Opinion
Nos. 20242-9-III, 20854-1-III, 20567-3-III.
Filed: October 29, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 001023805, Hon. Linda G. Tompkins, June 6, 2001, Judgment or order under review.
Counsel for Appellant(s), William D. Edelblute, Attorney At Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor's Office, W. 1100 Mallon, Spokane, WA 99260.
In these consolidated appeals and personal restraint petition (PRP), Sidney Orange contends the trial court erred when it: (1) denied his pretrial suppression motion based on a pretext traffic stop and illegal search; (2) refused to allow him to call a specific witness at trial who had asserted his Fifth Amendment privilege against self-incrimination; (3) erroneously refused to allow evidence of a State witness's prior drug convictions; (4) incorrectly determined his offender score for sentencing purposes after his conviction for possession of crack cocaine; and (5) improperly denied his CrR 7.8 motion to correct an erroneous sentence. Finding no errors, we affirm the conviction and denial of the CrR 7.8 motion and deny the PRP.
A. Facts
Mr. Orange was charged in Spokane County Superior Court with one count of possession of a controlled substance. The charge was the result of an August 2000 traffic stop after which Mr. Orange was arrested for driving while his license was suspended (DWLS). After the arrest, Officer Steven Wohl searched the vehicle Mr. Orange was driving. A single rock of crack cocaine was found on the floorboard of the driver's side of the vehicle. A passenger, Darnell Riley, was present in the vehicle at the time of the traffic stop. He was briefly detained then allowed to leave. Because there was no proof of registration in the vehicle and because of the DWLS offense, the car Mr. Orange was driving was impounded.
Mr. Orange filed a pretrial motion to suppress the physical evidence, contending the traffic stop was an illegal pretext in order to search for drugs. He testified on his own behalf and Mr. Riley was subpoenaed as a potential witness as well. However, when Mr. Riley arrived in the courtroom, he asserted, on the advice of counsel, his Fifth Amendment privilege against self-incrimination. After a hearing on the matter the court honored the request and did not require Mr. Riley to testify at the hearing. Mr. Riley also indicated he would exercise the same right if he were called as a witness in Mr. Orange's trial on the merits. At the conclusion of the hearing the suppression motion was denied because the trial court determined the traffic stop was valid, based on the officer's testimony that Mr. Orange failed to signal a right-hand turn. Further, it found that after the officer discovered Mr. Orange did not have a valid license, the subsequent arrest and impoundment of the vehicle was lawful. As a result, the rock cocaine discovered during the search incident to arrest was admissible at trial. (Mr. Orange, acting pro se, renewed the suppression issue at the sentencing hearing but the court reiterated its earlier decision.)
Mr. Orange requested a jury trial. Just prior to opening arguments he sought to compel the attendance of Mr. Riley at trial even though it was believed that he would assert his rights against self-incrimination. Nevertheless, defense counsel argued there would be questions Mr. Riley could answer at trial that would not implicate his right against self-incrimination. The court held a hearing outside the presence of the jury to determine whether questions asked of Mr. Riley at trial would tend to incriminate him for Fifth Amendment purposes. It concluded all but four questions implicated the right against self-incrimination, but determined the questions did not provide sufficient relevance to overcome the potential for prejudice or jury confusion. Accordingly, it denied Mr. Orange's request to compel Mr. Riley's attendance at trial. It also denied the defense request to offer as exhibits at trial evidence of Mr. Riley's prior drug convictions in the state of Washington.
At the conclusion of the trial Mr. Orange was found guilty of the possession charge. He was sentenced on June 6, 2001. A presentence investigation was conducted by the Department of Corrections, which was accepted by all parties. The court then imposed a sentence of 43 months based on a standard range of 33 to 43 months. Mr. Orange filed a timely notice of appeal.
