State Of Washington, V. Michael Papuzza ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 85826-2-I
Respondent,
v. DIVISION ONE
MICHAEL ANGELO PAPUZZA,
UNPUBLISHED OPINION
Appellant.
CHUNG, J. — Michael Angelo Papuzza appeals his convictions for
possession of methamphetamine with intent to deliver and possession of fentanyl
with intent to deliver. Papuzza argues that he was deprived of his constitutional
right to effective assistance of counsel because his trial counsel failed to move
for a mistrial when a prosecution witness referenced evidence that had
previously been excluded. We hold that there was no constitutional violation and
affirm Papuzza’s conviction.
FACTS
On January 6, 2023, Papuzza was on community custody as a result of a
prior conviction. On that day, Papuzza’s community custody officer (CCO)
Christopher Knight was out in the field when he noticed Papuzza’s vehicle
parked at the Welcome Everett Inn. Knight knew that there was a warrant out for
Papuzza’s arrest for failing two consecutive drug tests and proceeded to
approach Papuzza’s vehicle. As Knight and his partner approached, Papuzza
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exited his vehicle and began to flee down the sidewalk. After Knight called for
backup, he and other officers located Papuzza hiding behind a bush and arrested
him pursuant to the outstanding warrant.
Following his arrest, Knight inquired if Papuzza needed anything from his
vehicle to be taken with him to the jail. Papuzza requested his phone and his
wallet and directed Knight to check for these items in the passenger seat, where
Knight located and retrieved Papuzza’s phone, but not his wallet. Papuzza then
directed Knight to check for his wallet in the center console. Knight asked, “I’m
not going to find anything I shouldn’t find?” and Papuzza answered “no.” Knight
then opened up the console and there discovered Papuzza’s wallet and a bag
containing a “clear, crystalline-like substance” that, based on his training, he
believed to be methamphetamine.
After confirming that Papuzza’s sentence for his prior conviction included
a condition not to possess controlled substances, another CCO authorized a
search of Papuzza’s vehicle. The search yielded numerous suspected fentanyl
pills and various other drug paraphernalia. Knight then sought to search
Papuzza’s phone for additional evidence of violations of his community custody
conditions prohibiting drug usage or possession. Papuzza gave Knight
permission to search his cell phone, wherein Knight found several text messages
from “Lori,” “Vic,” and “Krystale,” which appeared to discuss “blues” 1 and “pills.”
Knight took a photograph of one message from “Lori” to Papuzza that states,
1 CCO Knight testified that “blues” is a colloquial name for fentanyl.
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“Michael, do you have any blues?” However, Knight did not take any other
photographs of the additional messages between Papuzza and “Lori,” “Vic,” or
“Krystale.”
Prior to trial, Papuzza filed a motion to exclude evidence about additional
text messages between “Lori” and Papuzza as well as all text messages between
Papuzza and “Vic” and “Krystale.” Initially, the trial court denied the motion to
exclude, finding that the text messages were not testimonial and that Crawford 2
did not apply. However, Papuzza objected based on the best evidence rule, 3
because the messages were recorded statements, and the rule of completeness,
ER 106, 4 because the messages failed to provide a complete picture of the
conversation. The trial court admitted the message from “Lori” asking “Michael,
do you have any blues?” pursuant to the best evidence rule but excluded all
other testimony about any of the other messages.
At trial, Knight was called to testify about Papuzza’s arrest and the
additional community custody violations. While responding to a question from the
prosecutor about what he found on Papuzza’s phone, Knight stated, “We found
2 In Crawford v. Washington, the U.S. Supreme Court held that the Sixth Amendment
requires that when an unavailable witness makes statements that are testimonial in nature, for
the statements to be admitted, the defendant must have had a prior opportunity to cross-examine
the witness. 541 U.S. 36, 54, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
3 The “best evidence” rule requires the use of an original writing, recording, or photograph
to prove the content of that writing, recording, or photograph. ER 1002. Evidence other than the
original is admissible if all originals are destroyed or lost, cannot be obtained through judicial
process, were under control of the party against whom it was offered and that party was on notice
that it would be required at the hearing and that party failed to produce, or the evidence is about a
collateral matter. ER 1004.
4 ER 106, the rule of “completeness,” provides that when one party introduces a recorded
statement, “an adverse party may require the party at that time to introduce any other part, any
other writing or recorded statement, which ought in fairness to be considered contemporaneously
with it.”
