IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) No. 77031-4-1 Respondent, ) ) DIVISION ONE v. ) ) DAVID EDWARD DREWERY III, ) UNPUBLISHED OPINION ) Appellant. ) FILED: April 1,2019 )
SMITH, J. — David Edward Drewery III appeals his conviction for drive-by
shooting. He argues that his counsel was ineffective for failing to object when
the State solicited testimony from Drewery's girlfriend that Drewery "should have
known something like this could have happened," in direct violation of the trial
court's in limine ruling just 20 minutes earlier. This improperly solicited testimony
was central to the State's case, and an objection would likely have been
sustained. Furthermore, no legitimate tactic or strategy can explain counsel's
failure to object, and Drewery was prejudiced by that failure. Therefore, we
reverse.
FACTS
Drewery was the driver of a car from which shots were fired during a drive-
by shooting on March 15, 2017. At the time of the shooting, there were three
passengers in Drewery's car. One of them was Malik Fulson, to whom Drewery's
girlfriend, Rayzene McCartha, had recently introduced Drewery. No. 77031-4-1/2
The State charged Drewery with drive-by shooting under an accomplice
liability theory. During trial, the jury heard testimony that on the day of the
shooting, Drewery borrowed McCartha's car, a black Nissan, and picked up
Fulson from his work at Popeye's restaurant. Drewery testified that when he
picked up Fulson, Fulson indicated that some of his friends were at Kush Mart, a
cannabis retailer, and asked Drewery to drive there. Drewery complied, drove to
Kush Mart, and parked on the road outside the Kush Mart parking lot in front of a
white car that was already there. A number of people were gathered by the white
car. Drewery testified that everyone "kind of mingled together, chitchat[ting]." He
testified that he did not know any of the other people in the group.
At some point, Karar Al-Buturky drove into the Kush Mart parking lot in his
BMW. His friends, Mohammed Al-Rikabi and Ali Al-Nighashi, were with him in
the car. As they pulled into Kush Mart, they saw a group of people hanging out
by two cars—a white Nissan and a black Nissan. Al-Buturky and his friends
exchanged looks with the group. When they were finished at Kush Mart, they got
back into Al-Buturky's car. As they left the Kush Mart parking lot, they again
passed the group of people hanging out by the white and black cars. Because
some of the group were in the roadway, Al-Buturky had to drive around them and
into the opposite lane of traffic. Al-Nighashi testified that as Al-Buturky did so,
one person in the group "did something with his back where he got closer to the
car. . . . He was looking at us like this as we passed him, and he kind of moved
his body closer to the car as we continued going." Al-Buturky gave his car a
"good amount" of gas as he went around.
2 No. 77031-4-1/3
Drewery testified that he did not see Al-Buturky's BMW arrive at Kush
Mart, but he did notice it leave. He testified that, at some point before the BMW
left, Fulson asked him to give two of Fulson's friends a ride and drop Fulson off
with them. Drewery agreed and began moving a car seat and other items into
the trunk of his car. He noticed the BMW leave as he was closing his trunk. As
Drewery, Fulson, and Fulson's friends left in Drewery's car, Fulson asked
Drewery to follow the white car that had been parked with him. Drewery
complied.
According to Al-Buturky, after leaving Kush Mart, he planned to drive to Al-
Rikabi's house a short distance away. But on the way there, he noticed the white
car pull up quickly behind him as if it were following him, then make a U-turn and
go back the other direction. Instead of turning into Al-Rikabi's house, Al-Buturky
decided to keep driving. Al-Buturky testified that the black car then appeared
and followed him. Al-Buturky eventually stopped at a stop sign at Olympic and
Madison, deciding whether to go left or right. He testified that the black car
pulled up and stopped about two car lengths behind him, and at that point, he
saw the driver and the front passenger making what he perceived as gang signs.
He testified that the black car then pulled up next to him on the left side of his car
and stopped. A gun appeared out of the black car's passenger-side rear window
and began shooting at Al-Buturky's car.
