State v. Vazquez

• Decision Date: 09 September 2021
• Docket Number: No. 98928-1,98928-1
• Citation: 494 P.3d 424
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Jessica L. VAZQUEZ, Petitioner.

494 P.3d 424

STATE of Washington, Respondent,

v.Jessica L. VAZQUEZ, Petitioner.

No. 98928-1

Supreme Court of Washington.

Argued March 11, 2021

Filed: September 9, 2021

Amended: October 20, 2021

Gregory Charles Link, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner.

Benjamin Curler Nichols, Curtis Lane Liedkie, Asotin County Prosecutors Office, P. O. Box 220, Asotin, WA, 99402-0220, Lindsey Megan Grieve, King County Prosecutors Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

MADSEN, J.

¶1 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

¶2 On October 21, 2017, Jessica Vazquez was arrested at a residence in Clarkston, Washington. Earlier that morning, police officers executed a search warrant, specifically 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.

¶3 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.

¶4 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.

¶5 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.

¶6 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.

¶7 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, 2020 WL 3097454 (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 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, 476 P.3d 572 (2020).

ANALYSIS

¶8 Both the United States and Washington Constitutions guarantee a criminal defendant the right to effective assistance of counsel. See State v. Lopez , 190 Wash.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 Wash.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 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, 104 S.Ct. 2052. A reasonable probability is lower than a preponderance standard. State v. Estes , 188 Wash.2d 450, 458, 395 P.3d 1045 (2017) (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

¶9 The defendant has the burden to show that defense counsel's performance was deficient based on the trial court record. McFarland , 127 Wash.2d at 335, 899 P.2d 1251. 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, 899 P.2d 1251 ; see also State v. Garrett , 124 Wash.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 Wash. 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 Wash. App. 2d 480, 508, 438 P.3d 541, review denied , 193 Wash.2d 1038, 449 P.3d 664 (2019) (citing In re Pers. Restraint of Davis , 152 Wash.2d 647, 714, 101 P.3d 1 (2004) ).

¶10 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 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, 438 P.3d 541. " ‘[C]laims of ineffective assistance of counsel present mixed questions of law and fact’ " and are reviewed de novo. Lopez , 190 Wash.2d at 116, 117, 410 P.3d 1117 (alteration in original) (quoting In re Pers. Restraint of Brett , 142 Wash.2d 868, 873, 16 P.3d 601 (2001) ).

¶11 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.

¶12 Representation of a criminal defendant carries "certain basic duties." Strickland , 466 U.S. at 688, 104 S.Ct. 2052. 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 Wash.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 is reasonable. Strickland , 466 U.S. at 688, 104 S.Ct. 2052 (referencing, as such a guide, the ABA Standards for Criminal Justice (2d ed. 1980)); see also A.N.J. , 168 Wash.2d at 109-10, 225 P.3d 956. The ABA Standards expect that a defense attorney will take steps necessary to ensure a clear and complete trial record, including making...