Opinion
No. 35621-0-II.
July 15, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00257-4, David E. Foscue, J., entered October 30, 2006.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Hunt, JJ.
Rodney Wilson appeals his convictions of residential burglary, possession of a stolen firearm, third degree assault, two counts of second degree possession of stolen property, and methamphetamine possession, arguing trial court and cumulative error. He raises similar and additional arguments in his statement of additional grounds. We affirm.
RAP 10.10.
FACTS
We derive the facts from the trial evidence.
On April 13, 2006, Grays Harbor Sheriff's Deputy Sean Gow responded to a burglary report at John Gow's home in Humptulips. John Gow reported that he returned home just before noon that day and discovered that someone had forced his front door open. Items missing from his residence included four shotguns and a rifle.
Deputy Sean Gow and John Gow are not related.
A second officer contacted Gow's neighbor Christopher Cain, who reported seeing a blue Toyota Celica with a spoiler and flip-up headlights leaving Gow's residence that morning. Cain did not see the vehicle's driver or its license plate.
Around noon the same day, Deputy Paul Fritts received a report of the Gow burglary and the suspect vehicle's description. Fritts recalled seeing a similar vehicle in the area the previous week. At approximately 12:30 p.m., Fritts drove to Alfred "Bud" Rowe's residence in Grays Harbor County, where he observed a parked vehicle matching the suspect vehicle's description. Its license plate number was 132 MBL.
Fritts testified that he went to Rowe's residence because the officers frequently recovered stolen vehicles there and he thought it prudent to "at least check" the residence for the suspect vehicle. Report of Proceedings (RP) (Sept. 28, 2006) at 32.
Fritts's records search on the vehicle's license plate number returned Mary Gallington and her husband as its registered owners. Gallington testified that she had known Wilson for approximately one year, gave him the Celica between the end of January and beginning of February 2006, and last saw the vehicle at the end of February or beginning of March when Wilson was driving it.
When Fritts arrived at Rowe's residence, he observed Wilson exit the residence and walk toward the suspect vehicle. Wilson appeared "taken aback" when Fritts announced himself. Report of Proceedings (RP) (Sept. 28, 2006) at 29. Fritts told Wilson that he needed to speak with him, and Wilson "kind of hesitated" and then started walking toward him. RP (Sept. 28, 2006) at 29. Fritts asked Wilson his name, and Wilson replied, Roger Wilson. RP (Sept. 28, 2006) at 29.
Fritts advised Wilson that, because weapons were involved in a burglary he was investigating and for his safety, he needed to detain Wilson by handcuffing him and placing him in the back of his patrol vehicle. Fritts reached out to grab Wilson's arm, and Wilson "immediately swung around and punched [Fritts] in the side of the head." RP (Sept. 28, 2006) at 30. Fritts attempted to take Wilson to the ground, but Wilson escaped and ran into nearby woods. Fritts did not pursue him in the belief that there were other possible subjects at Rowe's residence and because weapons were involved in the Gow burglary.
Colleen Hicks, Jennifer Morgan, Sara McClaugherty, Jason Shahan, and Rowe were also at Rowe's residence when Fritts arrived. Hicks, Morgan, and McClaugherty later testified that Wilson arrived at the residence in a blue Celica or "little blue hatchback," asked for Rowe, asked the group if any were interested in purchasing firearms, brought a "pile" of shotguns inside the residence from his vehicle, and fled when Fritts arrived. III RP at 119, 120.
Deputy Robert Crawford and his police dog responded to Fritts's call for backup at Rowe's residence. Fritts told Crawford that Wilson was a suspect in the Gow burglary and had assaulted him and then fled. He also said that weapons were involved in the Gow burglary and that Wilson may be armed.
Crawford testified that he tracked Wilson into the woods near Rowe's residence. Crawford announced himself and told Wilson to stop or he would send his dog after him. Crawford testified that Wilson responded, "send the dog and I will fucking shoot him." RP (Sept. 28, 2006) at 38. The deputies did not apprehend Wilson that day.