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text messages – numerous text messages with what appeared to be the buying
and selling—” and Papuzza interrupted with an objection. The trial court
dismissed the jurors for recess. Outside the jury’s presence, Papuzza argued
that Knight’s statement about “numerous text messages about the buying and
selling of drugs” was unfairly prejudicial given the trial court’s previous ruling to
exclude any testimony as to the other messages. The prosecutor offered to strike
Knight’s response and to pivot to focus on the admitted text message from “Lori,”
to which Papuzza replied, “I think that is a very appropriate response. It doesn’t
draw too much attention, and gets us right back on track.” The trial court agreed
to strike Knight’s response. Immediately after bringing back the jury, the court
stated that it was sustaining the objection and instructed the jury “to disregard the
officer’s last testimony with regard to text messages.”
There was no other testimony about the excluded messages during the
remainder of the trial. The jury returned a verdict of guilty on both counts of
possession of a controlled substance with intent to manufacture or deliver.
Papuzza timely appeals.
ANALYSIS
Papuzza claims he was denied effective assistance of counsel because
his trial counsel failed to seek a mistrial when the prosecution’s witness
mentioned “numerous text messages” despite the trial court’s prior ruling to
exclude such testimony. Further, he claims that merely striking that testimony
was ineffective to overcome the prejudice it caused.
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I. Ineffective Assistance of Counsel
A criminal defendant has a constitutional right to effective counsel. U.S.
CONST. amend. VI; WASH. CONST. art. 1, § 22. A defendant is deprived of the right
to effective assistance of counsel when (1) counsel’s conduct falls below the
objective standard of care and (2) counsel’s deficient conduct prejudiced the
outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The defendant must prove both prongs of the Strickland test.
State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986).
“Courts engage in a strong presumption counsel’s representation was
effective.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Both
prongs of the Strickland test require the defendant to overcome this strong
presumption. State v. Bertrand, 3 Wn.3d 116, 123, 546 P.3d 1020 (2024). The
court need not consider both deficiency and prejudice if a petitioner fails to prove
one. In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012).
The Strickland test is not applied mechanically but rather with focus on
whether the proceedings were fundamentally fair. Bertrand, 3 Wn.3d at 124. On
appeal, an ineffective assistance of counsel claim is reviewed de novo. State v.
Backemeyer, 5 Wn. App. 2d 841, 848, 428 P.3d 366 (2018).
A. Deficient Performance
Papuzza contends that Knight’s testimony about “numerous text
messages” constitutes a trial irregularity because the jury heard something it
should not have. He further argues that because this irregularity was serious, his
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trial counsel’s failure to move for mistrial based on the testimony constituted
ineffective representation.
To show deficient performance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness in light of all
the circumstances. Strickland, 466 U.S. at 688. Papuzza asserts that “[n]o
reasonable attorney would have failed to move for a mistrial,” because the errant
testimony was “some of the strongest evidence that Papuzza was dealing drugs,
[which was] the only contested issue at trial.” Further, he asserts that there is no
“reasonable strategic basis” for his trial counsel’s failure to move for a mistrial. In
response, the State asserts that Papuzza has not met his burden as to the
performance prong because (1) he has cannot overcome the strong presumption
that counsel was effective when the choice not to move for mistrial was a
legitimate tactical decision and (2) the trial court was in the best position to cure
any trial irregularities and did so by promptly giving a curative instruction.
Usually, “ ‘[d]eficient performance is not shown by matters that go to trial
strategy or tactics.’ ” State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999)
(quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).
Counsel is afforded “wide latitude. . . in making tactical decisions.” Strickland,
466 U.S. at 689. The State argues that whether to move for a mistrial was a
tactical decision that rested with his counsel’s evaluation of the impact the
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statement had on the case. 5 As the State points out, Papuzza’s trial counsel
objected to Knight’s testimony at issue before he completed his answer. This
indicates that counsel recognized there was an error. And significantly, after
objecting, Papuzza’s trial counsel explicitly agreed to the proposed resolution of
striking Knight’s statement and the State’s refocusing its questioning on only the
admitted message, stating, “I think that is a very appropriate response. It doesn’t
draw too much attention, and gets us right back on track.” It was reasonable for
Papuzza’s counsel to decide that because he objected before Knight revealed
any content from the messages, and the trial court promptly instructed the jury to
disregard the testimony, he did not need to move for a mistrial.
Counsel has “wide latitude” to make strategic decisions such as the one
challenged here, agreeing to a curative instruction rather than moving for mistrial.
Strickland, 466 U.S. at 689. Given this latitude, Papuzza fails to overcome the
strong presumption that counsel’s performance was effective.
B. Prejudice
Though Papuzza cannot establish the first Strickland prong, we address
his arguments as to prejudice as an alternative basis for why his claim fails.
Papuzza contends that he was prejudiced by his counsel’s failure to move for
mistrial because the trial court “would have been obligated to grant the motion.”