According to Drewery, after he departed the Kush Mart with Fulson and
his friends, he was trying to figure out where the white car went when he noticed
it driving back toward him. He stopped his car and asked Fulson if he should
3 No. 77031-4-1/4
turn around and follow the white car, but Fulson, who was sitting in the seat
behind him, told him to keep going. Drewery continued driving and eventually
came upon the BMW,sitting at a stop sign. Drewery testified that the BMW was
"just sitting there," not moving, and that he was trying to figure out whether it was
going to keep going. He testified that he did not make any obscene gestures at
the BMW. But he could see the BMW driver's face in the BMW's rearview mirror
and may have tried to communicate something to the effect of, "So are you going
to move your car? Are you just kind of sitting there? What's [sic] you going to
do? Are you going to move your car?" When the BMW did not move, Drewery
decided to drive around it to the left As he did so, he heard gunshots. He
testified that he did not know where they were coming from.
Al-Buturky testified that as soon as he and his passengers heard
gunshots, they ducked down in the car. After the firing stopped and Al-Buturky
and his passengers confirmed that none of them had been shot, they decided to
chase down the black car, hoping to get a license plate number. A high-speed
chase ensued as Al-Buturky pursued the black car. At one point, he witnessed
the black car blow a tire as it hit a curb going around a corner. Al-Buturky also
saw the black car stop in a residential area and the passengers exit the car and
run away. Eventually, the black car pulled into Popeye's restaurant and parked.
Al-Buturky followed and stopped in front of Popeye's. He saw Drewery get out of
the black car, saying something like, "Mt wasn't me,[didn't mean to, 1 didn't do
it." Al-Buturky and Al-Nighashi approached Drewery and pinned him to the
ground. Officers responded shortly thereafter.
4 No. 77031-4-1/5
According to Drewery, once he heard the gunshots at Olympic and
Madison, he "put [his] feet on the accelerator" and thought, "I'm going. I'm not
staying here." After driving a short distance, he looked back to see if everyone
was all right in the car. At that point, he saw a gun in his rear passenger-side
passenger's lap. Drewery testified that he went from being scared to being
"pissed off" and that as he was driving, he made the decision that he needed to
get everyone out of his car. After hitting a curb, he stopped and told his
passengers that he wasn't driving anymore and that "You guys need to get the
hell out of my car." Drewery testified that Fulson initially protested, but Drewery
yelled at them to get out of the car and they did. He testified that he then drove
back to Popeye's to get more information about Fulson and to call the police.
McCartha also testified at trial. Before she did so, the State requested to
elicit testimony from McCartha that when she learned about the drive-by shooting
from the police, "she was mad that her car and her boyfriend got caught up in this
and basically made the comment that night that she was mad because the
defendant didn't have to follow this car and he should have known that
something like this could have happened." (Emphasis added.) Defense counsel
objected on the basis that the testimony constituted McCartha's opinion. The
court then ruled:
I think that she can say that she's angry, that it was her car, he should not have done this sort of thing. The final line I don't think she can say. That's an opinion. But her anger at the fact that he placed himself in a dangerous situation, with dangerous people, I think that's legitimate.[1]
1 (Emphasis added.) 5 No. 77031-4-1/6
Nevertheless, just 20 minutes after the court's ruling, the following
exchange occurred during the State's examination of McCartha:
Q. [PROSECUTOR]: Ms. McCartha, did there come a time on the evening of March 15, 2017, when you got a call from your boyfriend Dave Drewery? A. Yes. Q. And is it fair to say that he was with some detectives when that call happened? A. Yes. Q. All right. Now, the detectives didn't tell you anything about exactly what had happened that night, did they? A. No, they were very blunt about what happened. Q. They were what? A. Blunt. They just told me the car had been involved in a drive-by and that was basically it. Q. You had sort of an emotional reaction to that, didn't you? A. Yes. Q. Would it be fair to say that you were angry? A. Yes. Q. And would it also be fair to say that you were angry because you had previously warned Dave about hanging out with Malik because he is dangerous? A. Yes. Q. And that he should have known something like this could have happened? A. Yes.121
Defense counsel did not object to this testimony. A jury later convicted Drewery
as charged. Drewery appeals.
