Opinion
No. 21433-8-III.
Filed: April 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-00552-8. Judgment or order under review. Date filed: 08/28/2002. Judge signing: Hon. Kathleen O'Connor.
Counsel for Appellant(s), Martin Thornly Elze (Appearing Pro Se), #914489, 1313 North 13th Avenue, Walla Walla, WA 99362.
Susan Marie Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
This is a drug case. A search ultimately led to the seizure of a methamphetamine lab. The challenge on appeal is to the sufficiency of affidavits on the strength of which search warrants were issued. The affidavits must be read as a whole. The affidavits here when so read are sufficient to show that Martin Elze was involved in criminal activity, evidence of which could be found in his home. We therefore affirm the trial court's refusal to suppress the evidence of drug manufacturing. We conclude that the evidence was sufficient to support his conviction for manufacturing methamphetamine. And we affirm his conviction.
FACTS
Spokane County Sheriff's Deputy Jack Rosenthal obtained a search warrant on January 28, 2002, for 5319 North Vincent Road in Spokane County. In a supporting affidavit, he sets out his training and experience in methamphetamine investigation. This included a position on the Spokane Clandestine Laboratory Team which makes `tactical entries into illicit clandestine methamphetamine labs, assessing the environment and processing the scene for evidence.' Clerk's Papers (CP) at 148. The deputy wanted a warrant to search for evidence of Martin Elze's methamphetamine manufacture and/or possession at 5319 North Vincent Road as well as `outbuilding, sheds, motorhomes and vehicles stored on the lot.' CP at 151.
Affidavit in Support of Search Warrants
The affidavit represented the following.
Linda Brandt called the sheriff's office. She reported finding items in her son Kenneth's room that she believed were used to manufacture methamphetamine. Deputy McNall is also a member of the Spokane Clandestine Laboratory Team. He responded and spoke with Kenneth Brandt. He found `a glass jar with a clear liquid and two plastic bottles made into Hydrogen Chloride Gas Generators' in Kenneth's room. CP at 149. Kenneth explained that his friend `Martin' gave him the materials and told him to shake the bottles up and run the gas through the liquid to obtain methamphetamine. Police arrested Kenneth for possession of drug paraphernalia — `glass smoking pipes with residue, mirrors and plastic tubes with residue discovered in his room,' but did not charge him. CP at 149.
On January 17, 2002, Deputy Rosenthal received a tip from a local feed store that a `vehicle . . . white in color with a dog kennel in the back purchased a large quantity of Iodine.' CP at 149. The anonymous reporter said that the car had been seen at 5319 North Vincent Road, at East Line Kennels. Deputy Rosenthal checked license registration records and it did not match the description on the car. He attributed this to the practice of methamphetamine manufacturers switching their license plates to avoid identification. And he noted that iodine is used in the manufacture of methamphetamine and that `tracking the individuals that purchase large quantities of Iodine often lead to prosecutable methamphetamine lab investigations.' CP at 149.
On January 21, 2002, a secret witness complaint reported that Mr. Elze was manufacturing methamphetamine at 5319 North Vincent Road. The secret witness reported several stolen vehicles near the back of Mr. Elze's property fenced off with a blue tarp and that the stolen vehicles contained meth lab items and chemicals. He reported that meth lab items and chemicals were also stored in two motor homes on the property, in the attached garage, in the basement of the home itself, and in the detached barn. The secret witness reported statements by Mr. Elze of hiding meth lab evidence in several locations in the hope that `nobody will catch up to them in one place.' CP at 149. Deputy Rosenthal said it is common for methamphetamine manufacturers to conceal lab-related evidence in several locations on their property to conceal the activity. And methamphetamine manufacturers commonly traffic in stolen property.
Deputy Rosenthal then checked the `Record Management System for the address of 5319 N. Vincent Road and found that MARTIN ELZE is listed as residing there and is listed as a suspect in methamphetamine manufacture at that residence.' CP at 150. He also went to the address and confirmed the presence of a dog kennel business and saw the tarped motor homes. The physical layout of the land reflected that described by the secret witness. On January 27, 2002, Andrea Brandt called Crime Check and reported that her brother Kenneth was frequenting 5319 North Vincent Road and hanging out with Martin Elze. She reported that Kenneth returned from these visits high on stimulants. He was fidgety, his pupils dilated, and then he did not sleep for days. She also mentioned the earlier call to police from her mother, Linda Brandt.
Timothy Barnard complained about possible drug dealing at an intersection near 5319 North Vincent Road. Mr. Barnard said that he saw what he believed to be a drug transaction between Mr. Elze and several juveniles. Mr. Barnard is Mr. Elze's neighbor. He had seen Mr. Elze make `several suspicious transactions' with people that he described as frequent, short-term visitors who often do not turn off their car lights or engines. CP at 150.
Mr. Barnard saw an old white car with a dog kennel in the back being driven by Mr. Elze's girl friend. He reported a car with Washington license plate 921MUF as a frequent visitor to Mr. Elze's property. The license plate number was `involved in the purchase of Iodine in large quantities from local feed stores in the Spokane County Community.' CP at 150.
Deputy Rosenthal then learned from Avista Utilities that the residence of 5319 North Vincent Road is listed to Edna Elze, Mr. Elze's mother. A magistrate issued a search warrant on the strength of this information. But before it was executed, police sought a second warrant based on a second affidavit which included the same information as the first and noted that the first search warrant had been granted. The second warrant was sought to search 5215 North Vincent Road. The affidavit represented that Mr. Elze lived in a trailer posted with the numbers `5215' on the side just south of the dog kennel business and that he used 5215 North Vincent Road as his mailing address. The affidavit also noted that `the female driver of the white car with the dog kennel in the back, which was seen purchasing Iodine, has a storage unit' on East Wellesley, and her name was `Diane.' CP at 164. The magistrate granted the second search warrant.
Both search warrants were executed on January 31, 2002. Police found Mr. Elze in the house (5319 North Vincent Road) as opposed to the trailer (5215 North Vincent Road). They found Mr. Elze's fingerprints on two Mason jars filled with a solution used in the manufacture of methamphetamine. Police also found a handwritten recipe for methamphetamine, together with ingredients — iodine, HEET, Coleman Fuel, Red Devil Lye, glass dishes, scales, and a pH test kit.
They arrested Mr. Elze and charged him with manufacturing methamphetamine. He argued that the affidavits in support of the warrants did not support the conclusion of probable cause. And he moved to suppress. The court denied the motion.
Trial
Matthew Jorgenson was the State's forensic chemist. He testified that methamphetamine had been manufactured at both the trailer and the house using the red phosphorous hydriodic acid method.
Diane Elmer said she knew Mr. Elze for 18 years and had lived in the house or trailer for a couple of years until December 15, 2001. Mr. Elze said that Adrienne Hicks lived in the trailer on January 31, 2002. He explained that he usually lived in the trailer but he had been staying in the house for the last couple of weeks waiting for Ms. Hicks to vacate the trailer. Mr. Elze testified that he had not been in the locked area of the trailer — where much of the methamphetamine equipment and supplies had been found — since January 10 or 12, 2002.
A jury convicted Mr. Elze. His lawyer later filed an affidavit representing that Diane Elmer just confessed to being the sole manufacturer of the methamphetamine. And he moved for a new trial or to vacate the judgment. The court denied the motion.
DISCUSSION Sufficiency of the Affidavits Supporting the warrants
Standard of Review. The ultimate determination of whether facts set out in an affidavit are sufficient to conclude that probable cause exists is a question of law. And our review is therefore de novo. In re Det. of Petersen, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002).
But there are also a number of well-settled canons that influence the way in which we review the sufficiency of an affidavit. First, we review these affidavits in a commonsense fashion giving great deference to the magistrate who actually had to pass upon the sufficiency of the information. State v. Vickers, 148 Wn.2d 91, 108-09, 59 P.3d 58 (2002). And doubts about the sufficiency of the affidavit are resolved in favor of the warrant. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001). Finally, the affidavit has to be read as a whole. State v. Barnes, 85 Wn. App. 638, 659, 932 P.2d 669 (1997). In sum, we should not parse out and evaluate each part of these affidavits in isolation. Our job is to review the affidavits in their totality, in a commonsense fashion, and in doing so give a level of deference to the magistrate who actually issued these warrants.
Supporting Evidence of Probable Cause. Linda Brandt found methamphetamine manufacturing materials in her son's room. The materials were identified by a deputy on the Spokane Clandestine Laboratory Team as `a glass jar with a clear liquid and two plastic bottles made into Hydrogen Chloride Gas Generators.' CP at 148-49, 161-62. Mr. Elze complains that there is no showing of Linda Brandt's knowledge of such materials. But that deficiency can be cured by independent police investigation. State v. Jackson, 102 Wn.2d 432, 438, 688 P.2d 136 (1984). The apparatus was identified by the officer.
Kenneth's friend `Martin' gave him the equipment and told him to Sshake the bottles up and run the `gas' through the liquid to obtain methamphetamine.' CP at 149, 162. Whether or not that is the actual procedure for manufacturing methamphetamine is not as important for the probable cause determination here, as the ultimate fact that this is what he was trying to do. And his friend Martin told him that was how to manufacture methamphetamine.
Police arrested Kenneth for `Possession of Drug Paraphernalia relating to glass smoking pipes with residue, mirrors and plastic tubes with residue discovered in his room.' CP at 149, 162. Kenneth's statement against penal interest bolsters his veracity. See State v. Lair, 95 Wn.2d 706, 710-11, 630 P.2d 427 (1981).
Next, the affidavit included information that Kenneth's sister, Andrea, called to report that each time her brother Kenneth returned from Martin Elze's, he appeared to be high on stimulants — fidgety and with dilated pupils. And he did not sleep for days.
Timothy Barnard, Mr. Elze's neighbor, reported suspicious transactions of short-term visitors to the property. Mr. Barnard also saw an old white car with a dog kennel in the back and identified it as being driven by Mr. Elze's girl friend. He also said that a car with Washington license plate 921MUF was a frequent visitor to Mr. Elze's property. This is the same white car a local feed store reported was used to purchase a large quantity of iodine, also a known component of methamphetamine.
Deputy Rosenthal also confirmed Mr. Elze's address. He confirmed that the address was connected with a dog kennel business. And he confirmed the observations of the neighbor and the secret witness as to the general layout of the property. He determined that the power records for the residence were held in the name of Edna Elze, Mr. Elze's mother. And he checked the `Record Management System' and determined that Mr. Elze `is listed as a suspect in methamphetamine manufacture.' CP at 150, 163.
Again, this information must be evaluated as a whole.
Kenneth confessed to having what he believed to be methamphetamine equipment. And he said that his friend `Martin' gave it to him. He said `Martin' told him how to use these materials to produce methamphetamine. Kenneth's sister identified Mr. Elze by name and address as someone whose house her brother frequents after which he appears to her to be high on stimulants.
An identified neighbor, Mr. Barnard, saw suspicious, short, frequent visitor traffic at Mr. Elze's residence. He also saw other activity involving Mr. Elze in what appeared to him to be a drug deal. One of these events took place on January 7, 2002. And he saw a car at Mr. Elze's residence matching the description of one associated with large iodine purchases.
When the tips, the additional police investigation, and the informants' reports are read together in a commonsense fashion, these affidavits support a reasonable suspicion of criminal activity, particularly when doubts are resolved in favor of the warrants' validity. Vickers, 148 Wn.2d at 108-09.
Sufficiency of the Evidence
We will affirm if, after viewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). The defendant admits the truth of the State's evidence and all reasonable inferences by challenging the sufficiency of the evidence. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
The jury here had to find Mr. Elze participated in the (1) unlawful, felonious, and (2) knowing (3) manufacture of (4) methamphetamine. See RCW 69.50.401(a)(1)(ii); State v. Hundley, 126 Wn.2d 418, 421, 895 P.2d 403 (1995). `Manufacture' is shown by involvement in the `production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.' RCW 69.50.101(p). A jury may infer from sufficient circumstantial evidence that methamphetamine had been manufactured and that the defendant was guilty of that offense. State v. McPherson, 111 Wn. App. 747, 757-58, 46 P.3d 284 (2002).
Mr. Elze points to the lack of certain ingredients and equipment to complete the manufacturing process. But the evidence is sufficient to convict the defendant of manufacturing when the State presents evidence of the components of a methamphetamine lab and can link those components to Mr. Elze. State v. Hepton, 113 Wn. App. 673, 682-83, 54 P.3d 233 (2002), review denied, 149 Wn.2d 1018 (2003).
Mr. Elze lived in a residence where the methamphetamine materials were found. Mr. Elze's fingerprints were found on jars containing bi-layer solution, a mixture of methamphetamine ingredients at one stage of production. Fingerprints alone are sufficient to support a conviction where the facts allow a reasonable inference that the fingerprints could only have been impressed at the time the crime was committed. State v. Todd, 101 Wn. App. 945, 952, 6 P.3d 86 (2000), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 81 P.3d 157 (2003); State v. Lucca, 56 Wn. App. 597, 599, 784 P.2d 572 (1990). Mr. Elze does not argue that the fingerprints could have been impressed at some time other than when the crime was committed.
There is ample evidence to support the jury's finding that Mr. Elze manufactured methamphetamine when viewed in the light most favorable to the State.
New Trial — Newly Discovered Evidence
We review a trial court's decision on whether to vacate the judgment and grant a new trial for abuse of discretion. State v. Ieng, 87 Wn. App. 873, 877, 942 P.2d 1091 (1997) (citing State v. Macon, 128 Wn.2d 784, 803, 911 P.2d 1004 (1996)).
Mr. Elze moved for a new trial based on newly discovered evidence. He must then show that the evidence (1) will probably change the result of the trial, (2) was discovered since the trial, (3) could not have been discovered before trial by the exercise of due diligence, (4) is material, and (5) is not merely cumulative or impeaching. Macon, 128 Wn.2d at 800; State v. Eder, 78 Wn. App. 352, 357, 899 P.2d 810 (1995).
The court made findings of fact and conclusions of law. Mr. Elze does not challenge the findings. They are therefore verities on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). The new evidence here is a posttrial claim that Diane Elmer, Mr. Elze's girl friend, was manufacturing the methamphetamine on her own. And Mr. Elze knew nothing about it. CP at 185 (Finding of Fact 2).
The court held that the new evidence would not have changed the result of the trial because:
(1) Ms. Elmer's credibility would have been challenged because, although she testified at trial, she did not offer this information at trial.
(2) Ms. Elmer was not on the premises when the search warrants were served and had been gone for approximately six weeks.
(3) A search of Ms. Elmer's storage unit did not produce any evidence.
(4) Her relationship with Mr. Elze and his family would show a bias toward helping Mr. Elze.
(5) Mr. Elze was also facing time in Alaska for a parole violation because of this conviction.
(6) Mr. Elze never suggested Ms. Elmer was the culprit. Instead, he suggested that someone else who also lived on the premises was responsible for the methamphetamine lab.
CP at 187 (Conclusion of Law 4). The court also held that Ms. Elmer's statements were not material to Mr. Elze's defense because he testified that he was not aware of any lab on his premises. CP at 188-89 (Conclusion of Law 5). And the jury convicted him despite his suggestion that the lab belonged to someone else — Ms. Hicks. CP at 188-89 (Conclusion of Law 5). Moreover, his fingerprints were on items associated with methamphetamine production. So his claim that it involved yet another person other than him would not have been helpful. The jury's belief that someone else was involved did not preclude Mr. Elze's involvement. The findings articulate tenable grounds and tenable reasons for the court's denial of a new trial.
PRO SE ISSUES Fingerprint Evidence
Mr. Elze argues that fingerprint evidence on a jar of bi-layer solution alone was insufficient to tie him to the crime of manufacturing. See Todd, 101 Wn. App. at 50-51. But that is not the only evidence against him. There was evidence that he lived in both the trailer and the house. Mr. Elze himself admitted that he lived in the trailer, although he had not lived there in the couple of weeks previous to the bust. Report of Proceedings (RP) at 237-38. There was also a newspaper dated a couple of weeks previous to the bust that was stained with methamphetamine ingredients. RP at 40.
Dominion and Control
Mr. Elze claims that the evidence does not show that he had actual or constructive possession of the lab items. He contends the State failed to prove that he had dominion and control over either the drug producing items or the premises where they were found. But Mr. Elze was not charged with possession. He was charged with manufacture of methamphetamine. RCW 69.50.401(a)(1)(ii). The State need not then prove possession. Cf. McPherson, 111 Wn. App. at 759 (holding that person charged with possession with intent to manufacture or deliver, RCW 69.50.401(a)(1)(ii), the State must first prove actual or constructive possession of the controlled substance).
Favorable Witness
Mr. Elze contends: `I made an objection in court when defense counsel and the judge decided not to call a favorable witness to testify.' Statement of Additional Grounds for Review at 15. He does not identify the witness, indicate the importance of the witness, or cite to the record where the objection occurred. RAP 10.10(c) does not require Mr. Elze to reference the record. But he is required to inform the court of the nature of the errors he asserts. We will not search the record absent more specific direction. RAP 10.10(c).
Lesser Included Offense
Mr. Elze asserts: `There could have been a lesser included offense offered or asked for.' Statement of Additional Grounds for Review at 16. Such an instruction was not proposed. Minor instructional errors such as failure to instruct on a lesser included offense when not requested by the defendant do not merit review for the first time on appeal. State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000). Ineffective Assistance.
Mr. Elze claims that his counsel was ineffective for failure to seize upon the fact that there were other identified fingerprints at the crime scene. But the presence of other persons would not rule out Mr. Elze. Indeed, the jury convicted Mr. Elze despite his attempt to blame another person who was also present.
Citing Schell v. Witek, 181 F.3d 1094 (1999), superseded on reh'g by 218 F.3d 1017 (9th Cir. 2000) (en banc), Mr. Elze claims that his attorney was insufficient for failing to call a fingerprint expert. Schell held that there was a deficiency where the only evidence connecting the defendant to the crime was a single fingerprint. Schell, 181 F.3d at 1098-99. As noted that is not the case here.
Mr. Elze also criticizes his counsel for not `investigat[ing] Diane Elmer' apparently as an alternative suspect to the crime. Statement of Additional Grounds for Review at 18. However, as noted above, the jury would not have to find someone else responsible for the methamphetamine lab to the exclusion of Mr. Elze. And the defense unsuccessfully tried to blame the lab on still another person, Ms. Hicks, at trial.
The conviction is affirmed.
A majority of the panel has determined that 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.
KATO, C.J. and SCHULTHEIS, J., concur.