Opinion
No. 35292-3-II.
January 15, 2008.
Appeal from a judgment of the Superior Court for Clallam County, No. 06-1-00226-1, George L. Wood, J., entered August 25, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Richard Brooks appeals his first degree escape conviction. He argues that (1) there is insufficient evidence to support his conviction because the Department of Corrections (DOC) secretary did not personally issue a warrant for his arrest; (2) no warrant was actually issued, electronic or paper; (3) the trial court should have suppressed his arrest because he was illegally seized when the officer told him to wait while a warrant check was conducted; (4) a testifying officer's use of the word "arrest" violated Brooks' right to a fair trial; (5) the trial court erred in failing to instruct the jury on the definition of the term "arrest"; (6) the jury instructions relieved the State of its burden to prove all elements of the charged crime, misstated the law, and improperly commented on the evidence; and (7) trial counsel rendered ineffective assistance. Holding that the officer had authority to arrest Brooks on the electronic DOC warrant, we affirm.
FACTS I. Seizure and Arrest
In response to prowler complaints, uniformed Deputy Joshua Ley conducted a security check at Evergreen Collision Center in Port Angeles at approximately 12:45 am on May 23, 2006. Exiting the Collision Center from the north, he noticed a parked vehicle with two male occupants, who told Ley that they had run out of fuel. Ley returned to his patrol car and had no further contact with them.
As Ley started to drive away, he noticed another vehicle enter the Collision Center's parking lot and park behind the vehicle with the two males he had just contacted. Ley recognized the driver of this second vehicle as Richard Brooks. Ley used his patrol car radio to check Brooks' name for warrants, got out of his patrol car, and approached Brooks' vehicle. Brooks had placed one foot out of his vehicle, but he got back in and closed the door when he saw Ley approach. Standing next to Brooks' car, Ley said, "Hey Rich." Report of Proceedings (RP) (Aug. 15, 2006) at 100. Brooks responded, "[H]ey, gotta go." RP (Aug. 15, 2006) at 100.
Noticing that Brooks was turning the vehicle's ignition key, Ley told Brooks, "[H]old on, I'm doing a radio check." RP (Aug. 15, 2006) at 100. Brooks released the car keys, sat back, and began to smoke a cigarette. About 30 seconds later, the radio dispatcher informed Ley that there was an outstanding DOC secretary's warrant for Brooks' arrest. Ley then walked back to Brooks' vehicle, told him about the warrant, and said, "[W]e're gonna go for a drive." RP (Aug. 15, 2006) at 102. Ley told Brooks that he could finish his cigarette before being handcuffed.
Still seated in his vehicle, with Ley standing over him, Brooks opened his vehicle's door, put both feet on the ground, and leaned forward with both hands together, wrists side-by-side. Ley leaned towards Brooks with handcuffs in his hand. When Ley was within a couple inches of handcuffing Brooks, Brooks lurched forward, knocked Ley back, and ran away. Ley chased Brooks.
During the chase, Ley twice shot Brooks with an electric stun gun, but Brooks continued to run. Ley received an electrical shock from the stun gun when one of its wires became tangled around his arm.
After catching up with Brooks, Ley tried to touch him with the stun gun to enable the electrical charge to flow, but Brooks used his hands to strike the stun gun away. Ley ordered Brooks to get down on the ground and to put his hands down. When Brooks still did not comply, Ley holstered his stun gun and used his flashlight to strike Brooks' hands. Believing that Brooks was still trying to get away and worried that Brooks would attack him, Ley tried to pull Brooks to the ground but failed. Pushing back at Ley, Brooks attempted to "just walk through [Ley]." RP (Aug. 15, 2006) at 124.
If only one of the stun gun's probes remains on the target, an officer can close the circuit and complete the charge cycle by making contact between the target and the front of the stun gun unit, causing an arcing and re-closing the charge circuit. This procedure is called a "drive stun."
Ley is 57 tall and weighs 148 pounds. Brooks is 61 tall and weighs around 200 pounds.
