Opinion
No. 28883-4-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-01922-0. Judgment or order under review. Date filed: 05/10/2002. Judge signing: Hon. Terry Sebring.
Counsel for Appellant(s), James Kyongkon Kim, Attorney at Law, 8815 S Tacoma Way Ste 119, Lakewood, WA 98499.
Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Wang Koo Chung appeals his jury convictions of vehicular homicide and vehicular assault. He contends that the trial judge erred in allowing evidence of his blood alcohol level and statements he made to the police that he was driving one of the cars in the accident. Chung maintains that without his statements, the State could not prove the corpus delecti of the charges, which then should have been dismissed. Finally, because his counsel did not object to the blood alcohol evidence or his statements, he argues that counsel was ineffective. We find no reversible error and, therefore, affirm.
FACTS
Wang Koo Chung drove his car into another car, causing an accident that killed one person and injured another. When police talked with him at the hospital, Chung waived his Miranda rights and said he understood the special evidence warnings. Police obtained a blood sample that showed Chung's blood alcohol content was 0.16, twice the legal limit.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The trial court found that Chung understood his rights and knowingly, voluntarily, and intelligently waived them. Chung does not specifically assign error to the court's findings and conclusions, but he argues that the court should have excluded the blood alcohol evidence because the officer did not read him his rights in his native language; he also contends that if he was not in custody at the hospital, the State could take only a breath sample not a blood sample. Because Chung did not object at trial, he raises these issues by claiming that his counsel was ineffective.
ANALYSIS I. Assistance of Counsel
To demonstrate that counsel was ineffective, a defendant must show that counsel's representation was deficient, in that it fell below an objective standard of reasonableness, and that the deficiency prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We presume that counsel was effective. McFarland, 127 Wn.2d at 335.
To show prejudice, Chung must demonstrate that the trial court likely would have granted his motion to suppress or would have ruled that the State failed to establish the corpus delecti. See McFarland, 127 Wn.2d at 333-34. 'Without an affirmative showing of actual prejudice, the asserted error is not 'manifest' and thus is not reviewable under RAP 2.5(a)(3).' McFarland, 127 Wn.2d at 334.
A. Blood Test
Under RCW 46.20.308, a driver is deemed to have given consent for a breath or blood test if an officer reasonably suspects the person has been driving while under the influence of alcohol or drugs. RCW 46.20.308(1). Unless the person is unconscious or is under arrest for vehicular assault or homicide, only a breath test shall be conducted. RCW 46.20.308(3). But a person under arrest for vehicular assault or homicide may be subjected to a blood or breath test; his or her consent is not required. RCW 46.20.308(3). 'A lawful arrest of the motorist is an indispensable element triggering the motorist's implied consent to a breath or blood test.' Clement v. Dep't of Licensing, 109 Wn. App. 371, 374-75, 35 P.3d 1171 (2001), review denied, 146 Wn.2d 1017 (2002).
The trial court's unchallenged findings state that Chung understood and waived his Miranda rights and the special evidence warnings about the blood draw (RCW 46.20.308(3)). The court then concluded that Chung was not in custody at the scene or at the hospital. Ample evidence supports this conclusion. The deputy who ordered the blood draw never testified that Chung was under arrest. Report of Proceedings (RP) II at 202. Chung also never testified that he believed he was under arrest or in custody either at the scene or at the hospital. Thus, if Chung's counsel had raised the issue below, the trial court would likely have suppressed the blood test results.
Chung also contends that his waiver of his Miranda rights was invalid because he was not advised in his native language. The issue lacks merit. Chung cites no authority for his argument. And Chung had the burden of showing that his confusion about the warnings was apparent to the officer; he has not done so here. Dep't of Licensing v. Sheeks, 47 Wn. App. 65, 68, 734 P.2d 24 (1987). The officer had no indication that Chung had difficulties understanding English.
But Chung must also demonstrate that counsel had no legitimate strategic or tactical reason for his decision not to challenge the blood test results. McFarland, 127 Wn.2d at 336. Chung fails to do so. His defense throughout the trial was that he did not cause the accident. And he conceded drinking 'five to six glasses of liquor,' and that he felt 'a little bit intoxicated.' RP IV at 703-31. Under these circumstances, counsel's decision not to challenge the blood test results was most likely tactical. Chung has not shown that counsel was ineffective.
B. Corpus Delecti
Chung asserts that no evidence aside from his own statements proved that he was the driver of the car involved in the crash. Because of this, he reasons, the court should have dismissed the charges.
Corpus delecti usually consists of (1) the occurrence of an injury or loss, and (2) someone's criminality as the source of the injury or loss. Wayne R. LaFave, 1 Substantive Criminal Law sec. 1.4(b) at 29 (2d ed. 2003). The corpus delecti rule prohibits the State from proving the fact or physical evidence of the crime based solely on the defendant's out-of-court statements. Black's Law Dictionary at 346 (7th ed. 1999). The corpus delecti of most crimes does not involve the defendant's identity, but 'the corpus delecti for the offense of driving while under the influence of intoxicating liquor in this case requires evidence that defendant operated or was in actual physical control of a vehicle while he was under the influence of intoxicating liquor.' State v. Hamrick, 19 Wn. App. 417, 419, 576 P.2d 912 (1978). Logically, the same is true for vehicular homicide and assault.
One witness noticed a man crawling from near the driver's side of Chung's car toward the shoulder of the road. Another witness saw an Asian male by the driver's side of Chung's car. Both witnesses saw an Asian woman near Chung's car as well, but she was not injured; Chung was. Finally, most importantly, a witness testified that she was in her own car following Chung, who was driving his car, when the accident happened. This evidence prima facie establishes the corpus delecti. State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996).
Thus, Chung has not shown that a motion to dismiss for failure to establish the corpus delicti would have been granted. Accordingly, he has not demonstrated that counsel was ineffective for not moving to dismiss on this ground. In conclusion, Chung has failed to show that counsel was ineffective.
We affirm.
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.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.