FILED
COURT. OF APPEALS
DIVISION II
20140E0 30 : AM 9: 49
STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATE ASHI TON.
OFW
DIVISION II
STATE OF WASHINGTON, No. 45495 -5 -II
Respondent,
v.
KEITH PASCAL WILLIAMS, UNPUBLISHED OPINION
Appellant.
WoRSwICK, J. — Keith Williams appeals his convictions for second degree identity theft
and bail jumping. He argues that he received ineffective assistance of counsel based on his trial
counsel' s stipulation to the presentation of certain evidence. Because Williams' s trial counsel
was not ineffective, we affirm.
FACTS
Pierce County Sheriff s Deputies arrived at a trailer park after midnight as part of an
investigative contact. As they arrived, two men walked around the corner from a neighboring
trailer. Although it was very dark, Deputies Olson and Helligso immediately recognized the men
from previous contacts. One of the men was Williams. Deputy Helligso patted Williams down
and removed a knife from his pocket.
As Helligso removed the knife, a credit card fell out of Williams' s pocket. The credit
card bore the name " Rusty McGuire." 1 Verbatim Report of Proceedings ( VRP) at 25. The
deputies checked police records and discovered that Rusty McGuire had reported the credit card,
with the rest of his wallet, missing the previous day. McGuire reported that the wallet had
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No. 45495 -5 -II
been taken from his work truck. After the card was stolen, it was used on five occasions before
the deputies found it.
The State charged Williams with one count of second degree identity theft and one count
of second degree possession of stolen property. Williams failed to appear for a status conference
court hearing. Williams was then charged with one count of bail jumping.
At a pretrial hearing, the State announced its plan for addressing the fact that the deputies
recognized Williams. The State said that it had discussed this issue with Williams' s counsel.
The State said that the deputies " knew the defendant and the other man from previous contacts
and arrests." 1 VRP at 11. The State further said, " My intent is to advise [ the deputies] not to
mention the arrest part, but I do intend to elicit that they knew the defendant from previous
contacts because that' s how they identified him." 1 VRP at 11. In response, Williams' s trial
counsel acknowledged that he had discussed this plan with the State before, stating, " That' s what
we discussed briefly, Your Honor." 1 VRP at 11. The trial court confirmed that the deputies
would be instructed to not mention Williams' s prior arrests in their testimony as their basis for
recognizing Williams. Williams' s trial counsel did not object to the plan or raise the issue again.
At trial, as agreed by the State and Williams' s trial counsel, the deputies testified about
the previous contacts with Williams and about the circumstances surrounding the identification
and pat -down. Deputies Helligso and Olson both testified that they immediately recognized
Williams. Deputy Olson testified that he " put [ his] flashlight on right away, and [ he] recognized
both of [the men] immediately," indicating that he may have failed to recognize Williams until
he saw him illuminated. 1 VRP at 29. Helligso testified, " We contacted both of the subjects
numerous times prior to that." 1 VRP at 23. Helligso testified that he patted Williams down
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t] o ensure [ Williams] didn' t have any firearms, knives, that type of thing." 1 VRP at 23.
During the pat -down, Williams told Helligso that he had a knife in his pocket. Williams' s trial
counsel did not object to any of this testimony.
In closing, the State reminded the jury that Deputy Helligso had patted down the
defendant " for officer safety, given the fact it was dark at night." 2 VRP at 87. The State also
reminded the jury that the deputies " knew the defendant. He wasn' t Rusty McGuire. The
defendant was Keith Williams. So they knew that
. this card in his possession did not belong to
him." 2 VRP at 87. Williams' s trial counsel did not object.
A jury found Williams guilty of second degree identity theft and bail jumping, and not
guilty of possessing stolen property.
ANALYSIS
I. NO INVITED ERROR
As a threshold issue, the State argues that Williams cannot assert this ineffective
assistance of counsel claim on appeal because he invited the error by stipulating before trial to
how the evidence would be presented. We disagree.
Under the invited error doctrine, a defendant may not make a tactical decision and later
rely on that decision as the basis for reversal. In re Pers. Restraint of Call, 144 Wn.2d 315, 328,
28 P. 3d 709 ( 2001). But the invited error doctrine does not foreclose review of a claim of
ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 861, 215 P. 3d 177 ( 2009); State
v. Studd, 137 Wn.2d 533, 550 -51, 973 P. 2d 1049 ( 1999); State v. Gentry, 125 Wn.2d 570, 647,
888 P. 2d 1105 ( 1995); State v. Bennett, 87 Wn. App. 73, 76, 940 P. 2d 299 ( 1997). That is,
where defense counsel has arguably invited an error and the defendant later challenges that
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decision on ineffective assistance of counsel grounds, it cannot be said that the defendant invited
the error. Gentry, 125 Wn.2d at 647. Thus, the State' s argument fails.
II. No INEFFECTIVE ASSISTANCE OF COUNSEL
Williams argues that he received ineffective assistance of counsel in violation of his
federal and state constitutional rights to counsel. U.S. Const. amend. VI, Const. art. 1§ 22. He
argues that his trial counsel was deficient for failing to object to the State' s proposal to elicit
testimony from the deputies that they recognized Williams from numerous previous contacts,
because this evidence prejudicially suggested a criminal history. We disagree.
