Wednesday, August 10, 2016

The Laptop, Possession of Stolen Property and Ineffective Assistance of Counsel

This post examines a recent decision from the Court of Appeals of Washington: State v. Ferguson, 2016 WL 3965105 (2016).  The court begins by explaining that on
January 20, 2014, someone broke the back window of Janet Bressler's car and stole a 2012 MacBook Air laptop computer. Bressler's husband, David Ulane, activated an Apple security feature through the iCloud that locked the laptop to prevent its use without an additional pin code. The security feature also sent Bressler an e-mail showing the laptop's location if the current possessor turned on the computer in the area of a WiFi network.

On January 21, Janet Bressler received an e-mail from Apple notifying her of the laptop's location at 2322 North Haven Street in Spokane. Bressler and Ulane researched the address on another computer and found the address to be an apartment complex. The two forwarded information about the stolen laptop to police.

On January 23, Jill Fleck brought the laptop to Strong Solutions, a computer repair store. Fleck told Strong Solutions that her daughter locked the laptop's password. As proof of purchase for determination of warranty information, Fleck provided the store with an August 12, 2013, Best Buy receipt for the purchase of a MacBook Pro laptop computer for $1,134.99. The receipt did not match the computer. Strong Solutions determined the laptop was remotely locked, not mistakenly locked by the daughter.

On January 23, Janet Bressler received another e-mail from Apple showing her laptop's location to be Strong Solutions. On January 24, David Ulane called Strong Solutions, confirmed that the store possessed the laptop, and informed the store that the laptop was stolen. Ulane informed the police of the new location of the laptop. On January 24, Spokane police officers journeyed to Strong Solutions, took the laptop, recorded the laptop as police evidence, and returned it to Janet Bressler.

On January 27, at law enforcement's request, Strong Solutions telephoned Jill Fleck to encourage her to retrieve the laptop from the store premises. Fleck returned to Strong Solutions, where Spokane Police Detective Stacey Carr asked her questions about the laptop. Fleck claimed she purchased the laptop from her neighbor for $500 cash. Detective Carr never examined the laptop.
State v. Ferguson, supra.
(If you are wondering why the prosecution against Jill Fleck is captioned State v. Ferguson, it is presumably because, as the court notes very early in the opinion, “Jill J. Ferguson” was “also known as Jill J. Fleck”.  State v. Ferguson, supra.)
Next, the court explained that
[o]n September 3, 2014, the State of Washington charged Jill Fleck with one count of possession of stolen property in the second degree. Conviction of the crime requires evidence that the stolen property's value exceeds $750 and does not exceed $5,000. A key issue at trial was the value of the MacBook Air laptop computer at the time of its theft.
State v. Ferguson, supra.
Next, the court quoted excerpts from the transcript of Fleck’s trial that related to the value of the stolen laptop:
On September 3, 2014, the State of Washington charged Jill Fleck with one count of possession of stolen property in the second degree. Conviction of the crime requires evidence that the stolen property's value exceeds $750 and does not exceed $5,000. A key issue at trial was the value of the MacBook Air laptop computer at the time of its theft.

During trial, laptop owner Janet Bressler testified:

Q Is it fair to say you've had that computer for some time before this incident?

A Well, depending on what you mean by some time, but—

Q Like, for more than a year?

A Yes.

Q Okay. So was it—it was a used computer—

A Yeah.

Q —at that point? Okay. And is it fair to say you don't know the exact value of the computer?

A I do not, no.

Report of Proceedings (RP) at 23.

During trial, Detective Stacey Carr testified:

Q All right. In the course of your investigation were you able to determine the value of the stolen computer?

A Yes.

Q And what is that value—or, what was that value in 2014?

A When I researched it, I believe it was between [$]800 and $1,500 depending on which site I went through, eBay, Craigslist, some Apple websites.

RP at 51. Jill Fleck's trial counsel did not object to Carr's testimony concerning the value of the computer.
State v. Ferguson, supra.
The opinion goes on to explain that,

[d]uring its closing argument, the State said:

`We also know, secondly, that the computer was worth between $800 and $1,500 because Detective Carr investigated that by calling for fair mark[et] value. She checked Craigslist. She checked eBay. And, most importantly, she checked the Apple site, which gives up-to-date information on used computers as to what the price would be.’

RP at 127.

