Opinion
No. 36133-7-II.
May 28, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00495-1, Nelson E. Hunt, J., entered April 4, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Hunt and Penoyar, JJ.
Elwyn Armstrong appeals his convictions for manufacture of a controlled substance and unlawful use of drug paraphernalia to grow a controlled substance. Following a confidential tip, officers drove to Armstrong's house and obtained his consent to search. On appeal, Armstrong argues that the trial court improperly denied his (1) motion to suppress evidence because the police unlawfully entered the curtilage of his house before he consented to the search, (2) right to counsel of his choice, and (3) right to represent himself. He also raises additional issues in his statement of additional grounds for relief (SAG). RAP 10.10. We affirm.
FACTS
The Washington State Patrol received an anonymous tip that Armstrong was growing marijuana in his house and garden. They reported the tip to the Lewis County Sheriff's Office. On August 8, 2006, Detective Kevin Engelbertson, Deputy Richard VanWyck, and Deputy Jeff Humphrey drove to Armstrong's residence to conduct a "[k]nock and [t]alk" investigation. Clerk's Papers (CP) at 18. They did not have probable cause to obtain a warrant at that time. Armstrong's house was located some distance down a private drive and was not visible from the public road. The officers did not see "[n]o [t]respassing" signs or gates as they approached the house. Report of Proceedings (RP) (Jan 29, 2007) at 28. Armstrong had aggressive wolves or wolf-dog hybrids secured by chains and unrestrained dogs.
Armstrong does not challenge the trial court's findings of fact entered after the CrR 3.6 hearing on Armstrong's motion to suppress. Accordingly, we consider these factual findings as verities on appeal. State v. Jacobson, 92 Wn. App. 958, 964-65 n. 1, 965 P.2d 1140 (1998).
Armstrong greeted the officers in his driveway and then read and signed a consent to search form that included all the required Ferrier warnings. Armstrong showed the officers marijuana plants growing along the path to his garden and five marijuana plants in his garden which were between 3 to 5 feet high. After Engelbertson confiscated 35 marijuana plants, Armstrong withdrew his consent to the search and the officers left.
State v. Ferrier, 136 Wn.2d 103, 116, 960 P.2d 927 (1998).
Armstrong held the mistaken belief that his marijuana cultivation was legal medical marijuana possession.
The State charged Armstrong with: manufacture of a controlled substance in violation of RCW 69.50.401(1) and (2)(c) (count I) and unlawful use of drug paraphernalia to grow a controlled substance in violation of RCW 69.50.412(1) (count II). The trial court deniedArmstrong's motion to suppress the seized evidence. Before trial, Armstrong unsuccessfully moved for continuances and to substitute counsel. The jury found Armstrong guilty as charged. The sentencing court imposed 30 days' confinement on count I and 90 days' confinement on count II — 89 of which were suspended. The sentencing court allowed Armstrong to serve his sentence on home detention.
Armstrong appeals. CP at 3.
ANALYSIS
I. Search of the Curtilage
Armstrong concedes that he voluntarily consented to the search under Ferrier, but argues that his consent was obtained through the exploitation of a prior illegal search of the curtilage of his house. We disagree.
"`We review the denial of a motion to suppress by determining whether substantial evidence exists to support the trial court's findings of fact, and whether those findings support the trial court's conclusions of law. Unchallenged findings are verities for purposes of appeal. Armstrong does not assign error to any of the trial court's findings of fact.'" State v. Jesson, 142 Wn. App. 852, 857-58, 177 P.3d 139 (2008) (quoting State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001)). Thus, we must determine whether those findings support the court's conclusions of law. We review conclusions of law de novo.
Even though Armstrong voluntarily consented to the search, "the State must also demonstrate his consent was not obtained by the exploitation of [a] prior illegal search." State v. Jensen, 44 Wn. App. 485, 488-89, 723 P.2d 443 (1986); see generally 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d) (4th ed. 2004). Consent may be invalid if an "illegal search provided the Page 4 means of gaining access to the person from whom the consent was obtained." 2 LaFave, Search and Seizure § 8.2(d), at 88 n. 158 (citing United States v. Heath, 259 F.3d 522 (6th Cir. 2001) and United States v. Carriger, 541 F.2d 545 (6th Cir. 1976)). Thus, we must determine (1) whether the police unlawfully searched the curtilage of Armstrong's house before obtaining his consent and, if so, (2) whether Armstrong's consent was obtained by the exploitation of that search.
