cost bill and if Mickens objects to that cost bill.
STATEMENT OF ADDITIONAL GROUNDS
I. VAGUE CLAIMS
Mickens asserts a large number of issues that are too vague for us to consider. Mickens
provides no argument to support these alleged errors and little context to assist our review. He
asserts that it was error to exclude a page of an exhibit, but it is unclear what exhibit or why it was
error. Mickens asserts that he lost a witness. He also asserts that his due process rights were
violated and that because the trial court allowed the prosecutor to ask “who had the crow bar,” it
violated his right to a fair trial but does not explain why. SAG at 6.
Mickens claims that the prosecutor used “staged” testimony to introduce inadmissible
evidence through Brown. SAG at 2. He asserts that the prosecutor also misstated the promise of
testimony that was not delivered, but it is unclear to what he refers. Mickens asserts that the
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prosecutor expressed a personal opinion about his guilt or credibility, but does not identify a
statement, and the prosecutor made credibility statements about defense witnesses. He asserts the
prosecutor spoke about a tablet found in the room that proves the room was not his room. He also
asserts that the prosecutor stated facts not in evidence, but provides no explanation. Finally, he
quotes a number of sections of the prosecutor’s closing argument, but why he claims the statements
were improper is unclear. Mickens also asserts that the prosecutor asked for sympathy for Brown
in closing argument.
Mickens asserts that dismissal was warranted because of arbitrary action or governmental
misconduct, without identifying any issue. He asserts that the prosecutor did not disclose a report
of a law enforcement agency that contradicted the government’s key witness, but did not provide
any details. Mickens quotes portions of the record without an identification of error. He included
a photocopy of GR 33 without any explanation. He wrote about what constitutes ER 404B
evidence and the policy behind the rule.
Mickens asserts a number of claims that he received ineffective assistance of counsel.
First, he asserts that he received ineffective assistance because his attorney interviewed A.C.
during the lunch hour, but does not identify why that was insufficient. He asserts that his attorney
should have objected to the prosecutor’s tactics, but does not specify which. Mickens also
generally claims that he received ineffective assistance by quoting the record but does not explain
what constituted the ineffective assistance.
Although RAP 10.10 does not require an appellant to refer to the record or cite authority,
he is required to inform us of the “nature and occurrence of the alleged errors.” These assertions
of error are too vague to allow us to identify the issues and we do not reach them because Mickens
fails to cite to the record or authority.
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II. OUTSIDE THE RECORD
In addition, Mickens makes several assertions that depend on matters outside the record.
Mickens seems to assert that his attorney was unable to effectively prepare for cross-examination.
He also asserts that he received ineffective assistance because his attorney did not investigate a
defense. Mickens asserts that his attorney failed to investigate information he told him and worked
for his conviction. He questions whether A.C. was actually out of state or unavailable before the
first day of trial. All of these claims pertain to matters outside the record. On direct appeal, we
cannot consider matters outside the record. State v. Curtiss, 161 Wn. App. 673, 703, 250 P.3d 496(2011) (citing State v. McFarland, 127 Wn.2d 322, 338 n.5, 899 P.2d 1251 (1995) (“a personal
restraint petition is the appropriate means of having the reviewing court consider matters outside
the record”)). Therefore, we do not consider these issues.
III. ADDRESSED IN DIRECT APPEAL
Mickens also asserts issues addressed in the direct appeal. Mickens asserts that the
prosecutor committed misconduct because he vouched for the State’s informant, A.C., in closing
argument. He quotes the same statement challenged by his appellate attorney, addressed in the
direct appeal. He also challenges the relevance of the crow bar testimony, which is discussed
above. These issues are addressed above and we need not consider them further.
IV. MERITLESS CLAIMS
Finally, Mickens makes a number of assertions that are without merit. Mickens asserts that
the trial court erred by admitting evidence that he held a crowbar when the officers entered the
house while executing the search warrant because it was irrelevant and prejudicial. However,
Mickens’s attorney only moved to exclude the evidence after he had already opened the door to
the evidence on cross-examination, and thus, this assertion is without merit. He also asserts that
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the trial court failed to instruct the jury not to consider the evidence. Mickens did not request this
instruction.
