Opinion
No. 36559-6-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00192-6, Nelson E. Hunt, J., entered June 27, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
Christopher Armendariz appeals his conviction for first degree unlawful possession of a weapon. He contends that the trial court erred when it denied his motion to suppress evidence seized in a traffic stop and overruled his relevance objections. He also contends that the prosecutor impermissibly commented on the credibility of a witness and that his defense counsel provided ineffective assistance. He asks us to vacate his conviction and dismiss or remand the case for a new trial. We affirm.
FACTS
Just after midnight on March 18, 2007, Centralia Police Officer Michael Lowrey observed a vehicle make a lane change without use of a signal. He used his mobile data terminal (MDT) to find the vehicle's registration information. A further check through his MDT showed that the female owner's driver's license was suspended. Lowrey then executed a traffic stop of the vehicle.
When Lowrey approached the vehicle on foot he saw three people in the vehicle, including the male driver, a female passenger in the front seat, and a male passenger in the back seat. Lowrey shined his flashlight in the vehicle and saw that the back seat passenger, who later proved to be Armendariz, was not wearing his seatbelt. Lowrey asked for identification, returned to his patrol vehicle and, again using his MDT, discovered that Armendariz was flagged with an officer safety warning as a potentially armed, career criminal with an outstanding felony warrant. Lowrey also discovered that the driver of the vehicle, Greg Schroeder, was driving on a suspended license. The female passenger in the front seat was Marissa Grab, the vehicle owner. Lowrey called for backup and, when the other police officers arrived, Armendariz and Schroeder were arrested.
When searching the vehicle after the occupants' arrest, Lowrey found a bag on the driver's side floorboard containing methamphetamine and a semi-automatic handgun propped against the transmission hump on the front passenger side of the floorboard. Grab had a glass smoking pipe in her possession that later field tested positive for methamphetamine. After these discoveries, the police took Grab into custody.
Both Grab and Schroeder testified that when Lowrey returned to his patrol vehicle to run identification checks on the MDT, Armendariz reached through the gap between the two front seats and dropped the handgun in Schroeder's lap and Schroeder then placed the handgun on the passenger side floorboard.
The State charged Armendariz with first degree unlawful possession of a firearm while on community placement under RCW 9.41.040(1)(a) and former RCW 9.94A.525(18) (2006). Before trial, Armendariz unsuccessfully moved to suppress the evidence, arguing that the handgun was obtained as a result of an unlawful stop and investigation and was, therefore, inadmissible. Armendariz stipulated to the fact that he had been previously convicted of a serious offense for purposes of RCW 9.41.040 (1)(a) because he did not "want the jury to know what the serious offense was." Report of Proceedings (RP) (June 26, 2007) at 3.
RCW 9.41.040(1)(a) states:
A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.
The State's information lists former RCW 9.94A.525(17) (2002) but that statute was amended in 2006 to, among other things, move the community custody subparagraph to (18). Currently, RCW 9.94A.525(19) is the subparagraph involving community custody, the statute having been again amended in 2007 and 2008. Each of these subparagraphs are identical in pertinent part and state that "[i]f the present conviction is for an offense committed while the offender was under community custody, add one point." Therefore, the applicable statute at the time Armendariz was charged was former RCW 9.94A.525(18) (2006) but, because these subparagraphs are identical in pertinent part, the error in the State's information is otherwise unremarkable.
At trial, over defense counsel's relevance objection, the State asked Lowrey the results of his MDT check on Armendariz; Lowrey responded that the check showed an outstanding felony warrant. Also over defense counsel's objection, the State asked both Grab and Schroeder to explain the plea agreements they made with the State in exchange for their testimony against Armendariz. Grab gave an affirmative response when the State asked her if "[p]art of that [plea] agreement is also that you testify truthfully." RP (June 26, 2007) at 66. During closing argument, the State again mentioned Lowrey's discovery of Armendariz's outstanding felony warrant.
The jury found Armendariz guilty as charged. The trial court found that his offender score was 9 and sentenced him to 116 months of confinement. Armendariz appeals.
ANALYSIS I. Motion to Suppress
Armendariz contends that the trial court erred when it denied his motion to suppress and concluded that the evidence obtained in the search was admissible. Armendariz does not challenge the trial court's findings of fact. We, therefore, treat the unchallenged findings of fact as verities on appeal. State v. Yates, 161 Wn.2d 714, 762 n. 22, 168 P.3d 359 (2007), cert. denied, ___ U.S. ___, 128 S. Ct. 2964, ___ L. Ed. ___ (2008). We review the trial court's conclusions of law de novo. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007).
Armendariz argues that Lowrey's reason for the traffic stop was a pretext, therefore, any evidence, including the handgun — obtained as a result of the stop, was inadmissible. Pretextual warrantless traffic infraction seizures are unlawful. State v. Ladson, 138 Wn.2d 343, 353, 979 P.2d 833 (1999) ("Just as an arrest may not be used as a pretext to search for evidence, a traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further."). A pretextual traffic stop occurs when "the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving." Ladson, 138 Wn.2d at 349.
