State v. Vazquez

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 9, 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 9, 2021
ERIN L. LENNON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 98928-1
Respondent, )
)
v. ) En Banc
)
JESSICA L. VAZQUEZ, )
)
Petitioner. ) Filed : September 9, 2021
________________________________________)

MADSEN, J.—Jessica Vazquez was convicted of maintaining a dwelling for

controlled substances, possessing methamphetamine, and possession of drug

paraphernalia. Sarah McFadden, Vazquez’s attorney, objected only once during trial,

which resulted in the jury considering highly prejudicial, inadmissible evidence.

Vazquez claims that the Court of Appeals did not properly evaluate counsel’s

performance and that she was denied effective assistance of counsel. We agree and

reverse Vazquez’s convictions.

BACKGROUND

On October 21, 2017, Jessica Vazquez was arrested at a residence in Clarkston,

Washington. Earlier that morning, police officers executed a search warrant, specifically
No. 98928-1

targeting Vazquez for methamphetamine sales she was allegedly conducting at the

residence. Upon initial entry, the police detained multiple individuals and searched the

area. The officers uncovered two playing-card-deck-sized tins hidden in a pillowcase,

containing $120 in cash and approximately 9.11 grams of methamphetamine. The

officers also found a ledger/binder (pay and owe sheets) that contained names and

amounts paid, about 100 small plastic bags found with the ledger/binder, a police tactical

vest, and multiple fake guns.

While the police were searching, the owner of the house, Justin Patton, arrived.

Patton informed the police that two of the detained individuals—Shawn McLaughlin and

Dale Fitzhugh—resided at the house. McLaughlin informed the police that he was dating

Vazquez and living with her at the residence. The officers continued to search the house,

eventually finding Vazquez and Christine Babbish under the stairwell, behind a false

wall. A record check revealed that Vazquez had a felony narcotics warrant and a

Department of Corrections (DOC) warrant. Police interviewed Babbish, who stated that

she was in the bedroom with Vazquez and another male when police arrived. She

revealed the location of methamphetamine in the pillowcases and stated that Vazquez had

placed the drugs inside the pillowcase when law enforcement arrived.

The Asotin County prosecutor charged Vazquez with three offenses: (1)

maintaining a dwelling for controlled substances under RCW 69.50.402(1)(f), a class C

felony, (2) possessing methamphetamine under RCW 69.50.401(2)(b), a class B felony,

and (3) possession of drug paraphernalia under RCW 69.50.412(1), a misdemeanor.

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No. 98928-1

At trial, the defense’s theory was that law enforcement was “tunnel visioned,”

ignoring other, more culpable individuals who resided at the Clarkston house.

McFadden’s strategy was to paint Vazquez as a drug user, not a drug dealer. Throughout

the entire trial, McFadden objected only once and that was to the admission of a photo

alleged to be of Vazquez, which McFadden had previously agreed was admissible.

The jury found Vazquez guilty of all three charges. Soon after, McFadden was

arrested for driving under the influence (DUI) and possession of cocaine. Prior to

sentencing, the trial court sent a letter to Vazquez that detailed the above event and asked

if Vazquez wished to change attorneys. Vazquez signed paper work allowing McFadden

to continue representing her. The record does not indicate whether Vazquez received

advice of counsel before agreeing to McFadden’s continued representation.

Vazquez appealed her convictions, raising ineffective assistance of counsel,

among other issues. The Court of Appeals affirmed. 1 State v. Vazquez, No. 36365-1-III,

slip op. at 5-6 (Wash. Ct. App. June 11, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/363651_unp.pdf. The court reasoned that

McFadden’s trial strategy “played to those facts—Ms. Vazquez was just another user

1
Vazquez brought various other challenges: the plea agreement, McFadden’s personal issues
with drugs and alcohol, the imposition at sentencing of a criminal filing fee, various drug fines, a
DNA (deoxyribonucleic acid) testing fee, and an HIV (human immunodeficiency virus) testing
fee. State v. Vazquez, No. 36365-1-III, slip op. at 4-7 (Wash. Ct. App. June 11, 2020)
(unpublished), https://www.courts.wa.gov/opinions/pdf/363651_unp.pdf. On the issues
regarding the plea agreement and McFadden’s personal criminal charges, the Court of Appeals
held these issues lacked factual support in the record. Id. at 4-5. On the remaining issues, the
Court of Appeals held that the trial court had erroneously treated the drug fines, crime laboratory
fee, the methamphetamine fee, and the HIV testing as mandatory. Id. at 7. The Court of
Appeals held that the DNA fee was properly imposed but reversed the HIV testing order. Id.

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rather than a dealer” and “Vazquez was a victim of police ‘tunnel vision’ that ignored

more culpable individuals.” Id. at 6. The court did not assess each instance in which

Vazquez contended her attorney was deficient. Instead, the court dealt with the claimed

deficiencies in the aggregate. In a very brief discussion, the Court of Appeals concluded

that, while some of the evidence to which counsel failed to object was likely

inadmissible, the inadmissible evidence furthered the defense theory and the lack of

objection was part of counsel’s strategy. From this analysis, the court concluded that

Vazquez did not establish McFadden’s performance was deficient or that her trial was

unfair because of McFadden’s mistakes. Vazquez moved for reconsideration, which the

Court of Appeals denied. She then petitioned this court for review. We granted review

only on the issue of whether McFadden’s performance violated Vazquez’s right to

effective assistance of counsel. State v. Vazquez, 196 Wn.2d 1024 (2020).

ANALYSIS

Both the United States and Washington Constitutions guarantee a criminal

defendant the right to effective assistance of counsel. See State v. Lopez, 190 Wn.2d 104,

115, 410 P.3d 1117 (2018); see also U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.

Courts indulge a strong presumption that the counsel is effective. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). “To demonstrate ineffective assistance

of counsel, a defendant must make two showings: (1) defense counsel’s representation

was deficient, i.e., it fell below an objective standard of reasonableness based on

consideration of all the circumstances; and (2) defense counsel’s deficient representation

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No. 98928-1

prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.; see

also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. A reasonable probability is lower than a

preponderance standard. State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017)

(citing Strickland, 466 U.S. at 694).

The defendant has the burden to show that defense counsel’s performance was

deficient based on the trial court record. McFarland, 127 Wn.2d at 335. Specifically,

“the defendant must show in the record the absence of legitimate strategic or tactical

reasons supporting the challenged conduct by counsel.” Id. at 336; see also State v.

Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). A classic example of trial tactics is

when and how an attorney makes the decision to object during trial testimony. State v.

Madison, 53 Wn. App. 754, 762-63, 770 P.2d 662 (1989). Defense “[c]ounsel engages in

. . . legitimate trial tactic[s] when forgoing an objection in circumstances when counsel

wishes to avoid highlighting certain evidence.” State v. Crow, 8 Wn. App. 2d 480, 508,

438 P.3d 541, review denied, 193 Wn.2d 1038 (2019) (citing In re Pers. Restraint of

Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004)).

If a defendant centers their claim of ineffective assistance of counsel on their

attorney’s failure to object, then “the defendant must show that the objection would likely

have succeeded.” Id. “Only in egregious circumstances, on testimony central to the

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No. 98928-1

State’s case, will the failure to object constitute incompetence of counsel justifying

reversal.” Id. However, if defense counsel fails to object to inadmissible evidence, then

they have performed deficiently, and reversal is required if the defendant can show the

result would likely have been different without the inadmissible evidence. Id. at 508-09.

“‘[C]laims of ineffective assistance of counsel present mixed questions of law and fact’”

and are reviewed de novo. Lopez, 190 Wn.2d at 116, 117 (alteration in original) (quoting

In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)).

Vazquez asserts that McFadden’s lack of objections during trial plainly

demonstrate inadequate representation. Vazquez points to several instances during trial

of inadmissible evidence being admitted without objection and argues this lack of

objections is unlikely to be the product of a reasoned strategy.

Representation of a criminal defendant carries “certain basic duties.” Strickland,

466 U.S. at 688. These duties include assisting the defendant, advocating for the

defendant’s cause, and utilizing “such skill and knowledge as will render the trial a

reliable adversarial testing process.” Id. (citing Powell v. Alabama, 287 U.S. 45, 68-69,

53 S. Ct. 55, 77 L. Ed. 158 (1932)). This court has recognized standards of effective

defense attorneys. State v. A.N.J., 168 Wn.2d 91, 110, 225 P.3d 956 (2010) (“[W]hile not

binding, relevant standards are often useful to courts in evaluating things like effective

assistance of counsel.”). Importantly, these duties are not a checklist for judicial

evaluation of performance, however, and in considering an ineffectiveness claim, courts

may look to prevailing norms and expectations of attorneys as guides to determine what

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No. 98928-1

is reasonable. Strickland, 466 U.S. at 688 (referencing, as such a guide, the ABA

Standards for Criminal Justice (2d ed. 1980)); see also A.N.J., 168 Wn.2d at 109-10.

The ABA Standards expect that a defense attorney will take steps necessary to ensure a

clear and complete trial record, including making objections; will develop, in

consultation with the defendant, a defense strategy that includes a theory of the case; as

well as will know the rules of evidence. ABA, Criminal Justice Standards for the

Defense Function stds. 4-1.5, 4-3.7, 4-7.6 (2017).

Because it is Vazquez’s burden to demonstrate ineffective assistance of counsel

and due to the nature of her claim, we engage in an extensive review of the trial record to

determine whether McFadden’s failure to object, in each instance identified by Vazquez,

constitutes legitimate trial tactics. See Davis, 152 Wn.2d at 673 (noting the requirement

of an individualized inquiry into defense counsel’s performance when considering an

ineffective assistance of counsel claim).

A few or even several failures to object are not usually cause for finding that an

attorney’s conduct has fallen below the objective standard of conduct. E.g., State v.

Strange, 188 Wn. App. 679, 688-91, 354 P.3d 917 (2015) (holding that trial counsel’s

decision not to object was a legitimate trial tactic even if a witness’s statements were

irrelevant or improper opinion testimony); State v. McLean, 178 Wn. App. 236, 247-48,

313 P.3d 1181 (2013) (holding that withholding an objection constituted a legitimate trial

tactic seeking to avoid emphasizing inadmissible evidence of past alcohol intoxication

and arrest in the course of a DUI trial). In this case, however, given the evidence that

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No. 98928-1

would have been excluded, coupled with the effect of the evidence on the jury’s decision,

McFadden’s failure to object to prior convictions, threats to witnesses, hearsay statements

regarding Vazquez’s alleged drug sales, and police profile testimony as it relates to the

tactical vest, fell below the objective standard of reasonableness and resulted in prejudice

to Vazquez as explained below. Strickland, 466 U.S. at 688-89.

I. Prior Criminal Convictions

Vazquez’s first claim relates to her attorney’s failure to object to the admission of

several prior convictions, including two counts of methamphetamine delivery, escape

from community custody, and possession of methamphetamine. 2

On direct examination, McFadden asked Vazquez to explain the events of

October 21, 2017. Vazquez testified that she was lying in bed, waiting for Sarah Cannis

to return with food, when she heard on the police scanner that Cannis had been pulled

over and arrested. She heard a “crowd of people walking across the gravel” on the

surveillance scanner in her room. Tr. of Proceedings (TP) (Sept. 7, 2018) at 241. When

Vazquez heard the police were at the door, she grabbed her clothing and hid due to her

outstanding arrest warrant—she had not checked in with DOC, and she feared she would

be sent to prison or that her drug offender sentencing alternative (DOSA) would be

revoked.

McFadden asked if the drugs found in the pillowcase belonged to Vazquez, and

Vazquez answered that if she was in possession of drugs, “especially if it was in a

2
Vazquez also had convictions for theft and forgery, and she does not challenge admission of
these prior convictions.

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No. 98928-1

pillowcase right underneath [her] bed,” Vazquez would have taken the pillowcase rather

than her pants in order to hide the drugs. Id. at 242.

