Opinion
No. 57402-7-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-15075-9, Laura Gene Middaugh, J., entered December 12, 2005.
Affirmed by unpublished per curiam opinion.
Following a jury trial, Michael Stombaugh was convicted of unlawful manufacture of methamphetamine. Stombaugh appeals from the judgment entered on the verdict, contending that the trial court abused its discretion by denying his motion for appointment of new counsel and erred by not suppressing evidence obtained pursuant to a search of the tent he was using as his home, in violation of his constitutional right to be free of unreasonable searches. Stombaugh also contends that the trial court's imposition of a sentencing condition requiring him to provide a biological sample for DNA testing purposes violates the Constitutions of the United States and of the State of Washington. Finding no error, we affirm.
RCW 43.43.754(1) provides that "[e]very adult or juvenile convicted of a felony . . . must have a biological sample collected for purposes of DNA identification analysis."
FACTS
On December 25, 2004, officers responded to a call regarding suspicious odors emanating from privately-owned land being used by the City of Auburn as its watershed. Stombaugh was living in an encampment on the land. One of the officers observed that the debris in the area, and the odor, were consistent with the manufacture of methamphetamine. The officer observed Stombaugh emerge from one of the tents in the encampment and conducted a cursory search of the tent for additional suspects and potentially explosive materials. The officer observed, in plain view, a coffee pot with white residue. The officer took Stombaugh into custody.
The following day, additional officers searched all three of the tents in the encampment. Officers opened closed containers inside Stombaugh's tent, where further evidence of methamphetamine production was discovered. Stombaugh was charged with unlawful manufacture of methamphetamine. A public defender, Nicole McGrath, was appointed by the court to represent Stombaugh.
On the first day of trial, Stombaugh moved the court for appointment of new counsel. His pro se motion asserted that the Rules of Professional Conduct, as well as his constitutional rights, had been violated by his attorney. The court held a hearing on the motion at which Stombaugh explained his concerns. He complained that it had taken too long to get to trial, that he did not like his counsel's advice, and that the "times and means" of the information McGrath supplied to him was not sufficient and "incomplete when [he] needed it." He also stated that he did not trust his attorney and that he felt his case had been jeopardized by her.
McGrath stated to the court that she was ready for trial and had just learned a few days before the hearing that Stombaugh no longer wanted her as his attorney. She further stated that she had enjoyed Stombaugh as a client, felt that she had given him straightforward advice, had conducted an investigation including witness interviews in preparation for trial, and was successful in obtaining information that led to a reduction in his offender score. McGrath also expressed hope that Stombaugh would continue to trust in her representation of him at trial.
The trial court denied Stombaugh's motion, noting that his trial was scheduled to begin that day and, if his motion was granted, it would cause a substantial postponement. The court also noted that Stombaugh was uneasy with his attorney's advice but that this uneasiness did not mean that she was providing him poor representation. Furthermore, the court stated that McGrath was a capable attorney and that she had been working diligently on Stombaugh's behalf.
The next day, the court heard pre-trial motions. Stombaugh contended that the evidence found in his tent should be suppressed, claiming that he possessed a reasonable expectation of privacy in the tent that he was using as his home and that exigent circumstances did not exist to provide the officers with lawful authority to conduct a search of the tent. The trial court ruled that Stombaugh maintained a reasonable expectation of privacy in the tent because he was using it as his home. The court also ruled, however, that there were exigent circumstances existing when the officer initially arrived on scene to warrant his opening the tent flap to look for other suspects and, therefore, that anything that was in plain view at that time was not subject to exclusion. However, the court excluded from admission at trial those items in the tent retrieved from closed containers.
Stombaugh was convicted and sentenced to 100 months plus one day in custody and ordered to provide a sample of his DNA. This appeal followed.
DISCUSSION
I. Motion for New Counsel
Stombaugh first asserts that the trial court abused its discretion by denying his motion for new counsel. We disagree.
The removal and appointment of counsel is a matter within the sound discretion of the trial judge. State v. Sinclair, 46 Wn. App. 433, 436, 730 P.2d 742 (1986). A trial court abuses its discretion only when its decision is manifestly unreasonable or for untenable reasons or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The factors to be weighed by the trial court in deciding a motion to substitute counsel are: "(1) the reasons given for the dissatisfaction; (2) the court's own evaluation of counsel; and (3) the effect of any substitution upon the scheduled proceedings." State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997).
