State v. Robinson

• Decision Date: 25 September 1995
• Docket Number: No. 28004-0-I,28004-0-I
• Citation: 902 P.2d 652,79 Wn.App. 386
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Mary Ann ROBINSON, Appellant.

Page 386

79 Wn.App. 386

902 P.2d 652

The STATE of Washington, Respondent, v. Mary Ann ROBINSON, Appellant.

No. 28004-0-I.

Court of Appeals of Washington Division 1.

Sept. 25, 1995.

John Muenster, John R. Muenster Inc., P.S., Seattle, for appellant.

Amy Jean Freedheim, King Co. Pros. Office, for respondent.

BECKER, Judge.

Defense counsel, aware that his former client could put herself at risk by testifying, chose not to call her as a witness. Because her testimony could have helped the defendant, the trial court erred in concluding that the conflict of interest did not adversely affect the attorney's performance.

In early 1989, Seattle Police Detective Darryl Williams working undercover, began buying methamphetamine from Steven Blair. Blair told Williams his suppliers were two women named "Bonnie and Mary Ann", whom he frequently referred to as "the girls."

On April 20, 1989, Detective Williams asked if Blair could sell him a pound of methamphetamine. Blair called Williams back and said he had talked to the girls, that they could get it, and that their price was $25,600. When Williams agreed to this price, Blair said the girls would pick up the drugs in Olympia somewhere and bring them to his apartment in Seattle at about 4 p.m. Williams called Blair several times throughout the afternoon and evening. Blair told Williams the girls had not shown up yet because they had "met with some friends" and were "sitting and talking." Finally, Williams said he had to leave and could not wait any longer.

Four days later, on April 24, 1989, Detective Williams called Blair again. They rescheduled the transaction for 4 p.m. that afternoon. Williams went to Blair's apartment, where Blair introduced him to Mary Ann Robinson, Bonnie Lindsay, and others. Robinson and Lindsay were sitting on a couch in the living room. A small blue and white cooler was on the floor at the end of the couch.

According to Williams' trial testimony, he said to Robinson, " 'I am sorry that things didn't work out the other night. I had to take off....' " Robinson responded, " 'Well, if I had known that you were in such a hurry, then I would have just brought the stuff, because I was just sitting talking to friends.' "

Blair came out of an adjoining office with a ziplock baggie containing a pound of methamphetamine and handed it to Williams. Shortly thereafter, by prearranged signal, an anti-crime team forced entry into Blair's apartment and arrested everyone there. The police seized the pound of methamphetamine and the blue and white cooler. The contents of the cooler included bags with methamphetamine, narcotics paraphernalia, baggies, money bands, some small purses and a tampon holder. Several of the bags had notations of their weight, dates, and times, suggesting they were packaged for distribution and sale. In searching Robinson, the police found in her pocket a syringe containing methamphetamine.

The State initially charged Robinson and Blair with possessing methamphetamine with intent to manufacture or deliver. Mary Ann Robinson obtained counsel. When the State later charged Bonnie Lindsay, the same attorney agreed to represent her also. Steven Blair pleaded guilty. After some discussions with defense counsel, the State obtained a dismissal of charges against Bonnie Lindsay. Mary Ann Robinson went to trial, was convicted, and received an exceptional sentence of 48 months.

Sufficiency of the Evidence

Robinson was not in actual possession of the methamphetamine in Blair's apartment. She claims the evidence of her constructive possession was insufficient to convict. The question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found constructive possession beyond a reasonable doubt. See State v. Porter, 58 Wash.App. 57, 60, 791 P.2d 905 (1990).

A defendant has constructive possession of the drugs if she has dominion and control over them. State v. Staley, 123 Wash.2d 794, 798, 872 P.2d 502 (1994); State v. Spruell, 57 Wash.App. 383, 385, 788 P.2d 21 (1990). The court looks at the totality of the situation to determine if the jury can reasonably infer that the defendant had dominion and control. Porter, 58 Wash.App. at 60, 791 P.2d 905. The State must prove more than a passing control; it must prove actual control. Staley, 123 Wash.2d at 801, 872 P.2d 502. Mere proximity to the drugs and evidence of momentary handling will normally not support a finding of constructive possession. Spruell, 57 Wash.App. at 388-89, 788 P.2d 21.