Mickens also asserts that the trial court erred by instructing that it needed to be unanimous
to find Mickens guilty because no special verdict was required. This assertion is without merit
because jury verdicts in criminal cases must be unanimous as to the defendant’s guilt of the crime
charged. State v. Ortega–Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994); WASH. CONST. art.
1, § 21. Mickens also asserts that Officer Epperson’s testimony was a violation of ER 403 and
404(b). Officer Epperson did not testify, and thus, this assertion is without merit. Mickens even
acknowledged that he did not testify.
Further, Mickens seems to assert that the State committed a Brady4 violation because the
State was unable to find A.C. until trial began. Mickens also asserts that the prosecutor made a
statement in closing argument requiring personal experience or expert knowledge by discussing
A.C.’s prior convictions. Mickens asserts that the prosecutor made “false or misleading
testimony” in closing argument by stating A.C. did not live in the house. SAG at 16. This assertion
is without merit because A.C. testified that he did not live there. Mickens also asserts some
statements by the prosecutor were improper, including a statement about the crowbar, but because
the statements were objected to and sustained by the trial court, these assertions do not have merit.
Mickens also asserts a number of ineffective assistance of counsel-related assertions that
are without merit. He asserts that he received ineffective assistance of counsel because his attorney
did not strike a juror that said she “could” be impartial, not that she “would” be impartial, and
counsel used jurors that were not impartial. SAG at 34. However, this assertion is not supported
by the record. He also asserts that he received ineffective assistance of counsel because his
4
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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attorney did not object to the use of Officer Epperson’s testimony. As stated above and as
acknowledged by Mickens in his SAG, Epperson did not testify, and thus, this assertion is without
merit. He further asserts that he received ineffective assistance of counsel because his counsel’s
cross-examination bolstered a witness’s credibility. Finally, Mickens asserts that the prosecutor
and his attorney staged testimony to introduce inadmissible evidence. Accordingly, we do not
consider these assertions because they are without merit.
V. TIME FOR TRIAL
Mickens seems to assert that the trial court violated his time for trial right when it granted
the State’s motion to continue because good cause did not exist when his attorney had another trial
and the officer who was not available at the time of the motion did not ultimately testify at trial.
We disagree.
A. STANDARD OF REVIEW
We review an alleged violation of the time for trial rule de novo. State v. Kenyon, 167
Wn.2d 130, 135, 216 P.3d 1024 (2009). We interpret court rules in the same manner that it
interprets legislatively drafted statutes. State v. Farnsworth, 133 Wn. App. 1, 11, 130 P.3d 389(2006), review granted, 159 Wn.2d 1004, 151 P.3d 976 (2007). Statutory construction and
interpretation are questions of law we review de novo. Farnsworth, 133 Wn. App. at 11. As with
statutes, we must give effect to the plain meaning of a rule’s language. State v. Miller, 188 Wn.
App. 103, 106, 352 P.3d 236 (2015). “‘Plain meaning is discerned from reading the rule as a
whole, harmonizing its provisions, and using related rules to help identify the legislative intent
embodied in the rule.’” Miller, 188 Wn. App. at 106 (quoting State v. Chhom, 162 Wn.2d 451,
458, 173 P.3d 234 (2007)).
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B. THE TRIAL COURT DID NOT ERR
Under CrR 3.3(b)(1)(i), a defendant held in custody pending trial must be tried within 60
days of arraignment. The trial court may grant an extension of time for trial when unavoidable or
unforeseen circumstances exist. CrR 3.3(e)(8). The trial court may also grant a continuance on
the written agreement of the parties, or on the motion of the court or a party when required in the
administration of justice. CrR 3.3(f). A continuance is properly granted where the defendant will
not be substantially prejudiced in the presentation of the defense. CrR 3.3(f). “‘[U]navailability
of counsel may constitute unforeseen or unavoidable circumstances to warrant a trial extension
under CrR 3.3(d)(8).’” State v. Williams, 104 Wn. App. 516, 522, 17 P.3d 648 (2001) (quoting
State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996)). The trial court must “state on the
record or in writing the reasons for the continuance.” CrR 3.3(f)(2). Violation of the time for trial
rule results in dismissal with prejudice. CrR 3.3(h).
