IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

GLORIA ANN MERCER,

Appellant.

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No. 36636-7-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Gloria Mercer appeals after her conviction for 

possession of a controlled substance. She argues her trial counsel was ineffective by not 

objecting to evidence of drug paraphernalia belonging to the occupants of her car. We 

conclude trial counsel’s failure to object was both a legitimate trial strategy and 

nonprejudicial, and affirm her conviction.

FACTS

The reasonableness of defense counsel’s trial strategy rests largely on the evidence 

anticipated at trial. For this reason, we highlight the facts from the arresting officer’s 

report.

FILED

APRIL 14, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36636-7-III

State v. Mercer

2

On April 10, 2018, Officer Michael Welch of the Colville Police Department 

stopped a car with a defective brake light. As he approached the driver’s side door, he 

noticed the driver and two occupants. The driver was Gloria Mercer, in the front 

passenger seat was her husband, Robert Mercer, and in the back seat was Tanner 

Mitchell. Officer Welch recognized the two men from their prior drug activity and 

arrests. He also saw a trip permit on the back of the car that was not valid until the next 

day.

Officer Welch returned to his patrol car and began obtaining information about the 

car and its occupants. During this time, a K9 deputy arrived. The trained dog performed 

an open air sniff and alerted to the presence of narcotics. 

Officer Welch returned to the stopped car and told Ms. Mercer she was under 

arrest for failing to transfer the car’s title within 45 days. Officer Welch searched Ms. 

Mercer incident to arrest and found in her pocket a gray straw1 with brown residue, which 

he believed to be used to smoke illegal drugs. After being advised of her Miranda2rights,

Ms. Mercer agreed to talk. She said she knew the straw was used to smoke drugs but it 

belonged to a friend. 

 

1 This item is variously described as a pipe, a pen, or a straw. 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 36636-7-III

State v. Mercer

3

Ms. Mercer consented to a search of her car, and the occupants also consented to a 

search. During the search, three items were found. The first item was a black container 

that contained smoking devices and tin foil that contained a brown residue. Mr. Tanner 

admitted the container was his and signed a written statement to that effect. The second 

item found in the trunk was a needle that contained a brown liquid. The third item was a 

glass pipe located near the passenger door. Initially, Mr. Mercer denied the second and 

third items were his, but later admitted they were, and signed a written statement to that 

effect. 

The straw found in Ms. Mercer’s pocket tested positive for heroin. The needle

found in the trunk also tested positive for heroin. 

The State charged Ms. Mercer with unlawful possession of a controlled substance. 

Before trial, the parties discussed the evidence that might be admitted. The State agreed 

not to elicit evidence that Ms. Mercer or the car’s occupants were known drug users. The 

State said it intended to elicit testimony about the glass pipe found outside the passenger 

door and the needle found in the trunk, but did not intend to elicit testimony about the 

drug paraphernalia found inside Mr. Tanner’s black container. The court asked whether 

what the State intended to elicit was problematic for the defense. Defense counsel 

responded: 
No. 36636-7-III

State v. Mercer

4

No, it’s not, Judge. . . . I know that Mr. Mercer indicated that he claimed 

ownership of the needle in the trunk and the other items and that the straw 

that has been tested . . . with heroin was found on my client’s person. I 

understand that Mr. Mercer’s claim of ownership does not preclude the 

State from necessarily moving forward and prosecuting my client for also 

being in possession of what was in the trunk in which she was driving. So, 

I understand that.

Report of Proceedings (RP) at 29.

Trial commenced on January 18, 2019. The State elicited testimony from the 

officers about all items, even Mr. Tanner’s black container. Defense counsel did not 

object. During cross-examination of the arresting officer, defense counsel was able to 

narrow the focus of the charged offense to the straw.

Ms. Mercer testified about how the straw came to be in her pocket. She explained 

she was picking trash up in her yard and one item of trash was a curled up straw. She said

she suspected the straw had been used for drugs, but did not believe it had drugs in it. 

She put it in her pocket and forgot about it. 

She also testified about the car. She said it was on her property when she moved 

there almost one year ago. It had mechanical problems, and it sat for one year unrepaired 

because she could not afford to purchase parts. She explained she purchased a three-day 

trip permit to take it to the shop. She denied knowing about the needle in the trunk. 
No. 36636-7-III

State v. Mercer

5

Once the evidence was presented, the trial court instructed the jury on the law, 

including unwitting possession. In closing, the State elected to prove its case on the basis 

of the straw only. It urged the jury to disbelieve Ms. Mercer’s story about finding the 

straw in her yard. The State rhetorically asked, of all the trash she picked up in her yard, 

why would she put the straw in her pocket and throw away the rest. In response, defense 

counsel argued the jury should believe his client. He argued, instead of denying the straw 

likely had been used to smoke drugs, she admitted it. 

The jury returned a guilty verdict, and the court thereafter entered its judgment and 

sentence. Ms. Mercer timely appealed.

ANALYSIS

Ms. Mercer contends her trial counsel was ineffective for not objecting to the 

evidence of drug paraphernalia attributable to her husband and Mr. Tanner. 

Washington courts have adopted a two-part test to determine whether defense 

counsel gives inadequate assistance. State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 

(2008). This Strickland3test requires a defendant show (1) his counsel was deficient, 

represented by the counsel’s performance falling below the objective standard of 

 

3 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
No. 36636-7-III

State v. Mercer

6

reasonable professional norms, and (2) the deficiency was prejudicial. Id. To show 

prejudice, the defendant must show that, had counsel’s performance not been deficient, 

there is a reasonable likelihood the outcome would have been different. Id.

To show deficient performance, the defendant must overcome the strong 

presumption that the performance was reasonable. State v. Grier, 171 Wn.2d 17, 33-34, 

246 P.3d 1260 (2011). Only if, under the circumstances of the case, it can be shown there 

was no conceivable tactical reason for counsel’s performance can this be overcome. Id. 

Generally, “[t]he decision to object, or to refrain from objecting even if testimony is not 

admissible, is a tactical decision not to highlight the evidence to the jury” and is not 

deficient. State v. Kloepper, 179 Wn. App. 343, 355, 317 P.3d 1088 (2014). 

Here, defense counsel sought to project to the jury that his client was being honest. 

To prevail, the jury needed to believe his client’s story about picking up the straw in her 

yard and not believing it had any drugs in it. Instead of objecting to evidence and 

highlighting it to the jury, he allowed the State to admit it. And, through crossexamination, defense counsel ably narrowed the evidence relied on by the State to the 

straw. This was a legitimate trial strategy.
No. 36636-7-111 

State v. Mercer 

Unfortunately, the jury did not believe Ms. Mercer. But its disbelief had to do 

with Ms. Mercer's story, not the other evidence. Ms. Mercer failed to explain why she 

had put the straw in her pocket but threw away the other trash. 

Even if defense counsel's trial strategy was not perfect, his failure to object did not 

result in prejudice to Ms. Mercer. Even had the straw been the only item admitted, Ms. 

Mercer still was unable to explain why she put the straw in her pocket and threw away the 

other trash. We conclude Ms. Mercer was not prejudiced by defense counsel's strategy.4 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: j 

Pennell, C .J. ±.1~1~· 

4 Ms. Mercer additionally argues the trial court erred by admitting evidence of 

other drug paraphernalia. But trial counsel's failure to object precludes us from 

reviewing this issue. RAP 2.5(a); State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 

(2009). 

5 The Honorable Beth Andrus is a Court of Appeals, Division One, judge sitting in 

Division Three under CAR 2l(a). 

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