Opinion
No. 53352-5-I
Filed January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10351-7. Judgment or order under review. Date filed: 11/07/2003. Judge signing: Hon. James D Cayce.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802 Seattle, WA 98101.
Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Lee Davis Yates, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Calvin Cartwright was convicted of first degree rape, and was sentenced as a persistent offender to life without parole. He argues that a showup identification was impermissibly suggestive, that the trial court erred in denying motions to suppress evidence and to discharge his counsel, and that the fact and type of his prior crimes must be proved to a jury beyond a reasonable doubt. We reject his arguments and affirm.
FACTS
On an early evening in December 2002, 17-year-old A.R. waited for a bus at a park and ride in Burien. Calvin Cartwright was also at the bus stop. A.R. asked Cartwright for a cigarette. Cartwright told A.R. his first name, and asked her to sit in his car, which she did. He pulled the passenger door closed, and drove off. After stopping to buy vodka at a liquor store, Cartwright drove A.R. to a deserted stretch of road, where he parked. Cartwright tried to kiss A.R., and when she refused, he forced himself on top of her, held a small pocketknife to her neck, and raped her. He told A.R. he would kill her if she told anyone. Then he drove her back to the park and ride, and left.
A.R. immediately called her grandfather and asked him to collect her. He arrived less than five minutes later. Once home, A.R. told her grandparents she had been raped, and her grandfather immediately called the police. Officer Calabrese arrived two minutes later.
A.R. described her attacker to Calabrese as a black male in his twenties, wearing a blue denim coat and pants, driving a small red foreign car with a tan interior and beaded seat covers, who had given his name as `Calvin.' Twenty-five minutes later, Calabrese left A.R.'s house to respond to a stabbing incident two miles away. There, Calabrese heard the raised voices of a man and a woman in a backyard. Calabrese entered the backyard and handcuffed the man, who was standing next to a propane gas grill. The man's identification bore the name Calvin Cartwright. Cartwright was arrested and placed in a police car.
Calabrese informed the officer in charge that Cartwright may be the suspect in the A.R. rape case. A.R. was transported to the scene by Officer Richter for a showup identification. A.R. arrived approximately 10 minutes after Cartwright was arrested. She was told that she was not required to make an identification if she did not think the man was her attacker. A spotlight was shone on Cartwright and his hands were kept out of her sight so that the handcuffs would not be visible to A.R.A.R. asked what the man's hands looked like, because her attacker's hands were `gross and ashy.' Report of Proceedings (RP) (Oct. 2, 2003) at 35. Richter saw that Cartwright's skin was loose and saggy, and had a pale discoloration. To A.R., however, he said, `[W]ithout me saying anything about his hands . . . what do you think?' A.R. responded, `I think so.' RP (Oct. 2, 2003) at 37. At this point, approximately an hour had passed after A.R. reported the rape.
At the scene, A.R. told police that her attacker's car had unusual interior features, including a picture of a girl cut from a magazine taped on the dash and a missing horn. The car found at the scene matched A.R.'s description.
After the identification, Calabrese returned to the back yard and opened the lid of the grill, which was next to where Cartwright had been standing when he was arrested. He found a small folding knife.
A hospital physician noted A.R. had bruises on her neck, arm, and under her bra line. DNA from blood found on Cartwright's boxer shorts matched A.R., and sperm taken from A.R.'s vaginal swab matched Cartwright.
Cartwright was convicted of first degree rape. Because Cartwright had prior California convictions for forcible rape and forcible oral copulation, he was sentenced as a persistent offender to life without the possibility of parole. Cartwright appeals his conviction and sentence.
DISCUSSION
Showup Identification. Cartwright first contends the showup identification was unduly suggestive, violating his due process rights. Under Washington law, the burden is on the defendant to show that the procedure was unnecessarily suggestive and that considering the totality of the circumstances, the suggestiveness created a substantial likelihood of irreparable misidentification. State v. Shea, 85 Wn. App. 56, 59, 930 P.2d 1232 (1997). In considering the second question, the trial court evaluates five factors:
Cartwright misconstrues federal cases in arguing that the United States Supreme Court disfavors showup identifications on the grounds they are unreliable and inherently suggestive. In fact, the Supreme Court has held the testimony to be admissible in the two cases in which the Court addressed showup identifications. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 1199 (1967) (not impermissibly suggestive when suspect brought to hospital room for injured assault victim to view); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (rape victim's visual and voice identification of defendant at showup in police station seven months after the crime admissible).
(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.
Id. at 59 (citing State v. Maupin, 63 Wn. App. 887, 897, 822 P.2d 355 (1992)). Even where a procedure is suggestive, identification testimony will be admitted where the totality of the circumstances indicates the identification was reliable. Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Cartwright contends the showup procedure was impermissibly suggestive because of the officer's comment to A.R. regarding the appearance of Cartwright's hands, because A.R. was not advised Cartwright might not be the perpetrator; and because Cartwright was handcuffed, surrounded by police officers, and was the only black male present.
Cartwright's arguments are unpersuasive. First, the officer's comment was limited to asking A.R. if she could identify Cartwright `without saying anything about his hands.' Such a question is not impermissibly suggestive. Second, contrary to Cartwright's assertion, A.R. was advised that she did not have to identify Cartwright if she did not think he was her attacker. Third, the presence of a suspect in handcuffs surrounded by police is not enough by itself to demonstrate unnecessary suggestiveness. State v. Guzman-Cuellar, 47 Wn. App. 326, 336, 734 P.2d 966 (1987). In any event, the handcuffs were not visible to A.R. Finally, it is irrelevant that Cartwright was the only black male present because it was a showup identification, not a lineup.
Showup identifications involve the police drawing the victim's attention to one suspect who purports to match the victim's description of the perpetrator; here, a black male. Lineup identifications require a witness to choose a suspect from a group of similar looking suspects.
Turning to the five factors governing the reliability of the identification, A.R. had paid attention to Cartwright's appearance, accurately described his clothing, and gave his first name and a clear description of the car he was driving, with specific details about its interior. She also described the unusual skin on his hands. She was inaccurate only in her estimate that he was in his twenties (Cartwright was 40 at the time). Regarding the certainty of her identification, A.R. testified at trial that she had been `pretty sure' of her identification of Cartwright, even though she was not permitted to see a main identifying characteristic, his hands. RP (Oct. 7, 2003) at 107. Finally, regarding the time between the crime and confrontation, the showup occurred approximately one hour after A.R called the police, and approximately 90 minutes after the rape itself. Cartwright was arrested less than two miles from the scene of the crime.
Cartwright does not dispute A.R.'s opportunity to observe her assailant.
Reliability of the identification is the linchpin of a due process determination of identification procedures. Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Considering the totality of the circumstances, Cartwright failed to show that there was a substantial likelihood of irreparable misidentification. The court did not err in concluding the identification was reliable.
Because we find the showup identification was not impermissibly suggestive, we do not address Cartwright's related arguments regarding sufficiency of the evidence to support the search warrant based upon it, or suppression of the in-court identification.
Search Incident to Arrest. Cartwright contends the court erred in admitting evidence of the knife because its seizure from the grill did not meet an exception to the Fourth Amendment prohibition against warrantless search and seizure. The decision to admit evidence lies within the sound discretion of the trial court, and should not be overturned absent a manifest abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997).
A warrantless search is per se unreasonable under both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, unless the search falls within one of the carefully drawn exceptions to constitutional warrant requirements. State v. Menz, 75 Wn. App. 351, 353, 880 P.2d 48 (1994). One of these exceptions is for a search incident to arrest. United States v. Chadwick, 433 U.S. 1, 6, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). A search incident to arrest is valid only if (1) the object searched was within the arrestee's control when he was arrested; and (2) the events occurring after the arrest but before the search did not render the search unreasonable. State v. Smith, 119 Wn.2d 675, 681-82, 835 P.2d 1025 (1992). An object is within the control of an arrestee as long as the object was within the arrestee's reach immediately prior to the arrest. Id. (upholding search of fanny pack that was within one or two steps of defendant at time of arrest); United States v. Andersson, 813 F.2d 1450, 1455 (9th Cir. 1987) (upholding search of closed suitcase that was on the bed next to arrestee); cf. State v. Rathbun, No. 30404-0-II, 2004 WL 2667634 (Wash.Ct.App. Nov. 23, 2004) (affirming suppression of evidence from a truck where defendant arrested 40 to 60 feet away from the vehicle). The grill where the knife was found was just two feet from where Cartwright had been standing at the time of arrest, and was within his control at the time.
Although the precise lapse of time between the arrest and the search of the grill is not clear from the record, Officer Calabrese testified that A.R. arrived on the scene 10 minutes or less after the arrest, that the showup identification took less than a minute, and that afterwards, he returned to the backyard and searched the grill. There is nothing in the record to suggest that the time between the arrest and the search was significantly more than the 11 or so minutes suggested by Calabrese's testimony, and there is no testimony of any intervening event that might affect the reasonableness of the search. In Smith, the court held a delay of 17 minutes between the arrest and the search was not unreasonable, where the arresting officer picked up dangerous objects from the scene, consulted with colleagues, reported she had someone in custody, and possibly performed a warrant check. Smith, 119 Wn.2d at 684. The court held that the officer's activities in the intervening period were all incident to the arrest, and related to securing the suspect and the scene. Id.; see also United States v. Porter, 738 F.2d 622, 627 (4th Cir. 1984) (search reasonable even though it occurred 15 minutes after arrest). After Calabrese arrested Cartwright, he consulted with colleagues about whether Cartwright was a suspect in the rape case, placed Cartwright in a police car, and observed the showup identification. All these actions were incident to the arrest. The grill was within the Cartwright's control when he was arrested and the events occurring after the arrest but before the search did not render the search unreasonable. The court did not err in admitting evidence of the knife.
Courts have held a significant delay between the arrest and the search renders the search unreasonable because it is no longer contemporaneous with the arrest. See Chadwick, 433 U.S. at 15-16 (delay of `more than an hour' was too long); United States v. Vasey, 834 F.2d 782, 786-788 (9th Cir. 1987) (delay of 30 to 45 minutes unreasonable).
The fact that a suspect is handcuffed and in the back of a police car at the time of the search does not make the search unreasonable. State v. Smith, 119 Wn.2d 675, 683, 835 P.2d 1025 (1992).
DNA Evidence. Cartwright argues that the court erred in admitting DNA testimony because it was cumulative and unduly prejudicial. Prior to trial, the defense offered to stipulate that the DNA found on A.R. was Cartwright's, and argued that DNA testimony was irrelevant because Cartwright would be relying upon a consent defense. The State refused the stipulation on the grounds that it was the State's burden to prove all the elements of the crime, including identity and the fact of sexual intercourse. The court denied the motion to suppress the DNA evidence, noting that the State did not have to accept the stipulation, and that nothing compelled Cartwright to testify.
Cartwright also argues that the court ruled on the grounds that it erroneously thought it did not have discretion to exclude the evidence. We disagree. Numerous instances in the record demonstrate the court was aware of its powers to suppress evidence.
As the United States Supreme Court has noted, `the prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense.' Estelle v. McGuire, 502 U.S. 62, 69, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). The State is not precluded from proving an element of the crime by a defendant's offer to stipulate to it: `Regardless of the [defendant's] willingness to stipulate, the government [is] entitled to prove the [crime] by introduction of probative evidence.' United States v. Gilman, 684 F.2d 616, 622 (9th Cir. 1982).
Cartwright relies upon Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d. 574 (1997) for the proposition the State should have been required to accept the stipulation. But there, the court was concerned with the prejudicial impact of revealing the nature of a prior conviction, when only the fact of a conviction was relevant to the charge, and the defendant had offered to stipulate to the fact of a prior conviction. Id. at 180. Here, the DNA evidence was relevant to essential elements of the crime: identity and the fact of sexual intercourse. No other evidence was presented to establish identity or that sexual intercourse took place, aside from the testimony of the victim. Finally, Cartwright did not testify, and did not present a consent defense. In addition, Cartwright has failed to show why admission of the DNA testimony was prejudicial, even had he presented a consent defense. The DNA evidence established only facts he necessarily would have admitted: identity and the fact of intercourse. Admission of the DNA evidence was proper.
Motion to Discharge Counsel. Cartwright argues that the court violated his federal and state constitutional right to counsel when it denied his motion to discharge his counsel because of an irreconcilable conflict. We disagree.
A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate. State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991) (citing Wheat v. United States, 486 U.S. 153, 159 n. 3, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)). To show a violation of the Sixth Amendment right to counsel, a defendant must demonstrate that his attorney had a conflict of interest that adversely affected the attorney's performance. State v. Dhaliwal, 150 Wn.2d 559, 570-71, 79 P.3d 432 (2003). Denial of a motion for new counsel is reviewed for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997).
The factors to be assessed regarding a motion to discharge counsel are: (1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion. In re Personal Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001). First, Cartwright fails to demonstrate any actual conflict of interest with his counsel. His complaints focused on evidentiary issues, which the trial court correctly noted had been properly raised by counsel in numerous motions to suppress.
Second, the court conducted a substantial inquiry into the grounds for Cartwright's motion, allowing Cartwright to present a lengthy recitation of his complaints. The court then addressed each complaint in turn, and granted a 30 minute recess to allow Cartwright to confer with his attorney regarding his continued representation, at the conclusion of which Cartwright chose to continue to be represented by counsel.
Third, Cartwright's motion was untimely. Where the request for change of counsel comes "during the trial, or on the eve of trial, the Court may, in the exercise of its sound discretion, refuse to delay the trial to obtain new counsel and therefore may reject the request." Id. at 732 (quoting United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979)). The factor of timeliness weighs against the finding that an irreconcilable conflict existed. Id. at 737.
Finding counsel's representation was not ineffective, the trial court did not rule on the issue of timeliness.
Cartwright's made his first motion to discharge counsel just before the State rested, on the third day of a four-day trial. Cartwright's complaints (chiefly, counsel's failure to successfully suppress physical evidence) arose on the second day of pretrial motions, before trial began. Cartwright did not then ask the court to discharge his attorney. Cartwright suggests no legitimate reason for his delay. The motion was thus untimely as well as unfounded. The court did not err in refusing to discharge counsel.
Cartwright relies on United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001), but Nguyen can be distinguished because the defendant moved to discharge counsel before trial started.
Prior Convictions. In 1992, in Solano County, California, Cartwright was convicted of forcible rape and forcible oral copulation. The trial court found that these offenses constituted strikes under the Persistent Offender Accountability Act, RCW 9.94A.030(32)(b)(i)(ii), making Cartwright a persistent offender. The court sentenced him to life in prison. Cartwright argues that the fact of these two prior convictions must be proved beyond a reasonable doubt to a jury. We rejected this argument in State v. Alkire, Wn. App., 100 P.3d 837, 838 (2004).
RCW 9.94A.030(32) provides that a persistent offender is an offender who:
(b)(i) Has been convicted of: (A) Rape in the first degree, . . . rape in the second degree . . .; and
(ii) Has, before commission of the offense under (b)(i) of this section, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection or any federal or out-of-state offense . . . comparable to the offenses listed in (b)(i) of this subsection.
Cartwright also argues that the type of prior convictions must be proved by a jury beyond a reasonable doubt. We disagree. In a comparability analysis of sex offenses, the court determines whether the criminal conduct established by the prior conviction is comparable to a crime listed in RCW 9.94A.030(32)(b) by comparing the elements of the out-of-state crime to the elements of Washington criminal statutes in effect when the foreign crime was committed. State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998). Cartwright's crime of forcible rape required him to willfully and unlawfully accomplish an act of sexual intercourse with a person, not his spouse, against that person's will, by means of force, violence, and fear of immediate and unlawful bodily injury. Cal. Penal Code sec. 261(2). The California statute prohibits the same conduct as the Washington second degree rape statute, RCW 9A.44.050(1)(a) (a person is guilty of second degree rape when the person engages in sexual intercourse with another person by forcible compulsion). Rape in the second degree is a strike offense. RCW 9.94A.030(32).
Cartwright argues that whether a prior conviction is a most serious offense must be proved to a jury. But the most serious offense designation from RCW 9.94A.030(28) is inapplicable here because Cartwright's prior conviction for forcible rape was comparable to a sex offense specifically listed in RCW 9.94A.030(32)(b)(i) (rape in the second degree).
Comparability is a legal analysis, not a factual one. Because no resolution of disputed facts is required, the comparability determination is not a jury question.
Blakely v. Washington therefore does not apply. Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (holding that any fact that increases the penalty for a crime beyond the maximum authorized by the verdict alone, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt).
See State v. Van Buren, Wn. App., 98 P.3d 1235, 1240-41 (2004) (defendant's criminal history need not be proved to a jury beyond a reasonable doubt before it can be considered by the sentencing judge).
Ineffective Assistance of Counsel. Cartwright argues his counsel was ineffective for failing to present certain witnesses and to impeach the victim with prior inconsistent statements. But the alleged evidence is not part of the trial record, and so may not be considered on direct appeal but may be raised in a personal restraint petition. RAP 16.4(c)(3).
Speedy Trial Violation. Cartwright briefly refers to a violation of his right to speedy trial. We do not reach this issue because Cartwright provides no supporting evidence and there is nothing in the record that indicates a violation occurred.
Affirmed.
BECKER, J. and BAKER, J., Concur.