ANALYSIS
Drewery argues that his counsel was ineffective for failing to object when
the prosecutor, in direct contravention of the trial court's in limine ruling, asked
McCartha whether Drewery "should have known something like this could have
2(Emphasis added.) According to the verbatim report of proceedings, the court made its ruling at 9:36 a.m., and the prosecutor elicited McCartha's "should have known" testimony at 9:56 a.m. 6 No. 77031-4-1/7
happened." We agree.
The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington State Constitution guarantee the right to effective
assistance of counsel. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16
P.3d 601 (2001). "A claim of ineffective assistance of counsel is an issue of
constitutional magnitude that may be considered for the first time on appeal."
State v. Salas, 1 Wn. App. 2d 931, 949, 408 P.3d 383, review denied, 190 Wn.2d
1016 (2018). To prevail on a claim of ineffective assistance, a defendant must
establish that(1) his attorney's performance was deficient and (2) the deficiency
prejudiced him. State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Here,
Drewery has established both deficient performance and prejudice.
1. Counsel's performance was deficient
To establish that counsel's performance was deficient, Drewery must
prove that "counsel's performance fell below an objective standard of
reasonableness in light of all the circumstances." In re Pers. Restraint of Lui, 188
Wn.2d 525, 538, 397 P.3d 90 (2017). "The threshold for the deficient
performance prong is high, given the deference afforded to decisions of defense
counsel in the course of representation." State v. Grier, 171 Wn.2d 17, 33, 246
P.3d 1260 (2011). "To prevail on an ineffective assistance claim, [the]
defendant. . . must overcome 'a strong presumption that counsel's performance
was reasonable." Grier, 171 Wn.2d at 33 (quoting KvIlo, 166 Wn.2d at 862). To
that end, counsel's performance is not deficient if counsel's conduct can be
characterized as legitimate trial strategy or tactics. Grier, 171 Wn.2d at 33.
7 No. 77031-4-1/8
Additionally, "to establish deficient performance based upon defense counsel's
failure to object, the defendant must show.. . that the proposed objection would
likely have been sustained." State v. Townsend, 142 Wn.2d 838, 850, 15 P.3d
145 (2001). "Only in egregious circumstances, on testimony central to the
State's case, will the failure to object constitute incompetence of counsel
justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662
(1989).
Here, it is beyond dispute that McCartha's testimony was central to the
State's case. The State acknowledged as much when it explained to the court,
before McCartha testified, why it was considering calling McCartha in its case in
chief, rather than solely as a rebuttal witness. Specifically, the prosecutor stated:
"So from my perspective this is very important because it goes to the element
that will be the only contested issue here, which is the defendant's knowledge of
what was going to happen before it happened." (Emphasis added.)
Additionally, the State initially hoped to elicit from McCartha not only that
she had warned Drewery about Fulson and that in her opinion Drewery should
have known something like this could happen, but also that Fulson was "pretty
deep.. . into the gang life-style" and that he was a Crip. The State explained
that McCartha's testimony on these matters "directly goes to [Drewery's]
knowledge of the type of violent behavior that was about to follow when he was
. . . obeying Mr. Fulson's instructions to follow this car." The court barred
testimony regarding Fulson's gang affiliation along with McCartha's opinion that
Drewery "should have known that something like this could have happened."
8 No. 77031-4-1/9
The fact that the prosecutor decided to risk an objection—or even a motion for a
mistrial—by posing the very question prohibited by the court further
demonstrates that the State considered McCartha's "should have known"
testimony central to its case.
In light of these circumstances, defense counsel's failure to object was
egregious and cannot be explained by any legitimate tactic or strategy. Having
participated in the above-described argument regarding the permitted scope of
McCartha's testimony, defense counsel was clearly aware of its import to the
State. Furthermore, because the trial court had ruled, just 20 minutes earlier,
that McCartha's "should have known" testimony was inadmissible, an objection to
that very testimony would likely have been sustained. Finally, the prosecutor's
single question, and McCartha's response to it, could readily have been
addressed with a curative instruction had counsel objected. For these reasons,
counsel's performance was deficient.
The State contends that counsel's performance can be explained by
legitimate trial tactics. It first argues, relying on State v. Kloepper, 179 Wn. App.
