Opinion
No. 28168-0-III.
September 2, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Yakima County, No. 08-1-02594-8, C. James Lust, J., entered May 11, 2009.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, C.J., and Siddoway, J.
While arresting Jorge Santana for robbery, an officer looked through a digital camera Mr. Santana was carrying and saw a photograph of evidentiary value. A detective obtained a search warrant and retrieved the photo. We conclude that it was an unlawful search to look through the camera, but the error was harmless under the facts of this case. The conviction for robbery is affirmed.
FACTS
Tasha Fauver approached the victim, Zenon Lugo, while he was at a gas station filling his car. She asked for a ride to the Red Carpet Motor Inn; Lugo agreed. When they arrived at the Inn, she asked him to accompany her to her room; Lugo again agreed.
A man with a red bandana covering his face confronted them when they entered the room. Mr. Lugo identified Mr. Santana in court as the man who confronted him. Mr. Santana demanded money and opened his coat to display what Mr. Lugo believed to be a gun in response to Lugo's statement that he had no money. Santana demanded that Lugo "give me everything, otherwise I'm going to kill you." Lugo turned over his wallet and Santana took out all of the money before giving the wallet back. Mr. Santana estimated that $180 to $190 was taken.
Mr. Lugo returned to his car and called 911. While on the telephone with the operator, he saw Fauver and Santana drive away from the hotel. Lugo followed them. Officer Elaine Gonzalez was driving toward the two cars when Lugo flashed his lights at her. She turned around and activated her emergency lights. Both cars stopped.
After receiving the robbery report from the radio, the officer arrested Mr. Santana. She searched him incident to the arrest and discovered a camera and a red bandana. There was $138 on the floorboard of Mr. Santana's car. Officer Gonzalez turned the camera on after she returned to the station. A picture of a man wearing a bandana and holding a black gun was displayed. The officer believed the man was Mr. Santana. During the arrest, Mr. Santana advised the officer that he was a Norteño gang member.
A detective obtained a search warrant based on Officer Gonzalez's observations, the admission that Mr. Santana was a gang member, and the detective's own experience that gang members frequently "display their accomplishments through graffiti and photos." A copy of the photograph was admitted at trial over defense objection.
Officers searched the Red Carpet Motor Inn. Outside the hotel police found a set of footprints which matched Mr. Santana's shoes. A plastic toy handgun was found near the footprints.
The defense moved to suppress the photograph. The trial court denied the motion and determined that the camera was searched incident to Mr. Santana's arrest. Written findings and conclusions were subsequently entered.
Mr. Santana testified at trial and admitted wearing a bandana over his face while meeting Mr. Lugo in the hotel, but denied robbing him. Instead, Mr. Santana asserted that Mr. Lugo was negotiating to have sex with Ms. Fauver; Lugo gave Santana $50 to go purchase cocaine for him and left the room. Mr. Santana, who was under the influence of methamphetamine, agreed that Mr. Lugo probably saw the toy gun. Mr. Santana discarded the toy gun outside the hotel.
The jury convicted Mr. Santana of first degree robbery. The court imposed a standard range sentence of 36 months. Mr. Santana then timely appealed to this court.
Ms. Fauver was tried with Mr. Santana. She also was convicted of first degree robbery. This court has affirmed that conviction. See State v. Fauver, Court of Appeals No. 28105-1-III.
ANALYSIS
This appeal raises an important issue concerning the scope of the search incident to arrest doctrine with respect to electronic devices. Given the rapid explosion of personal communications equipment, primarily telephones and hand-held computers, the issue is likely to recur. Because we believe any error here was harmless, we leave to another day considerations of the scope of the search incident to arrest doctrine in this context.
Different standards of review apply to different types of error. Error of constitutional magnitude can be harmless if it is proven to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In contrast, evidentiary error can be harmless if, within reasonable probability, it did not materially affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).
Under any standard of review, admission of this evidence was not harmful. The picture essentially showed Mr. Santana with the bandana covering much of his face and a gun in his hand. The victim had already testified that Mr. Santana was so dressed when the two men had their confrontation. Mr. Santana testified to the same facts — he was wearing a bandana when he met Mr. Lugo. In addition, Officer Gonzalez found Mr. Santana in possession of a similar bandana. The photograph did not contradict anyone's testimony, nor did it make anyone's testimony more credible than another person's testimony. We cannot conclude that this photograph affected the verdict.
Indeed, Mr. Santana agreed with much of Mr. Lugo's testimony except for how the latter's money ended up in his possession. He agreed that the toy gun was visible in the hotel room. He agreed that he abandoned the gun outside the hotel where police later found it. He agreed that Ms. Fauver and Mr. Lugo came back to the hotel room together.
Defense counsel even used the photograph in closing to argue that Mr. Lugo's testimony about identifying Mr. Santana could not be squared with the photo. Mr. Lugo would not be able to see some tattoos near the eyes if Mr. Santana had been wearing the bandana in the manner described by the victim.
Additionally, the photograph did not contradict Mr. Santana's story. Supposedly, after a confrontation, the victim then asked him to go buy drugs and, without waiting for him to obtain them, the victim suddenly left the hotel. Then, Mr. Santana left the hotel to get the drugs, even though his customer had departed, but first decided to walk off and get rid of the toy gun. After that decision, he learns that Mr. Lugo is supposedly reporting a robbery and decides to drive off with Mr. Lugo's money. In light of this testimony, the photograph was not harmful to Mr. Santana's theory of the case.
The picture simply corroborated Mr. Santana's own testimony. He had a bandana which he wore to cover his face. He possessed the plastic gun. Mr. Lugo saw him wearing the bandana. Mr. Lugo saw the gun. There was nothing prejudicial in the photograph.
Even if it was error to admit this photo, the error was harmless beyond a reasonable doubt.
The conviction is affirmed.
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.
KULIK, C.J., SIDDOWAY, J. concur.