On cross-examination, Vazquez and the prosecutor had the following

exchange:

[PROSECUTOR]: You have some criminal history, don’t you, Ms.
Vazquez?
[VAZQUEZ]: I have a very lengthy criminal history, sir.
[PROSECUTOR]: Starting with Theft in the 2nd Degree and
Forgery in 2011 out of Walla Walla?
[VAZQUEZ]: Yes.
[PROSECUTOR]: Since you mentioned lengthy, Delivery of
Controlled Substance, two Counts, in 2014 here in Asotin County?
[VAZQUEZ]: Yes.
[PROSECUTOR]: Escape from Community Custody in 2015.
That’s not reporting to your probation officers, right?
[VAZQUEZ]: Yes. I didn’t try to—don’t think—I did not try to
escape a jail. I didn’t turn in—I didn’t check in to my CO [(community
custody officer)].
[PROSECUTOR]: And then Possession of Methamphetamine out of
Garfield County.
[VAZQUEZ]: Yes, that was actually paraphernalia, but.
[PROSECUTOR]: And that was the charge—that was the case that
you were on your DOSA you said and you didn’t report and had a warrant
out from DOC?
[VAZQUEZ]: Yes. That was the Narcotics Warrant that was put
out. It was because I had a narcotics charge and so that makes it a
Narcotics Warrant when you don’t check in with your DOC officer.

Id. at 255-56. McFadden did not object. On redirect, McFadden tried twice to ask

Vazquez about her criminal convictions: “We heard [the prosecutor] read off your

criminal history. On the convictions that we just heard, did you take those to a jury trial

or did you plead to those?” and “[w]ould you admit that you’re guilty of the crimes that

were just listed?” Id. at 257. Both times the prosecutor objected to relevance.

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No. 98928-1

A. ER 609 and the “Open Door” Doctrine

Generally speaking, “[e]vidence of prior felony convictions is . . . inadmissible

against a defendant because it is not relevant to the question of guilt yet very prejudicial,

as it may lead the jury to believe the defendant has a propensity to commit crimes.” State

v. Hardy, 133 Wn.2d 701, 706, 946 P.2d 1175 (1997). This is especially so in cases

where “the defendant is the witness because it tends to shift the jury focus ‘from the

merits of the charge to the defendant’s general propensity for criminality.’” Id. at 710

(quoting State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984), overruled in part on

other grounds by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989)). “[I]f the jury

learns that a defendant previously has been convicted of a crime, the probability of

conviction increases dramatically.” Id. at 710-11 (citing Alan D. Hornstein, Between

Rock and a Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42

VILL. L. REV. 1 (1997)).

ER 609 functions as a “narrow exception to this rule against admitting evidence of

prior convictions.” Id. at 706. The court has discretion to admit ER 609(a)(1) felonies if

the court determines that the probative value outweighs the prejudice. State v. Wilson, 83

Wn. App. 546, 549, 922 P.2d 188 (1996). Pursuant to ER 609(a)(1), “the sole purpose of

impeachment evidence is to enlighten the jury with respect to the defendant’s credibility

as a witness.” Jones, 101 Wn.2d at 118. “If the prior conviction is probative of veracity

under ER 609(a)(1) the court must still assess prejudicial effect.” Hardy, 133 Wn.2d at

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710. Under ER 609(a)(2), “[d]rug convictions are not crimes of ‘dishonesty or false

statement’ like perjury or criminal fraud.” Id. at 707.

Vazquez argues that McFadden’s failure to object to questions about her criminal

history was deficient because an objection would have been sustained. The State appears

to concede that such an objection would have been sustained and, instead, argues that

Vazquez opened the door by the exchange above or that her attorney’s lack of objection

was strategic. Vazquez responds that a passing, general reference to an issue before the

court does not open the door. Specifically, she alleges that the State introduced the

subject of her prior convictions during cross-examination by asking a broad question.

Under the “open door” doctrine

[a] party may introduce inadmissible evidence if the opposing party has no
objection or may choose to introduce evidence that would be inadmissible
if offered by the opposing party. . . . [T]he introduction of inadmissible
evidence is often said to “open the door” both to cross-examination that
would normally be improper and to the introduction of normally
inadmissible evidence to explain or contradict the initial evidence.

5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §

103.14, at 65 (6th ed. 2016).

Vazquez testified on direct examination that she hid during the search of the house

because she had an outstanding warrant. This testimony did not “open the door” to the

particulars of her prior convictions.

Nor did Vazquez place her character in evidence. Generally, questions regarding

prior drug sales are not admissible unless the defendant testifies about a character trait.

State v. Avendano-Lopez, 79 Wn. App. 706, 716, 904 P.2d 324 (1995). In Avendano-

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Lopez, the defendant was charged with cocaine possession with intent to deliver and was

questioned at trial about past drug use and sales activities. Id. at 708. Upon conviction,

the defendant appealed and argued the questions about prior drug use constituted

prosecutorial misconduct. Id. at 713. The Court of Appeals concluded that the defendant

did not “open the door” because he did not put his character at issue. Id. at 716. The

court reasoned that the questions were improper and irrelevant, “whether or not [the

defendant] had previously sold narcotics had no legitimate bearing on whether, on the

date in question, he possessed with intent to deliver.” Id. at 713.

Like the prosecutor in Avendano-Lopez, the prosecutor in this case asked Vazquez

a broad question about her criminal history. Vazquez gave a broad answer, and the

prosecutor took advantage of that answer by asking about her prior drug convictions.

Vazquez’s answer that she had extensive criminal history did not open the door because,

again similar to Avendano-Lopez, Vazquez’s previous drug convictions had no relevance

to the charged crimes.

The State also argues that McFadden had a clear strategy to use Vazquez’s

convictions during her redirect examination. Specifically, the State suggests McFadden’s

questions were intended to show Vazquez accepted responsibility for crimes she

committed.