343, 317 P.3d 1088 (2014), that counsel "could have reasonably decided that an
objection would have highlighted the testimony." The State's reliance on
Kloepper is misplaced. In Kloepper, a detective testified about the process used
to create a photomontage in which the defendant's photo had appeared.
Kloepper, 179 Wn. App. at 355. The detective explained that although most
montage photos come from I-Leads, a database that includes booking photos
and other police contact information, the police had used the defendant's
9 No. 77031-4-1/10
employment photo. Kloepper, 179 Wn. App. at 355. When defense counsel
asked whether the police also had a Department of Licensing (DOL) photo of the
defendant, the detective responded that the police had an I-Leads photo of the
defendant, but that he was unsure about a DOL photo. Kloepper, 179 Wn. App.
at 355.
On appeal, the defendant argued that defense counsel was ineffective for
failing to object to this testimony, which he argued conveyed that he had a
criminal history. Kloepper, 179 Wn. App. at 355. Division Three disagreed,
characterizing the detective's reference to an I-Leads photo as "passing
information" and counsel's decision not to object as a tactical decision not to
highlight the evidence to the jury. Kloepper, 179 Wn. App. at 354, 355.
Here, McCartha's testimony was not just "passing information." As
discussed, her testimony and her opinions were, according to the State's own
arguments, directly relevant to Drewery's knowledge—the central issue in this
case. Kloepper does state that "[t]he decision to object, or to refrain from
objecting . . . is not a basis for finding counsel ineffective." Kloepper, 179 Wn.
App. at 355. But the case Kloepper cites for that proposition acknowledges that
the failure to object may, "in egregious circumstances, on testimony central to the
State's case,. . . constitute incompetence of counsel justifying reversal."
Madison, 53 Wn. App. at 763. As discussed, counsel's failure to object here was
egregious, and McCartha's testimony was central to the State's case. Therefore,
Kloepper is not persuasive.
The State next argues that counsel "could have also reasonably
10 No. 77031-4-1/11
concluded that an objection may result in confusing jurors." Specifically, it
argues that an objection could have invited additional argument, and what
constitutes an improper opinion "is not always clear cut." This argument is not
persuasive. First, the trial court ruled on the exact testimony at issue just 20
minutes earlier, following argument from counsel. There is no reason to suspect
that the court would have entertained further argument, particularly where the
excluded testimony was not accidentally volunteered by McCartha, but instead
was deliberately repeated by the prosecutor himself in a leading question during
McCartha's direct examination, in outright violation of the court's ruling. Second,
even if the court were inclined to entertain further argument, that argument could
easily have taken place outside the presence of the jury.
Furthermore, in accomplice liability cases, the State is required to prove
that the defendant acted with actual knowledge that he was promoting or
facilitating the crime charged. State v. Allen, 182 Wn.2d 364, 374, 341 P.3d 268
(2015). To this end, our Supreme Court has observed that the knowledge
standard can be "understandably misinterpret[ed]. . . to allow a finding of
knowledge. . . if the defendant `should have known." Allen, 182 Wn.2d at 374
(quoting State v. Shipp, 93 Wn.2d 510, 514, 610 P.2d 1322 (1980)). In an
attempt to clarify the knowledge standard, defense counsel had, just two days
before McCartha testified, proposed adding the following sentence to the pattern
instruction: "In order to find that the defendant was an accomplice in this matter,
you must find that he had actual knowledge that he was promoting or facilitating
the commission of the crime." (Emphasis added.) In other words, defense
11 No. 77031-4-1/12
counsel clearly understood that the knowledge standard was subject to
misinterpretation, and that admission of McCartha's "should have known"
testimony would make juror confusion more—not less—likely. This was later
confirmed when counsel argued, before the court ultimately rejected counsel's
proposed instruction, that "[i]f it's absent. . . , the jury can read this instruction
and go with the 'should have known' inference, which is inappropriate in an
accomplice liability case." In short, it is clear from the record that avoiding juror
confusion was not counsel's tactic for failing to object to McCartha's testimony,
nor would it have been a legitimate tactic under the circumstances.