The same day, Fritts sought a search warrant for Rowe's residence and the Toyota Celica parked there. He called Detective Don Kolilis who relayed the information to a Grays Harbor County prosecutor who, in turn, obtained the search warrant. The prosecutor's affidavit for the search warrant contained the following statement: "Mr. Gow noticed a 1980's blue Toyota Celica with a spoiler and Washington license 132 MBL, leave from the area of his residence when he arrived home that morning." Clerk's Papers (CP) at 146.
Kolilis later attested by sworn declaration that he initially understood that Gow saw the suspect vehicle leave his home and that Fritts provided Kolilis with the vehicle description and license number. He did not learn until later that it was Cain who observed the vehicle leaving the Gow residence and that Fritts obtained the vehicle's license plate number only after observing the suspect vehicle at Rowe's residence. Kolilis attested that he provided the information to the prosecutor as he understood it from Fritts and did so in good faith based on what he believed to be the officers' information at the time.
On April 13, the officers recovered Gow's stolen firearms from Rowe's residence and other of Gow's stolen items from the Toyota Celica. They also recovered burglary tools, items with Wilson's name on them, a picture of Wilson and his daughter, and drug paraphernalia from the Celica.
On April 18, Ted Aspen reported a burglary at the home of his deceased mother, Joanne Clark, at 2943 East Hoquiam Road in Hoquiam. Aspen had been living there intermittently since his mother's death. The house was located less than a mile from the area of Rowe's residence.
Aspen owned a white 1991 Chevrolet Caprice that he kept parked in the driveway at 2943 East Hoquiam Road. Aspen reported that the Caprice and his mother's credit cards were missing from the home. Aspen's neighbor testified that she passed by the Clark residence five days a week and noticed the Caprice missing from the driveway on the afternoon of April 13 and again on the morning of April 14. The following week, neighbors saw that someone had burglarized the Clark residence, and they contacted Aspen and the police.
Aspen testified that he last observed his Caprice parked in his mother's driveway on April 8.
Deputy Kevin Schrader testified that he was advised on April 17 that Wilson was armed and hiding from the police in the south beach area and had threatened to shoot if the officers tried to arrest him. Schrader knew of Wilson's April 13 assault on Fritts.
On April 18, Schrader received information that Wilson might be staying at the Cranberry Motel in Westport. The motel manager informed Schrader that a Rodney Stevens was registered to unit 21 and that he was "pretty definite" that the individual was still there. RP (Sept. 28, 2006) at 44. The manager also reported that he had seen the individual walk to unit 21 from a white Chevrolet Caprice parked nearby. Schrader set up surveillance on the Cranberry Motel and obtained the manager's 100 percent positive identification of Wilson based on a photograph.
While briefing the plan to arrest Wilson, Schrader learned of the white Chevrolet Caprice missing from 2943 East Hoquiam Road. Schrader matched the missing vehicle's license plate number with the Caprice parked outside unit 21.
The officers sought to arrest Wilson at the Cranberry Motel for an outstanding warrant on another matter.
Schrader and the other officers dispatched to the front and rear of Cranberry Motel unit 21. The officers at the front door entered with a pass key from the motel manager and announced "police" simultaneously upon entering; they did not "knock and announce." RP (Sept. 28, 2006) at 47-48. The officers testified that they used this method of entry because "there was a strong belief that [Wilson] maybe [sic] armed and may take aggressive action towards us" based on Wilson's earlier threat to shoot a police dog, information that he was possibly armed and threatening to shoot the police, his earlier assault on Fritts, and the fact that he was a suspect in a burglary involving firearms. RP (Sept. 28, 2006) at 48, 54.
The officers seized Wilson inside unit 21; searched him incident to arrest; and found Clark's credit cards, methamphetamine, and drug paraphernalia on his person. The officers later executed a search warrant on unit 21 and the Caprice and found additional credit cards in Clark's name, methamphetamine, and drug paraphernalia.
The April 18 search warrant affidavit included the same misstatement that Gow saw a 1980s blue Toyota Celica with license plate number 132 MBL leave his residence on April 13.
On April 19, the State charged Wilson with first degree burglary (count one) and possession of a stolen firearm (count two) for the April 13 Gow burglary, third degree assault (count three) for his assault on Fritts, and second degree possession of stolen property (count four) for the theft of Aspen's Chevrolet Caprice between April 13 and April 18. On May 22, the trial court granted the State leave to file additional charges of second degree stolen property (count five) and methamphetamine possession (count six) for the items found on Wilson's person on April 18.