“ ‘A mistrial should be granted only when the defendant has been so prejudiced
5 The State points to an unpublished case for the proposition that the decision “to move
for a mistrial necessarily is a strategic decision. Defense counsel may not have wanted a mistrial
for various reasons.” In re Pers. Response of Curry, No. 54033-9-II, slip op. at 12 (Wash. Ct. App.
June 15, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2054033-9-
II%20Unpublished%20Opinion.pdf. Under GR 14.1(a), Curry has no precedential value.
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that nothing short of a new trial can insure that defendant will be tried fairly.’ ”
State v. Gaines, 194 Wn. App. 892, 897, 380 P.3d 540 (2016) (quoting State v.
Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979)).
That is hardly the situation here. As the State notes, trial courts have “wide
discretion to cure trial irregularities.” State v. Post, 118 Wn.2d 596, 620, 826 P.2d
172 (1992) (trial court acted within its discretion by denying the defendant’s
motion for a new trial after it issued a curative instruction regarding a singular
improper statement at trial). A court evaluates a trial irregularity’s potential impact
on the jury by looking at (1) the seriousness of the irregularity, (2) the cumulative
nature of the statement amidst other properly admitted evidence, and (3) the
impact a curative instruction would have. State v. Weber, 99 Wn.2d 158, 165-66,
659 P.2d 1102 (1983). Papuzza suggests under the Weber test, the court would
have granted a motion for mistrial had his counsel filed such a motion. We
disagree.
Papuzza compares his case to State v. Escalona, in which we held that
the trial court erred by denying the defendant’s motion for a mistrial. 49 Wn. App.
251, 742 P.2d 190 (1987). Escalona was charged with second degree assault
while armed with a deadly weapon, a knife. The victim violated a pretrial ruling on
a motion in limine by testifying that the defendant “already has a record and had
[previously] stabbed someone.” Id. at 253. There, the court held that the improper
testimony was “extremely serious,” noting that our evidence rules “embody an
express policy against the admission of evidence of prior crimes except in very
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limited circumstances and for limited purposes,” and the reference to Escalona’s
record became “particularly serious” considering the “paucity of credible
evidence” against the defendant. Id. at 255. By contrast, here, Knight’s statement
about the “numerous text messages” did not reveal any of the content of the
messages and was the sole reference to the excluded messages throughout the
whole trial.
Knight’s testimony was not cumulative of properly admitted evidence other
than the message from “Lori.” Papuzza thus argues that it “unfairly added
significant weight to the prosecution’s claims [that] Lori’s message showed
Papuzza was dealing drugs, even though Lori’s message could be interpreted as
a request for [a] shade[] of blue paint or ‘blues’ music.” As to whether the court’s
instruction adequately quelled any prejudice, while “no instruction can ‘remove
the prejudicial impression created [by evidence that] is inherently prejudicial,’ ”
Escalona, 49 Wn. App. at 255 (quoting State v. Miles, 73 Wn.2d 67, 71, 436 P.2d
198 (1968)), here, the evidence at issue was much less prejudicial than the
evidence in Escalona. Given the trial court’s wide discretion to determine that
striking the testimony was sufficient to dispel any potential prejudice, Papuzza
cannot show that his counsel’s failure to seek a mistrial was prejudicial.
Papuzza also asserts that because the trial court took a recess to consider
his counsel’s objection to Knight’s testimony, the jurors had time to consider the
testimony before being told to disregard it, which prejudiced him. But immediately
after the recess, the court instructed the jury to disregard the improper testimony.
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This is unlike the case Papuzza relies on, State v. Gogo, in which the trial court
waited days before addressing improper testimony, during which time four
witnesses testified, so “the improper testimony would have made such an
indelible impression on the jury that no instruction to disregard it could mitigate its
prejudicial effect.” 29 Wn. App. 2d 107, 116, 540 P.3d 150 (2023). Further, in
Gogo, the court did not ultimately provide a curative instruction, but rather,
merely told the jury the testimony at issue was “hindered by” the witness’s
inability to clearly hear the prosecutor’s questions, which was “a reason that an
objective observer would know is false.” Id. at 117. By contrast, here,
immediately after the recess, the court instructed the jury “to disregard the
officer’s last testimony with regard to text messages.” We presume that jurors
follow the court’s instructions. In re Pers. Restraint of Phelps, 190 Wn.2d 155,
172, 410 P.3d 1142 (2018).
The court promptly addressed the objection to Knight’s testimony about
the excluded messages with a curative instruction, so it is unlikely that a motion
for mistrial would have succeeded. Thus, Papuzza fails to overcome the strong
presumption that his counsel’s failure to move for a mistrial caused him
prejudice.
CONCLUSION
Because Papuzza cannot establish either deficient performance or
prejudice, his claim of constitutionally ineffective assistance fails. Affirmed.
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WE CONCUR:
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