Opinion
No. 24870-1-II c/w 26254-1-II.
Filed: December 7, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Lewis County, No. 99-1-00120-1, Hon. David R. Draper, July 13, 1999, Judgment or order under review.
Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Petitioner(s), Thomas G. Johnson (Appearing Pro Se), Airway Heights Corr Cntr, 271871, Post Office Box 2019, Airway Hghts, WA 99001K2019.
Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1900.
A jury found Thomas Johnson guilty of manufacturing methamphetamine (Count I) and unlawful possession with intent to deliver methamphetamine (Count II). On appeal, Johnson contends that (1) the information in the search warrant affidavit did not establish probable cause, (2) his trial counsel was ineffective by failing to move for suppression of the evidence seized from his person and vehicle, and (3) because the State did not elect between two separate acts of possession for Count II, and because the trial court did not give a unanimity instruction, he was denied his right to a unanimous verdict. Johnson raises other issues in his personal restraint petition, which is consolidated with the direct appeal. We affirm the conviction and deny the personal restraint petition.
Facts
On February 3, 1999, Lewis County Deputy Sheriff Sue Shannon requested a warrant to search Johnson's residence in Glenoma. Shannon's probable cause affidavit was based on information from an unnamed, confidential informant who told her that an individual known as 'Big Daddy' was involved with a methamphetamine manufacturing operation. From Shannon's previous contacts with Johnson, she knew he referred to himself as 'Big Daddy.' CP at 23.
On January 6, Johnson pleaded guilty to manufacturing and possession with intent to deliver methamphetamine during the period September 18 to December 18, 1998. In Johnson's agreement with the State, he agreed to refrain from violating any laws and to cooperate with police investigations of narcotics activities in Lewis County.
The informant had gone with Johnson earlier that day to buy $5,000 of methamphetamine chemical precursors (such as pseudoephedrine, toluene), which were stored at Johnson's place in Glenoma. And, Johnson was expecting the informant later that evening to help produce the methamphetamine.
The informant admitted to manufacturing methamphetamine 'several times in the past' and was being recruited to be a methamphetamine cook by Johnson and another individual named 'Rich' for their methamphetamine operation.
Immediately following her interview with the informant, Shannon requested a search warrant. The judge found probable cause to search Johnson's residence and issued the warrant. A five-member Washington State Patrol (WSP) team was assigned to execute the warrant the following day.
On February 4, between 6:30 and 10:15 a.m., two officers watched Johnson's residence but did not see anyone arrive or leave. To get Johnson out of the cabin for purposes of officer safety, Shannon called Johnson requesting that he meet her in Mossyrock. He agreed, exited his house and got into a small silver Honda. Shannon and Deputy James Brown followed him in their car, pulled the Honda over, and arrested Johnson.
Brown read Johnson his Miranda rights, searched him, and found $645 cash in his pants pockets. Deputies Eric Weinreich and Brown then searched the Honda. Under the driver's seat they found a glass smoking pipe with burnt whitish residue and a clear plastic vial with 3.3 grams of a yellowish, white substance, which later tested positive for methamphetamine. They found in the rear passenger area (1) a black film cannister inside a plastic zip-lock bag with green fluorescent fluid, (2) a burnt metal spoon with whitish residue, and (3) a glass funnel type pipe with residue. In the passenger compartment, they found a chemist manual.
When the police executed the warrant and searched Johnson's cabin, they seized various chemical precursors and paraphernalia associated with methamphetamine production. They also found in the living room a clear plastic bag with approximately three grams of white powder and in another room, a clear zip-lock bag with six ounces of white powder; both substances tested positive for methamphetamine. The police also seized Johnson's birth certificate and rental receipts for the months of February and March 1999 made out to him, a large number of car deeds and titles, and 'crib notes' with a list of names and amounts owed by each person.