As Brooks pushed into him, Ley was able to guide Brooks into a fence using a joint manipulation hold on Brooks' right wrist. After being handcuffed and placed in Ley's patrol car, Brooks complained that his left arm and small finger on his left hand hurt. Ley drove Brooks to the hospital, where Ley read Brooks his Miranda rights. After acknowledging his rights, Brooks told Ley that (1) his "intent wasn't to assault any officers, he was just trying to get away"; and (2) he thought a warrant had been issued because he had not checked in with his CCO and he had not given notice that he had moved.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure
The State charged Brooks with first degree escape.
A. Pretrial
Brooks moved in limine to prohibit witnesses from using the words "custody," "arrest," and "escapee warrant" while testifying at trial. Believing that the term "escapee warrant" might confuse the jury, the trial court granted Brooks' motion in part — to prohibit witnesses from using the words "escapee warrant." The trial court did not similarly prohibit the witnesses from referring to the words "custody" and "arrest."
B. Trial 1. DOC arrest warrant
Brooks' Community Corrections Officer (CCO), John Laing, testified by telephone that: (1) Brooks had not been reporting to the DOC as required under the terms of his community custody for a felony conviction; (2) according to DOC standard procedure, he (Laing) had emailed the DOC record's division a "Wanted Person Entry Request"; and (3) in response, the DOC issued an electronic warrant for Brooks' arrest on January 20, 2006.
According to DOC standard procedure, the CCO electronically requests a warrant from the records division, which then enters the information electronically into the DOC database indicating that an arrest warrant has issued.
Brooks' counsel objected to Laing's characterizing his warrant request as a DOC "secretary's warrant." Counsel argued that there was no valid "secretary's warrant" because the DOC secretary did not personally sign a warrant for Brooks' arrest. Counsel also objected that Laing had only requested the warrant and, therefore, had no personal knowledge of whether a warrant had actually been issued. Ruling that a CCO can issue a warrant for a defendant on community custody, the trial court overruled Brooks' objection.
More specifically, the trial court commented:
So, to have the secretary then issue the warrant personally for every time DOC finds a violation I find to be rather absurd if that's — as far as the mechanics of the community corrections office doing their job. And I know we get arrest warrants all the time here and I'm not sure what the difference would be.
RP (August 15, 2006) at 83.
2. Motion for mistrial
Deputy Ley testified that he had (1) run a warrant check on Brooks when he first recognized him, (2) contacted Brooks in the Evergreen Collision Center parking lot, (3) walked up to Brooks' vehicle, and (4) said, "[Y]ou ha[ve] a DOC escapee warrant, we're gonna go for a drive." RP (Aug. 15, 2006) at 102. When the State asked, "Was the Defendant under arrest at this stage?" Ley answered, "Yes, sir." RP (Aug. 15, 2006) at 103. Defense counsel objected and moved for a mistrial.
Out of the jury's presence, defense counsel stated he thought Ley had said, "[E]scapee warrant," but he had not immediately objected because Ley had spoken quickly and he (defense counsel) could not be sure what Ley had said. RP (August 15, 2006) at 103-104. Nonetheless, defense counsel argued that Ley's use of the word "arrest" had violated the court's order in limine and warranted a mistrial. The trial court denied Brooks' motion for a mistrial.
But the trial court did agree with Brooks' counsel that Ley had testified about whether Brooks was under arrest, which was an issue for the jury. Thus, after the jury returned to the courtroom, the trial court instructed them:
All right, ladies and gentlemen, you'll disregard the last statement made by the deputy when he said the Defendant was under arrest. You are to disregard that and not to consider it as evidence. One of the issues you are to decide in this case is whether or not an arrest took place and whether or not the Defendant was in custody pursuant to that arrest. And I will define — for purposes of the first degree escape charge I will define what arrest and custody means. So that's why you're going to have to make that determination and it's not an officer's position to state one way or another so please disregard it.
RP (Aug. 15, 2006) at 106-7. Ley then completed testifying about Brooks' attempts to escape, his (Ley's) pursuit, the ensuing struggle, and Brooks' ultimate capture.