Here, the trial court found good cause for a continuance and granted the motion on the
bases that Mickens’s attorney was going to be in trial on another matter, Mickens only recently
received the confidential informant packet, and the police officer was not available for the
scheduled trial date. These reasons constituted good cause for a continuance because Mickens’s
attorney was in trial on another matter and constituted an unavoidable circumstance. CrR
3.3(e)(8). It is irrelevant that the officer did not testify at trial. Therefore, we conclude that the
trial court did not err by granting the continuance and setting the new trial date.
VI. PROSECUTORIAL MISCONDUCT
Mickens asserts several issues of prosecutorial misconduct. He asserts that the prosecutor
committed misconduct because he made false and misleading arguments in opening statements.
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Mickens also asserts that the prosecutor gave his personal opinion and vouched for A.C.’s
credibility in closing arguments. We disagree.
The same standard of review from the direct appeal applies here.
A. OPENING STATEMENTS
Mickens asserts that the prosecutor’s opening statement was improper because it contained
remarks unsupported by the evidence. He seems to point to the prosecutor’s statement referring
to him holding a crowbar when the police officers executed the search warrant.
In his opening statement, the prosecutor stated that after Moore entered the house, she saw
Mickens “come out and he’s holding a crow bar in his hand up in a—up above his head like this
(Counsel demonstrates). She’s ordered him to put the—drop it, he’s not dropping it, there’s sort
of a, you know, continued commands to drop the crow bar. Eventually he puts it down.” RP (Nov.
12, 2015) at 5-6.
“During an opening statement, a prosecutor may state what the State’s evidence is expected
to show.” State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). “In context, this statement
concerns a witness’s expected testimony, a permissible subject for opening statements.”
Thorgerson, 172 Wn.2d at 444.
The prosecutor’s statement was not improper because the trial court did not limit what
evidence about the crowbar could come in. Later, the trial court limited the inquiry on the crowbar,
but it was before Moore testified. Regardless, witnesses testified that Mickens held a crowbar
when the officers entered the house. Accordingly, this statement was supported by the evidence,
and we conclude that the statement was not improper and Mickens’s claim fails.
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B. CLOSING ARGUMENTS
As stated above, “Improper vouching occurs when the prosecutor expresses a personal
belief in the veracity of a witness or indicates that evidence not presented at trial supports the
testimony of a witness.” Thorgerson, 172 Wn.2d at 443. “Whether a witness testifies truthfully
is an issue entirely within the province of the trier of fact.” Thorgerson, 172 Wn.2d at 443.
However, “a prosecutor has wide latitude in closing argument to draw reasonable inferences from
the evidence and may freely comment on witness credibility based on the evidence.” Lewis, 156
Wn. App. at 240. “This is especially so where . . . the prosecutor is rebutting an issue the defendant
raised in his closing argument.” Lewis, 156 Wn. App. at 240.
First, Mickens seems to assert that the prosecutor expressed his opinion on the credibility
of a defense witness in closing argument. The prosecutor stated:
On the other hand, we heard from [Bailey] here just a few minutes ago, and
he says [A.C.] said in the jail, to him, that he should go work for the Task Force
like he does and, you know, he made this whole thing up on [Mickens]. There’s
reasons to be skeptical of that, primarily the fact that he’s been a confidential
informant for thirteen years, and people in the jail don’t want you to be a snitch.
That’s not gonna be a good thing to be in that world, and there’s no way he’s gonna
want everyone in the jail to be hearing that he’s working for the Task Force. And
he—he was even asked about that while he was on the stand. No way.
C RP at 174.
We conclude that this statement does not constitute an opinion on Bailey’s credibility. We
look at the entire argument instead of viewing the highlighted snippets of argument out of context.
State v. Jackson, 150 Wn. App. 877, 884, 209 P.3d 553 (2009). In context, after this statement,
the prosecutor reminded the jury that it must examine the evidence and it will determine which
version of events it believed occurred. He then outlined which evidence, including reasonable
inferences from the evidence, could support the jury’s conclusion that A.C. was credible and
Bailey was not. This is not vouching. Jackson, 150 Wn. App. at 885. Moreover, Mickens did not
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object to the argument, and the comments do not rise to the level of flagrant and ill-intentioned
misconduct. Jackson, 150 Wn. App. at 885.