B. Appeal No. 20242-9-III
1. Pretext Stop
Mr. Orange first assigns error to the trial court's denial of his motion to suppress the cocaine found in the vehicle. He claims the traffic stop was a pretext and the officer made up the story about the faulty turn signal just to search the car for evidence of illegal narcotics. He maintains the traffic stop occurred because the arresting officer recognized Mr. Orange as an African American male. The State contends the initial traffic stop was lawful and the search of the vehicle resulted from Mr. Orange's subsequent arrest for DWLS and/or because the car had to be impounded when no proof of registration or insurance could be found in the vehicle. The State asserts the motion to suppress was properly denied.
In reviewing findings of fact entered following a hearing on a motion to suppress, we may review only those facts to which error was assigned. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Any unchallenged findings will be treated as a verity on appeal. Hill, 123 Wn.2d at 644.
In this case, the findings and conclusions regarding the CrR 3.6 hearing were not filed until after Mr. Orange submitted his appellant's brief, thus no error is initially assigned to the court's findings or conclusions. When filing his reply brief, he assigned specific error to finding of fact 6 and by implication to conclusion of law 3. But it also appears Mr. Orange takes issue with findings of fact 5 through 8, and 11 as well as conclusions of law 1 through 4. However, regarding these other assignments of error, he merely 'objects to any consideration of the belated Findings of Fact and Conclusions of Law which would prejudice his previous arguments.' Appellant's Reply Br. at 1. Although this does not technically conform with RAP 10.3(a)(3) we will address Mr. Orange's contentions. This is because in appropriate circumstances a reviewing court will waive technical violations of the appellate rules when the briefing makes the nature of the challenge perfectly clear, especially when the challenged finding can be found in the text of the brief. RAP 1.2(a); State v. Neeley, ___ Wn. App. ___, 52 P.3d 539, 542 (2002).
Pretextual stops violate article I, section 7 of the Washington Constitution. State v. Ladson, 138 Wn.2d 343, 345, 979 P.2d 833 (1999). Under Ladson, we must determine whether a traffic stop was pretextual by examining the totality of the circumstances, including both the subjective intent of the officer conducting the stop and the objective reasonableness of the officer's behavior. Id. at 358-59.
Officer Wohl testified that he stopped the vehicle driven by Mr. Orange for a traffic infraction. He specifically testified that he was not watching a known drug house or narcotics hot spot. He merely was driving his vehicle in his assigned patrol area when he noticed the traffic infraction. The officer said he was not looking for drug activity nor did he recognize the driver or know his ethnicity until just prior to contacting him for the traffic stop. Under the circumstances, the record does not support Mr. Orange's claim that the stop was pretextual.
2. Search Incident to Arrest
RCW 10.31.100(3)(e) authorizes the arrest of individuals driving with a suspended license. Here, Officer Wohl observed a vehicle make a right turn without signaling. He activated his emergency equipment and the vehicle promptly pulled to the side of the road. The driver handed the officer a Washington State Identification card, which identified the driver as Sidney Orange. The officer determined through police dispatch that Mr. Orange was driving with a suspended driver's license. At that point, Officer Wohl had probable cause to arrest Mr. Orange for DWLS. Mr. Orange was informed of the arrest, handcuffed, and placed in the back of the patrol vehicle after a brief pat down for weapons. After the arrest, the officer conducted a search of the vehicle and discovered a rock-like substance that field tested positive for cocaine.
As a general rule, warrantless searches are prohibited unless the search is justified under an established exception to the warrant requirement. Johnson, 128 Wn.2d at 451. A search incident to an arrest is an exception to the warrant requirement. State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992). 'The right to search incident to a lawful custodial arrest, once acquired, terminates no later than when the officer announces that the arrestee will be released rather than booked.' State v. McKenna, 91 Wn. App. 554, 561-62, 958 P.2d 1017 (1998).
Mr. Orange does not argue that an officer has statutory authority to effect an arrest for driving with a suspended license. However, relying on McKenna, he claims his arrest was not custodial at the time of the search.