The trial court instructed the jury on the crime of possession of stolen property in the second degree. The trial court did not instruct on possession of stolen property in the third degree as a lesser included offense. The jury found Jill Fleck guilty.
State v. Ferguson, supra.
The Court of Appeals then explains that in her appeal, Fleck
challenges the sufficiency of evidence and her attorney's performance in failing to object to Detective Stacey Carr's testimony concerning the value of the stolen laptop computer. If we agreed that the jury heard insufficient evidence to convict, we would dismiss the charge rather than remand for a new trial. Therefore, we address the sufficiency of evidence first.
State v. Ferguson, supra.
The court also explained that Jill Fleck
contends the State of Washington failed to prove the value of the stolen property exceeded $750 as required for second degree possession of stolen property. She requests that this court reverse her conviction and remand for the trial court to enter judgment on the lesser included offense of possessing stolen property in the third degree. The State responds that sufficient evidence supported the conviction because the value of Apple computers is within the ordinary experience and knowledge of the jury, Detective Stacey Carr testified that the laptop was valued between $800 and $1,500, and Fleck told Detective Carr she purchased the laptop for $500. Because of Detective Carr's testimony, we agree with the State that sufficient evidence supports the conviction.

Evidence is sufficient if a rational trier of fact could find each element of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (Washington Supreme Court 1980).  Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (Court of Appeals of Washington).  This court draws all reasonable inferences in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (Washington Supreme Court 1977).   Only the trier of fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (Washington Supreme Court 1989).
State v. Ferguson, supra.
The court then took up Fleck’s challenge to the sufficiency of the evidence in this case, explaining that
`[a] person is guilty of possessing stolen property in the second degree if: (a) He or she possesses stolen property, other than a firearm as defined in [Revised Code of Washington] 9.41.010 or a motor vehicle, which exceeds seven hundred fifty dollars in value but does not exceed five thousand dollars in value.’ [Revised Code of Washington] 9A.56.160. `”Value” means the market value of the property or services at the time and in the approximate area of the criminal act.’ [Revised Code of Washington] 9A.56.010(21). Market value is the price a well-informed buyer would pay to a well-informed seller when neither party is obliged to enter the transaction. State v. Kleist, 126 Wn.2d 432, 435, 895 P.2d 398 (Washington Supreme Court 1995). Direct evidence is not necessary to prove value, rather a jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value. State v. Ehrhardt, 167 Wn.App.934, 944, 276 P.3d 332 (Court of Appeals of Washington 2012).

Jill Fleck objects to the testimony of Detective Stacey Carr on the basis of hearsay. Nevertheless, in reviewing for sufficiency of evidence, the court does not ignore evidence erroneously admitted at trial or evidence which could have been excluded as, for example, inadmissible hearsay.  State v. Hamdan, 13-0113 (Louisiana Court of Appeals – 4th Circuit 12/11/13) 131 So.3d 197, 203, writ denied, 140 So.3d 1188 (Louisiana SupremeCourt 2014); State v. Castillo-Sanchez, 1999-NMCA-085, 127 N.M. 540, 984 P.2d 787, 795 (New Mexico Court of Appeals 1999); State v. Knuckles, 196 W. Va. 416, 473 S.E.2d 131, 140 (West Virginia Supreme Court 1996); People v. Bailey, 1 Cal. Ct. App. 4th 459, 463, 2 Cal. Rptr. 2d 204 (California Court of Appeals 1991). Carr's testimony sufficiently established the value of the stolen goods to be at least $750.
State v. Ferguson, supra.
The Court then took up Ferguson’s other argument, i.e., that
she received ineffective assistance of counsel at trial when her counsel failed to object to Detective Stacey Carr's hearsay testimony of the value of the laptop. The State responds that Fleck's attorney was not ineffective because Carr's testimony was permissible hearsay. 
State v. Ferguson, supra.
The court began its analysis of her argument by explaining that
[t]o prevail on an ineffective assistance of counsel claim, a defendant must show his attorney was not functioning as guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (Supreme Court of Washington 2007).  A claim of ineffective assistance of counsel requires a showing that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (Supreme Court of Washington 1987). We presume that counsel was effective. Strickland v. Washington, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (Supreme Court of Washington).  

Deficient performance occurs when trial counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (Supreme Court of Washington 1997). The defendant bears the burden to show deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (Supreme Court of Washington 2011).  To rebut a strong presumption that counsel's performance was effective, the defendant must establish the absence of any conceivable legitimate tactic explaining counsel's failure to object to testimony. State v. Hamilton, 179 Wn.App.870, 879-80, 320 P.3d 142 (Washington Court of Appeals 2014).  When counsel's alleged error is failure to object to evidence, the defendant must also show that the trial court would have sustained an objection. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 362 (Washington Court of Appeals 1998). 
State v. Ferguson, supra.
The Court of Appeals then explained why Ferguson was contending that she was the victim of the ineffective assistance of counsel:
Jill Fleck claims that Detective Stacey Carr's testimony on the value of the laptop was inadmissible hearsay and no conceivable strategic reason existed for her counsel's failure to object to the testimony. Fleck emphasizes that Carr's hearsay testimony comprised the entirety of the State's evidence of the value element of the crime and thus counsel's failure to object effectively conceded an element that the State needed to prove. The State of Washington responds that counsel was not deficient because Detective Carr's testimony fell within the market reports exception to hearsay. The State does not forward any reason why trial counsel legitimately failed to object to the testimony, assuming the market report exception did not apply.
State v. Ferguson, supra.  As you can read here, Rule 803(a)(17) of the Washington State Rules of Evidence states that [t]he following are note excluded by the hearsay rule, even though the declarant is available as a witness: . . . 

