Opinion
No. 31680-3-II
Filed: March 8, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No. 04-1-00014-9. Judgment or order under review. Date filed: 04/01/2004. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Steven Rodriguez appeals his conviction for possession of a controlled substance — methamphetamine. He argues that (1) he was not shown a copy of the warrant that was the basis of his detention as required under RCW 10.31.030 and that his trial counsel was ineffective for failing to move to suppress the evidence on that basis; and (2) the trial court erred in admitting evidence of a 1997 juvenile adjudication. We affirm.
Rodriguez also filed a Statement of Additional Grounds (SAG) (see RAP 10.10). But he raises no issues in his SAG, asserting only that having reviewed appellate counsel's brief, he finds no additional grounds.
FACTS
On January 9, 2004, at about 9:30 p.m., Deputy Don Peters of the Mason County Sheriff's Office responded to a call to assist in an investigation of a disturbance at a casino located on tribal land. During the investigation, Deputy Peters contacted Rodriguez and learned that the tribal officer had discovered there was an outstanding Thurston County warrant for Rodriguez. The tribal officer confirmed the warrant and verified that Thurston County would extradite Rodriguez from Mason County.
Deputy Peters detained Rodriguez and did a pat down search for officer safety before placing him in his patrol car. Deputy Peters did not find any controlled substances during the search.
After completing the investigation at the casino, Deputy Peters transported Rodriguez to the Mason County Jail. They arrived at the jail at approximately 11:30 p.m.
Upon their arrival, jail staff searched Rodriguez again, this time removing everything from his pockets. In Rodriguez's left front pant's pocket, they found a baggie containing a white residue that later tested positive for methamphetamine. At approximately 12:19 a.m. on January 10, 2004, the jail received a copy of the Thurston County warrant by fax.
The State charged Rodriguez with possession of a controlled substance, amphetamine and/or methamphetamine. Rodriguez did not move to suppress any evidence and the case proceeded to a jury trial.
Immediately prior to trial, the State raised the issue of Rodriguez's prior juvenile adjudications, stating that it agreed the adjudications were 'generally' inadmissible, 'depending on whether or not he opens the door.' 3 Report of Proceedings (RP) at 9-10. The trial court ruled that because the prior offenses were all juvenile adjudications, they were not admissible 'for impeachment' under ER 609. 3 RP at 10.
Under ER 609(d), evidence of prior juvenile adjudications is generally not admissible in criminal cases:
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Rodriguez testified in his defense, arguing that he was not aware that the baggie was in his pocket. He also testified that he did not believe that he had any outstanding warrants at the time he was detained because he had been arrested in Mason County on January 8, and he was not informed of any outstanding warrants at that time. But he further testified that Deputy Peters told him he was being booked on an outstanding Thurston County warrant after he had been in the patrol car for approximately 10 minutes.
Defense counsel then questioned Rodriguez about the search at the jail and whether he was aware that the baggie containing the methamphetamine was in his pocket at the time of the search. Although Rodriguez testified that he was wearing his own pants at the time of the search, he denied knowing that the baggie was in his possession:
[Defense Counsel] Did you know that this was on [sic] your possession?
[Rodriguez] No.
[Defense Counsel] Now Officer Bates testified that — that that came out of your right — yeah, your right front pants pocket. Was that in there that night that you were aware of?
[Rodriguez] No, because I don't carry that kind of stuff around with me.
[Defense Counsel] Now Officer Bates said that came out of your pants pocket. Do you recall them showing that to you or saying anything when they were going through your stuff at the jail?
[Rodriguez] No.
3 RP at 54-55 (emphasis added).
On cross examination, the State attempted to clarify Rodriguez's comment about not carrying 'that kind of stuff around' (3 RP at 54):
[Prosecutor] Mr. Rodriguez, you made a comment during your earlier testimony that you did not know that the baggie of methamphetamine was in your pocket. And I think you said, 'I don't carry that stuff around with me.' Is that correct, or did I mishear you?
[Rodriguez] I don't — yeah, I said I don't carry that stuff around with me. I don't carry that kind of stuff. I don't use it.
[Prosecutor] What did you mean by that comment.
[Rodriguez] I guess it was supposed to be drugs, or methamphetamine. I don't use that kind of stuff. I don't carry that kind of stuff.
[Prosecutor] By that do you mean — were you referring to that night, or are you talking about in general?
[Rodriguez] Just in general.