The sole question regarding the police entry onto Armstrong's property is whether the curtilage was impliedly open. The trial court did not enter written findings of fact and conclusions of law on this issue, but its oral ruling is sufficient for review. State v. Dahl, 139 Wn.2d 678, 689, 990 P.2d 396 (1999) (courts are encouraged to enter written findings, but we may review oral findings if they are sufficiently detailed).
Other legal issues involving the entry to the curtilage, such as whether the entry constituted a search and whether the officers were there on legitimate police business, are not disputed here. See Jesson, 142 Wn. App. at 858-59 (discussing curtilage access rules).
Warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, "`unless they fall within a few specific and well-delineated exceptions.'" State v. Myers, 117 Wn.2d 332, 337, 815 P.2d 761 (1991) (internal quotation marks omitted) (quoting State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984)). Although residents maintain an expectation of privacy in the curtilage, or area contiguous with a home, "police with legitimate business may enter areas of the curtilage which are impliedly open, such as access routes to the house." State v. Seagull, 95 Wn.2d 898, 902, 632 P.2d 44 (1981) (footnote omitted).
Whether a portion of curtilage is impliedly open to the public depends on the totality ofthe circumstances surrounding the officers' entry. Seagull, 95 Wn.2d at 902-03. An access route is impliedly open to the public absent a clear indication that the owner does not expect uninvited visitors. See State v. Ross, 141 Wn.2d 304, 312, 4 P.3d 130 (2000); State v. Hornback, 73 Wn. App. 738, 743, 871 P.2d 1075 (1994). "No trespassing" signs alone do not necessarily create a legitimate expectation of privacy, especially without additional indications "calculated to put police or other intruders on notice of [the property owner's] expectation of privacy," such as fences, closed gates, security devices, or dogs. State v. Chaussee, 72 Wn. App. 704, 710, 866 P.2d 643 (1994).
Here, the trial court found:
If there was a No Trespassing sign at the entry of Mr. Armstrong's property as he testified to, and I think one of the exhibits demonstrates, the officers have testified they did not see one on that date and also that there was not a closed gate. I believe from the testimony that I've heard today that you evidently cannot see the residence itself from what was then Bergen Road until you get onto the property a distance. So the entry to the property for the purposes of the knock-and-talk as far as I'm concerned under these circumstances was legal.
RP (Jan. 29, 2007) at 28-29. It was also undisputed that Armstrong kept the aggressive wolves or wolf-dog hybrids chained up while other dogs roamed freely on his property.
These facts support the conclusion that Armstrong's property was impliedly open to the public. Three officers testified that they did not recall seeing a "no trespassing" sign on Armstrong's property. Although Armstrong's property was rural and he had dogs, the property did not have a closed gate or any other indications "calculated to put police or other intruders on notice of [his] expectation of privacy." Chaussee, 72 Wn. App. at 710. Thus, the curtilage of Armstrong's house was impliedly open to the public and the trial court did not err when it held that police entered it lawfully. We hold that Armstrong's consent was not obtained from the Page 7 exploitation of an unlawful search.
II. Right To Counsel Of Choice
Next, Armstrong argues that the trial court denied his right to counsel of his choice. We hold that the trial court did not abuse its discretion when it declined Armstrong's motions the day before trial and the day of trial to continue and substitute counsel.
We review a trial court's rulings on motions for continuances and for substitution of counsel for abuse of discretion. We grant broad discretion to trial courts on motions for continuances sought to preserve the right to counsel. And "`only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay'" violates the defendant's right. State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994) (internal quotation marks omitted) (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)).