Even if McFadden’s strategy was to portray Vazquez, not as a drug seller but,

instead, as a low-level drug user who takes responsibility when she is guilty, failing to

object to Vazquez’s prior convictions was not a reasonable decision. See Davis, 152

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No. 98928-1

Wn.2d at 672-73. First, prior instances of selling drugs are inadmissible and highly

prejudicial when a person is charged with similar or the same drug violations. Second,

evidence that Vazquez had been convicted of possession with intent to deliver was

contrary to the picture of a low-level drug user that counsel was trying to paint. Finally,

the State objected to McFadden’s questions regarding whether Vazquez pleaded guilty to

the charges on the basis of relevance and the objections were sustained, a ruling which

McFadden should have expected. As courts have recognized, failure to object to

inadmissible evidence is unlikely to be part of a reasonable strategy, particularly when

the inadmissible evidence is highly prejudicial. Roe v. Flores-Ortega, 528 U.S. 470, 481,

120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) (“The relevant question is not whether

counsel’s choices were strategic, but whether they were reasonable.”).

B. ER 404(b)

Next, Vazquez asserts that McFadden’s conduct fell below accepted standards of

representation when she failed to object to the State’s questions on redirect of Christine

Babbish.

During redirect, the prosecutor asked Babbish,

[PROSECUTOR]: . . . You were aware that Ms. Vazquez was—had
been selling, even if it’s small amounts—you were aware that she’d been
selling meth?
[BABBISH]: I knew she was using because that’s—we can always
count on that. I mean, for the both of us, but I—yeah.
[PROSECUTOR]: In that interview that I spoke of earlier, the
recorded interview.
[BABBISH]: Mm-hmm (affirmative).

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No. 98928-1

[PROSECUTOR]: You told us that she had been—you were aware
that she had been selling, she just wasn’t selling as much as everybody
thought?
[BABBISH]: Now you’re going to twist my words. I think the exact
words were hopefully, that’s exactly—I think almost exact was Jessie
Vazquez has never been a big drug dealer like you all think she is. Has she
sold drugs? Yes.
[PROSECUTOR]: No further questions.

TP (Sept. 6, 2018) at 162-63.

Vazquez asserts the State’s questions were improper propensity evidence under

ER 404(b). The purpose of ER 404(b) is to “prohibit the State from attempting to use

evidence of bad acts in order to prove the propensity of the defendant to commit the same

type of bad act.” State v. Trickler, 106 Wn. App. 727, 734, 25 P.3d 445 (2001). Vazquez

maintains that the State’s questions had no limits as to time or place and were

inadmissible propensity evidence and also that McFadden should have objected.

The State contends that Babbish’s testimony regarding Vazquez’s drug activities

was admissible to show intent and plan under ER 404(b). See State v. Thomas, 68 Wn.

App. 268, 272-73, 843 P.2d 540 (1992). The evidence presented is both relevant to the

“month and a half leading up to the search warrant” and “to the charge of Maintaining a

Drug Dwelling.” Br. of Resp’t at 18 (Wash. Ct. App. No. 36365-1-III (2019)). Thus, the

State argues, McFadden was not ineffective for failing to object to admissible testimony.

Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith.” See

also Trickler, 106 Wn. App. at 732 (“such evidence may be admissible for other

purposes, including intent, knowledge, or absence of mistake”). A court admits this type

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No. 98928-1

of evidence “only if it meets two distinct criteria.” State v. Saltarelli, 98 Wn.2d 358, 362,

655 P.2d 697 (1982). First, the evidence must be shown to be logically relevant to a

material issue. Id. To determine this, courts ask “‘whether the evidence as to other

offenses is relevant and necessary to prove an essential ingredient of the crime charged.’”

Id. (quoting State v. Goebel, 40 Wn.2d 18, 21, 240 P.2d 251 (1952), overruled in part on

other grounds by State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995)). Second,

provided the evidence is relevant, its probative value must be shown to outweigh its

potential for prejudice. Id.

To be logically relevant, the identified fact for which the evidence is to be

admitted is “‘of consequence to the outcome of the action’ and tends to make the

existence of the identified fact more or less probable.” Thomas, 68 Wn. App. at

273 (quoting Saltarelli, 98 Wn.2d at 362-63). “Evidence is legally relevant if its

probative value outweighs its prejudicial effect under ER 403.” Id. (citing

Saltarelli, 98 Wn.2d at 363). Irrespective of logical and legal relevance, evidence

may not be admitted merely “to prove the character of the accused in order to

show that he or she acted in conformity with it.” Id. (citing Saltarelli, 98 Wn.2d at

362).

In Thomas, the defendant appealed his controlled substance conviction under ER

404(b). Id. at 269-70. Thomas argued that the admission of police officers’ testimony

that they had seen what appeared to be Thomas selling drugs in three separate incidents

constituted propensity evidence. The Court of Appeals disagreed, reasoning that the

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No. 98928-1

officers’ testimony logically related to the material issue of what Thomas intended to do

with the cocaine he possessed. Id. at 273. The court held that while the officers’

testimony was prejudicial, it was not unfairly prejudicial and its probative value

outweighed the prejudicial effect. Accordingly, no ER 404(b) violation occurred. Id. at

274.

Unlike the defendant in Thomas, where officers had seen Thomas allegedly selling

drugs on three separate occasions, in this case Babbish did not testify she had witnessed

Vazquez selling drugs, when and where the alleged sales had been made, or whether the

sales were connected to the house where Vazquez was found. Contrary to the State’s

assertion, this testimony did not provide any information about the time leading up to the

warrant because Babbish did not mention any dates, times, or details about the sales.

Absent any connection to the charges here, this testimony was intended only to show

Vazquez had the propensity to sell drugs. See ER 404(b).