These included: red phosphorus, a main ingredient for manufacturing methamphetamine; 50 bottles of antihistamine containing pseudoephedrine, another main ingredient of methamphetamine manufacturing; a black cooking wok with white residue and powder; an electronic scale; gas masks; and three chemistry books.
Shannon testified that a large number of these documents indicated drug trafficking activities because drug addicts commonly use their cars as collateral for payment.
Johnson moved to suppress the evidence seized from the cabin, arguing that because there was insufficient evidence of the informant's reliability, there was no probable cause to support the warrant. The trial court denied the motion, finding that the information contained in the warrant affidavit supported the issuing judge's probable cause determination. The items seized from the cabin were later admitted into evidence at Johnson's trial, as well as the items seized from the Honda and the $645 found on his person at the time of arrest. WSP detective Ronald Ritter testified that the items found inside Johnson's cabin 'had all of the makings to manufacture methamphetamine, all the main ingredients, all the solvents, the red phosphorus, the iodine and the pseudoephedrine . . . it was all there[.]' RP at 111.
The jury found Johnson guilty as charged. He appeals.
Analysis I. Search Warrant Affidavit
To establish probable cause to search, a supporting affidavit must contain facts from which an ordinary, prudent person could conclude that a crime has occurred and that there is evidence of the crime at the location to be searched. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998), review denied, 137 Wn.2d 1035 (1999). We examine the search warrant de novo, evaluating it in a practical, commonsense manner rather than hypertechnically. Perez, 92 Wn. App. at 4; State v. Olson, 74 Wn. App. 126, 130, 872 P.2d 64 (1994), aff'd, 126 Wn.2d 315 (1995). Warrant issuance is a matter of judicial discretion; thus, we accord great deference to the issuing judge's probable cause determination. Perez, 92 Wn. App. at 4; Olson, 74 Wn. App. at 129.
We resolve any doubts in favor of the validity of the warrant. Perez, 92 Wn. App. at 4.
When the supporting affidavit contains information from a confidential informant (CI), the two-prong Aguilar/Spinelli inquiry must be satisfied. State v. Jackson, 102 Wn.2d 432, 433, 688 P.2d 136 (1984). The two prongs require the affidavit to establish: (1) the informant's 'basis of knowledge, or how he obtained the information,' and (2) the 'reliability or credibility of the informant.' State v. Olson, 73 Wn. App. 348, 355, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994).
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Johnson contends that the supporting affidavit failed to satisfy the veracity prong because the informant did not have a proven track record. He further argues that 'the fact that the CI made several statements against his . . . penal interest is insufficient to establish the CI's credibility.' Br. of Appellant at 11. We disagree.
Although a proven track record is the most frequent way of demonstrating the informant's veracity, it is not the sole means; an informant's statements against penal interest may also provide sufficient indicia of reliability. State v. Woodall, 100 Wn.2d 74, 77, 666 P.2d 364 (1983); State v. Lair, 95 Wn.2d 706, 710, 630 P.2d 427 (1981). The Supreme Court has stated: 'Statements against penal interest are not often made lightly and may support an inference of reliability.' Lair, 95 Wn.2d at 711. Greater reliability may be attached to statements made in post-arrest situations because the arrestee admitting the crime 'risks disfavor with the prosecutor if he lies.' State v. Estorga, 60 Wn. App. 298, 304, 803 P.2d 813, review denied, 116 Wn.2d 1027 (1991) (citation omitted). A formal leniency deal is not necessary. State v. O'Connor, 39 Wn. App. 113, 122, 692 P.2d 208 (1984), review denied, 103 Wn.2d 1022 (1985). Nor must the police have independent corroboration of the informant's statements. O'Connor, 39 Wn. App. at 120. Thus, even when little is known about the informant, statements against interest made by the informant could reasonably support an inference of veracity. E.g., Estorga, 60 Wn. App. at 304-05 (holding named informant's post-arrest statements identifying the source of the controlled substances found in his residence was sufficient to satisfy veracity prong); O'Connor, 39 Wn. App. at 121-22 (holding veracity prong established by informant's post-arrest admission that he knowingly obtained stolen property). This is the case here.