3. Mid-trial motion to suppress
After the State rested its case-in-chief, defense counsel moved to dismiss for insufficient evidence. He argued that (1) the trial court should suppress Brooks' arrest because his initial seizure was illegal, and (2) the State did not establish that a DOC warrant had been issued for Brooks' arrest. The State responded that Brooks should have requested a pretrial CrR 3.6 suppression hearing to determine the legality of his seizure.
The trial court ruled it could consider Brooks' motion because a lawful arrest was an element of the charged crime of escape. Relying on Rothenburger, the trial court further ruled that (1) even if the seizure had been illegal, there was no evidence to suppress; and (2) assuming, without deciding, that the seizure was illegal, "[i]n this case, there was nothing that was seized. Even the identity of Mr. Brooks was not seized because Deputy Ley knew Mr. Brooks." RP (Aug. 16, 2006) at 6. Accordingly, the trial court denied Brooks' motion to suppress and to dismiss.
State v. Rothenberger, 73 Wn.2d 596, 440 P.2d 184 (1968).
4. Jury instructions
At the trial court's request, Brooks and the State submitted jury instructions. Without submitting a written jury instruction defining "arrest," defense counsel argued that the trial court needed to define the word "arrest" for the jury. Noting the lack of a standard WPIC definition for "arrest," the trial court refused to create a definition for the jury because (1) without an approved WPIC definition, such instruction might present an improper definition; and (2) no definition would make the issue any clearer for the jury.
Washington Practice: Washington Pattern Instructions — Criminal.
The trial court then instructed the jury. Instruction number 6 stated:
A person commits the crime of ESCAPE IN THE FIRST DEGREE when he knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense.
Clerk's Papers (CP) at 31.
Jury instruction number 7 stated:
To convict the Defendant of the crime of ESCAPE IN THE FIRST DEGREE, each of the following elements of the crime must be proved beyond a reasonable doubt.
(1) That on or about the 23rd day of May, 2006, the Defendant escaped from custody;
(2) That the Defendant was being detained pursuant to a conviction of Possession with Intent to Deliver a Controlled Substance;
(3) That such offense is a felony;
(4) That the Defendant knew that his actions would result in leaving custody without permission; and
(5) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 32.
Instruction number 10 stated, "An arrest is lawful if made pursuant to an arrest warrant." CP at 35.
Instruction number 11 stated, "A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime, whether or not the person is aware that the result is a crime." CP at 36.
Instruction number 12 stated:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, facts or circumstances or result described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
Acting knowingly or with knowledge also is established if a person acts intentionally.
CP at 37. Brooks did not object to the trial court's instructions.
5. Jury deliberations
While deliberating, the jury submitted the following question to the trial court: "Under Washington State Code, are specific declarations or actions required of an officer of the law for an arrest to have occurred? If so, what are they?" CP at 22. The trial court sent back the following response: "The Court cannot answer your questions. You have the Court's instructions." CP at 22. The jury found Brooks guilty of first degree escape. Brooks appeals.
ANALYSIS I. "Lawful Custody"
Brooks argues there is insufficient evidence to support his first degree escape conviction because the State failed to prove an essential element of first degree escape — that he escaped from lawful custody when Deputy Ley attempted to arrest him based on the electronic DOC warrant. More specifically he contends that (1) there was no valid arrest warrant because the DOC secretary did not sign his arrest warrant and no actual warrant ever issued, and (2) without a lawfully issued warrant, his arrest was unlawful and, therefore, the custody from which he escaped was not lawful. This argument fails.
A. Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Brooks' insufficient evidence claim "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201.
B. Elements of First Degree Escape
RCW 9A.76.110(1) provides: "A person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense." Thus, first degree escape has two elements: (1) detention pursuant to a felony conviction, and (2) escape from either custody or a detention facility. State v. Walls, 106 Wn. App. 792, 795, 25 P.3d 1052 (2001).
Brooks does not challenge the first element — that he had been in prison and was then on community custody for a felony conviction. Rather, Brooks challenges the second element — he argues that the State did not prove he escaped from "custody" because he was arrested on an unlawful or non-existent warrant, which rendered his arrest unlawful. He bases his argument primarily on his interpretation of RCW 9.94A.740.
