Opinion
No. 26484-0-III.
January 6, 2009.
Appeal from a judgment of the Superior Court for Benton County, No. 07-1-00115-1, Carrie L. Runge, J., entered September 25, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Korsmo, J.
UNPUBLISHED OPINION
Adrian Lavont Davis appeals his two second degree burglary convictions, contending for the first time on appeal that the trial court erred in failing to conduct a CrR 3.5 hearing. Pro se, Mr. Davis contends his trial counsel was ineffective. Mr. Davis fails to raise a manifest constitutional error and waived his CrR 3.5 hearing. Additionally, he fails to show ineffective counsel. Accordingly, we affirm.
FACTS
On January 21, 2007, Bill Prussing arrived at his Kennewick office, Distinctive Properties, and found it had been burglarized. Kennewick Police Officer Frank McLain responded to Mr. Prussing's burglary report and surveyed the damage. An employee's laptop computer was part of the missing property.
The same day, near Mr. Prussing's business, another overnight burglary at a restaurant, Nothing But Noodles, was reported by Mary Sue Hui. Ms. Hui discovered items missing from a small office safe and money was missing from a larger safe in another office. Ms. Hui viewed her security camera footage that showed an individual near the large safe. Kennewick Police Detective John Davis photographed the video footage, although he was unable to obtain a copy of it. Mr. Davis was identified as the person in the photograph, and he was arrested the next day and taken to the Benton County Jail.
Detective Davis then read Mr. Davis his Miranda rights from a witness statement form, which Mr. Davis signed, indicating he understood his rights. Mr. Davis agreed to speak with Detective Davis without a lawyer present. Further, Mr. Davis did not express any confusion about his Miranda rights. Detective Davis showed Mr. Davis the photograph depicting Mr. Davis inside Ms. Hui's restaurant, and told him he wanted the stolen property returned.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In response, Mr. Davis slumped in his chair and said he could get the property back by calling his girl friend. Mr. Davis did call his girl friend, who informed Detective Davis that some of the stolen property was in their shared apartment. Mr. Davis admitted breaking the door window at Nothing But Noodles and, with an accomplice, using a crowbar to break a window at Distinctive Properties. The police recovered two laptops and a camera linked to the burglaries from the shared apartment.
The State charged Mr. Davis with second degree burglary for each of the two reported crimes. Arthur Bieker was initially appointed to represent Mr. Davis. At the omnibus hearing, Mr. Bieker stated, "we have no 3.5 issue." Report of Proceedings (RP) (Feb. 21, 2007) at 3. Additionally, the omnibus application filed the same day lists the CrR 3.5 hearing as waived. Later, Mr. Bieker withdrew and Christopher Swaby was appointed to represent Mr. Davis. At a second omnibus hearing, Mr. Swaby stated, "general denial and no to everything else . . . I'm satisfied with what the State has given us." RP (Apr. 18, 2007) at 4. A second omnibus application was not filed. The case proceeded to a jury trial without a CrR 3.5 hearing.
Without objection the State established the above facts at trial, including Mr. Davis' incriminating statements. Also without objection, Lucy Armijo, a Department of Corrections Community Corrections Officer testified she knew Mr. Davis in her official capacity based upon her multiple meetingsA with him. She related she had identified Mr. Davis to Detective Davis using the photograph from Nothing But Noodles.
Mr. Davis testified, denying the burglaries and the inconsistent statements to Detective Davis. Mr. Davis admitted he was the person in the photograph from Nothing But Noodles and that he had gone into the restaurant earlier in the day to see if the safe was there, but only to assist individuals who actually committed the burglaries.
The jury found Mr. Davis guilty as charged. Mr. Davis appealed.
ANALYSIS A. CrR 3.5 Hearing
The issue, raised for the first time on appeal, is whether the trial court erred in failing to conduct a CrR 3.5 statement hearing.
CrR 3.5 partly provides: "[w]hen a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible." CrR 3.5(a). The purpose of CrR 3.5 "is to provide a uniform procedure for the admission of voluntary confessions (as well as other [incriminating] custodial statements) in a fashion that will prevent the jury from hearing an involuntary confession." State v. Williams, 137 Wn.2d 746, 750, 975 P.2d 963 (1999) (internal citation omitted) (alteration in original) (quoting State v. Myers, 86 Wn.2d 419, 425, 545 P.2d 538 (1976)).
"The rule's significant impact is that the trial judge resolves the issue of voluntariness in the absence of the jury and thus obviates the due process problems that would arise where the jury hears an involuntary confession." Id. (quoting Myers, 86 Wn.2d at 425). "The test for voluntariness of a confession is whether it appears under the totality of the circumstances that the confession was coerced." State v. Adams, 138 Wn. App. 36, 46, 155 P.3d 989, review denied, 161 Wn.2d 1006 942 P.2d 363 (2007) (citing State v. Broadaway, 133 Wn.2d 118, 132, (1997)). "The inquiry is whether the Defendant's will was overborne." Id. (citing Broadaway, 133 Wn.2d at 132). A defendant's attorney may waive a CrR 3.5 hearing. State v. Fanger, 34 Wn. App. 635, 637, 663 P.2d 120 (1983).
The State argues our review of whether the trial court erred in failing to conduct a CrR 3.5 hearing is barred under RAP 2.5(a) because it is not a manifest error affecting a constitutional right. Generally, "[t]he appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). An exception to this general rule is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). To meet this exception, "[t]he defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error `manifest', allowing appellate review." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1999). "Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
In Williams, our Supreme Court held the trial court's failure to inform a defendant of his testimonial rights at a CrR 3.5 hearing is not an error of constitutional magnitude that can be raised for the first time on appeal. Williams, 137 Wn.2d at 755-56; see also CrR 3.5(b). The court reasoned, "[t]he right that is protected by the CrR 3.5 hearing to have the voluntariness of an incriminating statement assessed prior to its admission into trial-is what is key, and that right was not jeopardized here." Id. at 754. The court further reasoned the defendant failed to show actual prejudice because he did not argue his statements were involuntary: "even had [the defendant] demonstrated a constitutional error, he would not have met his burden of showing `actual prejudice.'" Id. (citing McFarland, 127 Wn.2d at 333).
