Opinion
No. 30386-8-II.
Filed: April 13, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 02-1-00492-0. Judgment or order under review. Date filed: 05/15/2003. Judge signing: Hon. Toni a Sheldon.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Monty Dale Cobb, Mason County Prosecutors Office, 521 N 4th Ave Ste a, PO Box 639, Shelton, WA 98584.
Lonny Rae Gish appeals his convictions for possession of methamphetamine and third degree driving while license suspended. We hold that the Terry stop and arrest of Gish were proper, he received effective assistance of counsel, and the missing witness instruction given by the trial court was proper. Accordingly, we affirm.
Facts
Washington State Patrol trooper, Paul Carroll, stopped a vehicle driven by Lonny Gish on June 20, 2002. Trooper Carroll initially pulled Gish over because he thought Gish's license was suspended. He confirmed this information with the state patrol dispatch. He then arrested Gish for driving with his license suspended.
On searching Gish's car, the trooper found tubing in Gish's glove compartment containing a white powder on it. Gish admitted to Trooper Carroll that he had used methamphetamine a day or so earlier. The State charged Gish with possession of methamphetamine and with third degree driving while license suspended on December 26, 2002.
There were no pre-trial motions filed nor heard regarding either a CrR 3.5 or CrR 3.6 hearing. Gish's trial began on April 16, 2003.
The State called Trooper Carroll to testify. The trooper stated he noticed Gish drive by while he was in his patrol car. From past experiences with Gish and from information received by Trooper Vaughn, the trooper knew Gish drove a white Thunderbird. He also knew the license plate number of the vehicle was 986 MKN. Trooper Carroll pulled in behind Gish and contacted him on the driver's side of Gish's car.
When the trooper asked Gish about his license, Gish replied that his license was suspended. Trooper Carroll then confirmed with the state patrol dispatch that Gish's license was suspended. After confirming the suspension, Trooper Carroll returned to Gish's car and told him he was under arrest for driving with a suspended license. Trooper Carroll also testified that he routinely checked the list of drivers with suspended licenses provided by the Department of Licensing. His last check of this list was about two weeks prior to stopping Gish.
Gish testified that he was driving home after retrieving his car from his ex-girlfriend, who had borrowed his car. His ex-girlfriend was Sandra Noble. When told Trooper Carroll's statement about Gish's methamphetamine use, Gish attempted to refute his comments to Trooper Carroll by stating it had been a while since he had used methamphetamine.
After both sides rested, the parties prepared jury instructions. The State proposed to give the failure to produce a witness instruction. Gish argued the instruction was not necessary because he never intended to call Sandra Noble as a witness. The court ruled it was proper to give the missing witness instruction. The court based its decision on the fact that Gish was the only person who knew of the witness, the witness lived in the Shelton area and was available to Gish, the witness's testimony related to an issue of fundamental importance, and that Gish failed to call the witness because the witness's testimony would be damaging to his case. The jury found Gish guilty on both counts.
Analysis I. Terry Stop and Detention
Gish argues his initial stop and detention were unlawful and violated his constitutional rights. The State responds the initial stop and later detention were the result of a reasonable suspicion based on articulable facts. We agree with the State.
Gish did not object to the stop and detention at the lower court. An error affecting a constitutional right may be raised for the first time on appeal if an adequate record exists. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). That situation exists in this case. Where a defendant claims a constitutional error arising from trial counsel's failure to move to suppress evidence, the defendant must show that had trial counsel made the motion, the trial court would have granted it. McFarland, 127 Wn.2d at 333-34. Gish does not meet this burden.
When an officer reasonably suspects a person is engaged in criminal activity, the officer, without probable cause, may briefly detain and question the suspect. State v. Pressley, 64 Wn. App. 591, 595, 825 P.2d 749 (1992) (citing Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An officer must be able to cite to specific and articulable facts that when taken together with reasonable inferences from those facts, reasonably warrant the intrusion in order to justify a Terry stop under the Fourth Amendment and article I, section 7 of the Washington State Constitution. Terry, 392 U.S. at 21. `[A] substantial possibility that criminal conduct has occurred or is about to occur' is the level of articulable suspicion needed to support an investigative detention. State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). The required level of articulable suspicion was present in the case at bar.
