Opinion
No. 35354-7-II.
August 5, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02173-1, Beverly G. Grant, J., entered September 8, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Timothy Scott Swanson appeals his convictions of first degree attempted theft, second degree burglary, unlawful possession of a controlled substance — methamphetamine, and two counts of first degree possession of stolen property. We affirm.
Facts
In the middle of the night on May 4, 2005, Mary Lewis was awakened by noises coming from the alley behind her Tacoma house. The alley was dark, but Lewis could see a car with its lights off and some unusual activity near her neighbor's garage. Concerned, she called 911 and reported the incident. The car in the alley left as Lewis was talking with the 911 operator. Later, Lewis again heard noises from the alley and discovered that the suspicious car had returned, her neighbor's garage door was open, and two people were trying to pull a car out of the garage. She called 911 again and reported what she saw. When police arrived, they saw a Honda automobile attempting to pull a Corvette out of the garage with a tow rope. The Corvette had hit the side of the garage door opening and was sticking out into the alley. When the police vehicle's emergency lights came on, the Honda rocked back and forth breaking the tow rope, and then fled the alley at a high rate of speed. The police unit on the scene pursued the Honda, but police discontinued the chase when speeds exceeded 60 miles per hour through a residential neighborhood.
A police K-9 unit, Officer Wendy Haddow and her dog, also responded to the 911 call. As Haddow's police vehicle neared the burglary scene she was informed that two suspects were fleeing. She initially thought the suspects were fleeing on foot, so she began to search the nearby residential area. She noticed a tow truck parked near the scene with its bed down as if to receive a car. She saw that a man was getting into or out of the truck, but her attention was diverted to someone that she observed darting behind some houses. When she was informed that the suspects were fleeing in a car, she decided to investigate the tow truck, thinking that the reported burglary might have been an automobile repossession. She went back to the tow truck to talk with the man she had seen standing next to the truck. She found the truck with the driver's door open, engine running, and no one around. She waited for several minutes for the driver to return. When he did not, she checked the truck's license plate and discovered that the truck had been stolen.
Officer Haddow and another officer started a K-9 track from the truck's open door. The dog tracked to an individual found squatting in a nearby yard. The suspect was detained, but this was not the person Officer Haddow had seen standing by the truck, so she restarted her dog back at the tow truck, initiating a second track. This track led to a nearby van, where Swanson was found under the van. Officer Haddow recognized Swanson as the man she had seen earlier at the tow truck. Swanson said he had been drinking and was sleeping it off under the van, but the officers smelled no alcohol on his breath and arrested him in connection with the tow truck theft. The officers searched the truck's open passenger compartment and found a baggie containing methamphetamine, a pipe for smoking the drug, numerous shaved keys, and a document with Swanson's name on it and part of his telephone number.
In a subsequent search of the truck pursuant to a warrant, officers found other burglary and car theft tools, including a pry bar, bolt cutters, a dent puller modified to extract car ignitions, and spare ignitions.
Meanwhile, police contacted the garage owner who told police that he stored two collector vehicles in the garage, a 1969 Corvette and a 1923 reproduction hot rod. The hot rod had been successfully stolen that night.
On May 10, 2005, Washington State Patrol troopers inspected an auto wrecking yard in King County for wrecking yard violations. During the inspection, troopers asked the yard owner for permission to look in several large steel shipping containers on the property. The owner consented, and in one container the troopers found the hot rod that had been stolen on May 5th. The owner testified that Swanson used the wrecking yard and had access to the containers. Troopers also found documents addressed to Swanson in a trailer adjacent to the containers.
The State charged Swanson with one count of first degree possession of stolen property, regarding the tow truck; unlawful possession of a controlled substance — methamphetamine; second degree burglary, regarding the garage break in; attempted first degree theft, regarding the Corvette; and first degree theft, or, alternatively, first degree possession of stolen property, regarding the hot rod. Following a jury trial at which the above evidence was presented to the jury through witness testimony, the jury convicted Swanson of first degree attempted theft, second degree burglary, unlawful possession of a controlled substance, and two counts of first degree possession of stolen property.
