State Of Wash. v. Slighte

• Decision Date: 24 August 2010
• Docket Number: No. 38624-1-II.,38624-1-II.
• Citation: 238 P.3d 83,157 Wash.App. 618
• Parties: STATE of Washington, Respondent, v. Jason Ronald SLIGHTE, Appellant.
• Court: Washington Court of Appeals

157 Wash.App. 618

238 P.3d 83

STATE of Washington, Respondent,

v.Jason Ronald SLIGHTE, Appellant.

No. 38624-1-II.

Court of Appeals of Washington,Division 2.

Aug. 24, 2010.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.

HUNT, J.

¶ 1 Jason Ronald Slighte appeals his jury conviction for possession of methamphetamine with intent to deliver. He argues that: (1) the trial court should have suppressed the methamphetamine evidence based on Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), because this evidence was the product of a warrantless vehicle search incident to the passenger's arrest; (2) defense counsel provided ineffective assistance; and (3) the evidence was insufficient to support the conviction. Based on our recent decisions in Millan ¹ and Nyegaard, ² we hold that Slighte failed to preserve the suppression issue for appeal; his other arguments also fail. We affirm.

FACTS

¶ 2 On July 11, 2008, Centralia police officer Michael Lowery stopped Jason Ronald Slighte's truck because the license plate light was not operating. While Officer Michael Lowery was speaking with Slighte, Slighte's passenger was behaving in a suspicious manner. ³

¶ 3 Officer Douglas Lowery ⁴ arrived and spoke with Slighte's passenger. When the passenger began reaching between his legs, Officer Douglas Lowery told him to put his hands in the air, giving the officer a clear view of the passenger's face. Recognizing the passenger as Chris King, the subject of an outstanding arrest warrant, Officer Douglas Lowery detained King while verifying the existence of his arrest warrant.

¶ 4 Officer Michael Lowery then told Slighte to step out of the truck and to stand near the patrol car while he searched the truck's interior incident to passenger King's arrest. During the search, Officer Michael Lowery discovered drug paraphernalia and evidence of possible methamphetamine possession. Based on the discovery of these items, Officer Michael Lowery arrested Slighte, searched his person, and found additional drug paraphernalia and methamphetamine evidence.

¶ 5 The State charged Slighte with unlawful possession of methamphetamine with intent to deliver. ⁵ At the October 16, 2008 trial, Slighte did not move to suppress the evidence. ⁶ A jury convicted him as charged. Slighte appeals. ⁷

ANALYSIS

I. Failure To Preserve Search Incident To Arrest

¶ 6 Citing Gant, Slighte argues for the first time on appeal that the search of his truck incident to his passenger's arrest on an outstanding warrant violated the Fourth Amendment to the federal constitution and article I, section 7 of the Washington State Constitution. Acknowledging our court's internally conflicting authority, ⁸ the State argues that because Slighte did not move below to suppress the evidence, he has failed to preserve this issue for appeal. Based on our previous decision in Millan, we agree.

¶ 7 At trial, Slighte did not challenge the scope, the propriety, or the legality of the vehicle search incident to his passenger's arrest on an outstanding warrant. We hold, therefore, that Slighte failed to preserve the vehicle search issue for the reasons we stated Millan, 151 Wash.App. at 500, 212 P.3d 603. Accord, Nyegaard, 154 Wash.App. at 646, 226 P.3d 783. See also ER 103(a)(1) (error may not be predicated on ruling admitting evidence absent a timely motion stating the specific ground for the objection); State v. Mierz, 127 Wash.2d 460, 468, 901 P.2d 286 (1995) (defendant waives right to challenge admission of evidence gained in an illegal search or seizure by failing to move to suppress the evidence at trial); State v. Burnett, 154 Wash.App. 650, 652, 228 P.3d 39 (2010). ⁹ And because Slighte failed to preserve this suppression issue for appeal, we do not further consider it. Millan, 151 Wash.App. at 500, 212 P.3d 603.

II. Effective Assistance of Counsel

¶ 8 Slighte next argues that his trial counsel's performance was deficient in failing to move to suppress the evidence obtained during the vehicle search incident to the arrest of Slighte's passenger. Specifically, Slighte points to his trial counsel's inattention to the United States Supreme Court's February 25, 2008 grant of certiorari in a criminal case focusing on the scope of a vehicle search incident to arrest. ¹⁰ Slighte asserts that (1) the United States Supreme Court's one-paragraph issue statement granting certiorari was easily accessible and provided trial counsel with notice of a potential future change to crucial criminal procedure case law; and (2) his trial counsel's failure to move to suppress prejudiced his case to the extent that he can no longer raise a determinative suppression motion on appeal. We disagree.