Finally, the State argues that counsel "could have also made a strategic
decision to refrain from objecting also because in the end the testimony did not
do much to damage the defense." But this argument is completely disingenuous
because the State itself both (1) argued to introduce McCartha's testimony as
going to the "critical element" of Drewery's knowledge and (2) reemphasized
McCartha's testimony during closing. Furthermore, the State's argument is
belied by the fact that when the State indicated it planned to highlight McCartha's
testimony in closing, defense counsel strenuously objected, characterizing
McCartha's testimony as "improper." That objection would not have been
necessary if, as the State contends, counsel thought McCartha's testimony did
not do much to damage the defense. The State's argument is unpersuasive.
Counsel's failure to object to the prosecutor's solicitation of McCartha's
"should have known" testimony cannot, under the circumstances, be explained
by any legitimate strategy or tactic. Therefore, Drewery has met his burden to
12 No. 77031-4-1/13
establish deficient performance.
2. Counsel's deficient performance prejudiced Drewery
To establish that he was prejudiced by counsel's deficient performance,
Drewery must prove "that in the absence of counsel's deficiencies, there is a
reasonable probability that the result of the proceeding would have been
different." Lui, 188 Wn.2d at 538. "Counsel's errors must be so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable." Lui, 188
Wn.2d at 538-39 (internal quotation marks omitted)(quoting Harrinqton v.
Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)). "In other
words, '[t]he likelihood of a different result must be substantial, not just
conceivable." Lui, 188 Wn.2d at 539 (alteration in original)(quoting Harrington,
562 U.S. at 112).
Here, a substantial likelihood exists that, had defense counsel objected,
the outcome of Drewery's trial would have been different. Had counsel objected,
the objection would likely have been sustained, and McCartha's improperly
elicited testimony would have been stricken from the record. And had
McCartha's testimony been stricken from the record, the State would have been
precluded from mentioning—much less emphasizing—that testimony in closing.
But instead, the jury heard—not just once, but twice—that in McCartha's opinion,
Drewery "should have known" that something like the drive-by shooting could
have happened: first, as McCartha's final statement in her direct testimony, and
second, in the State's closing, when the prosecutor argued:
You know a lot about the knowledge that the Defendant had about what he was getting himself into. You heard from his
13 No. 77031-4-1/14
girlfriend . . . already about how dangerous Malik was and that he had been told about that, warned about that, and that in [McCartha]'s opinion he should have known something like this could have happened.
The jury's ability to consider McCartha's opinion prejudiced Drewery. In
accomplice liability cases such as this one, where there is no direct evidence of
the defendant's knowledge, "the trial turn[s] on whether the State produced
sufficient circumstantial evidence to allow the jury to infer. . . actual knowledge."
Allen, 182 Wn.2d at 375. To that end, the trial court, after "struggling" with
whether to accept Drewery's proposed clarification to the knowledge instruction,
ultimately rejected it and gave the pattern instruction on knowledge, which is
based on Washington's culpability statute. 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at 222(4th ed. 2016)
(citing RCW 9A.08.010). Under that statute, the jury is not allowed to find
knowledge based on a finding that the defendant "'should have known," but is
allowed to infer knowledge if the defendant had information that would lead a
reasonable person in the defendant's situation to believe that the fact at issue
exists. Allen, 182 Wn.2d at 374; see also RCW 9A.08.010(1)(b)(ii).
This distinction, as our Supreme Court has recognized, is subtle—but
critical. Allen, 182 Wn.2d at 374. And as discussed, even our Supreme Court
has recognized that jurors "could understandably misinterpret Washington's
culpability statute to allow a finding of knowledge 'if an ordinary person in the
defendant's situation would have known' the fact in question, or in other words, if
the defendant 'should have known." Allen, 182 Wn.2d it 374 (quoting Shipp, 93
Wn.2d at 514). For this reason, McCartha's opinion that Drewery "should have
14 No. 77031-4-1/15
known" prejudiced Drewery. The admission of McCartha's testimony allowed the
State to argue during closing that McCartha's opinion about what Drewery should
have known was relevant to the ultimate issue of "the knowledge that [Drewery]
had about what he was getting himself into." But this argument improperly
suggested to the jury that it could find knowledge if an ordinary person in
Drewery's situation (i.e., being with Fulson, a dangerous person McCartha had
warned Drewery about) should have known that something like this (i.e., a drive-
by shooting) could happen. Given the critical distinction between what Drewery
"should have known" and what he did know, the prosecutor's improper
solicitation of McCartha's testimony and defense counsel's failure to object to it
prejudiced Drewery.