On February 3, Deputy Shannon was approached by the informant, who had recently been arrested. The informant wanted to share knowledge of illegal drug activities in Lewis County. Specifically, the informant admitted to buying, with Johnson, on two separate occasions in the past two days, large quantities of chemical precursors for manufacturing methamphetamine. The informant also admitted to producing approximately five pounds of methamphetamine at Johnson's Glenoma residence between February 1 and 2.
These statements are clearly against the informant's penal interest. And, greater reliability attached because they were made under post-arrest circumstances to a law enforcement officer. We are satisfied that these circumstances establish a strong motivation for the informant to tell the truth.
We hold that the information contained in Shannon's affidavit was sufficient to establish the informant's credibility and to satisfy both prongs of the Aguillar-Spinelli test. The issuing judge did not abuse his discretion in determining probable cause and the suppression court did not err by denying Johnson's suppression motion.
II. Search of Vehicle and Person
For the first time on appeal, Johnson challenges the admission of evidence seized from him and the Honda at the time of arrest. He argues that the search was unlawful and that his trial counsel was ineffective by failing to move for suppression of the items seized.
Ordinarily, we do not review for the first time on appeal an alleged error not raised at trial unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice in order to establish that the error is 'manifest.' State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). Where the alleged constitutional error arises from trial counsel's failure to move to suppress, appellant must show the trial court likely would have granted the motion if made. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). Alleging prejudice is not sufficient; actual prejudice must appear in the record. McFarland, 127 Wn.2d at 337; see also State v. Contreras, 92 Wn. App. 307, 317-18, 966 P.2d 915 (1998).
'If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.' McFarland, 127 Wn.2d at 333 (citation omitted). In McFarland, the Supreme Court held that 'because no motion to suppress was made, the record does not indicate whether the trial court would have granted the motion.' McFarland, 127 Wn.2d at 334. The Supreme Court further noted:
Because no motion to suppress was made, there exists no record of the trial court's determination of the issue. . . . We recognize the predicament this causes for [defendants: each] must show the motion likely would have been granted based on the record in the trial court, yet the record has not been developed on this matter because the motion was not made.
McFarland, 127 Wn.2d at 334 n. 2.
The record here is insufficient for review. Because there was no motion to suppress the items seized from the Honda and the $645 found on Johnson, the record is undeveloped on the circumstances of his arrest. Any inquiry by this court on the constitutionality of the search would be mere speculation. Thus, the alleged illegality of the search of the car and his person is not 'manifest' and reviewable under RAP 2.5(a)(3). McFarland, 127 Wn.2d at 334.
Further, the ineffective counsel claim fails without a showing of actual prejudice from counsel's failure to move for suppression. McFarland, 127 Wn.2d at 337. Accordingly, we hold that Johnson was not deprived of his constitutional right to effective assistance of counsel.
III. Sufficiency of the Evidence
Johnson argues that the evidence was insufficient to convict him of possession with intent to deliver based on the vial containing 3.3 grams of methamphetamine and drug paraphernalia found in the car. He asserts that this evidence only gave rise to an inference of personal use, not intent to deliver.
A claim of insufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Further, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. We examine sufficiency based on all the evidence admitted at trial. State v. Jackson, 82 Wn. App. 594, 608, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)).
Johnson's argument ignores other evidence admitted which factually distinguishes this case from State v. Kovac, 50 Wn. App. 117, 747 P.2d 484 (1987). In Kovac, the juvenile defendant was charged with a single count of possession with intent to deliver based on seven baggies of marijuana found on his person. Kovac, 50 Wn. App. at 118. Here, overwhelming evidence established that Johnson used his cabin to manufacture methamphetamine. And, not only was he making the methamphetamine, but he was selling it as well. Police found crib notes with names and corresponding monetary amounts and/or personal property. Deputy Shannon explained that many of the dollar amounts corresponded to street prices for methamphetamine in quantities customarily sold in Lewis County. Shannon also opined that the large number of car deeds and titles were proceeds of drug trafficking. Thus, evidence showed that Johnson was running a business out of his cabin making and selling methamphetamine.