Furthermore, before admitting evidence that the defendant committed bad acts

constituting crimes other than the acts charged, a trial court must, among other things,

“find by a preponderance of the evidence that the uncharged acts probably occurred

before admitting the evidence.” State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974

(2002) (citing State v. Pirtle, 127 Wn.2d 628, 649, 904 P.2d 245 (1995)). McFadden did

not object to Babbish’s testimony that Vazquez had sold drugs in the past, and Babbish

offered no information demonstrating the acts “probably occurred,” such as times, dates,

or locations of the alleged drug sales. See id. Indeed, Babbish offered no information at

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No. 98928-1

all on the claimed sales except that they occurred. Based on such scant detail, the

testimony would not meet even the preponderance of evidence requirement to have

probably occurred, and it instead allowed a jury to make the prohibited inference that

“‘once a drug dealer, always a drug dealer.’” United States v. Hicks, 635 F.3d 1063,

1070 (7th Cir. 2011).

In addition, the failure to object to inadmissible evidence was not a reasonable trial

strategy. Assuming McFadden’s strategy was to portray Vazquez as a drug user, not a

seller, these statements were counter to that strategy.

II. Threats to Witnesses

In the State’s direct examination of Babbish and Fitzhugh, the State asked both

parties if they were unwilling to testify or had modified their testimony because of

threats. Neither witness testified that Vazquez had threatened them, but each said they

were threatened. Relying on State v. Bourgeois, 133 Wn.2d 389, 945 P.2d 1120 (1997),

Vazquez contends the State questioned Babbish and Fitzhugh about threats in order to

prejudice the jury, which succeeded because that testimony caused the jury to worry

about its own well-being. She contends that McFadden had no strategic reason for failing

to object to testimony that bolstered the witnesses’ credibility and painted Vazquez as a

dangerous and violent person who is guilty of the charged offenses.

The State contends that this line of questioning occurred only after the witnesses

made numerous statements that were inconsistent with their earlier statements. The State

claims that it properly impeached the witnesses because of their prior inconsistent

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statements and that after the witnesses had been impeached, it was necessary for the State

to rehabilitate the witnesses’ credibility. The State argues that evidence of threats against

a witness is proper to show motive for recantation.

In his closing arguments, the prosecutor referred to the testimony of both Babbish

and Fitzhugh, making two statements: “But there was also bias—Mr. Fitzhugh and Ms.

Babbish, right? They’re concerned. They have concern for themselves because of

threats that have been made. So you consider that in assessing their credibility, in

assessing their story” and “[t]he drugs aren’t hers. Why are two of the witnesses—why

are they in fear when they testify?” TP (Sept. 7, 2018) at 274, 300.

After the jury delivered its verdict, one of the jurors asked the trial court about jury

safety, noting that some of the witnesses were threatened and that jurors wanted to ensure

everyone could feel safe and what the response would be if someone was threatened.

Witness testimony regarding their fear may be sufficient to warrant a new trial.

“‘The general common-law rule is that the proponent may not bolster the witness’s

credibility before any attempted impeachment.’” Bourgeois, 133 Wn.2d at 400-01

(quoting EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS 86 (2d ed. 1989)).

In Bourgeois, the issue was whether the trial court had committed reversible error

by allowing the State to adduce on direct examination of its witnesses that they were

afraid to testify. Id. at 393. One of the court’s instructions to the jury advised:

“Evidence has been introduced in this case on the subject of the
alleged willingness of a witness to testify, including, but not limited to, the
alleged fear of the witness. This evidence has been admitted for the limited

18
No. 98928-1

purpose of assessing the credibility of a witness. You must not consider
this evidence for any other purpose.”

Id. at 396.

As Bourgeois held, it is error to allow the State to bolster the witness testimony by

introducing evidence of threats, imparting to the jury that the witnesses overcame their

fear to come to court and testify when the witnesses’ credibility had not been attacked.

As the court stated, “‘[I]n the absence of an attack upon credibility[,] no sustaining

evidence is allowed.’” Id. at 400 (second alteration in original) (quoting 1 MCCORMICK

ON EVIDENCE § 47, at 172 (John W. Strong ed., 4th ed. 1992)). As in Bourgeois, the

witnesses’ credibility in this case had not been attacked. Instead, the State attempted to

impeach its own witnesses and then bolster their testimony by demonstrating that despite

their fear, the witnesses were willing to testify. This was error. But, even if the evidence

of threats could be viewed as proper impeachment evidence, because McFadden did not

object, the court did not mitigate the damage from the witness testimony by giving a

limiting instruction.

Bourgeois also held the trial court erred in permitting the testimony of threats

because evidence that a defendant threatened a witness may be admissible to imply the

defendant’s guilt. Id. The court recognized that this sort of testimony may have “bearing

on a juror’s evaluation of that witness’s credibility,” but the “evidence might also have

another effect. It could lead the jurors to conclude that the witness is fearful of the

defendant.” Id. The court noted that testimony of threats is generally viewed as evidence

of guilt. The court reasoned that because a connection between Bourgeois and the

19
No. 98928-1

defendant had not been established, the fear of the witnesses should not have been

admitted. Similar to Bourgeois, the witnesses in this case testified to receiving threats

from an unknown entity. And, as in Bourgeois, the jury was left to conclude that the

defendant was a dangerous person.

McFadden’s failure to object to the testimony regarding threats was not

reasonable, nor did it advance her trial strategy.

III. Hearsay Evidence

Vazquez next argues that McFadden provided ineffective representation when she

failed to object to hearsay statements testified to by the police officers. Officers testified

that their “sources” told them Vazquez both was a known drug seller who spent her time

with “well-known drug users/abusers” and was living in the basement of the Clarkston

house and selling methamphetamine. TP (Sept. 6, 2018) at 97, 212.

Officer Daniel Vargas, one of the police officers who had conducted the search of

the Clarkston residence, testified that during a traffic stop, he learned that Vazquez was at

the house selling narcotics from her room. He testified that another officer, Detective

Colby Martin, found the methamphetamine in Vazquez’s pillowcase based on a statement

from Babbish regarding the location of the drugs. On cross-examination, McFadden

asked Martin how he had determined the bedroom belonged to Vazquez. Without

identifying his source, he testified that “[the police had] been told by cooperating sources

that Ms. Vazquez was living downstairs in the residence.” Id. at 212. On Martin’s

redirect examination, he restated that prior to the execution of the warrant, more than one

20
No. 98928-1

source had told him Vazquez was living in the basement of the house and selling

methamphetamine.

In the State’s closing argument, the prosecutor tied Vargas’s and Martin’s

statements together. The prosecutor mentioned that Cannis had also provided this same

information to the police officers. The prosecutor stated,

She said there were drugs for sale in the house and what did the officers
find? They found the Defendant in the basement where they were told they
would find her, in a bedroom where they found her bedroom [sic]. And
they found the methamphetamine for sale. Everything the officers were
told they would find, they found.

Id. at 297-98.

The State argues that McFadden made a strategic decision to not object to this

testimony because it fit the theme presented at trial: that the police focused on Vazquez

and ignored other potential suspects. The State contends that when McFadden cross-

examined Vargas based on his knowledge, it allowed her to show that most of his

information came from Babbish and Fitzhugh.

Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER

801(c). The confrontation clause and hearsay evidence go hand-in-hand. The

confrontation clause prohibits the admission of testimonial hearsay unless the defendant

has the opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S.

36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). “A statement is testimonial if a

reasonable person in the declarant’s position would anticipate that his statement would be

21
No. 98928-1

used against the accused in investigating or prosecuting a crime.” State v. Hendrickson,

138 Wn. App. 827, 833, 158 P.3d 1257 (2007) (citing State v. Shafer, 156 Wn.2d 381,

389, 128 P.3d 87, cert. denied, 549 U.S. 1019, 127 S. Ct. 553, 166 L. Ed. 2d 409 (2006)).

When a defendant does not have the opportunity to confront a witness, testimonial

hearsay is barred. In Hendrickson, the defendant argued his identity theft charge should

be reversed, claiming ineffective assistance of counsel. 138 Wn. App. at 831.

Hendrickson’s attorney did not object to a criminal investigator’s testimony that the

victim had lost his Social Security card and “no one had permission to use it.” Id.

Although the State asserted that the criminal investigator’s testimony fit under an

exception to the hearsay rule, the court found the investigator’s statements were

testimonial because he was a government agent conducting a criminal investigation.

Moreover, because Hendrickson did not have the opportunity to cross-examine the

victim since the victim did not testify, the court concluded the criminal investigator’s

testimony was inadmissible hearsay and barred under Crawford. Id. at 833.

Additionally, the attorney’s failure to object to this testimony was a critical error because

this testimony was the only evidence that connected Hendrickson to the identify theft

charge. The court held that there was no tactical reason for Hendrickson’s counsel to not

object and that as a result, there was a reasonable probability that “without this evidence

Hendrickson would have been acquitted on this charge.” Id. The Court of Appeals

reversed the conviction.

22
No. 98928-1

The present case bears a striking similarity to Hendrickson. Here, McFadden did

not object to the police testimony that unnamed sources told the police that Vazquez was

selling methamphetamine from the Clarkston house. These statements were hearsay:

they were offered to prove that Vazquez sold methamphetamine and they violated

Vazquez’s confrontation right because the sources of the statements, except Cannis, were

not identified and they (including Cannis) did not testify. Because this evidence was

inadmissible, McFadden unreasonably failed to object. Worse, Vazquez argues,

McFadden repeated these points during her cross-examination of Vargas, which only

emphasized this inadmissible testimony. Nor was there a reasonable strategy in failing to

object to inadmissible evidence. If McFadden’s trial theory was to downplay her client’s

involvement with drugs as only a drug user, testimony about her client selling drugs did

not further that strategy.

On direct examination, Vargas testified about the purpose for a tactical vest found

in the bedroom allegedly belonging to Vazquez. Explaining that “if someone has

narcotics in a certain house and you want them [sic] narcotics, you can go take them.

And a lot of times in the bigger cities . . . [t]hey dress and act like police—well, they

came in here with vests and they came in here with—and that’s how that works.” TP

(Sept. 6, 2018) at 128, 129.

Relying on Crow, Vazquez contends that this testimony amounted to profile

evidence and that counsel’s failure to object to inadmissible, prejudicial testimony when

“the objection would likely have succeeded,” is deficient. 8 Wn. App. 2d at 508.

23
No. 98928-1

Generally, “‘profile’ testimony identifies [a person as a member of] a group . . .

more likely to commit a crime.” Avendano-Lopez, 79 Wn. App. at 710. Profile evidence

has the tendency to suggest that “a defendant possesses one or more behavioral

characteristics typically displayed by another person engaged in crime.” Crow, 8 Wn.

App. 2d at 495. By using profile evidence, the State attempts to convict the defendant on

evidence “beyond the individual circumstances of the case and on one or more traits the

accused possesses in common with others who purportedly commit the same crime.” Id.

“[P]rofile testimony implicates at least four rules. First, profile testimony may

lack any relevance [and violate] ER 402.” Id. “Second, such evidence, though relevant,

may unduly prejudice the accused or confuse the jury and . . . violate ER 403.” Id. at

495-96. “Third, the evidence may constitute impermissible character evidence under ER

404(a) because the profile emphasizes a trait of the accused. Fourth, law enforcement

officers typically present profile evidence to bolster a conclusion about the defendant

when listing characteristics that, in the opinion of law enforcement officers, are typical of

a person engaged in a specific illegal activity.” Id. at 496 (citing United States v.

Robinson, 978 F.2d 1554, 1563 (10th Cir. 1992)). “Since most profile testimony

emanates from professional witnesses and may lack a scientific or other supportive basis,

the evidence may constitute inadmissible expert testimony that conflicts with ER 702.”

Id. Washington most commonly follows the view that “precludes profile testimony

because of its relative lack of probative value when compared to the danger of its unfair

prejudice.” Id. at 497 (citing Avendano-Lopez, 79 Wn. App. at 710-11).