Next, Mickens seems to assert that the prosecutor vouched for A.C. on a few occasions in
closing argument. He challenges when the prosecutor stated:
He was obviously doing his best to remember an event from a while back,
but it—no big conversation, and that makes sense, because if a person is gonna go
do something like this that’s dangerous and doesn’t want to be found out, the person
in the middle of that is probably not interested in making a lot of other conversations
and getting distracted on the way to taking care of business. He’s only in the house
for twenty to thirty minutes on both buys.
C RP at 176.
We again conclude that the prosecutor did not vouch for A.C. Mickens did not object to
this statement. This statement constituted a reasonable inference from the evidence, and did not
rise to the level of flagrant and ill-intentioned misconduct. Jackson, 150 Wn. App. at 885.
Mickens also challenges the prosecutor’s statement that after A.C. received
methamphetamine from Mickens, he “talks a little while more. He doesn’t want to look like he’s
up to something.” C RP at 178; see SAG at 10. Mickens did not object to this statement. This
statement constituted a reasonable inference from the evidence and A.C.’s testimony. Jackson,
150 Wn. App. at 885. We conclude that this statement was not improper.
Mickens also asserts that the prosecutor stated his personal opinion when he stated, “if that
didn’t happen at all you don’t even waste a lot of time talking whether he knew it or not.” SAG at
12. However, in context, when discussing the elements of the crime of delivery of a controlled
substance, the prosecutor stated, “If [A.C.] gives [Mickens] the money and he gave him the
methamphetamine, clearly [Mickens] knew. If that didn’t happen at all, you don’t even waste a
lot of time talking whether he knew it or not if it didn’t happen at all.” C RP at 181. Mickens did
not object to the statement. Clearly, in context, the prosecutor discussed the elements of the crime:
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that if the jury did not find one element, it need not spend time on the others. This statement did
not constitute a personal opinion by the prosecutor.
Mickens asserts that the prosecutor vouched for A.C. when the prosecutor stated:
There’s some degree of inconsistency with the first buy. . . . But people
don’t always remember everything perfectly, and in a situation like that he’s
going—he’s making the buy and the evidence he comes out with is that he
succeeded in that.
When we have the—well, the amount of time he was in there on the buys is
not exceptionally long, and the Detective never said, oh, he was in there for a much
longer time than normal. This—keep in mind he’s been doing it for thirteen years,
he knows what he’s doing at this point and he’s being careful. He’s not just gonna
run in there and do something to make it obvious that he’s working for Task Force.
He’s gonna take it easy, go in there, talk to people, get to what he needs to do, get
the item, and come out. And to spend twenty to thirty minutes doing that is not
unrealistic.
D RP at 218-19.
Again, we conclude that these statements did not constitute vouching for A.C. Mickens
did not object to this statement. The prosecutor stated reasonable inferences from the testimony
at trial to explain weaknesses in A.C.’s testimony. Jackson, 150 Wn. App. at 885. In addition, the
statements did not rise to the level of flagrant and ill-intentioned misconduct. Jackson, 150 Wn.
App. at 885.
Next, Mickens asserts that the prosecutor vouched for A.C. when he stated:
You know, this thing about him telling [Bailey] in the jail, that’s just really,
really difficult to believe because he doesn’t—it’s not like [Bailey] is some close
friend to him. He hasn’t given any indication of that in how he testified. And then
this guy who has been undercover—or confidential informant for thirteen years is
just gonna go blabbin’ about it to this guy in the jail, who he sort of met in the jail
when he could be assaulted or whatever else by the people in the jail once they find
out? No way he’s gonna do that.
But Defense argument that: Well, how do we know he didn’t just blab it to
everybody? Well, he wouldn’t have done that. Sure, you could do something, but
would he have done that? Thirteen years doing this, it’s both dangerous and a way
he makes money and he can’t do it if people know. And now he’s out.
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D RP at 221.5
Again, we conclude that these statements did not constitute vouching for A.C. Mickens
did not object to this statement. The prosecutor stated reasonable inferences from the testimony
at trial to explain weaknesses in A.C.’s testimony. Jackson, 150 Wn. App. at 885. The jury could
reasonably infer that A.C. would not have told others about his work as an informant because it
would put himself at risk. In addition, the statements did not rise to the level of flagrant and ill-
intentioned misconduct. Jackson, 150 Wn. App. at 885.
