Opinion
No. 61174-7-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-07223-0, Jeffrey M. Ramsdell, J., entered January 7, 2008.
Affirmed by unpublished per curiam opinion.
Lavell Lewis appeals his conviction for unlawful possession of a firearm in the first degree, arguing that the revolver had been involuntarily abandoned in anticipation of an unlawful police search. Therefore, he contends that the trial court erred in not suppressing evidence of the firearm. But, Lewis raises this issue for the first time on appeal. Where the record is insufficient to establish that the police search was unlawful and Lewis that suffered prejudice, we decline to review the claimed error. Lewis contends, in the alternative, that he received ineffective assistance of counsel, when his trial counsel failed to seek suppression of the firearm. Because Lewis fails to establish that the performance was deficient, we affirm.
FACTS
At approximately 2:30 a.m. on September 27, 2007, Seattle Police were patrolling in the area of Main Street in Seattle, Washington. After running license plates, Officer Garth-Green determined that the registered owner of a Cadillac Escalade sport utility vehicle had a suspended license in the third degree and outstanding warrants. Officer Garth-Green conducted a traffic stop and, because he noticed several occupants in the car, radioed for assistance. In response to Garth-Green's request, four additional Seattle Police officers responded to the scene. Lavell Lewis was one of four passengers in the Escalade.
Garth-Green contacted the driver of the vehicle. The officer determined that the driver was indeed the registered owner, who had outstanding warrants. The driver was arrested. In order to conduct a search of the vehicle incident to arrest, the police had the passengers exit the vehicle. The police frisked the passengers as they exited, before asking them to step to the rear of the car. Lewis sat at the rear of the vehicle, with a female passenger. Police Officer Murray directed the female passenger to exit, followed by Lewis. Lewis attempted to exit first, but was instructed to sit and wait. As soon as the female passenger exited, Lewis came out and Officer Murray "grabbed him and did a pat-down." Nothing was found on Lewis and he was directed toward the rear of the vehicle.
Officer Murray, looking inside the vehicle, noticed a firearm on the right floorboard, near where the female passenger had been sitting. Officer Murray had not previously seen the weapon on the floor. He informed the other officers "[w]e have a gun." Almost immediately following this statement, Lewis fled the scene. Three officers ran in pursuit. Upon encountering Lewis, Officer Murray ordered him to stop and to get on the ground. When Lewis failed to comply, Officer Murray fired a stun gun at him. Lewis was subsequently taken into custody.
The State charged Lewis with first degree unlawful possession of a firearm. In a CrR 3.6 motion, Lewis sought to suppress his identity, as fruit of the poisonous tree. Lewis argued that the police illegally detained him, and that the officers' unlawfully requested that he identify himself after exiting the vehicle and again after leaving the scene. The trial court entered findings of facts and conclusions of law pursuant to CrR 3.6, concluding that in the totality of the circumstances Lewis was not illegally detained. Lewis did not seek suppression based on any activity prior to the finding of the gun.
A jury found Lewis guilty of unlawful possession of a firearm in the first degree. He was sentenced to 30 months. Lewis appeals his judgment and sentence.
DISCUSSION
I. Suppression of the Firearm
Lewis seeks suppression of the firearm for the first time on appeal. The State argues that pursuant to RAP 2.5(a), Lewis is precluded from raising the issue for the first time on appeal.
We will not consider an issue raised for the first time on appeal unless it involves a manifest error affecting a constitutional right. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). To raise such an issue on appeal, the defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial. Kirkman, 159 Wn.2d at 926-27. This showing of actual prejudice is what makes the error "manifest," allowing appellate review. Id. at 927. The manifest error exception "is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences." State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008). In State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995), the court explained that "constitutional errors are treated specially under RAP 2.5(a) because they often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings."
The claimed error is of constitutional magnitude, because of the privacy interest at stake. But, to show that a claimed error is manifest the trial court record must be sufficiently developed to show actual prejudice. McFarland, 127 Wn.2d at 334. To show he was actually prejudiced by counsel's failure to move for suppression, an appellant "must show the trial court likely would have granted the motion if made. It is not enough that the Defendant allege prejudice — actual prejudice must appear in the record." Id. at 333-34.
Here, the record is insufficient to show actual prejudice. Lewis claims that the police conducted an illegal search when they frisked passengers exiting the vehicle. At the 3.6 hearing, Officer Murray explained that the passengers were asked to exit the vehicle to "make it safer" for police to conduct a search of the car. The hearing, however, was centered on the period of time after Lewis exited the car. Neither counsel asked directly about the police decision to frisk the passengers or the threat to officer safety. Because of the record's silence regarding the safety concerns that prompted the officers to perform the frisk, Lewis has failed to establish that the error was manifest. We decline to review this claimed error.
In addition to Officer Murray's description of the reasoning to have the passengers exit the car, Officer Garth-Green provided some context for the decision to frisk them. When asked, "[w]hat exactly was occurring with the passengers?" Officer Garth-Green responded:
They were being quickly patted down just to make sure there were no weapons on them, due to the hour of the night, the number of people in the car. Where the initial car — where I saw it parked, where it started to pull out of the parking lot from, we'd recently had a shooting there where a person was killed. We've taken numerous guns off of people in that area. There's a series of bars there that we've had a tremendous amount of problems with and a high narcotics area. So once we had the car stopped, due to the late hour, the number of people in the car, some of the bulky clothing that they were wearing, we just did a quick pat-down of them and asked them to step to the rear of the car.
Given the question asked, this testimony cannot be interpreted as a complete statement about the possible threat to officer safety posed by the vehicle passengers.
II. Ineffective Assistance of Counsel
Second, Lewis argues that his counsel's failure to seek suppression of the revolver constitutes ineffective assistance of counsel.
In order to establish ineffective assistance of counsel, the defendant must show that (1) defense counsel's performance was deficient, and (2) defense counsel's errors were so serious that they deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is established by proof that defense counsel's representation "fell below an objective standard of reasonableness based on consideration of all the circumstances." McFarland, 127 Wn.2d at 334-35. Legitimate trial strategy or tactics cannot be the basis of a claim of ineffective assistance of counsel. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994). To establish the second prong of the test, the appellant must show that he was affirmatively prejudiced by the deficient performance such that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
Lewis argues that his counsel's performance was deficient, because no tactical reason supports the decision to seek suppression of his identity, but not the revolver. But, there is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Sherwood, 71 Wn. App. 481, 483, 860 P.2d 407 (1993). Based on State v. Allen, 138 Wn. App. 463, 471, 157 P.3d 893 (2007), Lewis' counsel filed a motion to suppress, arguing that the detention and identification of the defendant following his exit from the vehicle and the detention and identification subsequent to his arrest were unlawful. The motion to suppress recognized that the argument was "unusual," but was nonetheless based on precedent in Allen. Lewis fails to show that his counsel's decision to seek suppression of his identity, rather than the gun, was not a tactical choice based on her professional judgment. Suppression of identity would have left no basis to link the gun to him. Because the performance was not deficient, we disagree with Lewis, he has not proven that he received ineffective assistance of counsel.
Lewis argues that "the body or identity of a defendant is never suppressible in a criminal proceeding even if an unlawful arrest or search occurred." But, Lewis cites to authority from appellate review of federal immigration proceedings, where courts have recognized that the exculpatory rule does not apply to civil proceedings. Immigration Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed. 2d 778 (1984). In addition to Allen, other Washington courts have recognized a defendant's identity as suppressible where illegally obtained. See State v. Davis, 142 Wn. App. 1025, 2008 WL 101751 (2008).
We affirm.