A. Standard ofReview
A claim of ineffective assistance of counsel is a mixed question of law and fact that we
review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To show
ineffective assistance of counsel, the appellant must demonstrate both that ( 1) his counsel' s
performance was deficient and ( 2) this deficiency prejudiced his case. Strickland v. Washington,
466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Hendrickson, 129 Wn.2d
61, 77 -78, 917 P. 2d 563 ( 1996); In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P. 3d
610 ( 2001). The appellant' s failure to establish either prong is fatal to an ineffective assistance
of counsel claim. Strickland, 466 U.S. at 700. Additionally, where the appellant claims
ineffective assistance based on his trial counsel' s failure to object, the appellant must also show
that such an objection, if made, would have been successful in order to establish deficient
performance. State v. Gerdts, 136 Wn. App. 720, 727, 150 P. 3d 627 ( 2007).
Counsel' s performance is deficient if, under all the circumstances, it falls below an
objective standard of reasonableness. Fleming, 142 Wn.2d at 865 -66. When reviewing
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deficiency, we strongly presume that counsel was effective. State v. McLean, 178 Wn. App. 236,
247, 313 P. 3d 1181 ( 2013), review denied, 179 Wn.2d 1026 ( 2014). " To rebut this presumption,
the defendant bears the burden of establishing the absence of any ` conceivable legitimate tactic
explaining counsel' s performance. ' State v. Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011)
quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).
B. Williams' s Trial Counsel Was Not Deficient
1. Conceivable Legitimate Tactic
Williams argues that his trial counsel was deficient for failing to object to the State' s
proposal to elicit testimony from the deputies that they recognized Williams from numerous
previous contacts. We disagree, because this was a conceivable legitimate trial tactic, and an
objection to the admission of this evidence would not have been sustained. Grier, 171 Wn.2d at
42.
Here, there was a conceivable legitimate tactic explaining trial counsel' s agreement to the
State' s proposal to elicit testimony from the deputies about recognizing Williams from previous
contacts. The State needed to demonstrate how the deputies recognized Williams quickly
enough to know that the credit card did not belong to him. Williams' s counsel' s agreement to
quickly dispose of the fact that the deputies recognized Williams, using the neutral language of
previous contacts," is a conceivable legitimate trial tactic to minimize the discussion of this
issue, and the tactic is therefore not deficient. Grier, 171 Wn.2d at 42. Neither was it deficient
for counsel to adhere to his agreement with the State not to object at trial when the " previous
contacts" testimony was given, because an objection at that juncture would have highlighted to
the jury the otherwise -minor point that the deputies recognized Williams from previous contacts.
No. 45495 -541
2. Objection Would Not Have Been Sustained
Moreover, an objection to the proposal would likely not have succeeded. Because
Williams points to his counsel' s failure to object as the basis for his claim, he must demonstrate
that such an objection would have succeeded. Gerdts, 136 Wn. App. at 727. Williams
acknowledges that the fact the deputies recognized Williams was " arguably relevant to
demonstrate deputies knew the credit card did not belong to him." Br. of Appellant at 7. He
argues, however, the court would have sustained an objection because the danger of unfair
prejudice substantially outweighed the probative value, given that this evidence revealed that,
having recognized Williams, the deputies were alarmed and immediately frisked him for
weapons. ER 403. We disagree, because the trial court would not have sustained this objection
given the relatively low prejudice and high probative value of the deputies' familiarity with
Williams.
ER 403 provides that the trial court may exclude relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading
the jury, or concerns of judicial economy. Under the rule, trial courts balance the probative
value and potential prejudicial effect of evidence. A trial court would sustain an objection based
on prejudice only if the prejudicial effect substantially outweighs the probative value of the
evidence. Here, the danger of prejudice did not substantially outweigh the probative value.
Williams argues that evidence that the officers recognized him through previous contacts
was highly prejudicial because it strongly suggested criminal propensity. He also argues that this
evidence revealed that the deputies were alarmed and immediately frisked him for weapons. But
framed as " previous contacts," the evidence was not highly prejudicial: while jurors could have
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inferred that the previous contacts were of a criminal nature, they were not required to make such
an inference. It is not so unusual for a local sheriff' s deputy to be familiar with a community
member that the jury would necessarily have assumed Williams had many negative interactions
with law enforcement. And the State elicited no testimony that the officers frisked Williams for
weapons because of knowledge they had gleaned from prior contacts. The State did not elicit,
and the officers did not give, any testimony emphasizing that the deputies only frisk dangerous
people, or that they felt especially threatened by Williams based on the previous contacts.
The evidence was highly probative. The deputies' testimonies about how they quickly
determined the credit card did not belong to Williams only made sense if the jury heard that the
deputies knew who Williams was. Any potential prejudice must substantially outweigh this
probative value for the evidence to be excluded. ER 403. Williams cannot meet his burden to
show that any objection to this evidence would have been sustained.
Because Williams' s trial counsel' s agreement that the State would elicit testimony about
previous " contacts," not " arrests," was a conceivable legitimate trial tactic, and because an
objection to this evidence would not have succeeded, Williams' s trial counsel' s performance did
not fall below an objective standard of reasonableness. Because he cannot show deficient
performance, Williams' s ineffective assistance of counsel claim fails. In re Pers. Restraint of
Crace, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012). We do not reach the question of whether
Williams suffered prejudice to his case. Strickland, 466 U. S. at 700.
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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.
We concur:
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