Because we hold that Deputy Ley had a right to arrest Brooks on the electronic DOC warrant, regardless of its legality as a court might later determine it to be invalid, we do not address the validity of the DOC warrant, including Brooks' argument based on interpretation of what RCW 9.94A.740 requires for a DOC warrant to issue.
C. Arrest on DOC Warrant
In a similar first degree escape case, Division Three of our court held that a defendant arrested on an outstanding felony warrant for violating the conditions of his community placement was, therefore, "detained pursuant to a felony conviction" and "escaped from custody" when he "bolted" following his arrest. Walls, 106 Wn. App. at 794; see also State v. Solis, 38 Wn. App. 484, 486-87, 685 P.2d 672 (1984) (affirming first degree escape conviction, where defendant ran away from officer attempting to arrest him on a parole violation warrant). The court affirmed his first degree escape conviction. Walls, 106 Wn. App. at 794.
Just as Deputy Ley recognized Brooks and radioed in a "warrants" check, the arresting officer recognized Walls, radioed in a records check, and learned that he had a "pending felony arrest warrant" for the defendant. Walls, 106 Wn. App. at 794. Similar to the arrest facts here, the officer was attempting to handcuff Walls when Walls "bolted." Id.
Moreover, in Brockob, our Supreme Court upheld a defendant's arrest based on a warrant issued under a statute later held unconstitutional. State v. Brockob, 159 Wn.2d 311, 341-42, 150 P.3d 59 (2006). The Court held that probable cause is determined at the time of arrest and an officer is entitled to rely on information from the Department of Licensing indicating that the defendant was committing a crime, namely driving without a valid license. Brockrob, 159 Wn.2d at 342. Thus, we do not reach Brooks' argument that the statute required the DOC secretary to sign his arrest warrant. Under Brockrob, the validity of Brooks' arrest depends on whether Officer Ley had probable cause at the time of arrest.
We hold, therefore, that (1) because Ley was allowed to rely on the DOC's information indicating that Brooks had an outstanding arrest warrant, this information gave Ley probable cause to arrest Brooks; (2) for purposes of Brooks' first degree escape charge, when he escaped from Ley, as a matter of law under Brockob and Walls, Brooks was under lawful arrest based on the electronic DOC arrest warrant that Brooks' CCO requested when Brooks violated his community custody conditions; and (3) there is sufficient evidence to support Brooks' conviction for first degree escape from lawful custody.
III. Jury Instructions
Brooks next argues that the trial court erred because the jury instructions (1) created a mandatory presumption that relieved the State of its burden to prove criminal intent, (2) misstated the law and improperly commented on the evidence, and (3) failed to include a definition of "arrest." This argument also fails.
A. Standard of Review
We review challenged jury instructions de novo, examining the effect of a particular phrase in an instruction by considering the instructions as a whole and reading the challenged portions in the context of all the instructions given. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). Jury instructions are sufficient if they allow the parties to argue their theories of the case and, when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999).
When requested, a trial court in a criminal case must define technical words and expressions used in jury instructions. State v. Brown, 132 Wn.2d 529, 611-12, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A term is technical if its legal definition differs from the common understanding of the word. Brown, 132 Wn.2d at 611. Whether a term is technical is left to the trial court's discretion, which we review for abuse of discretion. State v. Guloy, 104 Wn.2d 412, 417, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Schimmelpfennig, 92 Wn.2d 95, 100, 594 P.2d 442 (1979); State v. Olmedo, 112 Wn. App. 525, 534, 49 P.3d 960 (2002), review denied, 148 Wn.2d 1019 (2003). We find no such abuse here.
B. Criminal Intent
Brooks argues that the trial court erred by giving jury instruction 11, which defined when a person acts with intent or intentionally. He contends that (1) this instruction required the State to prove two mental states — that he intentionally escaped from custody and that he knew he was in custody when he escaped; and (2) by defining both "intentionally" and "knowingly," this instruction "conflated the two mental states and unconstitutionally relieved the prosecution of its burden of establishing that the defendant acted with knowledge that his actions would result in leaving custody without permission."