The trial court denied Wilson's motion to sever counts one through three from counts four through six. It denied Wilson's motions to suppress evidence seized from the Cranberry Motel and to dismiss, finding as a matter of law that exigent circumstances warranted waiver of RCW 10.31.040's "knock and announce" requirements.
The trial court granted Wilson's motion to proceed pro se and appointed him standby counsel.
On the second day of trial, Wilson again moved to suppress evidence from the searches of Rowe's residence, the Toyota Celica, the Cranberry Motel, and the Chevrolet Caprice. The trial court noted his objections but found them untimely.
A jury heard the matter and convicted Wilson of residential burglary, possession of a stolen firearm, third degree assault, two counts of second degree stolen property possession, and methamphetamine possession. The trial court denied Wilson's posttrial motions to arrest judgment, to suppress evidence, and to dismiss. He appeals.
ANALYSIS Exigent Circumstances
Wilson first contends that the trial court erred in finding that exigent circumstances justified the officers' failure to "knock and announce" before entering his Cranberry Motel room. He asserts that the officers never identified the source of their information that he was armed and dangerous, all firearms stolen in the Gow burglary were already recovered on April 13, and the officers never recovered weapons from unit 21. He argues that the trial court erred by failing to suppress evidence seized from the Cranberry Motel and the Chevrolet Caprice as fruits of an unlawful search.
The State did not dispute that the officers did not "knock and announce" or that they recovered Gow's stolen firearms on April 13.
We review the facts supporting suppression rulings for substantial evidence, that is, evidence sufficient to persuade a fair-minded, rational person of the finding's truth. State v. Adams, 138 Wn. App. 36, 44, 155 P.3d 989, review denied, 161 Wn.2d 1006 (2007). We review the trial court's legal conclusions de novo. State v. Ague-Masters, 138 Wn. App. 86, 97, 156 P.3d 265 (2007). Where the evidence supporting the trial court's finding of exigent circumstances is in the form of testimony, we defer to the trial court's credibility assessment, but we will not affirm the finding unless the evidence is constitutionally sufficient. State v. Dugger, 12 Wn. App. 74, 80-81, 528 P.2d 274 (1974).
Under RCW 10.31.040, an arresting officer may break and enter if, after notice of his office and purpose, he is refused admittance. A violation of the rule requires that any evidence obtained as a result of the violation be suppressed. Dugger, 12 Wn. App. at 77. But a failure to comply with the rule may be justified where exigent circumstances exist, as determined on a case-by-case basis. State v. Young, 76 Wn.2d 212, 217, 455 P.2d 595 (1969); Dugger, 12 Wn. App. at 80-81.
To demonstrate exigent circumstances, the officers must be able to point to specific, articulable facts and reasonable inferences drawn from those facts justifying the unannounced intrusion. State v. Sanders, 8 Wn. App. 306, 310, 506 P.2d 892 (1973). The particularity requirement may be satisfied either where the officers have specific prior information that a suspect has resolved to or made specific preparations to act in a manner creating an exigency, or where confronted with contemporaneous activity alerting them to the possible presence of exigent circumstances. State v. Coyle, 95 Wn.2d 1, 10, 621 P.2d 1256 (1980).
Here, Schrader testified that before arresting Wilson on April 18, he knew that Wilson had assaulted Fritts and had threatened to shoot a police dog. He testified that the arresting officers deliberately decided to enter the Cranberry Motel without a "knock and announce" based on information that Wilson was possibly armed and was threatening to shoot the officers if they came after him. He also testified that, because Wilson had already assaulted an officer and was a suspect in a burglary involving firearms, he and the other arresting officers had a strong belief that Wilson could be armed and would take aggressive action against them.
Similarly, Deputy Edward Patrick testified that, based on information that Wilson was a suspect in a burglary involving firearms, had assaulted Fritts, and had threatened to shoot the officers and a police dog, he and the other arresting officers felt that it was in their best interest to enter without a "knock and announce."