Furthermore, Mickens asserts that the prosecutor stated his personal opinion when he
countered Mickens’s attorney’s argument on how much the drugs cost when purchased by A.C.
The prosecutor stated:
Now, [Mickens] does this analysis based on the fact that at times,
apparently, some amounts of drugs have been sold on this ten dollars for the rough
amount that ended up being weighed. A couple things about that. Number one,
[Brown] didn’t say that that was an absolute rule, that’s always the purchase price;
number two, and you can all consider your recollection of it, but on the second buy
it was forty dollars, on the first, I’m not sure that’s what was testified to, so you’ll
have to remember what you heard in court.
D RP at 219-220. Mickens did not object to this statement. This was not a personal opinion; it
was a statement based on the evidence. In addition, the prosecutor highlighted inferences from
the testimony on the cost of the drugs in question. Finally, the statements did not rise to the level
of flagrant and ill-intentioned misconduct. Jackson, 150 Wn. App. at 885.
Therefore, we conclude that the prosecutor did not commit misconduct in opening
statements or closing arguments.
5
Mickens also asserts that the second paragraph “bashes” the defense argument. SAG at 17. This
assertion is without merit because the prosecutor merely stated the defense’s theory presented in
its closing argument. Accordingly, we do not consider the issue further.
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VII. INEFFECTIVE ASSISTANCE OF COUNSEL
Mickens seems to assert the he received ineffective assistance of counsel because his
attorney failed to move to exclude A.C. under CrR 4.7 or for a mistrial when A.C. finally became
available on the day trial was to begin. We disagree.
The same standard of review from the direct appeal applies here.
A. FAILURE TO MOVE TO EXCLUDE A.C.
To prevail on a claim that counsel’s performance was deficient by failing to file a motion,
a party must show that the trial court would have granted the motion. Brown, 159 Wn. App. at
371. Yet, “[w]hen counsel’s conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient.” Caldellis, 187 Wn.2d at 141 (internal quotation omitted).
CrR 4.7(a) governs the prosecutor’s obligations during discovery. Under that rule, “[t]he
prosecuting attorney shall disclose to the defendant any expert witnesses whom the prosecuting
attorney will call at the hearing or trial, the subject of their testimony, and any reports they have
submitted to the prosecuting attorney.” CrR 4.7(a)(2)(ii). The prosecutor’s duty to disclose is a
continuing one, but “limited to material and information within the knowledge, possession or
control of members of the prosecuting attorney’s staff.” CrR 4.7(4).
Here, the State made efforts to find the informant, A.C., who had been disclosed, but was
unable to find him. A.C. had been threatened and the police moved him out of the state. The judge
gave a deadline for interviews with A.C. for November 9. On the morning of trial, the State
informed Mickens’s attorney that it had access to the informant.
Because the State did not have A.C. under its control, and did not know his location, and
it had disclosed A.C.’s identity to Mickens’s attorney, the State did not violate CrR 4.7.
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Accordingly, the trial court would have denied any motion made by Mickens’s attorney, and
Mickens’s claim fails.
B. FAILURE TO MOVE FOR A MISTRIAL
In the event of a discovery violation, the trial court “may order such party to permit the
discovery of material and information not previously disclosed, grant a continuance, dismiss the
action or enter such other order as it deems just under the circumstances.” CrR 4.7(h)(7)(i).
Ordering a mistrial is one of the “other orders” available to the trial court. State v. Greiff, 141
Wn.2d 910, 923 n.5, 10 P.3d 390 (2000). But the court should grant a mistrial “only when the
defendant has been so prejudiced that nothing short of a new trial can insure that the defendant
will be tried fairly.” Greiff, 141 Wn.2d at 921 (quoting State v. Johnson, 124 Wn.2d 57, 76, 873
P.2d 514 (1994)).
For the same reasons discussed in the previous section, because the State did not violate
CrR 4.7, the trial court would not have granted a motion for a mistrial. Regardless, Mickens was
not so prejudiced that only a new trial would insure he was tried fairly. The court provided time
for Mickens’s attorney to interview A.C. before trial began. Accordingly, Mickens’s assertion
fails.