Although Brooks' counsel did not object to jury instruction 11 at trial, we review for the first time on appeal alleged mandatory presumptions that relieve the State of the burden of proving an essential element of the offense, because of the constitutional magnitude. State v. Goble, 131 Wn. App. 194, 203, 126 P.3d 821 (2005); see State v. Deal, 128 Wn.2d 693, 699, 911 P.2d 996 (1996) (mandatory presumptions violate due process if they relieve the State of the burden of proving an element of the offense).
Citing Goble, Brooks asserts that the last sentence of jury instruction 11 combined the two mental states of "knowingly" and "intentionally." This instruction provided, "Acting knowingly or with knowledge also is established if a person acts intentionally." CP at 37. Brooks is correct that in Goble, we found the following knowledge instruction confusing when the State had to prove two mental states: "Acting knowingly or with knowledge also is established if a person acts intentionally." We held that this knowledge instruction potentially allowed the jury to find the defendant guilty of third degree assault against a law enforcement officer without having to find that the defendant knew the victim was a law enforcement officer if it found that the defendant intentionally assaulted the victim. State v. Goble, 131 Wn. App. 194, 202-03, 126 P.3d 821 (2005).
Goble, 131 Wn. App. at 194.
In Goble, we treated the issue of whether the defendant had knowledge of the victim's law-enforcement-officer status as an element of third degree assault solely because the "to convict" jury instruction in that case included this element and the law of the case doctrine so required. Goble, 131 Wn. App. at 201.
But Brooks is incorrect that Goble applies here. We have since limited Goble's holding to cases where the State must prove more than one mental state. See State v. Gerdts, 136 Wn. App. 720, 728, 150 P.3d 627 (2007); State v. Boyd, 137 Wn. App. 910, 924, 155 P.3d 188, (2007). Where, however, the State only has one mens rea to prove, there is no conflation of mental states. Gerdts, 136 Wn. App. at 728; Boyd, 155 P.3d at 195.
Brooks argues that Gerdts and Boyd do not apply here because the State was required to prove two mental states to convict him. He asserts that the words "on or about the 23rd of May, 2006, the Defendant escaped from custody . . ." in jury instruction 7, presume the element of "intentional" mens rea. Reply Br. of Appellant at 1. Contrary to Brooks' argument, however, jury instruction 7 did not instruct or somehow require the State to prove an intentional act; nor did instructions 11 and 12 conflate mental states. Gerdts, 136 Wn. App. at 728; Boyd, 137 Wn. App. at 924.
Brooks cites no authority for his proposition that first degree escape includes the element that the defendant escaped intentionally. We are "not required to search out authorities, but may assume that counsel, after diligent search, has found none." State v. Logan, 102 Wn. App. 907, 911, 10 P.3d 504 (2000) (citing DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
Moreover, contrary to Brooks' contention that the State was required to prove he escaped "intentionally," RCW 9A.76.110(1) provides:
A person is guilty of escape in the first degree if he or she knowingly escapes from custody or a detention facility while being detained pursuant to a conviction of a felony or an equivalent juvenile offense.
(Emphasis added.) Thus, as the State asserts, the statute required it to prove only one mental state — that Brooks "knowingly" escaped from custody. We hold, therefore, that the statute required and the instructions supported proof of a single mental state — "knowing" escape from custody.
B. No Misstatement of Law or Improper Comment on Evidence
Brooks next argues that the trial court misstated the law and impermissibly commented on the evidence when it gave jury instruction 10. Br. of App. at 14-16. Again, we disagree.
Jury instruction 10 stated, "An arrest is lawful if made pursuant to an arrest warrant." CP at 35. Brooks argues that, contrary to this instruction, an arrest may be unlawful even when there is a warrant if the warrant was issued by someone lacking authority to do so or if it was executed improperly. This argument fails.
Instruction 10 follows 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 120.07, at 218 (Supp. 2005) (WPIC). Brooks cites no authority holding instruction 10 to be a misstatement of the law or an impermissible comment on the evidence.