The trial court found that this was "clearly a case of exigent circumstances." RP (Sept. 28, 2006) at 58. It so ruled, despite Gow's firearms already having been recovered, because Wilson threatened to shoot a police dog, suggesting he had a firearm; because the officers had information that Wilson would not be taken in; and because, based on the discovery of the Chevrolet Caprice, the officers believed Wilson to be hiding out from the 2943 East Hoquiam burglary under a false name. The trial court found that these facts gave the officers a legitimate, genuine, and articulable concern for their welfare and concluded as a matter of law that exigent circumstances warranted waiver of RCW 10.31.040's "knock and announce" requirement. Substantial evidence supports the trial court's findings and they, in turn, support its conclusion of law. The trial court properly determined that exigent circumstances existed, allowing the officers to enter without knocking and announcing.
Automatic Standing
Wilson next challenges the trial court's denial of his motion to suppress evidence seized on April 13 from Rowe's residence and the Toyota Celica. He relies on the doctrine of automatic standing.
Although abolished in federal courts, the doctrine of automatic standing remains viable in Washington as long as the challenged police action produced the evidence the State sought to use against the defendant. State v. Jones, 146 Wn.2d 328, 331-32, 334, 45 P.3d 1062 (2002). In order for a defendant to assert automatic standing, the State must charge him with an offense where possession is an essential element, and he must be in possession of the evidence at the time of the search or seizure. State v. Simpson, 95 Wn.2d 170, 181, 622 P.2d 1199 (1980). Possession may be actual, where a defendant has physical custody of the item, or constructive, where he has dominion and control over the item. Jones, 146 Wn.2d at 333. "Dominion and control means that the object may be reduced to actual possession immediately." Jones, 146 Wn.2d at 333. Mere proximity is insufficient to establish possession. State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998).
The automatic standing rule was abolished under federal law in United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).
Here, based on the evidence seized from Rowe's residence, the State charged Wilson with one crime involving possession as an essential element — possession of a stolen firearm. Simpson, 95 Wn.2d at 181. Trial testimony established that Wilson entered the Rowe's residence as a guest, took the stolen firearms inside, and then fled the scene. The officers obtained a search warrant and recovered the firearms from Rowe's residence after Wilson fled.
In fleeing the scene, Wilson relinquished both actual and constructive possession of the firearms and abandoned any privacy interest he might have had in the firearms or the residence. See State v. White, 40 Wn. App. 490, 495, 699 P.2d 239 (1985); State v. Swaite, 33 Wn. App. 477, 485 n. 5, 656 P.2d 520 (1982); State v. Tidwell, 23 Wn. App. 506, 507-08, 597 P.2d 434 (1979). He thus fails to establish automatic standing.
Wilson fails to overcome this lack of automatic standing by arguing that the officers recovered the firearms in close proximity to the time he was in possession of them or while he was still in the vicinity of Rowe's residence.
Search Warrant Affidavit
Wilson next contends that the trial court erred by failing to suppress evidence seized based on search warrant affidavits containing a material misstatement of fact that Gow saw the suspect vehicle and its license plate number. He argues that his preliminary showing of the State's reckless disregard for the truth entitled him to a Franks hearing. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Although Wilson lacks automatic standing to challenge the evidence seized from Rowe's residence or, on the same basis, the Toyota Celica, we address his argument because the April 18 search warrant affidavit contained the same misstatement of fact and Wilson moved to suppress evidence seized from both searches on this basis.
We review disputed findings of fact on a motion to suppress for substantial evidence and conclusions of law de novo. Ague-Masters, 138 Wn. App. at 97. We review a search warrant's validity for an abuse of discretion, giving great deference to the magistrate's probable cause determination and resolving all doubts in favor of the warrant's validity. State v. Kennedy, 72 Wn. App. 244, 248, 864 P.2d 410 (1993). A trial court abuses it discretion when it bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Under Franks, where a defendant makes a substantial preliminary showing that a false statement in a search warrant affidavit was made knowingly and intentionally or with reckless disregard for the truth and the false statement is necessary to find probable cause, the Fourth amendment entitles the defendant to a hearing. 438 U.S. at 155-56. If at the hearing, the defendant establishes by a preponderance of the evidence his allegation of perjury or reckless disregard, the trial court must excise the false material and then void the search warrant and exclude the fruits of the search if the remaining contents are insufficient to establish probable cause. Franks, 438 U.S. at 156. Innocent or negligent mistakes are insufficient to satisfy Franks. State v. Olson, 74 Wn. App. 126, 131-32, 872 P.2d 64 (1994), aff'd, 126 Wn.2d 315, 893 P.2d 629 (1995).
