Opinion
No. 34640-1-II.
May 1, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00087-8, James E. Warme, J., entered March 31, 2006.
Affirmed by unpublished opinion per Houhgton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Jeremiah Ray Anglin appeals his residential burglary conviction, arguing the trial court erred in denying his motion to suppress an out-of-court identification. Pro se, he argues he received ineffective assistance of counsel. We affirm.
FACTS
Anglin's burglary charge arose out of a break-in at the home of Maria Montes-Gomez. Around 1:30 a.m., a noise awakened Montes-Gomez and she investigated. In her living room, she saw a man looking around with a flashlight. Her three children slept near where the intruder stood.
As the intruder moved toward the kitchen, Montes-Gomez roused her son and told him to call the police. She turned on a light, and the intruder ran through two interior doors and out via the rear of the house. Montes-Gomez did not see the man's face, but she noted he was wearing a brown jacket, black pants, and a baseball cap turned sideways. The only physical feature Montes-Gomez recognized was that the intruder "was regular, just a little bit tall." Report of Proceedings (Mar. 17, 2006) (RP) at 59.
A short time after Montes-Gomez's son called for help, Officers Jeremy Johnson and Kevin Sawyer arrived. The officers saw Anglin on the sidewalk in front of the house. Anglin was securing a large backpack to a bicycle's handlebars. Johnson identified himself and ordered Anglin to stop. Anglin attempted to flee on the bicycle, but the unsecured backpack slipped into one of the wheels and the bicycle flipped. The officers took Anglin into custody.
While Johnson searched Anglin, Sawyer went to check on Montes-Gomez. Sawyer brought her outside to identify the suspect. Because Montes-Gomez spoke very little English, her children translated for her. Montes-Gomez recognized the suspect's jacket as that worn by the intruder, but she could not identify his face.
Pretrial, Anglin's counsel offered the trial court a written waiver of jury trial. The trial court then entered into a colloquy with Anglin, asking him if he discussed jury waiver with his counsel and if he understood the consequences of waiving a jury trial. Anglin assured the court he understood a jury waiver's effects and stated he would "rather have [the trial court judge's] decision." RP at 4-5. The trial court accepted the jury waiver, and a bench trial followed.
In his Waiver of Jury Trial, Anglin personally acknowledged the following:
1. I have been informed and fully understand that under the Constitution of the United States and the State of Washington, and the [c]riminal rules for Superior Court, I have the right to have my case heard by an impartial jury selected from the county where the crime(s) is/are alleged to have been committed.
2. I know that I could take part in the selection of the jury who would determine my guilt or innocence.
3. In a jury trial, the State must convince all of the twelve citizens of my guilt beyond a reasonable doubt. In a trial by judge, the State must only convince the judge beyond a reasonable doubt.
4. I have consulted with my lawyer regarding the decision to have my case tried by a jury or by the Court.
5. I freely and voluntarily give up my right to be tried by a jury and request trial by the Court.
Clerk's Papers at 7.
On the stand, Montes-Gomez recalled her testimony at the showup with the aid of a court interpreter, including the following:
[THE STATE]: . . . [W]hen you got there to see the person, what did that person look like? Can you describe what the person the police had was wearing?
[MONTEZ-GOMEZ]: Well, I saw him — and . . . could see what he looked like, and then I saw that he had a brown jacket. The officer asked me if that was him, and I said, "I think so, because he's wearing the same clothes that he had once inside the house."
RP at 49-50. Montes-Gomez also testified that one of the officers told her both that "'[w]e already got him'" and that Anglin "'said that he came inside.'" RP at 56.
Sawyer testified he did not tell Montes-Gomez that the police had the intruder in custody. He also testified: "[S]he said she never saw his face. When she came out, she was able to say that the stocking cap and the brown coat was [sic] identical to what the suspect was wearing, but she . . . told me she didn't see his face." RP at 40.
There was some controversy as to the style of hat(s) Anglin wore at the time.
Johnson testified he could not recall telling Montes-Gomez that the police had the intruder in custody or that Anglin had confessed. He also testified that Montes-Gomez identified Anglin's clothing but could not identify his face.
Anglin moved to suppress the identification as unduly suggestive and thus a violation of his due process rights. The State countered there was no "actual identification of the person." RP at 64. The State characterized Montes-Gomez's testimony as, "these look like the same clothes, they're very similar." RP at 63.
The trial court denied Anglin's motion and later entered the following finding of fact: "The officers brought Ms. Montes-Gomez to where the defendant was secured. There, she stated she had not seen [the] face of the man inside her house, but that the defendant's clothes matched those worn by the man." Clerk's Papers at 19-20 (finding of fact XXII).
The trial court found Anglin guilty of residential burglary and he appeals.
ANALYSIS Identification and Due Process
Anglin argues the trial court erred in admitting Montes-Gomez's identification because the showup procedure was unduly suggestive.
We review evidentiary rulings for abuse of discretion. State v. Cronin, 142 Wn.2d 568, 585, 14 P.3d 752 (2000). "A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds." State v. Soper, 135 Wn. App. 89, 96, 143 P.3d 335 (2006).
A trial court must exclude identification evidence where there is "'a very substantial likelihood of irreparable misidentification.'" Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968)). In Biggers, the United States Supreme Court adopted safeguards to ensure the reliability of witness identification and to guarantee a defendant's due process rights. 409 U.S. at 198; see State v. Johnson, 132 Wn. App. 454, 458, 132 P.3d 767 (2006). But these safeguards do not apply to the identification of physical evidence. Johnson, 132 Wn. App. at 463.
In State v. King, as here, we weighed a victim's identification of the defendant's jacket where the victim could not identify defendant's person. 31 Wn. App. 56, 59-60, 639 P.2d 809 (1982). The showup procedure in King also involved a single suspect, and the court acknowledged this made the showup inherently suggestive. 31 Wn. App. at 61-62. We nevertheless held "the identification of the jacket being worn by [the] defendant could not create an irreparable misidentification within the protective scope of Neil v. Biggers." King, 31 Wn. App. at 62.
King's holding is in accordance with "the great weight of federal and state authority." Johnson, 132 Wn. App. at 461 n. 21 (collecting cases).
Here, the trial court entered a finding that Montes-Gomez could not identify Anglin's person and identified only his clothing. The trial court's finding renders Biggers inapposite. See Johnson, 132 Wn. App. at 463. Because the trial court understood the relevant identification to be one of clothing, it did not abuse its discretion in denying Anglin's motion to suppress.
Anglin asserts this finding "is contradicted by Montes-Gomez's testimony." Appellant's Br. at 7. Presumably then, he challenges the sufficiency of the evidence supporting the finding. See State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003) ("challenged findings entered after a suppression hearing that are supported by substantial evidence are binding"). But Anglin fails to support his assertion with legal argument. And we "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Thus, his assertion lacks merit.
Statement of Additional Grounds, RAP 10.10 Ineffective Assistance of Counsel
Pro se, Anglin argues ineffective assistance of counsel. His argument relies on: (1) defense counsel's recommendation that he waive his right to a jury, (2) defense counsel's recommendation that he not testify in his own defense, and (3) an allegation that defense counsel failed to investigate his case.
An ineffective assistance of counsel analysis begins with the strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The claimant bears the burden of demonstrating ineffective assistance. McFarland, 127 Wn.2d at 337. To prove ineffective assistance, a defendant must show counsel's deficient performance resulted in trial prejudice. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
Differences of opinion regarding trial strategy or tactics will not support a claim of ineffective assistance. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). And "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691. On direct appeal, we will not consider matters outside the record. McFarland, 127 Wn.2d at 335, 338 n. 5.
The record does not show deficient performance regarding counsel's recommendation of a jury waiver. Anglin personally assented to the waiver and the trial court was careful to weigh his understanding of its consequences. Because Anglin assented to counsel's strategy of jury waiver, he cannot claim ineffective assistance based on the same. See Strickland, 466 U.S. at 691; Lord, 117 Wn.2d at 883. Anglin's jury waiver claim fails Strickland's first prong.
The record likewise does not show deficient performance regarding counsel's recommendation that Anglin not take the stand. As a question of trial strategy, counsel's recommendation cannot support a claim of ineffective assistance. See Lord, 117 Wn.2d at 883.
Anglin's second ineffective assistance claim also fails Strickland's first prong.
Last, Anglin claims, "[o]n top of all this, the trial attorney failed to do any investigation into my case." Statement of Additional Grounds at 2. He fails to explain further. While a Statement of Additional Grounds need not contain references to the record or legal citation, it will not be considered "if it does not inform the court of the nature and occurrence of alleged errors." RAP 10.10(c). Without more, we will not consider Anglin's final ineffective assistance argument. See McFarland, 127 Wn.2d at 335, 338 n. 5. Anglin's ineffective assistance of counsel argument fails.
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.
We concur:
Quinn-Brintnall, J.
Van Deren, J.