Opinion
No. 31486-0-II
Filed: May 10, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 03-1-00710-1. Judgment or order under review. Date filed: 02/13/2004. Judge signing: Hon. Russell W Hartman.
Counsel for Appellant(s), Eric Michael Fong, Rovang Fong Associates, 569 Division St Ste a, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St Port Orchard, WA 98366-4681.
Renee Gehring appeals her conviction for possession of precursor chemicals with intent to manufacture methamphetamine. She argues that the police search was illegal because the affidavit in support of the warrant omitted some material facts and misrepresented others; she also claims that the affidavit failed to establish the informant's veracity. In addition, she contends the stipulated trial procedure was tantamount to a guilty plea and that her counsel was ineffective because he essentially stipulated to her guilt. We affirm, holding that the search was legal and that, although the stipulated trial was tantamount to a guilty plea, the trial court advised Gehring of the essential rights she was giving up by pleading guilty.
FACTS
On May 14, 2003, Kitsap County Sheriff's deputies arrested and read Miranda rights to Joshua Smalley and Brandon Egeler after they were caught burglarizing storage units at Deno Electric. Smalley waived his rights and agreed to speak with Detective Chad Birkenfeld. As a result of that conversation, Birkenfeld applied for and obtained a search warrant for Renee Gehring's home.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The affidavit for the warrant provided in relevant part:
[Smalley] admitted he had broken into the [storage shed] . . . four times over the past few days. During those times he took Sawzalls, chainsaws, generators, various tools and power sprayers. He recalls taking other items, but did not remember what exactly they were. He did advise he took `a bunch of stuff' to Renee's house in Port Orchard with his friend Brandon. It should be noted that Brandon was also arrested today with Smalley, but invoked his rights to [not] [sic] speak with us.
Smalley informed me over the past two days, he and Brandon have taken large amounts of stolen items from the victim to Renee's. He specifically recalled the above listed items. In return for the stolen items, he obtained 5 grams of methamphetamine on Monday 5-12-03 and 1 gram of methamphetamine on Tuesday 5-13-03. He informed me he has been involved with stealing items and dealing drugs for sometime. He is aware of the methamphetamine culture and been involved with [it] for a long time. He has obtained methamphetamine from Renee before and knows her to be a distributor of this drug for stolen property in return. He told me there was a Black Chevy nova in the driveway and provided me with a hand drawn map of the residence. Methamphetamine was located on Smalley during his arrest and did field test positive.
Based on this information I responded to 2148 Salmonberry Road. I confirmed that the black Chevy nova was in the driveway and that another smaller vehicle came back registered from DOL belonging to Renee Gehring. I checked our report systems and found that Renee has associated contacts at this residence for PSP and other contacts at the residence for VUCSA. She also has a concealed weapons permit and may be in the possession of a firearm while distributing methamphetamine. Based on the facts that Smalley took the stolen items to this residence for the past two days and in return obtained methamphetamine, I feel there is probable cause to search the residence for methamphetamine and stolen property.
Clerk's Papers (CP) at 30-31.
A search of Gehring's home yielded several items of stolen property, methamphetamine, cash, a handgun, and a methamphetamine lab. The State charged Gehring with one count of possession of ephedrine, pseudoephedrine, or pressurized ammonia gas with intent to manufacture methamphetamine.
Gehring moved to suppress the evidence under Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and because Birkenfeld's affidavit did not establish probable cause.
She argued that the affidavit omitted that Smalley had initially given Deputy Lont a false name and told him that he was committing the burglary because an acquaintance named `Candyman' had offered him $30 to do so. Nor did the affidavit report that other than a generator, Smalley could not remember which tools he traded for methamphetamine; he told Deputy Lont this was because `he had been awake on a meth high for nine straight days and he couldn't remember much.' CP at 35. The warrant also failed to state that it was Egeler, not Smalley, who had entered Gehring's house on May 12, and traded stolen property for methamphetamine.
The trial court denied the motion and found Gehring guilty as charged on stipulated facts. Gehring and the State stipulated that:
On May 14, 2003, in Kitsap County, Washington, RENEE LYNN GEHRING (hereafter referred to as `the Defendant') did [have] possess[ion] of Ephedrine, Pseudoephedrine, or pressurized ammonia gas with intent to manufacture Methamphetamine [incident March 26, 2002 or later] in violation of RCW 69.50.440.
(1) The defendant knowingly possessed Ephedrine, Pseudoephedrine, or pressurized ammonia gas with intent to manufacture Methamphetamine while in the State of Washington.
(2) The defendant stipulates that she had the necessary precursors to manufacture methamphetamine and that said precursors were tested by the Washington State Patrol Lab and were found to contain methamphetamine and pseudoephedrine.
CP at 61-62.
The stipulation was set forth in a document titled, `Verdict on Submission of Stipulated Facts,' which also contained a `Certificate of Defendant.' CP at 61-62. In the certificate, Gehring stated that she understood the case would be tried on stipulated facts and that she was giving up her constitutional rights to a jury trial, to hear and question witnesses, to call witnesses in her behalf, and to testify or not to testify. She also stated that she understood she was not giving up her right to appeal a guilty verdict.
Gehring further stated that she understood the maximum penalty for the crime; her standard range; the possibility of a victim's fund assessment, fines, and restitution; community custody; and other restrictions on her activities. Finally, the certificate informed Gehring about exceptional and standard range sentences and that the judge did not have to follow any sentence recommendations. Gehring stated she entered into the stipulation freely, voluntary, and in the absence of threats.
ANALYSIS I. The Franks Hearing
Gehring argues as she did below, that the evidence should have been suppressed under Franks. The State responds that the affidavit did not contain any material omissions or reckless misrepresentations.
Under Franks, an affiant's omission or false statement may invalidate a search warrant if the omission or false statement was material and made either intentionally or with reckless disregard for the truth. Franks, 438 U.S. at 155-56. A statement or omission is material if it is necessary for a probable cause finding. State v. Gentry, 125 Wn.2d 570, 604, 888 P.2d 1105 (1995) (citing State v. Garrison, 118 Wn.2d 870, 874, 827 P.2d 1388 (1992)). Probable cause exists if the supporting affidavit recites objective facts and circumstances which, if believed, lead a neutral and detached person to conclude that more probably than not, evidence of a crime will be found if a search takes place. In re Det. of Petersen, 145 Wn.2d 789, 797, 42 P.3d 952 (2002).
A statement is reckless if the affiant "entertained serious doubts as to the truth' of facts or statements in the affidavit.' State v. O'Connor, 39 Wn. App. 113, 117, 692 P.2d 208 (1984) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)). These doubts can be shown by (1) actual deliberation by the affiant, or (2) the existence of obvious reasons to doubt the veracity of the informant or the accuracy of his reports. O'Connor, 39 Wn. App. at 117. But an affiant's negligent or innocent mistakes are insufficient. Garrison, 118 Wn.2d at 872.
If the defendant makes a preliminary showing of a Franks violation, the reviewing court must remove any false representations and include any omissions. If, with these edits, the affidavit is still sufficient to establish probable cause, the court must deny the motion to suppress. Garrison, 118 Wn.2d at 873. We give considerable deference to the trial court's findings on whether the omissions or misstatements were intentional or made with reckless disregard for the truth. State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985).
Gehring identifies the following omissions: (1) Smalley said he had been on a methamphetamine high for nine days without sleeping, (2) Smalley told Birkenfeld that he remained in the car while Egeler took the stolen items into Gehring's house, and (3) Smalley did not say he had gone into Gehring's house and seen stolen property or methamphetamine-related items himself. Gehring also claims that Birkenfeld recklessly disregarded the truth because Smalley admitted that he had been high for nine days and had lied about his name and why he stole the tools.
The trial court concluded that the omissions were neither material nor the result of a reckless disregard for the truth. We agree.
The affidavit stated that `In return for the stolen items, [Smalley] obtained 5 grams of methamphetamine on Monday 5-12-03 and 1 gram of methamphetamine on Tuesday 5-13-03.' CP at 30. But in the interview with Lont, Smalley stated that on May 12, he remained in the car while Egeler took the stolen property to Gehring. Egeler then returned with five grams of methamphetamine and shared it with Smalley. Further, Smalley told Detective Birkenfeld that on May 13, he and Egeler `brought some other tools and traded them to [Gehring] for roughly one gram of meth.' CP at 35. In deciding the suppression motion, the trial court was required to replace the affidavit's version of events with the interview's version and then ask whether the affidavit established probable cause. See Garrison, 118 Wn.2d at 873.
The quotations in Gehring's brief are from a summary of the affidavit in the motion to suppress, not the actual affidavit.
Under the edited version, Smalley accompanied Egeler to Gehring's house, Egeler entered with stolen property and returned with methamphetamine. With the edits, the affidavit still set forth sufficient facts and circumstances for the issuing magistrate to reasonably infer that evidence of methamphetamine and stolen property could be found at Gehring's residence. See Petersen, 145 Wn.2d at 797. These omissions and misstatements were not material.
Smalley's initial false statements were also immaterial. In O'Connor, the informant initially told police that he stole a cassette player from a car, but he later admitted that he had received this and other stolen property from the defendant. Division One held that the affiant's failure to include this fact was not a material intentional or reckless omission. It explained that it is not uncommon for arrested persons to minimize their own involvement in criminal activity and implicate others. O'Connor, 39 Wn. App. at 118. Here, Smalley gave a false name and said that he stole the goods so an acquaintance nicknamed `Candyman' would pay him $30. But Smalley quickly provided his real name and admitted that his `Candyman' story was false.
Finally, Smalley's statements and his admission that he had been awake on a nine-day methamphetamine high did not give Birkenfeld an obvious reason to doubt his veracity. See O'Connor, 39 Wn. App. at 117. The police arrested Smalley and Egeler in the act of burglarizing Deno's Electric; Smalley possessed methamphetamine at the time of his arrest; and Birkenfeld's investigation uncovered the fact that Gehring's residence had been investigated in connection with possible possession of stolen property and controlled substances crimes. In light of these corroborative facts, Birkenfeld had no obvious reasons to doubt Smalley's veracity. Even if Birkenfeld negligently omitted this information, it was not reckless or deliberate. See O'Connor, 39 Wn. App. at 118.
II. Smalley's Veracity
Courts evaluate an informant's tip under the two pronged Aguilar-Spinelli test. State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984). Under Aguilar-Spinelli, the search warrant affidavit must establish: (1) the basis for the informant's knowledge and (2) the informant's veracity. State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002) (citation omitted). Gehring argues that the affidavit did not satisfy the second prong and that Birkenfeld's independent investigation did not cure this deficiency.
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
The veracity prong can be satisfied in two ways: (1) by establishing the informant's credibility, usually by showing that the informant has provided reliable information before; or (2) if the investigating officers do not know the informant's history, by establishing that the circumstances under which the informant provides the information reasonably support an inference the informant is telling the truth. State v. Lair, 95 Wn.2d 706, 709-10, 630 P.2d 427 (1981) (citing State v. Johnson, 17 Wn. App. 153, 155, 561 P.2d 701 (1977)).
Various factors can support a reasonable inference the informant is being truthful. See O'Connor, 39 Wn. App. at 120. An informant's statement against penal interest to a police officer is one. State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813 (1991). Naming the informant in the search warrant affidavit is another. O'Connor, 39 Wn. App. at 120. And an independent police investigation that corroborates the informant's story supports an inference of truthfulness. Jackson, 102 Wn.2d at 438. But a police investigation that corroborates only innocuous details is insufficient; the investigation must point to suspicious or criminal activities similar to what the informant suggests. State v. Kennedy, 72 Wn. App. 244, 249, 864 P.2d 410 (1993) (citation omitted).
Smalley had no history of providing reliable information. Accordingly, the court found support for his veracity from the independent police investigation, Smalley's statements against penal interest, and that Smalley was a named informant.
Smalley was named as the informant in Birkenfeld's affidavit. He also admitted participating in the Deno burglaries and dealing the stolen property for drugs. Statements against penal interest made by an arrested informant may corroborate an informant's veracity to a greater degree than other statements against penal interest. O'Connor, 39 Wn. App. at 121-22. But Gehring argues that these statements do not help show Smalley's reliability because the police made no promises of leniency in exchange for truthful information. Although `[a] leniency agreement may well provide an additional incentive to speak truthfully . . . this does not mean that an arrest situation by itself has no effect on an informant's incentive to be truthful.' O'Connor, 39 Wn. App. at 122. O'Connor rejected the same argument Gehring makes here. O'Connor, 39 Wn. App. at 122.
The amount and kind of detailed information the informant gives also enhances his reliability. O'Connor, 39 Wn. App. at 122 (citation omitted). In O'Connor, the informant named a specific person at a specific residence, recalled events on a specific date, and described stolen property by brand name. O'Connor, 39 Wn. App. at 122-23. Here, Smalley identified a specific person at a specific residence, recalled two dates on which he and Egeler traded stolen property for methamphetamine, and was able to remember different types of items that he had taken from the storage units. Finally Birkenfeld also learned from police records that Gehring had a history of drug contacts at the named residence. Based on all of these factors, we conclude that the trial court properly found that Smalley's veracity had been adequately established to uphold the warrant.
III. Stipulated Facts Trial
Gehring next argues that her stipulated facts trial was improper because she waived her opportunity to testify, present evidence, and cross-examine witnesses. She claims that the procedure was tantamount to a guilty plea because she stipulated to all the essential elements of the crime.
A guilty plea is functionally and qualitatively different from a stipulation; it is a conviction and waives the right to appeal. State v. Wiley, 26 Wn. App. 422, 425, 613 P.2d 549 (1980) (citing State v. Saylors, 70 Wn.2d 7, 9, 422 P.2d 477 (1966)). A stipulation is only an admission `that if the State's witnesses were called, they would testify in accordance with the summary presented by the prosecutor.' Wiley, 26 Wn. App. at 425. The trial court still determines the defendant's guilt or innocence, the State must prove guilt beyond a reasonable doubt, and the defendant may offer evidence or cross-examine witnesses. State v. Johnson, 104 Wn.2d 338, 342, 705 P.2d 773 (1985). And a stipulation preserves the right to appeal. Wiley, 26 Wn. App. at 425-26. A defense counsel may not stipulate to conclusions of law that his client is guilty, but the error can be cured if the court independently assesses the facts. State v. Mierz, 127 Wn.2d 460, 469, 901 P.2d 286 (1995).
Because of these differences, the safeguards for guilty pleas in the constitution and CrR 4.2 are not required in stipulated facts trials. Johnson, 104 Wn.2d at 342-43. The constitution requires that a guilty plea be knowing, intelligent, and voluntary. Johnson, 104 Wn.2d at 340 (citing Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)). A plea is knowing, intelligent, and voluntary if the defendant knows the nature of the offense and the consequences of pleading guilty. State v. Holsworth, 93 Wn.2d 148, 153, 607 P.2d 845 (1980). CrR 4.2(d) requires substantially the same thing — a court may not accept a guilty plea unless it is made voluntarily, competently, and with an understanding of the nature of the charge and consequences of the plea. The court must also find a factual basis for the plea. CrR 4.2(d).
The stipulation here is more like a guilty plea than a factual stipulation. In most Washington cases addressing the issue, the State and the defendant stipulated to specific facts contained in police reports, witness statements, or prosecutorial summaries. See, e.g., State v. Chervenell, 28 Wn. App. 805, 807, 626 P.2d 530 (1981) (witnesses statements); State v. Davis, 29 Wn. App. 691, 694-95 n. 1, 630 P.2d 938 (1981) (summary of facts); State v. Jacobson, 33 Wn. App. 529, 533-34, 656 P.2d 1103 (1982) (statements and police reports); State v. Harper, 33 Wn. App. 507, 509, 655 P.2d 1199 (1982) (police reports); Mierz, 127 Wn.2d at 467 (findings of fact prepared by prosecutor).
Wiley and Johnson do not specifically identify the nature of the stipulations. See Wiley, 26 Wn. App. at 423-24; Johnson, 104 Wn.2d at 343.
In contrast, the stipulation here is nearly identical to the information. The information alleges that Gehring `did knowingly possess ephedrine . . . pseudoephedrine . . . [or] pressurized ammonia gas . . . with intent to manufacture methamphetamine.' CP at 6. The stipulation stated that she `knowingly possessed Ephedrine, Pseudoephedrine, or pressurized ammonia gas with intent to manufacture Methamphetamine.' This is tantamount to a guilty plea.
Some states have held that when a stipulation is tantamount to a guilty plea, the defendant must be advised of the rights she is giving up. See Johnson, 104 Wn.2d at 343 (citing In re Mosley, 1 Cal. 3d 913, 464 P.2d 473 (1970)). But because whether a stipulation is tantamount to a guilty plea and whether a defendant has been properly advised are difficult questions, our court has chosen `not to enter into this morass.' Johnson, 104 Wn.2d at 343.
Nonetheless, Gehring has not shown that she was harmed by the stipulation. The trial court asked Gehring whether she understood that it was likely the court would find her guilty and that she was giving up her rights to a jury trial and to have a jury find her guilty beyond a reasonable doubt. The trial court also advised her about the terms and conditions of release pending appeal, the standard range sentence length, her financial and community custody obligations, and that the court was not bound by any sentencing recommendations. Gehring told the court that she had a chance to review the stipulation with her attorney and that she understood it. And although the court told Gehring she was not giving up her right to appeal, which was wrong if indeed she was pleading guilty, Wiley, 26 Wn. App. at 425, we have considered her challenge to the search; thus, she was not harmed by this misadvise. We conclude that the trial court fully advised Gehring as if she was pleading guilty.
In addition, Gehring did not try to call witnesses, testify herself, or offer any evidence. And the evidence was more than sufficient to convict her. Because Gehring was fully advised and has not shown that she intended to put on any evidence other than the stipulation, we find no error in the proceeding.
IV. Ineffective Assistance of Counsel
Gehring argues that her counsel was ineffective for stipulating to her guilt even though she pleaded not guilty.
To show ineffective assistance of counsel, Gehring must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced her. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Because we have held that the stipulation did not harm Gehring, she cannot show prejudice.
Affirmed.
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.
MORGAN, A.C.J. and HOUGHTON, J., Concur.