3 RP at 65-66.
After a brief side bar, the trial court excused the jury to address the question of whether the State could introduce Rodriguez's 1997 adjudication for 'manufacturing, delivering, or possession with intent to deliver a controlled substance' in light of the above testimony. 3 RP at 67-68. Defense counsel argued that the 1997 adjudication was not admissible because it was seven years old and, because the adjudication did not involve methamphetamine, it was irrelevant to the current methamphetamine charge. The State characterized Rodriguez's statement more broadly, asserting he had implied that he did not carry controlled substances of any kind.
The trial court ruled:
The Court will find that the door has been opened with regard to the Defendant's statement that he doesn't carry that stuff around. And the clarification through cross examination that included that day or in general that he does not use or carry that kind of stuff.
So the Court will allow inquiry into the conviction.
3 RP at 69.
The prosecutor then resumed cross examination:
[Prosecutor] Now Mr. Rodriguez, I want to clarify one other point. You testified earlier that in general, you do not carry that stuff. By 'that stuff' do you mean controlled substances?
[Rodriguez] Yes.
[Prosecutor] Were you adjudicated as a juvenile in Yakima County for a Violation of the Uniform Controlled Substances Act, either involving delivery or manufacture, or possession with intent to deliver any type of controlled substance?
[Rodriguez] Yes. I think I was in possession of some marijuana.
3 RP at 70.
The jury convicted Rodriguez as charged, and the trial court imposed a standard range sentence. Rodriguez appeals.
ANALYSIS I. Ineffective Assistance of Counsel
Rodriguez first contends that the search at the jail was not a valid search incident to arrest because he was not advised of the warrant or shown a copy of the warrant as required under RCW 10.31.030 and that he was, therefore, denied the opportunity to post bail prior to the search. He argues that his trial counsel's failure to move to suppress the drug evidence on this basis amounted to ineffective assistance of counsel.
To establish ineffective assistance of counsel, Rodriguez must prove that his counsel's performance was deficient and that this deficient performance resulted in prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The failure to bring a pretrial suppression motion is not per se deficient representation. McFarland, 127 Wn.2d at 334 n. 2. In this context, to establish prejudice, Rodriguez must show, based on the existing trial record, that the motion to suppress would have probably been successful. McFarland, 127 Wn.2d at 334 n. 2, 337 n. 4; see also State v. Klinger, 96 Wn. App. 619, 623, 980 P.2d 282 (1999). He fails to do so here.
RCW 10.31.030 provides that when an officer makes an arrest on a warrant and the officer does not have a copy of the warrant in hand, he must inform the arrestee that he is acting under the authority of a warrant and show the arrestee a copy of the warrant as soon as possible after arrival at the jail. It further provides that if the arrestee wants to deposit bail, he is entitled to be taken 'directly and without delay' before an official authorized to approve the bail. RCW 10.31.030. Arguably, this would allow the arrestee to be released on bail prior to being booked and to avoid being searched at the jail. See State v. Ward, 65 Wn. App. 900, 903, 830 P.2d 383 (1992) (discussing State v. Smith, 56 Wn. App. 145, 783 P.2d 95 (1989)). A jail inventory search of an arrestee conducted before that person is notified of and given the opportunity to post bail may be invalid under certain circumstances. State v. Caldera, 84 Wn. App. 527, 530-31, 929 P.2d 482 (1997); Smith, 56 Wn. App. at 150.
RCW 10.31.030 provides:
The officer making an arrest must inform the defendant that he acts under authority of a warrant, and must also show the warrant: PROVIDED, That if the officer does not have the warrant in his possession at the time of arrest he shall declare that the warrant does presently exist and will be shown to the defendant as soon as possible on arrival at the place of intended confinement: PROVIDED, FURTHER, That any officer making an arrest under this section shall, if the person arrested wishes to deposit bail, take such person directly and without delay before a judge or before an officer authorized to take the recognizance and justify and approve the bail, including the deposit of a sum of money equal to bail. Bail shall be the amount fixed by the warrant. Such judge or authorized officer shall hold bail for the legal authority within this state which issued such warrant if other than such arresting authority.