In Ladson, our Supreme Court explained that: An ordinary traffic stop has been analogized by federal courts to investigative detention subject to the criteria of reasonableness set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995). Under the Fourth Amendment to the United States Constitution, such investigative detention is permissible only if (1) "the officer's action was justified at its inception," and (2) "it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. . . .
. . . However, the problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce traffic code) which is at once lawfully sufficient but not the real reason.
Ladson, 138 Wn.2d at 350-51.
Here, the trial court concluded:
2.1 The reason a traffic stop was initiated was based upon both a moving violation and the fact that the driver's license of the registered owner was suspended.
2.2 The stop of the vehicle was lawful based upon both the observations of Officer Lowrey and his inability to readily ascertain the driver was not the registered owner.
2.3 Officer Lowrey's inquiry of the defendant as to his identity was proper based upon a clearly observable violation of the traffic code.
2.4 The arrest of the defendant was lawful.
Clerk's Papers (CP) at 87. And, as the unchallenged findings of fact indicate, Lowrey testified that he observed the vehicle make an improper lane change and then determined that the vehicle owner's driver's license was suspended. Lowrey, unable to clearly see the driver, then executed a stop.
On appeal, Armendariz attempts to separate the improper lane change from Lowrey's knowledge of the owner's suspended driver's license, arguing that the former was a pretext for the latter. But "the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior" must be considered in determining if the stop was "inherently unreasonable." Ladson, 138 Wn.2d at 359, 353.
Armendariz's brief misstates the facts. He suggests that Lowrey "candidly admitted that, as per his standard practice, he simply used the fact of the illegal lane change as a trigger to initiate a review of the licensing status of the registered owner." Br. of Appellant at 14. But the testimony does not show this was Lowrey's "standard practice." Contrary to what Armendariz suggests, the record shows that Lowrey referred to only this specific traffic stop rather than any "standard practice."
Here, Lowrey was justified in executing a traffic stop for both the improper lane change and the suspended license report. RCW 46.20.349. Even Armendariz admits that, under RCW 46.20.349, the stop of a vehicle registered to a driver with a suspended license is permitted. Furthermore, Lowrey's approach and illumination of the interior of the vehicle with his flashlight was not unreasonable and was directly related to officer safety and determining the identity of the driver, which was his reason for executing the stop. Therefore, this record does not show that Lowrey's basis for the stop was only a pretext for further criminal investigation. Armendariz's assertion of trial court error fails.
RCW 46.20.349 states:
Any police officer who has received notice of the suspension or revocation of a driver's license from the department of licensing, may, during the reported period of such suspension or revocation, stop any motor vehicle identified by its vehicle license number as being registered to the person whose driver's license has been suspended or revoked. The driver of such vehicle shall display his driver's license upon request of the police officer.
II. Relevance of Arrest Warrant
Armendariz next contends that the trial court abused its discretion when, over his objection, it admitted testimony that Armendariz had an unrelated outstanding felony warrant for his arrest. The State asserts that the admission of the evidence of the outstanding felony warrant was not prejudicial because the specific crime for which Armendariz was wanted was not disclosed to the jury.
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). "An abuse of discretion is found if the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law." State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007). ER 402 prohibits the admission of evidence that is not relevant. And ER 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "The threshold to admit relevant evidence is very low [and e]ven minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). "Evidence is relevant if a logical nexus exists between the evidence and the fact to be established." State v Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999).
Here, Lowrey testified about his discovery of the felony warrant for Armendariz's arrest and both Schroeder and Grab testified about Armendariz's felony warrant. Grab, in describing Armendariz's demeanor, testified that Armendariz expressed concern about the traffic stop based on his outstanding felony warrant. Thus, the existence of the outstanding felony warrant was relevant to show Armendariz's motive to get rid of the handgun. This created a logical nexus between the outstanding felony warrant and the evidence that Armendariz passed the handgun to Schroeder in anticipation of the stop and Armendariz's arrest. We hold that evidence of the felony warrant was relevant and the trial court did not abuse its discretion in overruling Armendariz's relevance objection.
Armendariz further asserts that under ER 404(b) evidence of the outstanding felony warrant was so prejudicial as to outweigh its probative value under ER 403. But Armendariz specifically limited his objection at trial to relevance. Thus, the issue of prejudice and balancing the prejudicial and probative value of the evidence under ER 403 and ER 404(b) was not before the trial court. Armendariz raises this additional issue for the first time on appeal.
ER 403 provides, in pertinent part, that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." And ER 404(b) states that
"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
If the evidence is admissible for one of these purposes, a trial judge must make an on-the-record determination as to whether the danger of undue prejudice is outweighed by the probative value of the evidence. See, e.g., State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984).
Generally, an issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). Whether RAP 2.5(a)(3) applies is based on a two-part test: (1) "whether the alleged error is truly constitutional," and (2) "whether the alleged error is `manifest.'" State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007) (internal quotation marks omitted) (quoting State v. Kilpatrick, 160 Wn.2d 873, 880, 161 P.3d 990 (2007)). Our Supreme Court has held that evidentiary errors under ER 404(b) are not of constitutional magnitude and, therefore, cannot be raised for the first time on appeal. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). Thus, we decline to further consider this issue.
III. Comment on Witness Credibility
Armendariz also contends that the trial "court, over defense [counsel] objection, allowed the [S]tate to present its opinion to the jury that? Grab and? Schroeder were telling the truth when they testified that the defendant was the one in possession of the firearm." Br. of Appellant at 32. In support, he relies on State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956), for the proposition that a prosecutor "must refrain from any statements or conduct that express their personal belief as to the credibility of a witness or as to the guilt of the accused." Br. of Appellant at 28.
Although Armendariz initially contends that this error occurred with both Grab and Schroeder, his brief refers only to Grab's testimony and he admits that nothing was "stated directly to the jury." Br. of Appellant at 32. The record does not support this contention of error.
Armendariz, without citation to the record, apparently refers to the following portion of the State's examination of Grab:
[THE STATE] Now, you've also accepted I guess a plea agreement from the [S]tate, have you not?
[GRAB]: Yes.
[THE STATE]: And do you know the nature and substance of that agreement?
[GRAB]: Yes.
[THE STATE]: What's going to happen to the charges?
[GRAB]: I don't understand.
[THE STATE]: What is the — what is the nature of the agreement?
[GRAB]: Oh. All of my charges will become [sic] dropped.
[THE STATE]: And that's in exchange for your testimony here today, right?
[GRAB]: Yes.
[THE STATE]: Okay. And part of that agreement is that you testify at this trial?
[GRAB]: Yes.
[THE STATE]: Part of that agreement is also that you testify truthfully?
[GRAB]: Yes.
[DEFENSE COUNSEL]: I'm gonna object there, Your Honor. It's a misstatement of the agreement.
[THE COURT]: I have no idea. I am going to overrule the objection.
RP (June 26, 2007) at 66-67.
The record shows only that the State elicited the particulars of Grab's plea agreement and neither directly nor indirectly expressed an opinion about the credibility of her testimony. Thus, Armendariz's assertion of error fails.
IV. Ineffective Assistance of Counsel
Finally, Armendariz contends that his counsel provided ineffective assistance because trial counsel failed "to waive the requirement that the jury find one of the elements of the offense beyond a reasonable doubt." Br. of Appellant at 34. To convict Armendariz of illegal possession of a weapon, the State was required to prove that Armendariz was previously convicted of a serious offense. Essentially, Armendariz suggests that instead of stipulating to the previous conviction, his defense counsel should have waived Armendariz's constitutional right to have the State prove all elements of the crime, thereby preventing the jury from hearing any mention of his prior conviction.
We review claims of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To demonstrate ineffective assistance of counsel, a defendant must show that: (1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). We may begin our review with either prong of the two-part test. State v. Acevedo, 137 Wn.2d 179, 199, 970 P.2d 299 (1999).
Courts engage in a strong presumption that counsel's representation was effective. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995). The presumption of effective assistance can be overcome by a showing that counsel's representation was "`unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy.'" Davis, 152 Wn.2d at 673 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)). Deliberate tactical choices may constitute ineffective assistance of counsel if they fall outside the wide range of professionally competent assistance, however, "`exceptional deference must be given when evaluating trial counsel's strategic decisions.'" Davis, 152 Wn.2d at 714 ( quoting State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002)).
Here, Armendariz stipulated to the fact that he had been previously convicted of a serious offense for purposes of RCW 9.41.040(1)(a) because he did not "want the jury to know what the serious offense was." RP (June 26, 2007) at 3. But, on appeal, he argues that stipulating to the previous conviction was not enough: "[N]o reasonable defense attorney would fail to take any available action to prevent the jury from hearing about the conviction." Br. of Appellant at 36-37. Armendariz argues that trial counsel was ineffective in not pursuing such an available action — waiver of Armendariz's "constitutional right to have the [S]tate prove this element of the crime beyond a reasonable doubt." Br. of Appellant at 37. Further, he argues that "but for trial counsel's failure to waive the defendant's right to have the [S]tate prove the element . . . the jury would more likely than not have returned a verdict of acquittal." Br. of Appellant at 37.
Appellate review of competent representation is based on "prevailing professional norms" and a defense counsel's failure to assert a novel theory of law does not reflect deficient representation. Davis, 152 Wn.2d at 673. Armendariz stipulated to the prior convictions in order to prevent the jury from hearing the charges for which Armendariz was convicted. This was clearly a tactical decision by Armendariz's trial counsel. Because trial counsel was not required to assert a novel theory and, because the decision to stipulate was a tactical one, Armendariz's assertion of ineffective assistance fails.
We affirm Armendariz's conviction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We Concur:
Hunt, J.
Quinn-Brintnall, J.