In his sworn declaration and trial testimony, Kolilis conceded that the statement that Gow observed the Toyota Celica and its license plate number was in error. Nevertheless, he said that he passed that information on to the prosecutor in good faith as to what he believed to be correct and known to the officers at the time.
Kolilis explained that he provided the prosecutor with the vehicle's full description because it was required in order to obtain a search warrant, and the misstatement was likely included in the affidavit because the prosecutor inserted the information Kolilis provided in its entirety into the document rather than only inserting the information that Gow himself provided.
The trial court determined that the affidavit did not contain materially false information and was not the product of a knowing or deliberate falsehood or reckless disregard of the truth. Rather, the trial court found that it contained a negligent or innocent mistake made in obtaining a warrant quickly while the officers were still in pursuit of Wilson. Substantial evidence supported the trial court's findings that the information itself was not materially false and that the misstatement was a negligent or innocent mistake in communication, and there is no evidence to the contrary. Wilson fails to demonstrate his entitlement to a Franks hearing. The trial court properly declined to hold a Franks hearing, and it correctly denied Wilson's motion to suppress evidence based on the misstatement in the affidavit of probable cause.
We note that even had Wilson made the preliminary Franks showing and ultimately established a knowing and intentional falsehood or reckless disregard for the truth, his argument fails because the affidavit's remaining information, absent the excised misstatement, would still have been sufficient for the magistrate to find probable cause. 438 U.S. at 155-56.
Severance
Wilson next contends that the trial court erred in denying his motion to sever counts one through three from counts four through six, arguing that the danger of prejudice outweighed concerns for judicial economy and that the State had a stronger case for counts four through six then it did for counts one through three. He also contends that evidence of the different crimes was not cross-admissible to show motive, intent, or a common scheme or plan because the April 13 offenses and April 18 offenses were not similar and did not share commonality of purpose.
The record demonstrates that Wilson attempted to renew his motion to sever only as to count six and failed to properly renew the motion by filing a written motion on the trial court. Thus, he waived raising this issue on appeal.
Under CrR 4.4(a)(2), where the trial court denies a defendant's pretrial motion to sever, he must renew the motion on the same ground before or at the close of all evidence or he waives the severance issue. See also State v. Henderson, 48 Wn. App. 543, 551, 740 P.2d 329 (1987). On appeal, Wilson's counsel concedes that the record does not show that Wilson renewed his motion to sever during trial. Wilson argues that he properly renewed the motion. The record shows that, on the second day of trial, Wilson asked the trial court if he could renew his motion to sever the count of methamphetamine possession. The trial court found no motion before him but denied the request, citing the late stage of trial.
Cumulative Error
Wilson contends that he is entitled to reversal based on cumulative error. Where an individual error alone is insufficient to warrant a new trial, the combined effect of accumulated error may require a new trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). As we find no error, there cannot be an accumulation of error. Wilson's argument fails.
In arguing cumulative error, Wilson refers to "instances of ineffective assistance cited supra." Appellant's Br. at 45. He does not otherwise argue any error based on ineffective assistance of counsel so we do not address it. See State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004).
Statement of Additional Grounds
Finally, in his statement of additional grounds, Wilson again argues that the trial court erred by denying his motions to suppress based on false statements in the search warrant affidavits and erred by denying his motions to sever. We have already addressed these arguments.
Wilson also objects that he was held pretrial in a maximum security detention facility in violation of his due process rights. At this matter is beyond the record, we do not address it on appeal. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record").
We note that the record shows that Wilson was in a maximum security detention facility pretrial because he manufactured metal shanks and stabbed another inmate while in county jail.
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.
ARMSTRONG, J., HUNT, J., concur.