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. Among the components of the constitutional right to counsel is "`the right to a reasonable opportunity to select and be represented by chosen counsel.'" Roth, 75 Wn. App. at 824 (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). But the essential aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant, not to ensure that a defendant will inexorably be represented by his or her counsel of choice. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). "[T]he right to retained counsel of choice is a not a right of the same force as other aspects of the right to counsel"; a criminal defendant does not have an absolute Sixth Amendment right to choose any particular advocate. Roth, Page 8 75 Wn. App. at 824. "`In particular, a defendant may not insist upon representation by an attorney he cannot afford.'" State v. Roberts, 142 Wn.2d 471, 516, 14 P.3d 713 (2000) (quoting Wheat, 486 U.S. at 159).
Armstrong repeatedly moved to substitute counsel shortly before his trial was scheduled to begin on February 22. On February 8th, he tried to fire his assigned counsel but had not hired another attorney. The trial court denied his attorney's motion to withdraw but extended the trial setting to the week of February 19, to let Armstrong look for a new attorney. The court made it clear that a new attorney would have to be prepared for trial by then. On February 15th, Armstrong told the court that he was in the process of getting an attorney, but had not yet obtained the money to do so. On both occasions, Armstrong refused to waive his right to speedy trial, which would lapse on February 28th.
On February 21, Armstrong moved to substitute counsel. His appointed counsel said he was having "great difficulty" working with Armstrong. RP (Feb. 21, 2007) at 15. But his new, private attorney said that he could not be prepared to represent Armstrong the next day. The trial court ruled:
No, I am not going to approve the substitution of counsel in that case. This case is set for trial tomorrow. It's going to trial tomorrow. That is just the way it's going to be.
. . . .
I would point out that [an attorney was] appointed because Mr. Armstrong said that he didn't have the resources to go out and hire private counsel. Now the day before trial apparently that materializes from some source. We are not going to have people playing around with the system like that. This case is set for trial tomorrow. It's going to trial tomorrow.
Now, if you want to fire [your appointed counsel] and represent yourself that is fine, but . . . we are not going to delay this any further because you don't like the advice you are getting.
RP (Feb. 21, 2007) at 16-18. Before trial began on February 22, Armstrong renewed his motions to continue and substitute counsel. The trial court again denied the motions, noting that they were made "at the last minute" and it appeared that "Armstrong had plenty of opportunity to retain [private counsel] if that was his intention instead of waiting until the evening or the afternoon before trial." RP (Feb. 22, 2007) at 20-21.
The trial court did not abuse its discretion when it denied Armstrong's motions to continue and substitute counsel. First, Armstrong failed to articulate a legitimate cause for hiring a new attorney. He argued generally that he and his appointed counsel did not get along well and did not trust each other, but made no claims that his appointed counsel could not adequately represent him. See State v. Price, 126 Wn. App. 617, 633-34, 109 P.3d 27 (2005) (holding that communication problems did not justify substitution of counsel). Second, his request was untimely. Armstrong did not retain new counsel until the eve of trial, even though he was charged over six months before the trial date. Speedy trial elapsed on February 28 and he never agreed to waive it. Furthermore, the new attorney was not prepared to begin trial on February 22 and needed a continuance of undetermined length. Armstrong's appointed counsel was fully prepared for trial. The trial court found, and we agree, that there was no apparent reason to justify this delay. See State v. Chase, 59 Wn. App. 501, 505-06, 799 P.2d 272 (1990) (holding that a request for a continuance to obtain new counsel made on the day of trial was untimely). Finally, Armstrong fails to demonstrate how denial of his motions was "likely to result in identifiable prejudice to [his] case of a material or substantial nature." Roth, 75 Wn. App. at 825. The trial court did not abuse its discretion when it denied Armstrong's motions to continue and substitute counsel.
III. Right to Represent Oneself
Armstrong further argues that the trial court denied his right to proceed pro se. We review the trial court's rulings on the right to proceed pro se for abuse of discretion. State v. Deweese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991). Criminal defendants have a constitutional right to waive assistance of counsel and represent themselves at trial. Deweese, 117 Wn.2d at 375. But this right has limits. "`A defendant's request to proceed pro se [must] be stated unequivocally.'" Deweese, 117 Wn.2d at 376 (quoting State v. Imus, 37 Wn. App. 170, 179-80, 679 P.2d 376 (1984)). And a "defendant's motion to proceed pro se must be made in a timely fashion, or the right is relinquished and the matter of the defendant's representation is left to the discretion of the trial judge." Deweese, 117 Wn.2d at 377.