Whether an instruction is an impermissible comment on the evidence depends on the facts and circumstances of the case. State v. Jackman, 125 Wn. App. 552, 558, 104 P.3d 686 (2004), aff'd, 156 Wn.2d 736 (2006). Here, instruction 10 defined the term "lawful arrest" because instruction 9 defined "custody" as "restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew." CP at 34. Instruction 10's definition of "lawful arrest" neither commented on the evidence nor directed a verdict; rather, it was helpful to the jury. Moreover, this instruction allowed defense counsel to argue that the State had failed to prove beyond a reasonable doubt that there was a lawful warrant for Brooks' arrest.
We hold, therefore, that the trial court did not err by giving instruction 10.
C. No Need to Define "Arrest"
Contending that the term "arrest" is a technical term, Brooks argues that the trial court abused its discretion when it refused to define "arrest" for the jury. The trial court ruled that whether Brooks was under arrest was a question of fact for the jury and not a technical term. We agree with the trial court.
The WPIC neither treats as technical nor defines the term "arrest." Brooks cites no authority defining the term "arrest" for jury instruction purposes. We note that Webster's Dictionary defines "arrest" as being detained in legal custody. This Webster's definition is similar to the trial court's instruction 10, which, as we discuss above, explained the concept of a "lawful arrest."
We note, however, that Washington courts have defined "arrest" for other purposes, such as whether there was probable cause for arrest. Division III of our court, for example, has held that a "person is under arrest when he is deprived of his liberty by an officer who intends to arrest, but the officer need not make a formal declaration of arrest." Solis, 38 Wn. App. at 486, (citing State v. Sullivan, 65 Wn.2d 47, 51, 395 P.2d 745 (1964); City of Seattle v. Sage, 11 Wn. App. 481, 484-85, 523 P.2d 942, review denied, 84 Wn.2d 1013 (1974)).
Brooks fails to persuade us that instruction 10 did not suffice and that he needed an additional instruction defining "arrest" in order to have a fair trial.
We hold that instruction 10 provided all the technical assistance that the jury required to decide whether Brooks' arrest was lawful for purposes of deciding whether he was guilty of first degree escape from custody. The jury did not need an additional instruction further defining the word "arrest." Deferring to the trial court's discretion, we hold that it did not err in refusing to define "arrest."
III. Midtrial Motion To Suppress
Brooks next argues that the trial court erred by refusing to suppress, midtrial, his behavior in fleeing from Ley because, Brooks contends, his flight resulted from Ley's unlawful detention. Brooks concedes that the Fourth Amendment's exclusionary rule does not bar evidence of a new crime committed during an unlawful detention; but he asserts that he would not have fled if Ley had not unlawfully seized him.
The State concedes that Ley's initial 30-second detention of Brooks, while awaiting dispatch's check of Brooks' warrant status, was illegal. But the State argues that Brooks' subsequent flight behavior and post-arrest statements are nevertheless admissible because (1) prohibiting officers from arresting someone on a subsequently discovered warrant would be a "`ridiculous' result[,]" (2) inevitable discovery of the outstanding arrest warrant rendered the initial illegal seizure irrelevant, and (3) neither the warrant nor Brooks' name was discovered as a result of the initial unlawful 30-second seizure. Br. of Resp't at 10 (quoting State v. Rothenberger, 73 Wn.2d 596, 599, 440 P.2d 184 (1968)). We agree.
Under the exclusionary rule, evidence obtained following the infringement of a constitutionally protected freedom will be suppressed only if a causal connection exists between the constitutional violation and the uncovering of the evidence. Rothenberger, 73 Wn.2d 596, 600-01 (citing Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 301 (1939)). There was no such causal connection here between Ley's initial illegal 30-second detention and his subsequent arrest of Brooks on the outstanding DOC warrant. Moreover, as the trial court aptly notes, there was no evidence obtained from the initial 30-second illegal detention to consider suppressing.
In other words, in spite of "the primary illegality, the evidence to which instant objection is made has [not] been come at by exploitation of that illegality"; instead, the evidence was obtained "by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 441 (1963) (internal quotations marks omitted).
