Washington Supreme Court: Ineffective Assistance of Counsel for Failing to Object to Introduction of Inadmissible Evidence
by Douglas Ankney
The Supreme Court of Washington reversed the convictions of Jessica L. Vazquez after holding that her attorney, Sarah McFadden, was ineffective under the Sixth Amendment for failing to object to the introduction of inadmissible evidence at trial.
Detective Colby Martin and Officer Daniel Vargas assisted in executing a search warrant at a residence in Clarkston, Washington. The residence was occupied by several people including Vazquez, Dale Fitzhugh, and Christine Babbish. Police found over nine grams of methamphetamine in a pillow case, along with plastic baggies, cash, and a sales ledger.
Vazquez was charged with maintaining a dwelling for controlled substances, possessing methamphetamine, and drug paraphernalia. At the jury trial, McFadden presented as a theory of defense that Vazquez was a low-level drug user who happened to be at the residence when the warrant was executed.
Vazquez testified, and during cross-examination, the prosecutor elicited testimony that she had prior convictions for, inter alia, delivery of a controlled substance and possession of methamphetamine. McFadden did not object to the prosecutor’s questions.
The prosecutor also elicited testimony from Babbish that she knew Vazquez had sold drugs in the past. Again, McFadden raised no objection.
Additionally, the prosecutor asked witnesses Babbish and Fitzhugh if the reason they modified their testimony from their previous statements was because they had been threatened. Both answered in the affirmative. McFadden did not object.
Vargas testified that during a traffic stop, he was told Vazquez was at the residence selling narcotics. He further testified Babbage had revealed to Martin that Vazquez had hidden the methamphetamine in the pillow case. McFadden did not object to this hearsay.
McFadden asked Martin how he’d determined the bedroom belonged to Vazquez, and Martin answered “[the police had] been told by cooperating sources that Ms. Vazquez was living downstairs in the residence.” On redirect, Martin stated that prior to execution of the warrant, more than one source had told him Vazquez was living in the basement of the house selling methamphetamine. McFadden did not object to this hearsay either.
The jury convicted Vazquez on all counts. After delivering the verdict, one of the jurors asked about their safety because of testimony that witnesses had been threatened.
On appeal, Vazquez argued, among other things, that McFadden was ineffective for failing to object to inadmissible evidence. The Court of Appeals (“COA”) affirmed, reasoning that McFadden’s seeming failures were part of her trial strategy. The Washington Supreme Court granted further review.
The Court observed “[t]o 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.” State v. McFarland, 899 P.2d 1251 (Wash. 1995); see also Strickland v. Washington, 466 U.S. 668 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland. A reasonable probability is lower than a preponderance standard. State v. Estes, 395 P.3d 1045 (Wash. 2017).
“[T]he defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.” McFarland. The Court noted that an example of trial tactics is when and how an attorney makes the decision to object to trial testimony. State v. Madison, 770 P.2d 662 (Wash. App. 1989). Defense counsel engages in legitimate trial tactics when refraining from objecting in an effort to avoid highlighting certain evidence. State v. Crow, 438 P.3d 541 (Wash. Ct. App. 2019). “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, the Court stated that counsel’s performance is deficient if he fails to object to inadmissible evidence, and reversal is required if the defendant can show that without the inadmissible evidence the outcome would likely have been different. Id., Strickland. But the defendant must show the objection would have been sustained. Crow.
Turning to the present case, with regard to questioning Vazquez about her prior convictions, the Court stated that generally “[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, 946 P.2d 1175 (Wash. 1997).
The Court determined that Vazquez’s prior drug convictions were inadmissible and highly prejudicial since she was on trial for similar offenses. Further, evidence of the prior distribution conviction was contrary to the defense theory that Vazquez was a low-level user; consequently, the failure to object could not be viewed as trial strategy, according to the Court.
Regarding Babbish’s testimony, evidence of prior bad acts is inadmissible to prove a defendant has a propensity to commit the same type of bad act. Evidence Rule 404(b). Evidence of prior bad acts can be admitted for other limited purposes, e.g., to prove identity, absent of mistake, etc. Id. But Babbish did not provide any testimony as to dates, times, or details about Vazquez’s prior drug sales, the Court noted. The Court determined that this indicated the testimony was offered simply to show that Vazquez had a propensity to sell methamphetamine and was, therefore, inadmissible and highly prejudicial.
Regarding Babbish and Fitzhugh’s testimony that they had been threatened, “[t]he general common-law rule is that the proponent may not bolster a witness’s credibility before any attempted impeachment.” State v. Bourgeois, 945 P.2d 1120 (Wash. 1997).
In the present case, the Court stated that the prosecutor sought to bolster the credibility of these witnesses by showing that even under threats of harm they still came forward. The prosecutor did so on direct examination in the absence of any attack on their credibility when no sustaining evidence is permitted. Bourgeois. Further, as evidenced by the juror’s post-verdict comment, such testimony is prejudicial because it instills a belief in the jury that the defendant is a dangerous person. Id.
Finally, the hearsay offered as evidence prejudiced Vazquez, the Court concluded. The hearsay tied the drugs to Vazquez; tied the search warrant to Vazquez; tied Vazquez to the bedroom as a place for selling drugs; and led to Vazquez being charged. 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 Court observed that the Confrontation Clause prohibits the admission of testimonial hearsay unless the defendant had the opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36 (2004). A statement is testimonial if the declarant would anticipate the statement would be used against the defendant in investigating or prosecuting crime. State v. Hendrickson, 158 P.3d 1257 (Wash. 2007).
While evidence established drugs were being sold from the residence, there were multiple people living in the house, and multiple people shared the bedroom where the drugs were found, the Court explained. Yet the inadmissible evidence implicated only Vazquez.
Thus, the Court held 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.”
Accordingly, the Court reversed the COA and remanded for further proceedings. See: State v. Vazquez, 494 P.3d 424 (Wash. 2021).
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