Here, on February 15, Armstrong told the trial court that he would like to represent himself. The court responded: "He has every right to do that," but it did not rule on the matter because Armstrong also told the court that he was trying to obtain private counsel. RP (Feb. 15, 2007) at 2. Then, on the eve of trial, the trial court denied Armstrong's motions to continue and substitute counsel and then stated: "Now, if you want to fire [your appointed counsel] and represent yourself that is fine, but . . . we are not going to delay this any further because you don't like the advice you are getting." RP (Feb. 21, 2007) at 16-17. Armstrong did not repeat his request to represent himself when offered this opportunity to do so.
The trial court did not abuse its discretion. Armstrong did not make an unequivocal request to represent himself. Instead, he briefly mentioned the issue at the same time he asked the court for time to retain a private attorney. When the trial court gave him a second opportunity to represent himself, Armstrong remained silent on the issue. Thus, his request was equivocal. Furthermore, Armstrong's request was Page 11 untimely. Accordingly, Armstrong waived his right to represent himself and we affirm the trial court's rulings on this matter.
IV. SAG Issues
Armstrong raises three additional grounds for review in his SAG. None warrant reversal. Armstrong first invokes various constitutional provisions, claiming that the police violated his right "not to be conspire[ed] against" when they entered his property. SAG at 1. Our review of Armstrong's appeal of the denial of his motion to suppress evidence obtained from the consensual search disposes of this issue. Because police entered his property legally and he signed a consent form to search, the record is devoid of evidence of conspiracy and this claim fails.
Next, Armstrong claims the State did not present a Washington State Patrol "tip sheet" on the anonymous tip that led the officers to visit his home. SAG at 1. On February 15, Armstrong told the trial court that the State had failed to produce a "Washington State Patrol tip form." RP (Feb. 15, 2007) at 2. The prosecutor replied that "[t]his is the first we have had a request for that so I'll hunt it down." RP (Feb. 15, 2007) at 3. But the prosecutor also indicated his belief that there was no such document. The record does not reveal any subsequent discussion by Armstrong, the prosecutor, or the court about the existence of a tip sheet. Armstrong argues that the failure to produce the document, assuming it exists, violates his "right to see all evidence ag[ainst] [him]." SAG at 1. But no such document was presented at trial and it was not, in fact, evidence against him. See State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994) (holding that a jury may consider only evidence admitted at trial). Furthermore, although a defendant need not cite to authority in a SAG, we cannot consider an argument "if it does not inform the court of the nature and occurrence of alleged errors." RAP 10.10(c). We cannot consider this argument.
Last, Armstrong claims that his Fifth Amendment right was violated when, during his testimony, the trial court ordered him to answer a question. At the beginning of trial, the court informed Armstrong: "You have the right toremain silent at all times during the trial or you may testify on your own behalf. It's your decision made on advice of counsel. You need not testify against yourself, but if you do testify the prosecutor may ask you questions on cross examination." RP (Feb. 22, 2007) at 22. Armstrong said he understood these rights. Nevertheless, he chose to testify. On direct examination, his attorney asked: "Were you growing marijuana?" and he replied: "Yes, I was." (Feb. 22, 2007) at 92. Then, on cross-examination, the prosecutor asked: "And you were growing marijuana at your residence on September 8, 2005, correct?" Armstrong replied: "I'm thinking I'm gonna have to claim the Fifth on this one." The trial court ordered him to answer and he said: "Yes, I was." RP (Feb. 22, 2007) at 96.
Armstrong waived his Fifth Amendment privilege by testifying. State v. MacDonald, 122 Wn. App. 804, 811, 95 P.3d 1248 (2004). And the prosecutor's question related directly to his testimony on direct examination. State v. Jones, 26 Wn. App. 1, 8, 612 P.2d 404 (1980) (a party may cross-examine a witness within the scope of a direct examination).
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., Penoyar, J., We concur.