24
No. 98928-1

There is a thin line between impermissible profile evidence and permissible expert

testimony. For example, in Avendano-Lopez, an officer testified about the traits of a

typical drug dealer. 79 Wn. App. at 710. Avendano-Lopez argued on appeal that the

officer’s testimony was more prejudicial than probative and that as a result, his

conviction should be reversed. Id. The court held the officer’s opinion was permissible

expert opinion because it “did not identify any group as being more likely to commit drug

offenses” and “it explained the arcane world of drug dealing and certain drug

transactions” that was helpful to the jury. Id. at 711. Furthermore, the court reasoned

that because Avendano-Lopez’s attorney used the officer’s testimony to his advantage by

distinguishing Avendano-Lopez from typical drug dealers through his cross-examination

of the officer, he could not argue that the officer’s testimony was prejudicial error. Id.

In contrast, in Crow, an officer testified that the defendant was in possession of a

gun when he was arrested. 8 Wn. App. 2d at 501. The State then leveraged this officer’s

testimony to connect it to “expert police officer testimony that the majority of

disqualified persons apprehended with a firearm have a stolen firearm.” Id. at 501-02.

The State also used Crow’s behavior during the arrest to bolster expert testimony “that

most or a high percentage of firearms in the hands of a disqualified person are stolen

firearms.” Id. at 502. The Court of Appeals concluded the State had attempted to convict

Crow through using characteristics of guilty people. Id. The State used the testimony of

the officer and expert testimony as substantive evidence through its closing argument,

which likely affected the jury’s decision to convict Crow. Id. Crow, distinguishing itself

25
No. 98928-1

from Avendano-Lopez, concluded that “[t]he State should not be free to present profile

testimony in the guise of background evidence.” Id. at 503.

On the issue of ineffective assistance of counsel, the State, in Crow, argued that

defense counsel had strategically chosen to not object when an officer testified about his

knowledge of whether Crow knew the firearm was stolen to emphasize the State’s lack of

evidence. Id. at 509. The court disagreed and concluded no reasonable trial strategy

explained why counsel had failed to object to profile evidence. It reasoned that the

officer’s testimony presented additional proof that Crow should have known the gun to

be stolen. It held that counsel’s actions were unreasonable. Id. at 510.

The State asserts that because McFadden’s decision not to object was a legitimate

trial strategy, Crow and the present case are distinguishable. According to the State, the

difference between testimony in Crow and the testimony in this case is significant

because the Crow defendant had been charged with possession of a stolen gun and the

officers had provided improper profile testimony. Specifically, the officers in that case

improperly testified that the majority of people who had access to guns “while not having

the right to do so possess[ed] stolen firearms.” Suppl. Br. of Resp’t at 14-15 n.5; see also

Crow, 8 Wn. App. 2d at 501-02.

In our view, this case is closer to Crow. As in Crow, Vargas’s testimony about the

tactical vest was not limited to background evidence. The State presented the testimony

of Vargas, Martin, and Babbish to connect Vazquez to the room where she was allegedly

selling methamphetamine and where the vest was found. The State then linked this

26
No. 98928-1

evidence with Vargas’s testimony to show the purpose of the vest was to burglarize and

steal narcotics. This testimony did not relate to the common behavior of individuals

selling drugs, such as the presence of scales, cash, guns, and ledgers might. Rather, it

was offered to demonstrate that people who possess such vests are generally using the

vests to commit burglary and to steal drugs. Vazquez was not charged with burglary or

theft of narcotics, and this evidence was not relevant to the charges against Vazquez and

was highly prejudicial.

McFadden should have objected to this testimony because it was highly

prejudicial, was irrelevant to any issue in the case, and is impermissible profile evidence.

The purpose of the police vest was not at issue and did not make the “determination of

the action more probable or less probable than it would be without the evidence.” ER

401.

IV. Prejudice

The State contends that even if some of McFadden’s objections to some of the

evidence would have been successful, Vazquez does not show she was prejudiced by the

deficient conduct, that is, a reasonable probability that McFadden’s objections would

have changed the result of Vazquez’s guilty verdict. Estes, 188 Wn.2d at 458; see also

Strickland, 466 U.S. at 696.

Based on the charges, the State was required to prove that Vazquez controlled and

intended to sell the methamphetamine that was found in the pillowcase, that she

controlled the dwelling where drugs were being sold, and that drug paraphernalia found

27
No. 98928-1

in the home belonged to Vazquez. Vazquez points to the following evidence to

demonstrate the weakness of the State’s case: (1) Fitzhugh testified that Vazquez stayed

at the house infrequently and did not pay rent, (2) Babbish testified that she had only

been at the Clarkston house once and was not aware if Vazquez was living there, (3)

although Vazquez testified she used drugs when she was at the house, she stated that the

room where drugs were found was not her bedroom and, instead, was considered a “flop”

room, (4) Vazquez did not have a key to the room or the house, and (5) none of the police

officers who testified witnessed Vazquez selling drugs. Vazquez asserts that Babbish’s

and Fitzhugh’s testimony was central to the State’s case because their testimony

connected Vazquez to the bedroom and Babbish’s testimony connected Vazquez to the

access and sale of drugs. Vazquez claims that but for McFadden’s deficient performance,

allowing the jury to rely on inadmissible and prejudicial allegations, the outcome would

likely have been different.

Strickland’s test for prejudice “‘is ultimately concerned with “the fundamental

fairness of the proceeding whose result is being challenged.”’” Lopez, 190 Wn.2d at 124

(quoting In re Pers. Restraint of Crace, 174 Wn.2d 835, 844, 280 P.3d 1102 (2012)

(quoting Strickland, 466 U.S. at 696)). “‘It is . . . impossible to “exhaustively define the

obligations of counsel []or form a checklist for judicial evaluation of attorney

performance.”’” Id. at 115 (quoting In re Pers. Restraint of Yung-Cheng Tsai, 183

Wn.2d 91, 99-100, 351 P.3d 138 (2015) (quoting Strickland, 466 U.S. at 688)).

“Nevertheless, effective representation ‘entails certain basic duties,’ such as ‘. . . the

28
No. 98928-1

overarching duty to advocate the defendant’s cause. . . . Counsel also has a duty to bring

to bear such skill and knowledge as will render the trial a reliable adversarial testing

process.’” Tsai, 183 Wn.2d at 100 (quoting Strickland, 466 U.S. at 688).