¶ 9 It is well settled that to demonstrate ineffective assistance of counsel, a defendant must show that (1) defense counsel's performance fell below an objective standard of reasonableness based on all the circumstances; and (2) there was a reasonable probability that the result of the proceeding would have differed absent counsel's unprofessional errors. State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). We previously rejected a similar ineffective assistance of counsel argument based on failure to file a suppression motion in Millan, 151 Wash.App. at 502-03, 212 P.3d 603 (citing McFarland, 127 Wash.2d at 334-35, 899 P.2d 1251). We reasoned that when a search incident to a lawful arrest was valid under the relevant case law at the time, defense counsel's failure to move to suppress evidence obtained from such a search is not ineffective assistance. We also noted that sufficient performance by counsel does not require anticipating changes in the law. Id.; see also United States v. Fields, 565 F.3d 290, 296 (5th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 298, 175 L.Ed.2d 199 (2009) (recognizing that a majority of circuits of the United States Courts of Appeals find that it is not ineffective assistance for counsel to fail to anticipate changes in law).

¶ 10 Slighte's argument on appeal, based on the date the United States Supreme Court granted certiorari in Gant, was not available to Millan: Millan's felony judgment and sentencing hearing was completed two months before the United States Supreme Court granted certiorari in Gant. In contrast, Slighte's trial commenced ¹¹ six months after the United States Supreme Court granted certiorari in Gant. But Slighte cites no law demonstrating that the United States Supreme Court's grant of certiorari in a particular case augments the responsibility of trial counsel in other cases to anticipate change in relevant case law and to adjust legal trial strategy accordingly.

¶ 11 On the contrary, federal case law holds that trial counsel is responsible for following a long-standing well-settled rule of law and that certiorari does not expand that responsibility such that it would include anticipating changes in the law. See United States v. McNamara, 74 F.3d 514, 516 (4th Cir.1996) (even though the Supreme Court had granted certiorari on legal advice at issue, failure to anticipate was not “constitutionally deficient” because controlling circuit court case law provided no basis for objecting); Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir.1995) (trial counsel's performance was not constitutionally deficient because he followed a longstanding and well-settled rule of criminal law, even when that rule was under attack in the United States Supreme Court at the time of trial); Randolph v. Delo, 952 F.2d 243, 246 (8th Cir.1991) (trial counsel was not ineffective for failing to raise Batson ¹² challenge two days before Batson was decided because reasonable conduct is viewed in accordance with the law at the time of conduct). Thus, contrary to Slighte's assertion, the law does not require attorneys to predict changes in the law in order to provide effective assistance of counsel. See also Millan, 151 Wash.App. at 500, 212 P.3d 603.

¶ 12 Because Slighte fails to show that his trial counsel performed deficiently, his argument fails on the deficiency prong alone. Thus, we need not address the prejudice prong of the ineffective assistance of counsel test.

III. Sufficiency of Evidence

¶ 13 Slighte next argues that the evidence fails to support his conviction for unlawful delivery of a controlled substance. This argument also fails.

A. Standard of Review

¶ 14 In testing the sufficiency of the evidence, we view the facts and inferences drawn from those facts in the light most favorable to the State and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. O'Neal, 126 Wash.App. 395, 412, 109 P.3d 429 (2005), aff'd, 159 Wash.2d 500, 150 P.3d 1121 (2007) (citing State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980)). A claim of insufficiency admits the truth of the State's evidence. State v. Brown, 162 Wash.2d 422, 428, 173 P.3d 245 (2007) (quoting State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992)). To affirm a defendant's conviction, we need not be convinced of a defendant's guilt beyond a reasonable doubt; instead, we must be satisfied only that substantial evidence supports the conviction. State v. Fiser, 99 Wash.App. 714, 718, 995 P.2d 107 (2000). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. State v. Halstien, 122 Wash.2d 109, 129, 857 P.2d 270 (1993) (citing World Wide Video, Inc. v. Tukwila, 117 Wash.2d 382, 387, 816 P.2d 18 (1991)). Circumstantial evidence is as reliable as direct evidence to establish a finding. State v. Bright, 129 Wash.2d 257, 270, 916 P.2d 922 (1996) (citing State v. Gosby, 85 Wash.2d 758, 766, 539 P.2d 680 (1975)). When the defendant's intent is inferred from the evidence, the inference must be logical and probable.

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