The hot rod was described as a "1923 T-Bucket Roadster." CP at 6.
At the subsequent sentencing hearing, Swanson asked the court to impose a drug offender sentencing alternative (DOSA) sentence. The court considered the request, but declined to impose a DOSA. Instead, the court sentenced Swanson to concurrent, high-end, standard range sentences for each count, with a confinement period totaling 68 months. After the court denied Swanson's motion to reconsider his DOSA request, he filed a timely notice of appeal.
Discussion Ineffective Assistance of Counsel
Swanson argues that he was denied effective assistance of counsel because his counsel failed to object to the admission of dog tracking evidence, failed to seek a curative instruction following a portion of Officer Haddow's testimony, and failed to effectively challenge the trial court's denial of Swanson's request for a DOSA sentence. To establish ineffective assistance of counsel, Swanson must show that: (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Swanson must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. 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), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, he must establish, "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. Swanson fails to meet his burden.
Dog Tracking Evidence
Swanson argues that his attorney's failure to object to the State's introduction of dog tracking evidence and failing to request a cautionary instruction that such evidence required corroboration amounted to ineffective assistance of counsel. We disagree.
As an initial matter, Swanson separately argues that the trial court erred in admitting the dog tracking evidence because the State failed to lay the required foundation. But because Swanson did not make this foundational objection at trial, he did not preserve the error for appeal. Arguments not raised in the trial court will not be considered on appeal unless they concern a manifest error affecting a constitutional right. RAP 2.5(a). State v. Sengxay, 80 Wn. App. 11, 15, 906 P.2d 368 (1995) (failure to timely object at trial waives appellate review of non-constitutional issues). Failure to lay an adequate foundation does not create manifest constitutional error. State v. Newbern, 95 Wn. App. 277, 288, 975 P.2d 1041, review denied, 138 Wn.2d 1018 (1999). And the failure to specifically object to an inadequate foundation will not preserve the issue for appeal. Newbern, 95 Wn. App. at 288. Accordingly, this issue is not independently preserved for review. Nevertheless, we will address it to the extent it serves as a basis for Swanson's ineffective assistance claim.
Swanson argues that the dog tracking evidence was inadmissible under State v. Loucks, 98 Wn.2d 563, 656 P.2d 480 (1983). That case addressed the issue of "whether dog tracking evidence standing alone is sufficient to support a conviction." Loucks, 98 Wn.2d at 566. Loucks determined that while dog tracking evidence is admissible, it "must be supported by corroborating evidence." Loucks, 98 Wn.2d at 566. Loucks acknowledged a division of authority regarding the admissibility of such evidence, but held that "dog tracking evidence should be admissible where a proper foundation is made showing the qualifications of dog and handler." Loucks, 98 Wn.2d at 566. The court adopted five "conditions precedent to admissibility" as follows:
(1) the handler was qualified by training and experience to use the dog, (2) the dog was adequately trained in tracking humans, (3) the dog has, in actual cases, been found by experience to be reliable in pursuing human track, (4) the dog was placed on track where circumstances indicated the guilty party to have been, and (5) the trail had not become so stale or contaminated as to be beyond the dog's competency to follow.
Loucks, 98 Wn.2d at 566 (quotation marks and citation omitted). Here, while some foundation was laid, a thorough vetting of the above criteria did not occur. Officer Haddow testified that she had 12 years experience in law enforcement, she had worked for the Tacoma Police Department since 1998, and she was a K-9 officer working with a police dog. When asked about the K-9 duties she and her dog performed, Officer Haddow testified that she and her dog were typically called to assist patrol officers. She described her dog as a generalist dog that tracked suspects, Page 7 performed evidence searches, area searches, and building searches. No further credentials were solicited and no objection was made to Officer Haddow's testimony describing how her police dog was employed to track suspects from the tow truck.