VIII. SUFFICIENCY OF THE EVIDENCE
Mickens asserts insufficient evidence supports his convictions, but does not specify which.
We disagree.
A. STANDARD OF REVIEW
To determine whether sufficient evidence supports a conviction, we view the evidence in
the light most favorable to the State and determines whether any rational fact finder could have
found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,
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210 P.3d 1007 (2009). “Substantial evidence is evidence sufficient to persuade a fair-minded
person of the truth of the asserted premise.” State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182(2014).
“In claiming insufficient evidence, the defendant necessarily admits the truth of the State’s
evidence and all reasonable inferences that can be drawn from it.” State v. Drum, 168 Wn.2d 23,
35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the State and interpreted
most strongly against the defendant.’” Homan, 181 Wn.2d at 106 (quoting State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992)). In addition, we “must defer to the trier of fact for purposes
of resolving conflicting testimony and evaluating the persuasiveness of the evidence.” Homan,
181 Wn.2d at 106.
B. DELIVERIES
First, we consider whether sufficient evidence supports Mickens’s two convictions of
unlawful manufacturing, delivering and/or possession of methamphetamine with intent to deliver
(counts I and II).
To convict Mickens of unlawful delivery of methamphetamine, the State must prove that
knowingly delivered a controlled substance, methamphetamine. RCW 69.50.401(1).
Taken in the light most favorable to the State, on July 14, A.C. entered Mickens’s house,
and he purchased forty dollars’ worth of methamphetamine. Mickens gave A.C. the
methamphetamine inside a straw. On July 21, A.C. purchased a bag of methamphetamine from
Mickens. A rational jury could find that Mickens unlawfully delivered methamphetamine in the
straw and in the bag to A.C., and thus, sufficient evidence supports his conviction on both counts.
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C. POSSESSIONS
Next, we consider whether sufficient evidence supports Mickens’s two convictions of
unlawful possession, one of methamphetamine (count III) and one of heroin (count IV).
To convict Mickens of unlawful possession of methamphetamine and heroin, the State
must prove only “the nature of the substance and the fact of possession.” State v. Bradshaw, 152
Wn.2d 528, 538, 98 P.3d 1190 (2004) (referring to the unlawful possession statute as the “mere
possession” statute); see RCW 69.50.4013. There is no minimum amount of a controlled substance
that the State must present to sustain a conviction for unlawful possession of that controlled
substance. State v. Malone, 72 Wn. App. 429, 439, 864 P.2d 990 (1994).
“Possession can be actual or constructive.” State v. Hathaway, 161 Wn. App. 634, 646,
251 P.3d 253 (2011). Actual possession occurs when a defendant has physical custody of the item,
and constructive possession occurs if the defendant has dominion and control over the item. State
v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002). Constructive possession is established when
“the defendant was in dominion and control of either the drugs or the premises on which the drugs
were found.” State v. Callahan, 77 Wn.2d 27, 30-31, 459 P.2d 400 (1969). “Dominion and control
means that “the object may be reduced to actual possession immediately.” Jones, 146 Wn.2d at
333. “If a person has dominion and control over the premises, there is a rebuttable presumption
that the person also has dominion and control over items on the premises.” State v. Summers, 107
Wn. App. 373, 384, 28 P.3d 780, 43 P.3d 526 (2001). We consider the totality of the circumstances
in determining whether the defendant has such dominion and control. State v. Cote, 123 Wn. App.
546, 549, 96 P.3d 410 (2004).
Taken in the light most favorable to the State, while executing the search warrant, the
officers searched a room that had been added to the exterior garage, which had a glass window
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with the name “Rory” written on it. C RP at 34. Inside the room with Mickens’s name on the
door, Brown found a spoon with a “tar-like substance,” drug paraphernalia including a scale with
white residue, and a $20 bill. C RP at 36. The substance on the spoon tested as heroin. The
substance on the scale tested as methamphetamine. A rational jury could find that Mickens
unlawfully possessed methamphetamine and heroin because he had dominion and control over his
room, and thus, sufficient evidence supports his conviction on each count.
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 in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Johanson, P.J.
Sutton, J.
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