Trooper Carroll knew from past experience, past contacts with Gish, and from Trooper Vaughn that Gish owned a white Thunderbird, and that he had a suspended license. He also knew the license plate number of Gish's car. Trooper Carroll also recognized Gish as the driver of the car. Further, Trooper Carroll had checked the status of Gish's driver's license himself approximately two weeks prior to stopping Gish. At that time, Gish still had a suspended license.
Gish's attempts to distinguish State v. Quintero-Quintero, 60 Wn. App. 902, 808 P.2d 183 (1991) (information gathered two and a half weeks prior to a stop and detention held not stale) and State v. Perea, 85 Wn. App. 339, 932 P.2d 1258 (1997) (information gathered one week prior to a stop and detention found not stale), are unpersuasive. Here, Trooper Carroll had last reviewed the suspended drivers list approximately two weeks prior to stopping Gish.
The above facts illustrate that Trooper Carroll had a reasonable articulable suspicion of criminal activity. Thus, there was no violation of Gish's constitutional rights and had trial counsel moved to suppress the evidence seized in Gish's car, the trial court would not have granted the motion.
II. Ineffective Assistance of Counsel
Gish next contends he received ineffective assistance of counsel because (1) trial counsel failed to move to suppress evidence, and (2) trial counsel failed to properly object to the giving of jury instruction 11. Where a criminal defendant claims ineffective assistance of counsel, the defendant must prove (1) that the attorney's performance was deficient, and (2) that prejudice resulted from the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). The defendant must prove both prongs of the test in order to prevail on his claim. Strickland, 466 U.S. at 687.
A. Motion to Suppress Evidence
Gish argues both elements of the ineffective assistance of counsel test are met regarding trial counsel's failure to move to suppress the evidence found in his car. He contends there was no tactical or strategic reason for trial counsel not to bring the motion. Gish further asserts that trial counsel's failure to move to suppress evidence resulted in prejudice because had counsel moved to suppress, there would have been insufficient evidence to convict him.
Gish fails to show how his attorney's performance was deficient. Strickland, 466 U.S. at 687. As discussed in the last section, the stop and detention were appropriate. Thus, the items seized during the search of Gish's car were legally seized.
B. Jury Instruction 11
Gish also argues trial counsel's failure to properly object to the giving of jury instruction 11, the missing witness instruction, amounted to ineffective assistance of counsel. His argument is meritless because trial counsel did object to the instruction. Trial counsel stated there was never an intention to call Sandra Noble and the instruction was not warranted. Gish does not satisfy the elements of the ineffective assistance of counsel test in either of his arguments. We conclude that Gish received effective assistance of counsel.
III. Missing Witness Instruction
Gish contends the trial court erred when it gave the missing witness instruction to the jury. We disagree.
A trial court must give the missing witness instruction when `the witness is peculiarly available to one party and it can be reasonably inferred that because of his relationship to that party he would have been called as a witness but for the fact his testimony would have been damaging.' State v. Clinton, 25 Wn. App. 400, 404, 606 P.2d 1240 (citing State v. Davis, 73 Wn.2d 271, 277, 438 P.2d 185 (1968)), review denied, 93 Wn.2d 1026 (1980). However, if the witness's absence is adequately explained, no instruction should be given. Clinton, 25 Wn. App. at 404. That was not the situation in the present case.
Sandra Noble, Gish's ex-girlfriend, was the person to whom he loaned the car and from whom he had obtained it when Trooper Carroll arrested him. She would have provided important testimony regarding Gish's claim of unwitting possession. She was peculiarly available to Gish. The State told the court Gish was the only one with any knowledge of Sandra Noble. Further, no explanation was given as to why Ms. Noble was not called. The trial court did not abuse its discretion in giving the missing witness instruction.
We affirm the judgment and sentence.
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.
SEINFELD, P.J. and ARMSTRONG, J. concur.