Considering all the evidence admitted at trial, the jury could reasonably infer that the methamphetamine found in the Honda was part of Johnson's business. Thus, the quantities of methamphetamine in the car and inside the cabin were part of an ongoing enterprise with a single objective, giving rise to the reasonable inference of an intent to deliver.
We hold that sufficient evidence supported the conviction of unlawful possession with intent to deliver.
IV. Unanimity Instruction
A jury may convict a defendant only if it unanimously concludes that the defendant committed the act charged in the information. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988); State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). When the State presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations, or the court must instruct the jury to agree on a specific criminal act. Petrich, 101 Wn.2d at 572.
Johnson argues that there were two separate acts of methamphetamine possession, i.e., the vial of methamphetamine found in the Honda, and the methamphetamine found inside the cabin. We note that Johnson did not request a unanimity instruction at trial. This issue can be raised for the first time on appeal, however, because of its constitutional ramifications. RAP 2.5(a)(3); State v. Fiallo-Lopez, 78 Wn. App. 717, 725, 899 P.2d 1294 (1995).
If the acts constitute a continuing course of conduct, then a unanimity instruction or election is not required. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Even if the acts were distinct acts, the failure to elect or to give the jury a unanimity instruction is harmless error if a rational trier of fact could have found each incident proved beyond a reasonable doubt. Handran, 113 Wn.2d at 17-18 (citing Petrich, 101 Wn.2d at 573).
The continuing course of conduct exception has been applied to multiple acts of assault over a two-hour time period, resulting in a fatal injury (State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991)), two acts of assault occurring in one place, during a short period of time, upon a single victim to secure sexual relations (Handran, 113 Wn.2d at 17), two acts taken collectively which promote prostitution (State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d 1000, review denied, 111 Wn.2d 1012 (1988)).
The State cites State v. Love, 80 Wn. App. 357, 908 P.2d 395, review denied, 129 Wn.2d 1016 (1996), which applied the continuing course of conduct analysis in the drug possession context. Love was charged and convicted of one count of possession with intent to distribute cocaine. While preparing to execute a search warrant on Love's house, the police saw Love exit his residence; they stopped him two to three blocks from his residence and found five rocks of cocaine on him during a pat-down search. Love, 80 Wn. App. 358-59. Then, when the police searched his house, they found forty additional rocks of cocaine, as well as guns, a large sum of money, a scale, and packaging materials. Love, 80 Wn. App. at 359. Love argued on appeal that his constitutional right to a unanimous jury was violated because the evidence of intent was based on two separate acts of possession and, the State failed to elect between the two, and the trial court did not give a unanimity instruction. Love, 80 Wn. App. at 358. Rejecting this argument, the Love court held that there was 'substantial evidence of a continuing course of conduct involving an ongoing enterprise with a single objective.' Love, 80 Wn. App. at 363.
Here, the State's theory was that Johnson ran a methamphetamine manufacturing and selling operation out of his cabin. The prosecutor argued to the jury in closing statement that the $645 on Johnson and the vial of methamphetamine found in the Honda, along with the 'overwhelming evidence' found throughout the cabin (e.g., scale, gas masks, list of names and amounts, car titles, ingredients for producing methamphetamine), were indicative of his business. Considering all the evidence of methamphetamine production and sale found inside the cabin, the jury could find that Johnson intended to deliver the methamphetamine seized from his car and the cabin. Thus, there was substantial evidence of a continuing course of conduct for the possession count. Accordingly, the State was not required to elect nor the court required to give a unanimity instruction.
V. Pro Se Issues and Personal Restraint Petition
Johnson raises several additional issues in his pro se supplemental brief and personal restraint petition, which we briefly address.