Notably, the State's case did not focus on the dog tracking evidence, rather it relied on Officer Haddow's identification of Swanson as the man she saw standing by the tow truck when she first arrived on the scene, and the circumstantial evidence linking Swanson to the tow truck, the burglary, and the stolen property. The defense, however, did focus on the dog tracking evidence. During cross-examination, defense counsel emphasized that the police dog tracked from the tow truck straight to a person other than Swanson. Again, in closing argument, defense counsel relied on the fact that the police dog first tracked to a person other than Swanson. Accordingly, it appears that defense counsel employed a deliberate strategy relying on the dog track evidence to exculpate the defendant. Having so relied on the dog tracking evidence at trial, Swanson cannot now be heard to complain that its admission was improper or that his counsel was ineffective for failing to challenge it. Where trial counsel's conduct can be characterized as legitimate trial strategy or tactics, we will not find it deficient. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
Moreover, as noted, a conviction cannot be based on dog tracking evidence alone; there must be corroborating evidence identifying the accused as the perpetrator of the crime. Loucks, 98 Wn.2d at 566-69. On this point, Swanson relies on State v. Wagner, 36 Wn. App. 286, 673 P.2d 638 (1983), for the proposition that where evidence requires corroboration "the jury must be so informed lest there be a conviction upon that evidence alone." Wagner, 36 Wn. App. at 288. Wagner is distinguishable, however. The Wagner court reversed defendant's conviction because the trial court refused to give the defendant's proposed instruction noting the corroboration requirement. Wagner, 36 Wn. App. at 287.
Further, noting that Wagner required the giving of a proposed cautionary instruction, the court in State v. Bockman, 37 Wn. App. 474, 483, 682 P.2d 925, review denied, 102 Wn.2d 1002 (1984), subsequently declined to address a defendant's challenge to dog tracking evidence on appeal because he had failed to object or propose a cautionary instruction at trial. The Bockman court also held that as to another defendant while it was error for a trial court to decline to give a proposed instruction on the weight of dog tracking evidence, the lack of such instruction was subject to the harmless error test, i.e., whether the error was harmless beyond a reasonable doubt. Bockman, 37 Wn. App. at 483. Bockman held that "generally where abundant evidence corroborates dog tracking evidence, failure to provide the instruction is of minor significance." Bockman, 37 Wn. App. at 484. We apply Bockman here.
That is the appropriate disposition here regarding Swanson's underlying assertion that a cautionary instruction is required. See Bockman, 37 Wn. App. at 483. Nevertheless, we address the need for such an instruction because Swanson presents the issue as an underlying error supporting his assertion of ineffective assistance.
Other evidence linked Swanson to the stolen tow truck and the stolen hot rod. Officer Haddow observed Swanson getting out of the tow truck when she arrived on the scene and identified him at trial as the man she saw standing beside the truck. Also a document was retrieved from inside the truck with Swanson's name on it, along with part of Swanson's telephone number. And as to the stolen hot rod, that vehicle was found in a storage container in an area of a salvage yard that Swanson used. Documents addressed to Swanson also linked him to that location.
Thus, Swanson's situation is unlike Loucks, where dog tracking comprised the only evidence linking the defendant to the crime. Loucks, 98 Wn.2d at 566-69. Moreover, his situation is unlike Wagner in that he did not offer a cautionary instruction. Instead, here, as in Bockman, there is substantial corroborating evidence. Accordingly, had there been error in failing to give a cautionary instruction on the weight to be given the dog tracking evidence, such error was harmless. In this circumstance, Swanson was not prejudiced by the absence of a cautionary instruction on the dog tracking evidence. Nor was Swanson's counsel ineffective for failing to object or offer a cautionary instruction regarding the dog tracking evidence in light of the other evidence presented at trial and counsel's reliance upon the dog tracking evidence in attempting to exculpate the defendant.