Deputy Ley recognized and knew Brooks' identity immediately upon seeing him. Ley requested the warrant check before he even contacted Brooks. There was no causal connection between Ley's initial detention of Brooks and Ley's discovery of Brooks' outstanding DOC arrest warrant 30 seconds later. Because neither Brooks' identity nor knowledge of the outstanding arrest warrant was a product of the initial 30-second unlawful seizure, we agree with the trial court and hold that the exclusionary rule does not apply. Thus, we affirm the trial court's denial of Brooks' motion to suppress his escape, which occurred after Ley discovered the arrest warrant and informed Brooks.
Brooks is incorrect in asserting that the trial court found that he was illegally seized; the trial court made no such finding. Instead, it assumed that the initial detention was illegal and then went on to rule that the evidence was not the product of the initial detention.
Because we hold that the exclusionary rule does not apply, we do not address the inevitable discovery rule.
IV. Motion for Mistrial
Brooks further argues that (1) Deputy Ley's use of the word "arrest" in his testimony was an impermissible legal conclusion about Brooks' guilt, which violated both the trial court's order in limine and his right to a fair trial; and (2) therefore, the trial court erred in denying his motion for a mistrial. We disagree.
A. Standard of Review
We review the grant or denial of a motion for mistrial for abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). We overturn a trial court's denial of a motion for mistrial "only when there is a `substantial likelihood' the prejudice affected the jury's verdict." Greiff, 141 Wn.2d at 921 (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)). In determining whether an irregular occurrence affected the trial's outcome, we examine the seriousness of the irregularity, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it. Greiff, 141 Wn.2d at 921. We find no abuse of trial court discretion here.
B. Reference to "Arrest"
As the State correctly notes, in its order in limine, the trial court did not prohibit witnesses from using the term "arrest." Rather, the express terms of the trial court's order in limine was that witnesses must refrain from mentioning the term "escapee warrant." Moreover, the trial court had specifically denied Brooks' motion in limine to prohibit witnesses from mentioning the words "arrest" and "custody." Thus, Brooks has not shown a violation of the trial court's order in limine.
Nor does Brooks show that this witness's reference to the word "arrest" violated his right to a fair trial. As we previously discussed, to prove first degree escape, the State had to prove that Brooks escaped from custody. RCW 9A.76.110(1). "Custody" is "restraint pursuant to a lawful arrest or an order of a court, or any period of service on a work crew." RCW 9A.76.010(1). Thus, whether Brooks was in "custody" because he had been "restrained pursuant to a lawful arrest" was an element that the State was required to prove and a question of fact for the jury to determine.
As Ley was describing the sequence of events in contacting Brooks after learning about Brooks' outstanding arrest warrant, the State asked Ley, "Was the Defendant under arrest at this stage?" RP (Aug. 15, 2006) at 103. Ley answered, "Yes, sir." RP (Aug. 15, 2006) at 103. This testimony was "not [an impermissible] direct comment on the defendant's guilt"; rather, it was "helpful to the jury? and based on inferences from the evidence." See State v. Olmedo, 112 Wn. App. 525, 531, 49 P.3d 960 (2002), review denied, 148 Wn.2d 1019 (2003) (citing City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994)). Brooks has not shown prejudice or an unfair trial resulting from this remark. Moreover, the trial court took extra care to instruct the jury to disregard Ley's statement about whether Brooks was under arrest because this was a factual issue for the jury to decide.
We hold, therefore, that the trial court did not abuse its discretion in denying Brooks' motion for mistrial.
V. Ineffective Assistance of Counsel
Lastly, Brooks argues that he received ineffective assistance when his trial counsel failed (1) to object to jury instructions 11 and 12, (2) to propose a jury instruction defining "arrest," and (3) to file written motions to suppress and to dismiss. Brooks fails to sustain his burden to establish ineffective assistance of counsel.
We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). To prove ineffective assistance of counsel, a defendant must show deficient performance and prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
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). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
We have already held that Brooks' substantive arguments fail. Thus, he cannot show that his counsel was deficient in failing to challenge the jury instructions, to propose a jury instruction defining "arrest," or to submit a written motion to suppress. Brooks having failed to meet the first prong of the test, we need not address the second prong. We hold, therefore, that Brooks fails to establish ineffective assistance of counsel.
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.
BRIDGEWATER, P.J. and QUINN-BRINTNALL, J., concur.