Whether each instance of deficient performance considered separately would

independently meet the prejudice prong of Strickland, we conclude that the cumulative

effect of counsel’s subpar performance likely affected the outcome of the case.

Admissible testimony showed that the Clarkston house was a gathering place for drug

addicts and drug purchasers. At the time the police served the warrant and searched the

premise there were multiple people staying at the house. While items belonging to

Vazquez were found in the bedroom where the drugs were found, there was strong

evidence that she shared the room with multiple other people. Moreover, the State did

not produce evidence that Vazquez owned the house, and the evidence that she controlled

the house and the activities within was thin and largely based on inadmissible evidence.

Vazquez was not found with the drugs on her person, and much of the evidence against

Vazquez related to drug sales came from hearsay statements that she sold drugs and from

her prior drug convictions, all of which were inadmissible.

Adding to the prejudice of other inadmissible testimony, the State elicited

testimony that its witnesses, Babbish and Fitzhugh, had been threatened. Even if that

testimony might have been admissible as impeachment by the State of its own witnesses,

there was no limiting instruction and the testimony clearly prejudiced Vazquez when,

after trial, jurors asked the court about threats to their well-being. Finally, profiling

29
No. 98928-1

testimony regarding the purpose of the tactical vest found in the bedroom where the drugs

were found, coupled with the hearsay about Vazquez’s sale of drugs and threats to

witnesses completed a picture of a dangerous drug dealer. 3

CONCLUSION

We hold that McFadden’s failure to object to inadmissible evidence fell below the

standard for effective performance and that but for McFadden’s lack of objections, there

is a reasonable probability that the outcome of the trial would have been different. We

reverse the Court of Appeals and remand for further proceedings.

3
After we granted review of Vazquez’s initial petition, she moved for additional relief under
State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). That motion was passed to the merits.
Because we reverse Vazquez’s convictions and remand for further proceedings, the issue is
moot.

30
No. 98928-1

___________________________________

WE CONCUR:

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________

_______________________________ ________________________________

31
State v. Vazquez, No. 98928-1 (González, C.J., dissenting)

No. 98928-1

GONZÁLEZ, C.J. (dissenting)—This would have been a difficult case for any

defense attorney. The State had considerable evidence that Jessica Vazquez

possessed methamphetamine intending to sell it, that Vazquez possessed drug

paraphernalia, and that the house itself was being maintained for drug use. Perhaps

recognizing this, Vazquez herself reached out to her attorney and offered to plead

guilty, so long as the State agreed to defer sentencing for two weeks to allow time

for her to have one last visit with her children before she was taken to prison. The

State balked at delaying sentencing, and two months later the case went to trial.

But while the evidence Vazquez had possessed drug paraphernalia and sold

methamphetamine was strong, the evidence that Vazquez herself was maintaining

the house for drug use was not. Counsel made the strategic choice to focus her

defense on the weakest charge, framing the story as one where Vazquez was

merely a drug user who occasionally stayed at that house and that police had

fixated on her unfairly. That theory works only if the defense concedes—as it

1
State v. Vazquez, No. 98928-1 (González, C.J., dissenting)

did—that Vazquez has a history of drug use, which was vividly shown by her

criminal history and much of the evidence she now challenges. Given the

overwhelming evidence that Vazquez had sold drugs and possessed paraphernalia,

and the very limited evidence that she had control over the house, this was a

reasonable defense theory. Allowing her client’s criminal history to be entered

into evidence in support of that strategy was not, under these facts, ineffective

assistance of counsel. See State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011

(2001) (“‘Deficient performance is not shown by matters that go to trial strategy or

tactics.’” (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563

(1996))).1

For similar reasons, counsel’s decision not to object to Christine Babbish’s

testimony that Vazquez had sold small quantities of drugs was not ineffective.

This has to be seen in context. Babbish testified that she and Vazquez had smoked

methamphetamine that Vazquez provided that night. This was plainly admissible.

Babbish’s testimony that Vazquez was a small-time drug dealer was consistent

with the overall defense strategy of vigorously attacking the weakest charge on the

1
This is especially true if Vazquez had insisted on her right to testify. Given that several of her
crimes would have been admissible as crimes of dishonesty as soon as Vazquez took the stand,
see ER 609, admitting her criminal history was a reasonable defense strategy to show the defense
had nothing to hide. Of course, if there is evidence outside the record that would bear on
whether Vazquez received ineffective assistance of counsel, she is free to raise it in a personal
restraint petition. See State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011) (citing State v.
McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)).
2
State v. Vazquez, No. 98928-1 (González, C.J., dissenting)

theory that the State had focused on the wrong defendant for the charge of

maintaining a drug house. Similarly, not objecting to the officers’ hearsay

testimony that suggested Vazquez sold drugs was consistent with a reasonable

defense strategy that officers had tunnel vision in their focus on her. I can find no

fault in the officers’ testimony about all of the things they found in the house that

supported the State’s theory that it was being maintained for the use and sale of

drugs.

Like the majority, I am troubled by the fact that the State elicited testimony

that its witnesses had been threatened and that the elicited testimony caused the

jurors concern about their own safety. I share the majority’s concern that it is

improper to bolster witnesses’ credibility in anticipation of impeachment. See

State v. Bourgeois, 133 Wn.2d 389, 400, 945 P.2d 1120 (1997) (quoting 1

MCCORMICK ON EVIDENCE § 47, at 172 (John W. Strong ed., 4th ed.1992)).

But assuming without deciding that the failure to object was deficient,

Vazquez still must show a “‘reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102

(2012) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984)). Vazquez has not met this standard. Both witnesses testified

3
State v. Vazquez, No. 98928-1 (González, C.J., dissenting)

that the threats did not come from Vazquez. Given the overwhelming properly

admitted evidence, the slight chance that this testimony might have swayed the

jury is not enough to establish the requisite prejudice for relief on an ineffective

assistance of counsel claim.

I respectfully dissent.

____________________________

____________________________

4