Where a defendant makes conclusory and unsubstantiated statements that his counsel is unqualified, he is not entitled to new counsel. See State v. Staten, 60 Wn. App. 163, 169, 802 P.2d 1384 (1991) (citing Wilks v. Israel, 627 F.2d 32, 36 n. 4 (7th Cir. 1980)). Furthermore, "[u]nsupported general allegations of deficient representation are inadequate to support a motion to substitute, particularly when the motion to substitute is brought shortly before or during trial." Staten, 60 Wn. App. at 170.
The degree of discretion reposing in the trial court is at its greatest when a request for new counsel is made after trial has begun. These standards are designed, in part, to protect the trial court and the integrity of the criminal justice system from manipulative vacillations by a defendant wishing to disrupt or delay trial. See State v. DeWeese, 117 Wn.2d 369, 378-79, 816 P.2d 1 (1991); State v. Modica, 136 Wn. App. 434, 443, 149 P.3d 446 (2006).
Here, the trial court's refusal to appoint substitute counsel was a proper exercise of its discretion. Stombaugh moved for new counsel on the day trial was scheduled to begin. The court engaged McGrath and Stombaugh in a colloquy to determine the legitimacy of Stombaugh's concerns. The court was satisfied that McGrath was a capable attorney who had been working diligently on Stombaugh's case and properly considered the delay that would result if the motion was granted.
Stombaugh also submitted a written motion to the court that cited to the Rules of Professional Conduct. However, it failed to state specific reasons for his dissatisfaction or his alleged lack of confidence in McGrath and did not identify any basis for his belief that his attorney was negligent in preparing his case.
The trial court did not abuse its discretion by denying Stombaugh's motion for new counsel.
II. Suppression of Evidence
Stombaugh next asserts that the trial court erred by not suppressing evidence found in his tent in plain view. We disagree.
Although Stombaugh does not specify the particular evidence to which he objects, it appears that he is referring to items admitted during the trial testimony of Officers Douglas and Williams.
The plain view exception to the warrant requirement permits the warrantless seizure of incriminating evidence discovered in a search conducted during a legitimate intrusion into an individual's privacy. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Because the trial court held that there was a reasonable expectation of privacy in the tent Stombaugh was using has his home, the doctrine of plain view applies.
The plain view exception is appropriate where certain requirements have been met: "(1) a prior justification for police intrusion — whether by warrant or by a recognized exception to the warrant requirement; (2) an inadvertent discovery of incriminating evidence; and (3) immediate knowledge by police that they have evidence before them." State v. Lair, 95 Wn.2d 706, 714, 630 P.2d 427 (1981). Here, all three criteria are met. First, exigent circumstances provided justification for the officer's intrusion into Stombaugh's tent in spite of Stombaugh's expectation of privacy. As the trial court found, because of the isolated location and the open and unsecured nature of the encampment, the officers had legitimate concerns regarding their safety, the safety of the public, and the possible destruction of evidence.
Second, the officer's discovery of the evidence was inadvertent. The evidence was in plain view when he lifted the tent's flap to check for suspects or combustible materials. Finally, due to the officer's training, it was immediately apparent to him the items were of the type used in the manufacture of methamphetamine.
The trial court did not err by admitting evidence discovered in plain view inside Stombaugh's tent.
III. DNA Sample
Finally, Stombaugh asserts that the trial court erred by requiring him to provide a biological sample for DNA testing as a condition of his sentence. We disagree.
Stombaugh contends that the state-ordered DNA collection is an unreasonable search and seizure and violates his constitutional rights. In State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008, 111 P.3d 1190 (2005), this court recently held that the collection of DNA pursuant to RCW 43.43.754 does not violate the Fourth Amendment. Thus, Stombaugh's Fourth Amendment claim is unavailing.
Stombaugh also argues that the collection of his DNA violates article I, section 7 of the Washington Constitution. However, Stombaugh has failed to provide the necessary analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). This failure is fatal to his claim. State v. Nguyen, 134 Wn. App. 863, 871, 142 P.3d 1117 (2006).
Affirmed.
FOR THE COURT: