State v. Humphries

¶1 This case concerns whether an attorney can stipulate to an element of a charged crime over his client’s express objection and whether, in this case, any error was waived by the defendant. In addition, we must decide whether defense counsel’s failure to request a limiting instruction constituted ineffective assistance of counsel. The Court of Appeals, in a two to one opinion, affirmed the defendant’s convictions for assault in the second degree with a firearm enhancement and first degree unlawful possession of a firearm. We reverse the Court of Appeals as to the unlawful possession of a firearm conviction and affirm as to the assault conviction.1

Facts and Procedural History

¶2 In the early morning hours of February 7, 2010, Officer David Ellithorpe was patrolling the streets of Seattle in a marked police cruiser. At 1:00 a.m., Ellithorpe saw *712two men emerge from an alley. One of the men raised his hand and pointed at the officer; Ellithorpe heard a gunshot and saw a muzzle flash in the man’s hand. Less than two minutes later, after Ellithorpe had radioed in the incident, another officer apprehended two men. Ellithorpe immediately recognized both men, one of whom was the petitioner, Mario Humphries. The officers arrested Humphries and searched the area but failed to recover a gun or any shell casings.

¶3 The State charged Humphries with second and third degree assault, as well as first degree unlawful possession of a firearm based on multiple juvenile convictions for robbery that rendered him ineligible to possess a firearm. On the first day of trial, the parties informed the court that they had agreed to stipulate that Humphries had been convicted of a “serious offense.” Defense counsel indicated he did not want the jury to hear about the underlying convictions but informed the court that Humphries disagreed with the stipulation. Both the defense attorney and the trial judge discussed the matter and agreed that stipulating to an element was a tactical decision that did not require the defendant’s consent.2 Accordingly, just before the State rested, the stipulation was read to the jury. The stipulation conceded that Humphries “had previously been convicted of a serious offense,” that he “had previously received written notice that he was ineligible to possess a firearm,” and that he “knew that he could not possess a firearm.” Clerk’s Papers at 12. The stipulation had been *713signed by the defense attorney and prosecutor but not by Humphries. No limiting instruction was given or requested to accompany the stipulation. After both sides had presented their cases and before the jury began deliberations, defense counsel indicated that Humphries would sign the stipulation, which he did. The stipulation was filed with the court, but it is unclear whether the stipulation was also admitted into evidence.

¶4 The jury found Humphries guilty of all three crimes and a firearm enhancement. At sentencing, Humphries’s attorney moved for a new trial based on ineffective assistance of counsel, stating that he “should have asked the Court to enter into a limiting instruction,” but the trial court denied the motion. Verbatim Report of Proceedings (Jan. 6, 2011) at 3. The court vacated the third degree assault conviction and imposed 106 months of confinement: 70 months for second degree assault with an additional 36 months for a firearm enhancement and 75 months for unlawful possession of a firearm (to run concurrently).

¶5 On appeal, Humphries argued that his constitutional rights were violated when the stipulation was read to the jury over his express objection and that he received ineffective assistance of counsel. The Court of Appeals issued a split decision affirming the convictions. The majority opinion did not address the validity of the stipulation but rather held that Humphries had either waived or abandoned the issue in eventually signing the stipulation. State v. Humphries, 170 Wn. App. 777, 798, 285 P.3d 917 (2012). The dissenting opinion argued that entry of the stipulation over Humphries’s express objection violated the Fifth and Sixth Amendments to the United States Constitution. Humphries, 170 Wn. App. at 801-02 (Dwyer, J., dissenting). Humphries sought, and we granted, discretionary review. State v. Humphries, 177 Wn.2d 1007, 300 P.3d 416 (2013).

*714Analysis

a. Propriety of a Stipulation over the Defendant’s Objection

¶6 Humphries argues that the decision to enter a stipulation at trial is exclusively within the defendant’s discretion. Accordingly, Humphries argues that before a stipulation can be entered, a court must engage in a colloquy with the defendant to ensure that the defendant is entering the stipulation knowingly and voluntarily. The State argues that whether to enter a stipulation is a strategic decision to be made by counsel and that the defendant’s express objection is irrelevant. This is an issue of first impression in Washington. We hold that although the decision to stipulate an element of the crime does not generally require a colloquy on the record with the defendant, such a decision may not be made over the defendant’s known and express objection.

f 7 The decision to stipulate to an element implicates more than merely trial tactics. Under the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to require the State prove every element constituting the crime. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also Mathews v. United States, 485 U.S. 58, 64-65, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). This right is anchored in principles of due process existing under the Fifth and Fourteenth Amendments.3 When the parties stipulate to the facts that establish an element of the charged crime, the jury need not find the existence of *715that element, and the stipulation therefore constitutes a waiver of the “right to a jury trial on that element,” United States v. Mason, 85 F.3d 471, 472 (10th Cir. 1996), as well as the right to require the State prove that element beyond a reasonable doubt, Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).

