State Of Washington, V Rory Lee Mickens, 48409-9

Background

Confidential informant A.C., who had worked with a drug task force for 13 years, made two controlled buys of methamphetamine from Rory Mickens at Mickens’s residence in July 2015. Purchases were surveilled by officers; drugs given by Mickens came from his backpack.
A search warrant execution of Mickens’s property yielded a room with a glass window labeled “Rory,” a scale with meth residue, a spoon with heroin residue, and a $20 bill.
Mickens was charged with two counts of delivery of methamphetamine and two counts of possession (methamphetamine and heroin). He was tried before a judge pro tempore (Judge Stonier) after written and oral consent by the parties.
At trial defense counsel elicited testimony that initially misidentified who held a crowbar during the search; the court allowed limited crowbar testimony. Defense impeached the primary officer and interviewed A.C. during a lunch break the day trial began.
Mickens was convicted on all counts and appealed, asserting errors including lack of pro tempore jurisdiction, prosecutorial misconduct (vouching), ineffective assistance of counsel, improper jury instruction on reasonable doubt, CrR 3.3 time-for-trial error, and insufficiency of the evidence.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Mickens)	Held
Jurisdiction of judge pro tempore	Parties’ written and oral consent plus court approval conferred jurisdiction	Stonier lacked a proper oath/appointment for this specific case; consent insufficient	Trial court had jurisdiction: Stonier was approved, took oath, parties and defendant consented; consent is essential and sufficient
Prosecutorial misconduct (vouching)	Rebuttal comments were permissible inferences from evidence and response to defense attack on informant credibility	Prosecutor vouched for A.C., expressing personal belief in his credibility	No misconduct: remarks were reasonable inferences from trial evidence and rebuttal of defense; not flagrant and no prejudice shown
Ineffective assistance of counsel (crowbar and failure to object to vouching)	Counsel’s strategy to impeach officer justified eliciting crowbar testimony; no objection needed for non-misconduct	Counsel was deficient for opening door to prejudicial crowbar evidence and failing to object to alleged vouching	Counsel’s performance was reasonable trial strategy re: impeachment; no deficiency on failure-to-object claim because remarks were not improper
Sufficiency of evidence (deliveries and possessions)	N/A (State satisfied elements at trial)	Convictions unsupported: delivery and possession not proved beyond reasonable doubt	Evidence sufficient: controlled buys and items found in a room labeled “Rory” supported convictions for two deliveries and possession of methamphetamine and heroin

Key Cases Cited

State v. Belgarde, 119 Wn.2d 711 (jurisdictional requirement of party consent to judge pro tempore)
State v. Squally, 132 Wn.2d 333 (standards for reviewing jurisdictional issues)
State v. Elmore, 154 Wn. App. 885 (constitutional/statutory interpretation reviewed de novo)
State v. Barton, 181 Wn.2d 148 (interpretation of constitutional provisions; plain meaning approach)
Nat’l Bank of Wash. v. McCrillis, 15 Wn.2d 345 (failure to take oath by judge pro tem generally not voiding acts if no timely objection)
State v. Thorgerson, 172 Wn.2d 438 (definition and limits on prosecutorial vouching)
State v. Emery, 174 Wn.2d 741 (standard for demonstrating prosecutorial misconduct when no contemporaneous objection)
State v. Grier, 171 Wn.2d 17 (Strickland standards applied in Washington for ineffective assistance)
State v. Jackson, 150 Wn. App. 877 (contextual review of closing argument; reasonable inferences allowed)
State v. Homan, 181 Wn.2d 102 (standard for sufficiency of the evidence)
State v. Engel, 166 Wn.2d 572 (review standard for sufficiency: view evidence in light most favorable to State)