The State relies in part on evidence that Robinson demonstrated sophisticated knowledge about the sources and characteristics of methamphetamine when interviewed by a detective after she was arrested. Such evidence, while tending to depict Robinson as a dealer rather than a user, does not independently prove that she was in possession of the drugs on April 24.

The critical evidence tying Robinson to the drugs was the testimony of Detective Williams that when he greeted her on April 24 with regret that "things didn't work out" on April 20, Robinson responded with, " 'Well, if I had known that you were in such a hurry, then I would have just brought the stuff, because I was just sitting talking to friends.' " This remark tends to show that she was in control of the drugs when they were brought into the apartment on April 24 and that she intended to complete the transaction previously arranged for April 20.

Robinson argues that even if she did bring the drugs into the apartment, the evidence remains insufficient because by the time the arresting officers arrived, she had turned possession of the drugs over to Blair. We disagree. The evidence shows more than past momentary handling by a visitor as in State v. Callahan, 77 Wash.2d 27, 29, 459 P.2d 400 (1969). Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found, beyond a reasonable doubt, Robinson had dominion and control over the drugs.

Conflict of Interest

After the sentence was imposed, Robinson, represented by new counsel, moved for a new trial, alleging that the defense trial attorney had an actual conflict of interest in representing her and Lindsay and that this conflict adversely affected his representation of Robinson before and during trial. The court took testimony from the defense trial attorney and others at a hearing, then denied the motion for a new trial. Robinson appeals from that order.

According to Robinson's argument, the conflict first manifested itself during pretrial negotiations. Blair's statement to Detective Williams that his suppliers were "Bonnie and Mary Ann" was admissible against Mary Ann because there was independent evidence linking her to a conspiracy with Blair--her remark that she "would have just brought the stuff" earlier. See ER 801(d)(2)(v). Blair's statement was not admissible against Bonnie Lindsay to identify her as a supplier because the State had no other evidence implicating her. Accordingly, the State agreed to dismiss the charges against Lindsay, but not against Robinson. Robinson argues that her attorney at this stage should have divulged the information that Lindsay, not she, brought the cooler into Blair's apartment and should have generally engaged in a strategy of directing blame toward Lindsay.

Robinson claims the conflict next manifested itself when her attorney decided not to call Lindsay to testify at Robinson's trial. Lindsay told the defense trial attorney during an early interview that she, not Robinson, initially carried the cooler into Blair's apartment; the cooler contained Pepsi, not drugs, when Lindsay brought it in; and Robinson did not make any remark to Detective Williams about how she "would have just brought the stuff" on April 20 if she had known he was in a hurry to get it. Robinson contends such testimony, if elicited from Lindsay at trial, would have strengthened the argument that Robinson was not responsible for the drugs in Blair's apartment. Either Bonnie Lindsay brought them or someone else put them into the cooler after Bonnie and Mary Ann arrived.

The sixth amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." This guarantee is violated if the testing of the prosecution's case "loses its character as a confrontation between adversaries". United States v. Cronic, 466 U.S. 648, 656-57, 80 L.Ed.2d 657, 666, 104 S.Ct. 2039, 2045-46 (1984). The right to counsel is so basic to a fair trial that deprivation of it can never be treated as harmless error. Chapman v. California, 386 U.S. 18, 23 & n. 8, 17 L.Ed.2d 705, 710, 87 S.Ct. 824, 828 & n. 8, 24 A.L.R.3d 1065 (1967) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733 (1963)).

Reasonably effective assistance of counsel includes "a duty of loyalty, a duty to avoid conflicts of interest." Strickland v. Washington, 466 U.S. 668, 688, 80 L.Ed.2d 674, 694, 104 S.Ct. 2052, 2065 (1984). "Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing." Holloway v. Arkansas, 435 U.S. 475, 489-90, 55 L.Ed.2d 426, 438, 98 S.Ct. 1173, 1181 (1978).

Joint representation is not a per se violation of the right to effective assistance of counsel. Holloway, 435 U.S. at 482, 55 L.Ed.2d at 433, 98 S.Ct. at 1178; Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L.Ed.2d 333, 346, 100 S.Ct. 1708, 1718 (1980); State v. James, 48 Wash.App. 353, 365, 739 P.2d 1161 (1987); State v. Lingo, 32 Wash.App. 638, 645, 649 P.2d 130, review denied, 98 Wash.2d 1005 (1982). But if the defendant raises an actual or potential conflict by objection at trial, the trial court errs when it fails "either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel." (Footnote omitted.)...