¶8 Although stipulations implicate the defendant’s constitutional rights, generally stipulations do not need to be accompanied by a colloquy on the record between the defendant and the trial court. In United States v. Ferreboeuf, 632 F.2d 832 (9th Cir. 1980), the Ninth Circuit addressed this issue. There, the defendant’s attorney signed a stipulation to two elements of a charged crime. On appeal, the defendant argued that stipulations such as this required a trial court to personally question the defendant to determine voluntariness, as is required for the entry of guilty pleas. The court rejected this rule, recognizing a difference between pleading guilty, which requires such a colloquy, and stipulating to crucial facts. As the court reasoned, requiring trial courts to question defendants personally as to the voluntariness of every stipulation would “needlessly delay and confuse the conduct of a typical trial.” Ferreboeuf, 632 F.2d at 836. Instead, the court held that when a stipulation is agreed to by the defendant’s attorney in the presence of the defendant, the trial court may presume that the defendant consents, unless the defendant objects at the time the stipulation is made. Ferreboeuf, 632 F.2d at 836. We agree with this analysis, and here we are dealing with a situation where Humphries did object.

¶9 Although courts can presume a defendant consents to a stipulation, this presumption disappears where the defendant expressly objects. In United States v. Williams, 632 F.3d 129 (4th Cir. 2011), for example, the defendant was charged with conspiracy to possess heroin with the intent to distribute for receiving a package of heroin in the mail. The prosecution sought to enter a stipulation under which the *716defendant admitted that the contents of the package tested positive for heroin in lieu of having the forensic chemist testify. Williams, 632 F.3d at 131. The defendant refused to sign the stipulation, but the court allowed the defense counsel to sign it over the defendant’s objection, and the stipulation was read to the jury. Williams, 632 F.3d at 131. On appeal, the Fourth Circuit held that the trial court erred in admitting the stipulation over the defendant’s objection because doing so violated his Sixth Amendment right to confront witnesses. Williams, 632 F.3d at 132. The court also noted that the “stipulation may also be grounds for a violation of the defendant’s right to a jury [trial].” Williams, 632 F.3d at 133 n.2. The result recognized that trial courts cannot compel a defendant to enter stipulations to elements of a crime where an objection is made.

f 10 Here, in pleading not guilty, Humphries invoked his due process right to require that the State meet its burden of proof as to every element of the crime, a proposition that the State does not contest. Humphries was charged with unlawful possession of a firearm, which makes it a crime for a person to possess or control a firearm “after having previously been convicted ... of any serious offense.” RCW 9.41.040(l)(a). The stipulation established the fact of Humphries’s prior serious offense, thereby conceding an element of the crime. Counsel’s stipulation relieved the State of its burden of proof as to that element. Had Humphries not voiced an objection, the trial court would have been correct in assuming that he consented to the stipulation. Because Humphries objected, however, the trial court could not accept the stipulation and compel Humphries to waive his constitutional rights.

f 11 The State cites several foreign cases for the proposition that counsel has the authority to stipulate to material facts as a matter of trial tactics. Suppl. Br. of Resp’t at 9-10 (July 16,2013) (quoting United States v. Thornton, 327 F.3d 268, 270 (3d Cir. 2003); Poole v. United States, 832 F.2d 561 (11th Cir. 1987); United States v. Schoenhut, 576 F.2d *7171010, 1019 n.9 (3d Cir. 1978)). In none of these cases, however, did the defendant expressly object to the stipulation. In line with Ferreboeuf, absent an objection by the defendant, the court may presume that the defendant consents to the waiver.4 The State also relies on Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), to support its argument that the trial court’s acceptance of the stipulation did not violate Humphries’s rights. Old Chief, however, holds only that a trial court abuses its discretion when it fails to accept a stipulation to a prior conviction upon defense counsel’s request. Old Chief, 519 U.S. at 174. It does not hold that a court must accept the stipulation over the defendant’s objection, as is the issue in this case. Old Chief is therefore inapplicable to the present case.

f 12 Instead of examining the validity of the stipulation, the Court of Appeals held that Humphries’s subsequent decision to sign the stipulation waived his objection or, alternatively, abandoned his challenge to the stipulation on appeal. The Court of Appeals’ reasoning is not sustainable.

¶13 Waiver of a constitutional right must be knowing, voluntary, and intelligent. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Here, the trial court and counsel erroneously told Humphries that his consent to the stipulation was not required. The stipulation was then read to *718the jury as part of the State’s case. It was not until the State rested and the defense had presented its case that Humphries signed the stipulation. At that point, the damage was done, and nothing suggests that Humphries’s signature was anything other than forced acquiescence to what had already occurred. Without something in the record suggesting that he voluntarily changed his mind, the signature cannot be considered a knowing, intelligent, and voluntary waiver of his constitutional rights.

¶14 As the dissent in the Court of Appeals opinion here recognized, even though the waiver of a constitutional right may be informed by strategic considerations, it cannot be involuntary. See Humphries, 170 Wn. App. at 804 n.12 (Dwyer, J., dissenting). Entering the stipulation as to an element of the crime over Humphries’s known objection would have constituted an involuntary waiver of his due process right to hold the State to its burden of proof. The trial court erred when it allowed the stipulation to be read to the jury over Humphries’s known objection, and the record does not indicate that his subsequent signature on the stipulation constituted an informed and voluntary waiver of his rights once they had been asserted.5

¶15 As an alternative ground to affirm, the Court of Appeals held that even if the trial court erred in accepting the stipulation over Humphries’s objection, such an error was harmless. A constitutional error is harmless when there is no reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. State v. Frost, 160 Wn.2d 765, 782, 161 P.3d 361 (2007). The Court of Appeals reasoned that even absent the stipulation, the State was fully prepared to and would have presented *719evidence of Humphries’s prior serious offense convictions for robbery. Humphries, 170 Wn. App. at 796. But as Judge Dwyer correctly noted in the dissent, the State presented absolutely no evidence of Humphries’s prior conviction for a serious offense other than the improperly admitted stipulation. It is irrelevant that the State “ ‘was fully prepared to present evidence’ ” of the prior conviction. Humphries, 170 Wn. App. at 809 (Dwyer, J., dissenting). Instead, we focus on evidence that was actually admitted at trial, State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002), and because no untainted evidence of a prior conviction for a serious offense was admitted at trial, no reasonable jury could have found that element proved.6

b. Ineffective Assistance of Counsel

¶[16 Humphries also argues that his assault conviction should be reversed because he received ineffective assistance of counsel.7 The Court of Appeals held that Humphries failed to show ineffective assistance of counsel. We agree.

¶17 The defendant has the burden of establishing ineffective assistance of counsel. To prevail, the defen*720dant must show that (1) counsel’s representation was deficient, that is, it fell below an objective standard of reasonableness and (2) there was prejudice, measured as a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Judicial review of an attorney’s performance is highly deferential, Strickland, 466 U.S. at 689, and such performance is not deficient if it can be considered a legitimate trial tactic, State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).

¶18 Here, Humphries argues that because his attorney failed to request an instruction limiting the jury’s consideration of the stipulation, the jury was allowed to improperly consider Humphries’s prior “serious offense” as propensity evidence for the assault charge. In order to prevail on his ineffective assistance of counsel claim, Humphries must show that not requesting a limiting instruction fell below an objective standard of reasonableness and resulted in prejudice. Where an attorney does not request a limiting instruction regarding a prior conviction, courts have applied a presumption that the omission was a tactical decision to avoid reemphasizing prejudicial information. State v. Price, 126 Wn. App. 617, 649, 109 P.3d 27 (2005); State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); see also Stamps v. Rees, 834 F.2d 1269, 1276 (6th Cir. 1987). Therefore, because we presume the action is a reasonable tactical decision, the failure to request a limiting instruction under the circumstances cannot establish an ineffective assistance of counsel claim.

f 19 Humphries attempts to avoid this presumption by arguing that the prior conviction would not have been “reemphasized” if a limiting instruction had been requested at the time the evidence was introduced. This argument, however, splits hairs, and although some cases use “reemphasize” — which arguably supports Humphries’s argument — others recognize that the tactic is to avoid giving *721prior convictions “undue attention.”8 Humphries’s counsel did not request a limiting instruction, and this is presumed to be a reasonable defense tactic. Humphries has failed to carry his burden in demonstrating that his counsel’s performance was deficient, and his ineffective assistance of counsel claim fails.

Conclusion

¶20 The Court of Appeals is reversed in part and affirmed in part. Humphries’s unlawful possession of a firearm conviction is reversed and remanded for a new trial. His assault conviction is affirmed.

Fairhurst, Wiggins, González, and Gordon McCloud, JJ., and J.M. Johnson, J. Pro Tem., concur.