State Of Washington v. Richard Charles Whitaker, 75071-2

Background

On Sept. 27, 2013, Officer Lednicky observed Richard Whitaker on a downtown Seattle street engage briefly with two individuals; Lednicky saw Whitaker remove a plastic bag of small white "rocks," hand one rock to a person, who put it in his mouth.
Lednicky relayed Whitaker’s location to an arrest team; officers arrested Whitaker a short time later and found $359 and a hidden baggie containing ~3.5 grams of suspected cocaine on him.
Forensic testing later confirmed one of the rocks contained cocaine. Whitaker was tried and convicted of possession with intent to deliver (RCW 69.50.401(1)).
Whitaker proposed a jury instruction stating that an inference of intent to deliver cannot be based on mere possession absent other facts; the trial court refused the proposed instruction.
Whitaker also challenges testimony by Officer Lednicky that he "believed he had developed probable cause to arrest" and that the arrest team had contacted the "correct suspect," arguing this was improper opinion testimony on guilt; defense objections were limited and the ground for appeal differs from trial objections.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by refusing Whitaker's proposed "mere possession" instruction	Whitaker: instruction necessary to prevent jury inferring intent from possession alone	State: existing "to convict" and definitional instructions adequately required proof of intent to deliver and allowed defense argument	No error; instructions as a whole sufficiently described law and permitted defense theory; proposed instruction was unnecessary and misleading in part
Whether Officer Lednicky’s testimony that he "believed" he had probable cause and that arrest team contacted the "correct suspect" was improper opinion on guilt	Whitaker: testimony implied officer’s belief in guilt and invaded jury province	State: testimony described officer’s observations and actions; not an explicit opinion on guilt	No manifest error; testimony was factual, not an explicit opinion on guilt; defendant failed to preserve broader objection
Whether failure to object on the correct ground or move to strike constituted ineffective assistance of counsel	Whitaker: counsel was deficient for not objecting to and striking opinion testimony	State: testimony was not an explicit opinion on guilt, so counsel’s performance was not deficient	No ineffective assistance; strong presumption of effectiveness not overcome
Whether appellate costs should be imposed despite trial court finding of indigency	State: may seek appellate costs if defendant’s finances improved	Whitaker: asks to deny costs	Affirmed that prevailing party may seek costs; indigency finding remains unless State demonstrates changed finances

Key Cases Cited

State v. Embry, 171 Wn. App. 714 (2012) (instructions reviewed as a whole; de novo review of adequacy)
State v. Hathaway, 161 Wn. App. 634 (2011) (trial court may refuse specific instruction when general instructions suffice)
State v. Aqer, 128 Wn.2d 85 (1995) (court need not give proposed instruction that misstates law or lacks evidentiary support)
State v. Goodman, 150 Wn.2d 774 (2004) (proof of at least one additional factor beyond possession may support intent to deliver)
State v. Montgomery, 163 Wn.2d 577 (2008) (police opinions as to guilt or intent are improper; may be cured by objection/curative instruction)
State v. Reichert, 158 Wn. App. 374 (2010) (mere possession alone does not establish intent to deliver)
State v. Zunker, 112 Wn. App. 130 (2002) (examples of additional facts supporting intent: cash, baggies, scales, etc.)
State v. Hernandez, 85 Wn. App. 672 (1997) (delivery shortly before arrest can support inference of intent to deliver)
State v. Brown, 68 Wn. App. 480 (1993) (same: delivery to another supports intent inference)
State v. Davis, 79 Wn. App. 591 (1995) (specific intent may be inferred from facts and circumstances)
City of Seattle v. Heatley, 70 Wn. App. 573 (1993) (expert or officer opinion admissible if helpful and based on evidence; not a direct guilt comment)
State v. Stith, 71 Wn. App. 14 (1993) (context where statements about probable cause could be prejudicial)
State v. Kirkman, 159 Wn.2d 918 (2007) (unobjected-to testimony must be explicit or almost explicit opinion of guilt to be manifest error)
State v. Olmedo, 112 Wn. App. 525 (2002) (witness testimony about guilt raises constitutional jury-province concerns)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)