State v. Mickens

• Decision Date: 06 June 2017
• Docket Number: 48409-9-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. RORY LEE MICKENS, Appellant.

STATE OF WASHINGTON, Respondent, v. RORY LEE MICKENS, Appellant.

No. 48409-9-II

Court of Appeals of Washington, Division 2

June 6, 2017

UNPUBLISHED OPINION

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.

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]

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 Tern 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.

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 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.

DRP at 216-17. Mickens did not object.

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. Gary, 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)).

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., Ill. 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...