The State contends that Drewery was not prejudiced because "there was
substantial circumstantial evidence demonstrating the defendant's knowledge of
the crime." The State then describes other circumstantial evidence that it asserts
demonstrates Drewery and his passengers intended to intimidate the occupants
of Al-Buturky's car and that after the shooting, Drewery was driving like he "was
trying to escape." It argues that "[t]his evidence was similar to the circumstantial
evidence this Court found sufficient to convict as an accomplice to drive by
shooting in Sarausad v. State," 109 Wn. App. 824, 39 P.3d 308 (2001). But in
Sarausad, there was testimony from passengers in the defendant's vehicle that
"capping'(shooting) was mentioned during the trip [to the scene of the
shooting,]" and that upon approaching, the defendant said,"Are you ready?"
Sarausad, 109 Wn. App. at 831. Furthermore, it was established in Sarausad
15 No. 77031-4-1/16
that the defendant and the passengers in his car were fellow gang members and
that the targets of the shooting were members of a rival gang. Sarausad, 109
Wn. App. at 831.
Here, by contrast, the evidence of Drewery's actual knowledge and his
relationship with his passengers is far more lacking. The only testimony about
what happened in Drewery's car in the moments leading up to the shooting was
that Drewery and his front seat passenger may have made some gestures at Al-
Buturky, which Al-Buturky and his passengers perceived as gang signs based
primarily on movies and music videos. Even if Drewery did intend to intimidate
Al-Buturky and his passengers, the instances of alleged intimidation here are
weak evidence of any actual knowledge on Drewery's part that a drive-by
shooting was forthcoming. To this end, Drewery explained that the reason he
may have gestured to Al-Buturky while stopped behind him at the stop sign was
that Al-Buturky's car was just sitting there, not moving. Furthermore, Drewery
testified that he drove erratically after the shooting because he was focused on
trying to get Fulson and his friends out of the car. He also testified that he did not
know his passengers, other than Fulson, and that testimony was not
contradicted.
Moreover, Sarausad involved a sufficiency-of-the-evidence challenge.
Sarausad, 109 Wn. App. at 844. In that context, the court considers "'whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt." State v. Dreewes, Wn.2d , 432 P.3d 795, 800
16 No. 77031-4-1/17
(2019)(internal quotation marks omitted)(quoting State v. Johnson, 188 Wn.2d
742, 762, 399 P.3d 507 (2017)). Here, on the other hand, the court's inquiry is
not whether there was sufficient evidence to justify upholding the verdict, but
whether, absent counsel's deficient performance, there is a reasonable
probability that the outcome would have been different—"a 'probability sufficient
to undermine confidence in the outcome." State v. Drath, Wn. App. 2d
431 P.3d 1098, 1104(2018)(quoting State v. Estes, 188 Wn.2d 450, 458, 395
P.3d 1045 (2017)); cf. Allen, 182 Wn.2d at 375-76 (explaining in a prosecutorial
misconduct case that prejudice is not a matter of whether there is sufficient
evidence to justify upholding the verdict but rather whether there is a substantial
likelihood that the instances of misconduct affected the jury's verdict). Here, our
confidence in the outcome is undermined because McCartha's improperly
solicited opinion went directly to a critical factual determination that our Supreme
Court has recognized "a juror could understandably misinterpret." Allen, 182
Wn.2d at 374. Additionally, during deliberations, the jury submitted an inquiry to
the court indicating that it was struggling with what evidence it could consider in
determining Drewery's guilt.3 Drewery has established prejudice, and the State's
reliance on Sarausad and other circumstantial evidence in this case is misplaced.
3 The juryasked, "Is our judgement [sic] based on solely prior knowledge to the crime being committed, or does it include actions there after[?]" 17 No. 77031-4-1/18
We reverse.
WE CONCUR: