Opinion
No. 25809-2-III.
January 17, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 02-1-01135-8, Jerome J. Leveque, J., entered January 5, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Brown and Kulik, JJ.
Boyd Carl Markland appeals his conviction for one count of manufacturing a controlled substance while a person under 18 years of age was located in or on the premises. He contends that (1) there was insufficient evidence to convict him, and (2) his attorney was unconstitutionally ineffective because he failed to move to suppress evidence seized in a warrantless entry into Mr. Markland's apartment. We affirm.
FACTS
Colleen D. Burns, a visiting nurse with Gentiva Health Services, went to the Markland apartment for the purpose of providing medical treatment for Mr. Markland's oldest daughter, Wendy Markland, who had recently undergone surgery. Entering the living room Ms. Burns found the home to be filthy and cluttered, and the kitchen and bathroom areas were blocked off. She noticed a strong chemical odor, and observed a small child, the granddaughter of Mr. Markland, Hailie Markland, wandering about the home. Hailie was 17 months old at the time of the incident and is the daughter of Wendy Markland. Ms. Burns provided medical care for Wendy and then left the apartment.
Later that day, Ms. Burns had a licensed practical nurse (LPN) go to the apartment. The LPN called Ms. Burns afterwards and said that she was concerned about the lethargic child and residents in the home. Ms. Burns called Child Protective Services and was told to call the police. The LPN did so.
The same day, Officer Craig Hamilton and Sergeant Gary Warren of the Spokane City Police Department went to Mr. Markland's apartment to make a welfare check on Hailie. Mr. Markland's two younger daughters answered the door. Mr. Markland was asleep on the couch. Both officers entered the Markland apartment without a warrant. Inside they observed that the home was filthy and garbage was piled all over. Sergeant Warren in describing Hailie said, "[t]he small child was lethargic . . . very dirty, very unkempt, and wandering around the apartment." Report of Proceedings (RP) at 47. Sergeant Warren immediately noticed a strong chemical smell that hurt his eyes and lungs. Both men entered one of the rooms in Mr. Markland's apartment and saw what appeared to be a methamphetamine lab. All occupants of the apartment were evacuated and Hailie was taken to a hospital.
Later the same day Spokane City Police Officers Brian Aitken and Amy Ross arrived at the apartment to investigate whether the home contained a methamphetamine lab. Officer Aitken talked to Mr. Markland, who stated that the apartment was his, and that the methamphetamine lab in the bedroom belonged to Fred Yungkans. Deborah Markland, Mr. Markland's wife, arrived at the scene. Mrs. Markland told Officer Aitken she had seen Mr. Yungkans in the past "[c]ooking . . . a batch of meth." RP at 138.
Officer Ross obtained Mr. Markland's signature on a search consent card and then obtained a search warrant for the apartment. The officers executed the search warrant and various items associated with the meth lab were seized. They took pictures, and gathered other evidence.
Mr. Markland was charged with one count of manufacturing a controlled substance while a person under 18 years of age was located in or on the premises. Mr. Markland's defense attorney did not make any pretrial motions.
During trial the State presented evidence consistent with the above description of events leading up to the arrest and identified items seized from the apartment. These included an isopropyl alcohol bottle with Mr. Markland's name on it, road flares that had been taken apart to remove the red phosphorous, acetone bottles, Coleman fuel, and various jars and bottles. A forensics expert testified she identified Mr. Markland's fingerprint on a baby food jar taken from the apartment. The jar contained a red powdery substance. A forensic chemist testified that in his opinion, the materials he tested from the scene were either involved in or made available for the manufacturing of methamphetamine. The jury found Mr. Markland guilty as charged. This appeal followed.
ANALYSIS
A. Insufficient Evidence
The standard of review for a challenge to the sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, 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, 220-21, 616 P.2d 628 (1980). Direct evidence and circumstantial evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Mr. Markland argues there was insufficient evidence to show that he was engaged in the manufacture of methamphetamine or that he had knowledge of the existence of the methamphetamine lab in his apartment. Mr. Markland also argues that Fred Yungkans was responsible for the laboratory.
The State claims that the following evidence, at a minimum, establishes Mr. Markland was an accomplice in the manufacture of methamphetamine: (1) expert testimony that the items recovered from Mr. Markland's home were either involved with or made available for manufacturing methamphetamine; (2) Officer Aitken's testimony Mr. Markland stated he knew there was a methamphetamine lab in the bedroom, but it was not his; (3) Officer Ross's testimony that she found a bottle of isopropyl alcohol in the bedroom that had Mr. Markland's name written on it; and (4) expert testimony that a baby food jar containing a red powdery substance, which is used to make methamphetamine, had Mr. Markland's fingerprint on it.
Mr. Markland also argues that all circumstantial evidence must be consistent with guilt and inconsistent with any theory of innocence. State v. Todd, 101 Wn. App. 945, 950, 6 P.3d 86 (2000). The Todd standard has been replaced by the Rangel-Reyes standard. State v. Rangel-Reyes, 119 Wn. App. 494, 499, 81 P.3d 157 (2003). The current standard is that all evidence is viewed in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Green, 94 Wn.2d at 220.
We agree with the State that sufficient evidence existed to show that Mr. Markland was at least an accomplice in the manufacture of methamphetamine. Mr. Markland cites State v. Bridge to support his argument that when a defendant's fingerprint is the sole piece of evidence in a crime, to survive a sufficiency of the evidence challenge, the State must show that the fingerprint was created at the time of the crime. State v. Bridge, 91 Wn. App. 98, 101, 955 P.2d 418 (1998). However, in Bridge, the defendant's fingerprint was the sole piece of evidence of burglary. Id. Here, besides the fingerprint on the baby food jar, there was the alcohol bottle with the defendant's name on it, and Mr. Markland's statement that he knew a methamphetamine lab was being run out of his apartment. The defense did not contest the allegation that a minor, Hailie Markland, was present during this drug crime. There was sufficient evidence for a rational jury to find all elements of the charged crime beyond a reasonable doubt.
B. Ineffective Assistance of Counsel
Mr. Markland's claim of ineffective assistance of counsel raises a constitutional issue and on appeal presents a mixed question of law and fact that is reviewed de novo. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006), review denied, 154 P.3d 919 (2007).
To establish ineffective assistance of counsel a defendant must satisfy a two-prong test showing that: (1) The performance of counsel was so deficient that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687; see also Meckelson, 133 Wn. App. at 436. "The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record established in the proceedings below." State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
As to the first Strickland prong, counsel's representation is ineffective if the appellate court can find no legitimate strategic or tactical reason for a particular trial decision. Meckelson, 133 Wn. App. at 436. As to the second Strickland prong, it must be shown that counsel's deficient performance prejudiced the defendant, because there is a reasonable probability that a motion to suppress would have been granted, and the outcome of the trial would have been different. See State v. Rainey, 107 Wn. App. 129, 135-36, 28 P.3d 10 (2001), review denied, 145 Wn.2d 1028 (2002); see also State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
Warrantless searches are per se unreasonable under the Washington Constitution article I, section 7, and the Fourth Amendment to the United States Constitution. State v. Houser, 95 Wn.2d 143, 148-50, 622 P.2d 1218 (1980). There are a few carefully guarded exceptions to the warrant requirement. Id. at 149. The burden is on the State to show that a warrantless search falls within one of these exceptions. Id.
A warrantless search can be legally allowed under a community caretaking function exception. The caretaking exception allows a limited invasion of privacy rights when it is necessary for a police officer to render aid or to make a routine check on health and safety that is unrelated to a criminal investigation. State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004). The invasion is allowed only if "(1) the police officer subjectively believe[s] that someone likely need[s] assistance for health or safety concerns, (2) a reasonable person in the same situation would similarly believe that there [is a] need for assistance, and (3) there [is] a reasonable basis to associate the need for assistance with the place being searched." Id. Whether the invasion is reasonable depends on a balancing of the individual's privacy interest against the public's interest in having the police perform a community caretaking function. Id.
A warrantless search conducted pursuant to consent is valid if there was a valid, voluntary consent by the defendant, and the ensuing search did not exceed the scope of the consent. State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992). If the presence of odors is testified to before a magistrate and he finds that the affiant is qualified to know the odor, and it is one sufficiently distinctive to identify a foreign substance, this along with other evidence constitutes sufficient probable cause to issue a search warrant. See Johnson v. United States, 333 U.S. 10, 13-17, 68 S. Ct. 367, 92 L. Ed. 436 (1948).
The first Strickland prong, deficiency in the performance of counsel, requires an analysis of whether trial counsel's failure to file a CrR 3.6 motion to suppress fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688-89. Failure to bring a plausible motion to suppress can constitute ineffective assistance of counsel. Rainey, 107 Wn. App. at 135-36.
Here, no reason has been given as to why counsel did not file a motion to suppress any evidence resulting from the warrantless entry of Officer Hamilton and Sergeant Warren. In fact, suppression was Mr. Markland's best tactical defense because the evidence observed and sensed during this entry was ultimately what led to his conviction. Since the State presents no plausible tactical argument as to why a CrR 3.6 motion to suppress was not brought, the first Strickland prong is met by Mr. Markland. Rainey, 107 Wn. App. at 135-36.
The second Strickland prong, prejudice through deficient performance, requires an analysis as to whether there is a reasonable probability that the CrR 3.6 motion would have been granted, and whether it would have effected the outcome of the trial. Strickland, 466 U.S. at 694.
Here, it is likely that the CrR 3.6 motion would not have been granted because of the community caretaking exception. State v. Acrey, 148 Wn.2d 738, 748-54, 64 P.3d 594 (2003). Officer Hamilton and Sergeant Warren had the following information from dispatch regarding the Markland residence: (1) the LPN and Ms. Burns were concerned about the living conditions at the house, and (2) the baby and residents of the apartment were acting lethargic based upon two separate visits by the LPN and Ms. Burns.
The warrantless seizure and subsequent search of a 12-year-old minor found in an isolated area at night fell under the community caretaking exception, when a 911 call was initially placed that raised some concern for the minor's well being. Acrey, 148 Wn.2d at 748-54. In State v. Kinzy, 141 Wn.2d 373, 395, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001), the court held that an initial warrantless preseizure stop of a 16-year-old was reasonable as a community caretaking function.
The generalized fear or mere report of a chemical odor coming from a property, or the existence of a methamphetamine lab does not fall under the community caretaking exception. State v. Lawson, 135 Wn. App. 430, 434-38, 144 P.3d 377 (2006); State v. Schlieker, 115 Wn. App. 264, 266-72, 62 P.3d 520 (2003).
Here, there is nothing in the record to indicate the police officers were informed about the chemical odor that Ms. Burns had sensed. Both Officer Hamilton and Sergeant Warren testified the sole basis for their visit to the Markland apartment was to check on the welfare of Hailie Markland and the other occupants. During cross-examination, neither Officer Hamilton nor Sergeant Warren indicated that their visit was a pretextual search. There is a reasonable probability that the CrR 3.6 motion would have failed, because the initial warrantless search of the Markland apartment arguably falls within the community caretaking exception. Acrey, 148 Wn.2d at 748-54. Mr. Markland is unable to satisfy the second prong of the Strickland test.
Mr. Markland was not denied effective assistance of counsel, because there is a reasonable probability that a suppression motion based upon the initial entry into his apartment would have failed. The defense does not dispute the validity of the consent card signed by Mr. Markland nor the search warrant obtained by Officer Ross.
CONCLUSION
We affirm the conviction.
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.
BROWN, J., KULIK, J., concur.