Johnson filed two motions to supplement the record under RAP 9.11. We grant the motion filed on October 23, 1999, but deny the motion filed on January 22, 2001. In the latter motion, Johnson submits (1) a portion of the search warrant affidavit, which is already part of the record on appeal, and (2) a newspaper article covering his arrest, which is not pertinent to the issues.
A. Effective Assistance of Counsel
Johnson asserts that Joseph Enbody, his court-appointed attorney on the 1998 cause, should have continued to represent him in this case. Enbody apparently was appointed to represent Johnson in this matter but withdrew in March 1999 on discovering that his son was representing the informant. Enbody remained on the 1998 cause, appearing on Johnson's behalf at the sentencing hearing held July 13, 1999, when Johnson was sentenced on this and the 1998 cause. There is no merit to Johnson's claim that Enbody's withdrawal from this case denied him effective assistance of counsel because a criminal, indigent defendant does not have an absolute right under the Sixth Amendment to choose any particular advocate. See State v. Lopez, 79 Wn. App. 755, 764, 904 P.2d 1179 (1995).
Johnson also complains that his trial counsel, Daniel Havirco, was deficient in his representation of Johnson. He alleges that Havirco did not act in his best interest, failed to cross-examine witnesses, failed to show the link between this case and the 1998 cause, and failed to obtain exculpatory witnesses and documentary evidence to present on his behalf.
In reviewing ineffective counsel claims, courts engage in a strong presumption that counsel's representation was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Johnson's assertions, lacking in factual details and supporting evidence, fail to rebut this presumption of effectiveness. Contrary to Johnson's assertion, Havirco did cross-examine the prosecution witnesses. His claim falls far short of the requisite prima facie showing that his counsel's performance was deficient and that actual prejudice resulted. See In re Riley, 122 Wn.2d 772, 863 P.2d 554 (1993).
We deny Johnson relief on his claims of ineffective assistance of counsel.
B. Due Process
Johnson claims that he was denied due process because the State used misleading and false statements to prosecute him. He singles out Deputy Shannon, asserting that she was an unreliable witness and was motivated by her self-interest for career advancement: 'This is a story of a police woman who seized the moment.' Supp. Pro Se Brief at 7. Johnson fails to provide any evidence to support his allegations that Shannon or any of the State's witnesses committed perjury. Thus, there is no due process violation warranting relief.
C. Entrapment/Double Jeopardy
Similarly, Johnson's claims of entrapment and double jeopardy lack merit. The facts and circumstances of this case do not implicate the entrapment defense or the double jeopardy prohibition. Entrapment is an affirmative defense, which the defendant must show by a preponderance of the evidence. State v. Trujillo, 75 Wn. App. 913, 917, 883 P.2d 329 (1994). The crux of this defense is that the police implanted into the mind of an innocent person an inducement to commit a crime, which he was not otherwise predisposed to perpetrate. State v. Walker, 11 Wn. App. 84, 86, 521 P.2d 215 (1974). Here, when the instant offenses were committed, Johnson was pending sentencing on convictions of similar crimes. Given this circumstance, it is improbable that he would have prevailed on the defense of entrapment had it been raised at his trial. Further, nothing in the record or Johnson's submissions suggest police misconduct giving rise to a claim of entrapment.
Johnson contends that the methamphetamine precursor chemicals seized from the cabin on February 4, 1999, were the same items in the cabin in December 1998 when the police previously searched it. Johnson further argues that, because of inadequate clean up by the county health officials following the December search, the same evidence was used to prosecute him twice in violation of the double jeopardy prohibition. This claim is unsupported by evidence, wholly speculative and not a basis for relief.
Finding no error, we affirm the conviction and sentence and deny the personal restraint petition.
The State, as the prevailing party, is entitled to court fees and costs for this appeal under RCW 10.73.160 upon compliance with the requirements of Title 14, Rules of Appellate Procedure.
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: MORGAN, P.J., QUINN-BRINTNALL, J.