In McKenna, an officer stopped a car suspecting false tabs and discovered that: (1) Ms. McKenna's driver's license had expired; (2) she did not have proof of insurance; and (3) both Ms. McKenna and her passenger had outstanding warrants for driving without a valid operator's license. Id. at 556. The officer did not arrest Ms. McKenna or the passenger because, due to jail overcrowding at that time, officers were not allowed to book anyone arrested for a nonviolent offense. Id. After informing Ms. McKenna and her passenger to take care of their warrants by contacting the municipal court, the officer impounded the car. Ms. McKenna and her passenger were then informed that a cab could be called or officers could provide transportation, provided the occupants of the car would submit to a search for weapons. Ms. McKenna agreed to the search and as a result, she was placed under arrest for possession of a controlled substance and possession of drug paraphernalia. Id. at 557-58. The McKenna court did not address the issue of consent and addressed only the issue of whether the search was incident to a valid arrest. Id. at 559. It concluded the arrest was noncustodial for two reasons. First, the officer knew the jail situation and did not form or manifest an intent to effect a custodial arrest. Second, the arrest terminated before the search because the officer told the parties they were free to go after he finished writing the citations. Id. at 562.
Applying the reasoning in McKenna, Mr. Orange claims his arrest was noncustodial. He maintains that a custodial arrest depends on an officer's intent to book and not whether a person is cuffed and placed in the back of a patrol car. He contends Officer Wohl had no intent to book Mr. Orange for DWLS because, as a general rule, police officers do not book suspects accused of minor offenses and Officer Wohl had not requested a booking exception. In fact, at the suppression hearing, when asked whether he would have booked Mr. Orange solely on the DWLS offense, Officer Wohl answered, 'No.' Report of Proceedings (RP) at 37. Mr. Orange also claims the officer told him he was free to leave if the search of the vehicle did not turn up anything suspicious. This statement was contradicted by Officer Wohl who testified he does not make that determination until the entire investigation is completed. The trial court found that Officer Wohl had not decided whether to book or cite and release Mr. Orange when he conducted the search of his person and the vehicle he was driving at the time of the traffic stop.
We find McKenna distinguishable. First, it did not involve an arrest for one of the offenses set forth in RCW 10.31.100 as does Mr. Orange's case. Instead, McKenna and its predecessors involve minor traffic offenses governed by RCW 46.64.015. Next, Officer Wohl had the statutory authority to arrest Mr. Orange for driving with a suspended license, and proceeded accordingly. Third, Officer Wohl did not terminate the arrest procedure at any point prior to the search. He handcuffed Mr. Orange and proceeded with the arrest process by searching Mr. Orange's person then placing him in the back of the patrol car while he searched the vehicle. We do not find it necessary to the analysis that the officer may not have decided in his own mind that he would actually follow through with the booking procedure even though the court found the officer did not make the determination until the investigation was completed. See State v. Thomas, 89 Wn. App. 774, 779, 950 P.2d 498 (1998) (court rejected argument that jail booking policies restrict arrest authority of RCW 10.31.100). Mr. Orange's contrary argument must fail.
3. Search of the Vehicle
Mr. Orange also complains the search of the vehicle was not authorized as an inventory search of an impounded vehicle. He is incorrect. The impoundment of a vehicle may be justified under three circumstances: (1) as evidence of a crime; (2) as part of the police community caretaking function, if removal is necessary; and (3) as part of the police function of enforcing traffic regulations, if the driver has committed a traffic offense for which the Legislature has authorized impoundment. State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980). RCW 46.55.113 provides that the vehicle of someone arrested for driving with a suspended license 'is subject to impoundment, pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.' The Spokane city ordinance permits an officer to order the impoundment of a vehicle when the driver is arrested for driving while license suspended. Spokane Municipal Code 16.55.113. Evidence obtained from an inventory search is admissible when the impoundment is reasonable and proper and the search is made for a justifiable purpose and is not part of a general exploratory search for the purpose of finding evidence of a crime. State v. White, 135 Wn.2d 761, 770, 958 P.2d 982 (1998).
Spokane Municipal Code 16.55.113 reads, in pertinent part:
'Whenever the driver of a vehicle is arrested for a violation of RCW 46.61.502 or 46.61.504, or of RCW 46.20.342 or 46.20.420, or the equivalent provisions of this title, the vehicle is subject to impoundment, pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.'
Here, Mr. Orange was not the owner of the vehicle nor was there proof of the registered owner or proof of insurance in the vehicle as required by law. As such, Mr. Orange was not in a position to instruct Officer Wohl regarding the removal or relocation of the vehicle. Because the officer could not determine the relationship between the passenger (Mr. Riley) and the owner of the vehicle, a tow truck was called to impound the vehicle.
In State v. Peterson, 92 Wn. App. 899, 903, 964 P.2d 1231 (1998), this court concluded impoundment was proper under constitutional standards and former RCW 46.20.435(1) when there were no passengers and the owner of the vehicle was not present to authorize removal of the vehicle or to authorize leaving the vehicle by the side of the road. Here, the record does not indicate whether Mr. Riley was licensed to drive the car, or if licensed, whether permission could have been authorized to do so. We need not address the issue though because under the facts of the case, Mr. Riley left the scene soon after the vehicle was searched. The trial court did not err when it determined that Officer Wohl had the statutory authority to impound the vehicle and the impoundment was reasonable. Mr. Orange's argument to the contrary fails.
4. Compel Witness Testimony
Next, Mr. Orange argues the trial court erred when it denied his request to compel Mr. Riley to take the stand during trial. Mr. Orange claims that Mr. Riley should have been required to invoke his Fifth Amendment right in open court before the jury. He is incorrect.
Defendants accused of crimes in this state have a Sixth Amendment right to compel the attendance of witnesses against them. State v. Lougin, 50 Wn. App. 376, 379, 749 P.2d 173 (1988); see also State v. Burri, 87 Wn.2d 175, 180, 550 P.2d 507 (1976) (compulsory attendance of witnesses necessary for the defense is fundamental element of due process). Nevertheless, this right is limited by the Fifth Amendment's declaration that no person may be compelled (in a criminal case) to be a witness against himself. Lougin, 50 Wn. App. at 379. The privilege against self-incrimination includes the right of a witness not to give incriminatory answers in any proceeding. Id. at 380 (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). Regarding the scope of this privilege, '[a] witness does not have the absolute right to remain silent when called to testify, as does a defendant . . . on trial.' Lougin, 50 Wn. App. at 381. 'In general, a claim of privilege may be raised only against specific questions, and not as a blanket foreclosure of testimony.' Id. The power to decide whether the hazards of self-incrimination are genuine rests with the trial court and will not be reversed absent an abuse of discretion. State v. Parker, 79 Wn.2d 326, 332, 485 P.2d 60 (1971).
The trial court correctly held a Fifth Amendment hearing in camera prior to the commencement of trial whereby it determined Mr. Riley could properly invoke his right to remain silent in all but four areas of questioning by defense counsel. The court determined the privilege did not apply to four questions the attorneys intended to ask of Mr. Riley. They were: (1) Do you know January Maier? (2) Do you have drug convictions in Spokane County? (3) Do you have drug convictions in any other jurisdictions? (4) How long have you known Mr. Orange? However, it also determined these four questions did not provide a sufficient indicia of relevance to the ultimate question before the jury such that they would overcome the potential for prejudice or confusion. In short, it found the questions were collateral and 'far removed from direct relevant evidence to the charges facing Mr. Orange.' RP at 163. It was on this basis the court denied Mr. Orange's request to compel Mr. Riley's testimony at trial.
Also determinative to this issue is the general rule of law that holds the claiming of the privilege against self-incrimination under the fifth amendment to the United States Constitution and article I, section 9 of the Washington Constitution is not evidence and a jury may not draw any inferences from it. State v. Smith, 74 Wn.2d 744, 757, 446 P.2d 571 (1968), vacated in part on other grounds, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). Although most cases decided in this area involve improper acts by prosecutors, the rule applies equally to defendants. Smith, 74 Wn.2d at 758. Because invoking the privilege is not evidence, a defendant has no right under the sixth amendment to the United States Constitution or amendment 10 to the Washington Constitution to call a witness solely to have that witness invoke the privilege. Id. at 757-58. Accordingly, the court properly refused to permit Mr. Orange to call Mr. Riley to the stand solely for the purpose of having him invoke his privilege against self-incrimination before the jury.
5. Witness's Prior Drug Convictions
The last issue raised by defense counsel is the trial court's alleged error in excluding Mr. Riley's criminal records concerning his prior arrests and convictions for drug possession. In general, a trial court has broad discretion in admitting or excluding evidence. Its decisions are reviewed for abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). This standard is specifically applied to decisions regarding ER 404(b) evidence. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990).
Mr. Orange argued to the trial court that Mr. Riley's former arrests and convictions on drug charges should be allowed into evidence because the defense theory of the case was that the drug evidence seized on the day in question belonged to Mr. Riley, not to Mr. Orange. He asserted he should have been allowed to present the former drug arrests as evidence that Mr. Riley committed the crime of possession for which Mr. Orange was on trial. He now argues on appeal this was proper as long as there was a train of facts or circumstances that pointed to Mr. Riley. See State v. Briggs, 55 Wn. App. 44, 67, 776 P.2d 1347 (1989). Citing State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996), Mr. Orange also maintains that where substantial evidence exists, it may violate a defendant's right to a fair trial to disallow evidence of other suspects.
The trial court disagreed with this argument based on the interplay between ER 403 and ER 404(b). It was concerned that the proffered evidence did not establish a motive on the part of Mr. Riley nor did it establish a 'non-unfairly prejudicial rationale' for its introduction as evidence at trial. RP at 179. As a result, it determined the information was overly prejudicial and confusing to the jury regarding the charge against Mr. Orange, especially since the defense had available the direct testimony of Mr. Orange and another witness who would testify Mr. Riley used and gave away rock cocaine on the date in question. The decision was not an abuse of the court's discretion.
6. Pro Se Issue
Pro se, Mr. Orange contends the trial court did not properly calculate his offender score, which led to his being sentenced in a higher sentencing range. The record from the sentencing hearing reveals that Mr. Orange, defense counsel, and the State stipulated that Mr. Orange's offender score, based on his criminal record was calculated as 8. Mr. Orange did not complain of the allegedly erroneous offender score at trial or, as will be seen below, in his PRP. Additionally, although he complains the score was improperly calculated he does not supply enough information for the court to consider just how the score should be calculated differently. Because Mr. Orange did not supply us with adequate briefing we do not reach the merits of the issue. State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993).
C. Personal Restraint Petition No. 20567-3-III
In his PRP, Mr. Orange raises the same issues that were addressed above (i.e., that the arrest for DWLS and subsequent search of the vehicle were illegal). Because this issue was analyzed and resolved above, only a limited analysis is presented here. Furthermore, the record accompanying the PRP is limited and offers little factual support. Finally, Mr. Orange does not cite to relevant case law in support of his contentions.
To obtain relief, Mr. Orange must show he was actually and substantially prejudiced either by violation of a constitutional right or by a fundamental error of law. In re Pers. Restraint of Benn, 134 Wn.2d 868, 884-85, 952 P.2d 116 (1998). A collateral attack, by PRP, of a criminal judgment and sentence should not simply reiterate the issues resolved at trial and on direct review. Instead, the PRP should raise new points of fact and law that were not or could not have been raised in the principal action, which resulted in prejudice to the defendant. In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d 835, clarified, 123 Wn.2d 737, 870 P.2d 964 (1994). A petition must be supported by facts or evidence upon which the petitioner's claim of unlawful restraint is based and not, as is the case here, solely upon conclusory allegations. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506 (1990).
In this PRP, Mr. Orange raises no new issues nor does he supply us with novel evidence to support the issues raised. As such, he is unable to prove he was actually and substantially prejudiced by the alleged errors. Without this initial showing we will not consider the merits of his petition. His petition is denied.
D. Appeal No. 20854-1-III
1. Facts
As noted above, after Mr. Orange was found guilty of possession of cocaine he was sentenced in Spokane County Superior Court on June 6, 2001. His offender score was calculated as 8, based on his prior felony convictions. At the sentencing hearing, defense counsel placed on the record that he and his client as well as the State agreed the offender score of 8 was proper. The trial court agreed and sentenced Mr. Orange to 43 months, which was a standard range sentence. As shown above, Mr. Orange appealed the judgment and sentence, raising the offender score issue in his pro se brief.
Six months after his sentencing hearing and while his original appeal was pending in this court, Mr. Orange filed a pro se CrR 7.8 motion asking the court to modify his sentence since it was based on an allegedly improper offender score. The State opposed the motion. The trial court properly allowed briefing on the motion but it was ultimately denied. Mr. Orange filed a timely notice of appeal of the court's decision. Appellate counsel was again assigned and all parties briefed the alleged improper offender score issue.
See RAP 7.2(e).
2. Analysis
Mr. Orange, through counsel and pro se, appeals the trial court denial of his CrR 7.8(b) motion, claiming his offender score was improperly calculated. A trial court has jurisdiction under CrR 7.8 to correct an erroneous sentence. State v. Hardesty, 129 Wn.2d 303, 315-16, 915 P.2d 1080 (1996). An appellate court reviews a decision on a CrR 7.8 motion for abuse of discretion. State v. Gomez-Florencio, 88 Wn. App. 254, 258, 945 P.2d 228 (1997). The court abuses its discretion when its decision is manifestly unreasonable, or it was exercised on untenable grounds or for untenable reasons. State v. Olmsted, 70 Wn.2d 116, 119, 422 P.2d 312 (1966). It is important to reiterate that the only order before us in this appeal is the trial court's denial of Mr. Orange's pro se CrR 7.8 motion.
CrR 7.8(b) allows the trial court to relieve a party from a final judgment with a showing of (1) mistakes or irregularity in obtaining the judgment; (2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (3) fraud or other misconduct of an adverse party; (4) a void judgment; or (5) any other reason justifying relief. The motion must be made within a reasonable time and is further subject to RCW 10.73.090, .100, .130, and .140.
See CrR 7.8(c)(2).
The original sentence is not under consideration.
In his motion, Mr. Orange requested relief pursuant to CrR 7.8(b)(5), which is '[a]ny other reason justifying relief from the operation of the judgment.' Relief under this section is limited to extraordinary circumstances not covered by any other section of the rule. State v. Brand, 120 Wn.2d 365, 369, 842 P.2d 470 (1992). '[E]xtraordinary circumstances must relate to fundamental, substantial irregularities in the court's proceedings or to irregularities extraneous to the court's action.' State v. Olivera-Avila, 89 Wn. App. 313, 319, 949 P.2d 824 (1997). CrR 7.8(b)(5) 'does not apply when the circumstances allegedly justifying the relief existed at the time the judgment was entered.' Gomez-Florencio, 88 Wn. App. at 259.
Applying these rules of law to the facts of this case, it is clear the trial court did not abuse its discretion when it denied Mr. Orange's CrR 7.8 motion. First, there were no extraordinary circumstances that occurred at the time of sentencing. Mr. Orange had reviewed his criminal history with his attorney and signed a statement that said they both agreed with the offender score of 8. Next, there was no objection at the sentencing hearing when the court sentenced Mr. Orange to a term of 43 months based on the offender score of 8. Third, the offender score calculation to which Mr. Orange now disagrees existed at the time the judgment and sentence was entered. Under the circumstances, the trial court properly denied Mr. Orange's CrR 7.8 motion.
We affirm the conviction and the denial of the CrR 7.8 motion and deny the PRP.
A majority of the panel has determined that 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.
WE CONCUR: BROWN, C.J., SWEENEY, J.