State Of Washington, Respondent V. Jerrell Cortez Davis, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JERRELL CORTEZ DAVIS,
Appellant.
No. 70813-9-1 	T~:.i
O
DIVISION ONE
IV>
o
UNPUBLISHED vX
FILED: Januarv 20. 2015 (J
Cox, J. - In order to prove ineffective assistance of counsel, "the
defendant 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."1 	Jerrell Davis argues that his counsel was deficient
because she proposed a limiting instruction that did not specifically prohibit the
jury from using evidence as propensity evidence. 	Because counsel's proposed
instruction properly instructed the jury, and a more detailed instruction could have
unduly emphasized the evidence, counsel was not deficient. 	Thus, we need not
reach the question of prejudice. 	We affirm.
The State charged Davis with first degree robbery. 	Sean Ramalho, the
victim in this case, sold medical marijuana. 	He testified that he had been called
by someone purporting to be Daniel Stednick, who wanted to purchase medical
1 State v. Humphries 	Wn.2d 	, 336 P.3d 1121, 1127(2014).

No. 70813-9-1/2
marijuana. 	Ramalho verified that Stednick had a valid medical marijuana
certificate, and he arranged to meet the caller.
When Ramalho met the caller, he asked to see his driver's license to
verify that he was Stednick. The caller told Ramalho his license was inside his
apartment and that he would show Ramalho the license inside. 	Once inside the
building, two men approached Ramalho, and one pointed a gun at him. The men
then took the marijuana and cash Ramalho was carrying. 	Ramalho later
identified Davis as the caller who purported to be Stednick.
During its case in chief, the State introduced evidence about a prior
robbery in which Davis allegedly was involved. 	Daniel Stednick testified that he
had been robbed after someone arranged to buy marijuana from him. 	He
testified that the robbers took his "medical marijuana certificate and identification
as a marijuana distributor" among other items.
Before Stednick testified, the court instructed the jury that it could use the
testimony about Stednick's robbery only for "circumstantial evidence of the crime
charged, res gestae, identity or modus operandi." 	Before deliberations, the court
again instructed jurors to use the evidence only for the purpose for which it was
introduced.
The State proposed a jury instruction defining "modus operandi" and "res
gestae." 	But the court was concerned that this more specific instruction would
unduly emphasize the evidence. 	Defense counsel, who had proposed a general
404(b) limiting instruction, agreed with the court's ruling. The court then gave the
more general instruction. 	The jury convicted Davis.

No. 70813-9-1/3
Davis appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Davis argues that his counsel was ineffective. 	Specifically, he argues that
the performance of his counsel was constitutionally deficient for failing to propose
a more specific limiting instruction—an instruction that explicitly told jurors they
could not use the evidence as propensity evidence. 	We disagree.
Both the federal and state constitutions provide the right to counsel.2
Because ineffective assistance of counsel is an "issue of constitutional
magnitude," it may be raised for the first time on appeal.3
The defendant bears the burden of proving ineffective assistance of
counsel.4 "[T]he defendant 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."5 	If the defendant fails to prove one of the
prongs, we need not inquire further.6
To show deficient representation, the defendant must show that counsel's
representation "fell below an objective standard of reasonableness based on all
2 U.S. Const, amend. VI; Const, art. I, § 22.
3 State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007).
4 Humphries. 336 P.3d at 1127.
6 Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

No. 70813-9-1/4
the circumstances."7 Washington courts are "highly deferential to counsel's
performance."8 Courts presume that counsel provided effective representation
and require the defendant to prove that no "legitimate strategic or tactical
reasons" exist.9
To establish prejudice, the defendant must prove that "there is a
reasonable probability that, but for counsel's unprofessional errors, the outcome
of the proceeding would have been different."10 "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."11
Here, Davis's counsel was not deficient by failing to request a more
specific limiting instruction.
Before trial, the defense moved to exclude evidence about Stednick's
robbery and other prior bad acts. The trial court ruled that the evidence was
admissible under ER 404(b). 	Davis does not challenge this ruling.
The trial court, at defense counsel's request, gave proper limiting
instructions. The court instructed the jury before the testimony of each witness
who referenced prior bad acts. When one officer testified, the court instructed
the jury:
7 Nichols, 161 Wn.2dat8.
8 In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142
(2014).
9 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
10 Nichols, 161 Wn.2dat8.
11 Strickland, 466 U.S. at 694.