The existing record shows only that Deputy Peters advised Rodriguez he was being detained on the basis of a Thurston County warrant before they arrived at the jail. Although the fact the jail did not receive a fax copy of the warrant until after the jail search suggests Rodriguez did not see a copy of the warrant until after the jail search, the record does not reveal whether Rodriguez was advised of the content of the warrant before it physically arrived, whether he was provided with an opportunity to post bail before the jail search, or whether he refused the opportunity to post bail before the jail search. Without these facts in the record, we cannot determine whether the trial court would have likely granted a suppression motion on this basis, and Rodriguez's claim of ineffective assistance of counsel does not succeed on this record.
To the extent Rodriguez could establish a violation of RCW 10.31.030 by reference to facts outside the existing trial record, he must do so in a personal restraint petition. McFarland, 127 Wn.2d at 338 n. 5.
II. Admission of Evidence of Juvenile Adjudication
Rodriguez next contends that the trial court erred in admitting evidence of his 1997 juvenile adjudication. Relying on State v. Stockton, 91 Wn. App. 35, 955 P.2d 805 (1998), and State v. Avendano-Lopez, 79 Wn. App. 706, 904 P.2d 324 (1995), he argues that the trial court's conclusion that he opened the door for this evidence was incorrect because his statement was a mere passing reference to a prohibited topic. He further argues that (1) his juvenile adjudication was irrelevant to his truthfulness or any other issue at trial; (2) even if the evidence was potentially admissible under ER 609, the trial court failed to conduct the balancing test required under State v. Alexis, 95 Wn.2d 15, 621 P.2d 1269 (1980); and (3) admission of this evidence was not harmless error because his credibility was critical to his case.
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). 'A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.' State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)). We may affirm on any ground the record adequately supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
'Otherwise inadmissible evidence is admissible on cross examination if the witness 'opens the door' during direct examination and the evidence is relevant to some issue at trial.' Stockton, 91 Wn. App. at 40. In order to 'open the door,' the defendant must first introduce inadmissible evidence. Avendano-Lopez, 79 Wn. App. at 714 (quoting 5 Karl B. Tegland, Washington Practice: Evidence sec. 41 (1989)). But a mere passing reference during direct examination to a prohibited topic does not serve to 'open the door' to unrestricted questioning about prior misconduct. Stockton, 91 Wn. App. at 40.
At trial, Rodriguez had the right to introduce evidence of his character but only by reputation evidence. ER 404(a)(1); ER 405(a). Instead, he broadly asserted that he did not generally carry controlled substances, opening the issue of his character in a way not sanctioned by the rules. As a result, the trial court had discretion to allow the State to make a proportional response in a manner not sanctioned by the rules, and it did not abuse its discretion in allowing the State to admit the 1997 juvenile drug adjudication for that purpose.
Additionally, we disagree with Rodriguez's characterization of his testimony as a mere passing reference that was inadequate to open the door. In Avendano-Lopez, the appellate court held that Avendano-Lopez's passing reference to the fact he had been recently released from jail, without mentioning any additional details, did not 'open the floodgates to questions about prior heroin sales.' 79 Wn. App. at 715. Similarly, in Stockton, Stockton testified that the men he had been in a fight with had been trying to sell him drugs. 91 Wn. App. at 40. The appellate court ruled that Stockton's mere passing mention that he believed these people were attempting to sell him drugs did not open the door to cross examination regarding his prior drug use because it was 'equally likely that someone who had never purchased drugs would understand an approach like the one Stockton described to involve drugs.' Stockton, 91 Wn. App. at 40. In contrast, Rodriguez offered specific direct testimony about his character as a person who did not carry drugs, suggesting that because he did not carry drugs he was not aware the drugs were in his pocket. This testimony went directly to his defense of unwitting possession and was more than a mere passing reference.
Nor do we agree that Rodriguez's testimony was irrelevant to any issue at trial. Although Rodriguez is correct that drug convictions are not generally considered relevant to a defendant's credibility or character of truthfulness, State v. Saunders, 91 Wn. App. 575, 579, 958 P.2d 364 (1998), as discussed above, the trial court did not admit the 1997 adjudication for that purpose. Instead, it admitted the adjudication to rebut Rodriguez's general assertion that he was not a person who carried drugs, and the 1997 adjudication was relevant to that issue. Further, because the trial court did not admit the adjudication under ER 609, application of the balancing test from Alexis, 95 Wn.2d at 18-19, was not required. And, finally, because we conclude that the trial court properly admitted this evidence, we do not reach Rodriguez's harmless error argument.
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.
HUNT, J. and QUINN-BRINTNALL, C.J., Concur.