Officer Haddow's Testimony
During her testimony, Officer Haddow stated that she found a handcuff key in Swanson's pocket during a search incident to arrest. When asked if that was significant, she stated, "I have only found handcuff keys on people who have been convicted of crimes in the past." 4 RP at 413. Swanson asserts that statement was prejudicial and counsel was ineffective for failing to object to it. Under the facts of this case, we disagree.
The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied, 113 Wn.2d 1002 (1989). Here, counsel used Officer Haddow's references to the handcuff key to attack her credibility on cross-examination. Counsel had Officer Haddow read through the property report listing items retrieved from Swanson's pockets, pointing out that no handcuff key was listed. Accordingly, counsel's tactical decision not to object, but to focus on Officer Haddow's testimony regarding the key in cross-examination was a legitimate trial strategy. Because a legitimate trial strategy cannot be categorized as deficient performance, such a strategy cannot provide the foundation for an ineffective assistance claim. The burden is on Swanson to show an absence of legitimate strategic reasons to support the challenged conduct. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831, review denied, 135 Wn.2d 1014 (1998). Swanson fails to do so. Accordingly, we hold that Swanson has failed to show ineffective assistance.
Denial of DOSA
Swanson asserts that the sentencing court abused its discretion in denying his request for a DOSA. We disagree.
At the time of Swanson's sentencing, the relevant statute provided that an offender is eligible for the special drug offender sentencing alternative (DOSA) if: he or she is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a firearm or deadly weapon sentence enhancement; the offender has no current or prior convictions for a sex offense and no conviction for a violent offense within the previous 10 years; if convicted for a violation of the Uniform Controlled Substances Act, or for criminal solicitation to commit such a violation, the offense involved only a small quantity of the controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance; the offender has not been found to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence; the standard range for the current offense is more than one year; and the offender has not received more than one DOSA sentence during the prior 10 years. See former RCW 9.94A.660(1); Laws of 2005, ch. 339, § 302.
Generally, a standard range sentence, of which a DOSA is an alternate form, may not be appealed. State v. Williams, 149 Wn.2d 143, 146, 65 P.3d 1214 (2003); State v. Gronnert, 122 Wn. App. 214, 93 P.3d 200 (2004). This prohibition does not, however, bar a party from challenging legal errors or abuses of discretion in the determination of what sentence applies. Williams, 149 Wn.2d at 147. For example, if a court refuses to exercise its discretion at all, the sentence may be appealed. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997), review denied, 136 Wn.2d 1002 (1998).
Swanson asserts that the trial court abused its discretion by relying on the State's improper argument that DOSA should be rejected because Swanson had exercised his constitutional right to trial. He also contends that the court improperly relied on Swanson's age in denying the DOSA. Finally, he urges that his trial counsel was ineffective for failing to object to the State's improper argument and that counsel should have argued that age was not a legitimate ground for denying DOSA. But Swanson mischaracterizes both the State's argument and the trial court's basis for rejecting his DOSA request. And more to the point, the record establishes the trial court's reasons for denying DOSA. The court considered Swanson's criminal history, his offender score of 12, and his assertion that he needed treatment. The court acknowledged that Swanson had a supportive family, but also noted that he had to take responsibility for his own life, and his offender score and history did not indicate he was doing so. For these reasons, the court denied Swanson's DOSA request. We hold that the court properly exercised its discretion and did not err in denying Swanson's DOSA request. See Gronnert, 122 Wn. App. at 225-26; Garcia-Martinez, 88 Wn. App. at 330. Further, because there was no error, there is no basis for Swanson's assertion of ineffective assistance.
Statement of Additional Grounds (SAG)
In his SAG, Swanson complains that the accomplice instruction given by the trial court reads as though he can be found guilty by mere presence alone. But that is not so. The instruction specifically provides in relevant part that "more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice." CP at 108. Moreover, the court properly used the version of the accomplice instruction as revised in State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). We find no error.
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.
HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.