No. 70813-9-1/5
Certain evidence has been admitted in this case for only a limited
purpose. 	This evidence you're about to hear consists of officer
testimony and may be considered by you only for the purpose of
determining whether or not the Defendant was associated with a
certain phone number and whether he owned a certain vehicle.
You may not consider it for any other purpose. 	Any discussion of
the evidence during your deliberations must be consistent with this
limitation.1121
When another officer testified, the court instructed the jury:
Certain evidence has been admitted in this case for only a limited
purpose. 	This evidence you're about to hear consists of witness
testimony and may be considered by you only for purposes of
determining whether it tends to prove circumstantial evidence of the
crime charged, res gestae, identity or modus operandi. 	You may
not consider it for any other purpose. Any discussion of the
evidence during your deliberations must be consistent with this
limitation.1131
And when Stednick testified, the court gave a substantively identical instruction.14
The court also instructed the jury before the start of deliberations. 	Its
written instruction stated:
Certain evidence has been admitted in this case for only a limited
purpose. 	This evidence consisted of certain witness testimony and
may be considered by you only for the purpose of res gestae,
identity, and/or modus operandi. 	You may not consider it for any
other purpose. 	Any discussion of the evidence during your
deliberations must be consistent with this limitation.[15]
These instructions mirror the language of Washington Pattern Jury
Instructions (WPIC) 5.30, which provides:
12 Report of Proceedings (May 15, 2013) at 177-78.
13 Report of Proceedings (May 22, 2013) at 32.
14 Report of Proceedings (May 16, 2013) at 23-24.
15 Clerk's Papers at 105.

No. 70813-9-1/6
Certain evidence has been admitted in this case for only a
limited purpose. 	This [evidence consists of 	and] may be
considered by you only for the purpose of 	. You may not
consider it for any other purpose. Any discussion of the evidence
during your deliberations must be consistent with this limitation.
Thus, in this case, counsel ensured that the court properly instructed the
jury both before the potentially damaging testimony and before deliberations.
And the court's instructions properly mirrored the relevant WPIC. Accordingly,
counsel's performance was not deficient.
Further, if the instruction had specifically mentioned propensity evidence,
it could have unduly emphasized the evidence. 	That was exactly the court's
concern in this case, when it refused to add language to the pattern jury
instruction. Accordingly, counsel's decision to use only the more general
language contained in the WPIC was a legitimate strategic decision, consistent
with the court's expressed concern.
Because counsel's performance was not deficient, we need not address
whether the lack of a more specific instruction prejudiced Davis.
Davis argues that his counsel was deficient by not proposing a jury
instruction that explicitly told jurors they could not use the evidence as propensity
evidence. 	Davis argues that case law requires an instruction telling jurors not to
use the evidence to conclude that the defendant has acted in conformity with his
or her character. 	Davis relies on State v. Gresham for this proposition.16
Gresham states: "An adequate ER 404(b) limiting instruction must, at a
minimum, inform the jury of the purpose for which the evidence is admitted and
16 173 Wn.2d 405, 269 P.3d 207 (2012).

No. 70813-9-1/7
that the evidence may not be used for the purpose of concluding that the
defendant has a particular character and has acted in conformity with that
character."17
But Gresham did not modify the standard for a proper 404(b) limiting
instruction. 	Instead, it merely restated the requirements. 	In that case, the trial
court failed to give any limiting instruction after counsel proposed an incorrect
instruction.18 The supreme court held that this failure to give an instruction was
error.19
In this case, the instruction was consistent with the language in Gresham.
It did not explicitly tell jury members that they could not use the evidence to
"conclud[e] that the defendant has a particular character and has acted in
conformity with that character." 	But it told the jurors that they could use the
evidence 'onlyfor the purpose of res gestae, identity, and/or modus operandi."20
This statement necessarily implies that the jury may not use the evidence to
conclude that Davis acted in conformity with his character. 	But even if one could
conclude there is no such implication, the instruction goes on to say "[y]ou may
not consider [the evidence] for any other purpose."21 	This resolves any doubt
about the proper use of the evidence.
17 Id, at 423-24.
18 id at 424.
19 Id
20 Clerk's Papers at 105 (emphasis added).
21 Id.

No. 70813-9-1/8
Accordingly, the instruction in this case told the jury what purpose the
evidence was admitted for and prohibited them from using it for any other
purpose, including as propensity evidence. 	Thus, the instruction was consistent
with the language in Gresham.
We affirm the judgment and sentence.
C&fiJT.
WE CONCUR:
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