Here, Mr. Davis does not argue his statements to Detective Davis were involuntary. Instead, he argues his contradictory trial testimony affected his credibility with the jury. Thus, Mr. Davis' argument does not show the trial court's failure to make a voluntariness determination actually prejudiced him. McFarland, 127 Wn.2d at 333-34. Mr. Davis does not suggest his statements were coerced or without the prescribed Miranda warnings. The record shows Detective Davis read Mr. Davis his Miranda rights before Mr. Davis agreed to speak. Mr. Davis did not express any confusion about his Miranda rights. Moreover, Mr. Davis fails to mention his first attorney waived his right to a CrR 3.5 hearing. Notably, his second attorney did not attempt to withdraw the waiver by objecting to Mr. Davis' statements at trial.
In sum, Mr. Davis fails to meet his burden of showing actual prejudice. See Williams, 137 Wn.2d at 754. Thus, Mr. Davis has not met his burden of showing the alleged error is a manifest error affecting a constitutional right, as required to allow appellate review. See McFarland, 127 Wn.2d at 333. Additionally, we are not persuaded that his CrR 3.5 hearing waiver is not binding or in any way ineffective. Therefore, the trial court's failure to conduct a CrR 3.5 hearing cannot be raised for the first time on appeal.
B. Pro Se Additional Grounds
Mr. Davis contends he was denied effective assistance of counsel. This claim raises a mixed question of law and fact that we review de novo. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
To establish ineffective assistance of counsel a defendant must satisfy a two-prong test showing: (1) the performance of counsel was so deficient that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687; see also State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). "The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation based on the record established in the proceedings below." McFarland, 127 Wn.2d at 335. We presume counsel's representation was effective. Id. This presumption will be rebutted only by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).
Regarding the first Strickland prong, counsel's representation is ineffective if the appellate court can find no legitimate strategic or tactical reason for a particular trial decision. Meckelson, 133 Wn. App. at 436. Second, prejudice is established if "the result of the proceeding would have been different but for counsel's deficient representation." McFarland, 127 Wn.2d at 337 (citing Thomas, 109 Wn.2d at 224-25). We now examine the alleged grounds for ineffectiveness.
1. Failure to request CrR 3.5 hearing. Mr. Davis contends his counsel was ineffective because he failed to seek a CrR 3.5 hearing regarding his statements to Detective Davis. As reasoned above, Mr. Davis was not prejudiced by the lack of a CrR 3.5 hearing. Mr. Davis received and waived his Miranda rights; he did not express any confusion about his Miranda rights; and he did not testify his statements to Detective Davis were coerced in any way. Here, "the result of the proceeding would have been different" had his defense counsel sought and obtained a CrR 3.5 hearing. McFarland, 127 Wn.2d at 337 (citing Thomas, 109 Wn.2d at 224-25). Mr. Davis mistakenly argues his defense counsel was ineffective because he failed to seek a CrR 3.5 hearing regarding the photograph from Nothing But Noodles. But CrR 3.5 concerns the admission of statements made by a defendant, not other incriminating evidence.
2. Overall representation. Mr. Davis contends his defense counsel was ineffective because he did not speak with him privately until the first day of trial, and did not question any of the witnesses or evidence presented by the State. However, the record does not establish defense counsel's overall representation of Mr. Davis was deficient. See Strickland, 466 U.S. at 687. Over two months prior to trial, defense counsel informed the trial court, "Mr. Davis and I have a pretty good form of communication." RP (July 11, 2007) at 16. On the day of trial, Mr. Davis acknowledged his defense counsel previously showed him the police reports in the case. In addition, defense counsel cross-examined six of the seven witnesses for the State.
3. Ms. Armijo's testimony. Mr. Davis contends his defense counsel was ineffective because he did not object to Ms. Armijo's testimony. Mr. Davis argues he was prejudiced by Ms. Armijo's testimony that he has a criminal record. But Ms. Armijo did not testify that Mr. Davis has a criminal record, only that she had met with him in her office three times a week, for at least four weeks.
Assuming deficient performance, for argument, in defense counsel's failure to object to Ms. Armijo's testimony, Mr. Davis does not show prejudice. See Strickland, 466 U.S. at 687. The State presented significant evidence at trial linking Mr. Davis to the two burglaries. Detective Davis testified pry marks on the exterior door at Distinctive Properties and pry marks on the large safe at Nothing But Noodles were very similar. Detective Davis testified he recovered a pair of shoes during the search of the shared apartment, and the tread marks on the shoes appeared consistent with shoe-prints in a photograph taken at Nothing But Noodles. Detective Davis testified he recovered a jacket during the apartment search and a stocking cap from Mr. Davis during his arrest, both seen in the photograph from Nothing But Noodles. Accordingly, Mr. Davis was not denied effective assistance of counsel.
4. Failure to hire a photo identification expert. Finally, Mr. Davis contends his counsel was ineffective because he did not hire an expert to counter the photo identification evidence allowed at trial. However, Mr. Davis admitted in his testimony that he was the person in this photograph. Thus, Mr. Davis cannot show prejudice. See Strickland, 466 U.S. at 687.
In sum, we reject Mr. Davis' alleged grounds and conclude he was not denied effective assistance of counsel.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS and KORSMO, JJ., concur.