[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
As Wikipedia explains, the exceptions to the default rule barring the use of hearsay fall into two categories:  
Some statements are defined as hearsay, but may nevertheless be admissible as evidence in court. These statements relate to exceptions to the general rule on hearsay. Some (but not all) exceptions to the hearsay rule apply only when the declarant is unavailable for testimony at the trial or hearing.
The court then analyzed Ferguson’s argument, explaining that hearsay is a
statement made outside of trial or a hearing that is offered in evidence to prove the truth of the matter asserted. [Washington Rules of Evidence Rule 801(c)]. Hearsay is inadmissible unless a hearsay exception applies.  [Washington Rules ofEvidence Rule 802]. The market reports exception to hearsay applies to:

Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

 [Washington Rules of Evidence Rule 803(a)(17)].

Detective Stacey Carr's testimony of the value of the laptop being between $800 and $1,500 constituted hearsay. Carr relied on out of court statements she read on eBay, Craigslist, and some Apple websites. Since the State introduced the evidence to prove the value of the stolen laptop, the State sought to use the testimony to establish the truth of the extrajudicial statements.
State v. Ferguson, supra.
The court then held that
the market reports exception to hearsay did not apply because the State presented no evidence that the websites entered by Detective Stacey Carr were publications on which the public relied when purchasing a used Macbook Air laptop. The State relies on State v. Shaw, 120 Wn. App. 847, 86 P.3d 823 (2004) to support the market report exception. In Shaw, the State charged Jeremy Shaw with possession of stolen property in the first degree for his possession of a stolen vehicle. The State needed to prove the vehicle's value exceeded $1,500. At trial, the investigating detective testified that he used the Kelly Blue Book Internet site to research the vehicle's value. The detective described the methodology employed by Kelly Blue Book to value a vehicle and mentioned that the site provided two values for vehicles, retail value and private party value.

`This court affirmed the admission of testimony finding the Kelley Blue Book site admissible as a market report under Washington Rules of Evidence Rule 803(a)(17)].  We reasoned that the trial court did not abuse it discretion in admitting the evidence because:’

`As the foundation laid by the detective's testimony showed, it is a publication used to determine what a person might expect to pay when buying a used car, or to receive when selling one. Other jurisdictions have recognized the Blue Book as a standard and reliable reference for valuation of vehicles.’
           State v. Shaw, supra.
State v. Ferguson, supra.
The opinion goes on to explain that
[i]mportant differences distinguish this appeal from State v. Shaw. Detective Stacey Carr provided no foundation for the public's use of Craigslist, eBay, and the various Apple websites for determining value. Carr did not describe the methodology she used when researching the laptop's value or the data required by any of the websites for determining value. Kelley Blue Book is designed to provide reliable valuation information. The websites viewed by Carr facilitate the purchase or sale of items and may reflect a high asking price.

Jill Fleck's trial counsel performed deficiently by failing to raise a hearsay objection to Detective Stacey Carr's valuation testimony because the evidence was inadmissible and there is no strategic reason to allow the State to prove an element of the crime solely through inadmissible evidence.           
State v. Ferguson, supra.
Having found that Ferguson’s defense attorney’s performance was “deficient,” the Court of Appeals went on to analyze whether the deficient performance “prejudiced” Ferguson. State v. Ferguson, supra.
It began by explaining that
[p]rejudice occurs, for purposes of ineffective assistance of counsel, when the outcome would have differed with effective assistance. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (Washington Supreme Court 1998); State v. McFarland, 127 Wn.2d at 337 (Washington Supreme Court 1995). We hold that Jill Fleck shows prejudice because she likely would have avoided conviction upon an objection to the valuation evidence.

The jury relied on nominal evidence when determining the value of the laptop exceeded $750. The evidence included testimony as to the computer's year of purchase, its used nature, Jill Fleck's probably false assertion that she purchased the laptop for $500, and Detective Stacey Carr's valuation testimony. During closing argument, the State proffered only Stacey Carr's testimony to support the value element of the crime. Without Carr's valuation testimony, the jury heard no evidence to sustain a finding of a value exceeding $750.
State v. Ferguson, supra.
The Court of Appeals therefore “reverse[d] Jill Fleck's conviction and remand[ed] for a new trial.” State v. Ferguson, supra.

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