State v. Kyllo

STATE OF WASHINGTON, Respondent, v. KENNETH LEE KYLLO, Appellant.

No. 51732-9-II

Court of Appeals of Washington, Division 2

February 11, 2020

UNPUBLISHED OPINION

Melnick, J.

Kenneth Kyllo appeals after a jury convicted him of two counts of unlawful possession of a controlled substance with intent to deliver. He argues that he received ineffective assistance of counsel because his lawyer submitted an unwitting possession jury instruction, and the court gave it. Kyllo also contends that the trial court erred by failing to exclude evidence seized pursuant to a search warrant and that the trial court violated his right to counsel. Lastly, he argues the court's reasonable doubt jury instruction violated his right to due process. Kyllo also raises a number of issues in his statement of additional grounds (SAG).

We affirm the convictions.

FACTS

In April 2017, Washington State Patrol Trooper Phillip Thoma applied for a warrant to search a hotel room in Kelso. Thoma's affidavit in support of the warrant stated that he met with a confidential informant (CI) on April 19. While in room 203 of a Kelso hotel within 72 hours of his statement, the CI saw approximately eight ounces of heroin on a table. The CI further related that the heroin belonged to Kyllo. The CI identified Kyllo from a police photograph. Thoma asserted in the affidavit that the CI had conducted multiple controlled buys for law enforcement and had previously provided information that had proven to be correct and reliable. The reviewing judge approved the warrant which authorized law enforcement to search the hotel room and Kyllo for controlled substances, paraphernalia, cash, and various other items such as computers, cell phones, and media storage devices.

Police executed the search warrant that same day. Officers knocked and announced they had a search warrant. No one answered the door, and, after hearing rustling coming from inside the room, officers forcibly entered.

Upon entry, officers saw a man, later identified as Thomas Wiggins, sitting at a table, and a woman, later identified as Nichole Williams, standing between the two beds in the room. Officers also saw Kyllo holding a backpack and running toward a back window. Thoma ran after Kyllo and repeatedly told him to stop. Kyllo threw the backpack out the window and then Thoma detained him.

Kelso Police Sergeant Kimber Yund was outside of the hotel room and retrieved the backpack after seeing it drop from the window. Thoma later searched the backpack and found a digital scale with brown residue, packaging material, $4, 800 in cash approximately nine ounces of heroin, and prescription pill bottles with Wiggins's name on them. The heroin was packaged in nine separate bags, each weighing approximately one ounce.

During a search of the hotel room, police found methamphetamine heroin, drug paraphernalia, a pay/owe sheet, ^[1] a wallet containing Kyllo's identification, and another pay/ owe sheet on the table where Wiggins had been sitting. Police also found heroin, packaging material, and drug paraphernalia on, and in, the nightstand close to where Williams had been standing.

The State charged Kyllo with two counts of unlawful possession of a controlled substance with intent to deliver, one for methamphetamine and the other for heroin. Before trial, Kyllo moved in limine to exclude testimony that officers were executing a search warrant to look for Kyllo and controlled substances, arguing that the testimony would be prejudicial. The trial court denied the motion in limine. The matter proceeded to trial, at which witnesses testified consistent with the facts above. Additionally, several police officers testified that they went to the hotel room to find Kyllo and controlled substances.

Kyllo testified that Wiggins invited him to the hotel room and that he was just a guest. He further related he had no knowledge that any drugs were in the room until after police arrived. Kyllo said that he threw the backpack out the window after Wiggins tossed him the backpack and told him to do it.

The trial court provided "to-convict" jury instructions for both counts of unlawful possession of a controlled substance with intent to deliver that stated, in relevant part, that the State had to prove beyond a reasonable doubt that "the defendant possessed the [controlled] substance with the intent to deliver a controlled substance." Clerk's Papers (CP) at 36, 38. The trial court also instructed the jury that "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime." CP at 34.

The court instructed the jury on unwitting possession, as proposed by Kyllo's lawyer. The State agreed that the instruction was appropriate. It read,

A person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if a person did not know that the substance was in his possession or did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

CP at 39.

The trial court provided the jury with a standard reasonable doubt jury instruction that stated, in part, "If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt." CP at 27.

During closing argument, the State said that the Drug Task Force went to the hotel to execute a search warrant. "They went to room 203 of that hotel looking for two specific things: drugs and the Defendant, Ken Kyllo." Report of Proceedings (RP) (Feb. 16, 2018) at 111.

Defense counsel stated in closing argument that the State had the burden to prove Kyllo possessed the controlled substances with the intent to deliver the substances. Defense counsel discussed the definitional instruction for intent and reminded the jury that the State had the burden to prove intent. Defense counsel reiterated that the State carried the burden to prove intent despite the unwitting possession jury instruction, stating, "And if you believe my client possessed it then there is a defense, if proven, that the defense [sic] was-the possession was unwitting. If we haven't met that burden, they still have to prove that the possession was done with a specific intent to deliver." RP (Feb. 16, 2018) at 127. Defense counsel argued that Wiggins's and Williams's presence in the hotel room created a reasonable doubt that Kyllo was the person in possession of the drugs found in the room.

In rebuttal, the State argued that the jury should consider the fact that police went to the hotel room to look for Kyllo rather than the other individuals who were in the room, and should consider this fact when evaluating the argument that another individual may have possessed the drugs found in the hotel room.

The jury returned verdicts finding Kyllo guilty of both counts of unlawful possession of a controlled substance with intent to deliver.

At a hearing prior to sentencing, Kyllo personally addressed the trial court and requested a new trial. He also asked for new counsel based on alleged ineffective assistance at trial. Kyllo asserted that his defense counsel had urged him not to accept a plea offer from the State, failed to call a key witness to testify at trial, and failed to request a lesser-included jury instruction.

The trial court denied Kyllo's requests for a new trial and for a new attorney. It reasoned that these claims would be best addressed through the appellate process. Kyllo appeals.

ANALYSIS

I. Ineffective Assistance of Counsel

Kyllo contends that he received ineffective assistance of counsel because his lawyer proposed an unwitting possession jury instruction for his charges of unlawful possession of a controlled substance with intent to deliver. We disagree.

The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant's right to effective assistance of counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on his claim of ineffective assistance of counsel, Kyllo must show both that his counsel's representation was deficient and that the deficient representation resulted in prejudice. Estes, 188 Wn.2d at 457-58. Representation is deficient if, after consideration of the circumstances "it falls 'below an objective standard of reasonableness.'" Estes, 188 Wn.2d at 458 (quoting State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). A strong presumption exists that counsel's representation was reasonable. Estes, 188 Wn.2d at 458. Performance is not deficient when the lawyer's conduct involves legitimate trial strategy or tactics. Estes, 188 Wn.2d at 458.

Prejudice exists if there is a reasonable probability that the outcome of the proceeding would have differed had counsel not rendered deficient performance. Estes, 188 Wn.2d at 458. Reasonable probability in this context means a probability sufficient to undermine confidence in the outcome of the trial. Estes, 188 Wn.2d at 458.

The State concedes that defense counsel rendered deficient performance by proposing an unwitting possession jury instruction. We reject the State's concession. The lawyer made a reasonable tactical decision in requesting the unwitting possession instruction.

Although a trial court may not have to instruct the jury on unwitting possession when a defendant is charged with possession with intent to deliver, a defense lawyer is not deficient for requesting the instruction if...