State v. Blackshear

• Decision Date: 19 May 2014
• Docket Number: 69912-1-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. CRUZ BLACKSHEAR, Appellant.

STATE OF WASHINGTON, Respondent, v. CRUZ BLACKSHEAR, Appellant.

No. 69912-1-I

Court of Appeals of Washington, Division 1

May 19, 2014

UNPUBLISHED OPINION

ORDER WITHDRAWING OPINION

IT IS HEREBY ORDERED that the opinion of this court in the above-entitled case filed April 28, 2014 is withdrawn to correct a typographical error on page 7 and a new opinion will be filed.

Spearman, C.J.

Cruz Blackshear appeals his conviction on one count of robbery in the second degree, arguing that the trial court committed reversible error in denying his motion to suppress evidence of the victim's showup identification and subsequent in-court identification.Blackshear contends that defense counsel's failure to adequately raise the suppression issue amounted to ineffective assistance of counsel.In a statement of additional grounds for review, Blackshear further asserts that (1) the dog tracking evidence was contaminated, (2) witness testimony was not credible, (3) police officers ignored his request for an attorney during questioning, and (4)the prosecutor improperly argued that Blackshear is left handed.We conclude that Blackshear is unable to demonstrate that he suffered prejudice as a result of the alleged errors, and that his additional grounds for review lack merit.We therefore affirm.

FACTS

On the afternoon of October 15, 2012, John Couldry visited his wife at Providence Hospital in Everett.As Couldry left the hospital and walked towards his car, he was confronted by a man who demanded his money.Couldry, who was 59 years old and recovering from surgery, denied having any money and kept his hands in his sweatshirt pockets to protect his abdomen.The man asked Couldry if he had a knife.When Couldry said he did not, the man struck Couldry on the side of the head.Couldry who felt that he was not in any condition to fight back offered the man his cell phone.The man took the phone, and Couldry saw him walk across the street towards a park.Couldry immediately returned to the hospital and asked security to call the police.

Sonya Rundle was sitting at the bus stop next to the park at the time of the incident.Rundle saw a young man leave the park and approach an older man.Rundle said the young man was wearing jeans but no shirt.She said the older man took out his cell phone, and the young man took it and ran back to the park where a woman was waiting.Rundle saw the man put on a black jacket, and the pair took off down an alley.Rundle later positively identified Blackshear at trial as the young man who took the cell phone.

When police arrived, Couldry and Rundle provided a description of the man who took the phone and his female companion.Couldry told police he is colorblind, but that he thought the robber was wearing a light brown or tan t-shirt and Levi's jeans.A description was broadcast, and police then began to search the area.A K-9 unit from the Lynnwood Police Department was also called.

Officer Christopher Reid saw a couple that resembled the description of the suspects.The man was later identified as Blackshear and the woman as his friend Heather Ray.Officer Reid asked Blackshear and Ray if they had seen anyone matching the description of the suspects.They denied seeing anyone.Officer Reid notified other officers that he had located the suspects.He then recontacted Blackshear and Ray, informed them that they matched the description of the suspects, and asked them to remain so police could bring a witness to their location.When Couldry arrived, he positively identified Blackshear as the man who took his cell phone.Couldry later identified Blackshear in court as well.

Meanwhile the police dog tracked a scent from the park in the direction Rundle and Couldry said the man had fled.The dog tracked directly to the patrol car where Blackshear was seated.

Blackshear was arrested, and Ray gave a written statement.Ray said she saw Blackshear leave the park and go across the street to talk to "some old guy."Verbatim Report of Proceedings VRP(12/16/12)at 46.Ray saw Blackshear take something from the man and walk away.When Blackshear returned, he told Ray that he had stolen the man's phone and said they needed to walk away.Ray and Blackshear walked away together, but split up after a short time.Five minutes later, Ray received a call on her cell phone from an unidentified number.The caller was Blackshear.He directed Ray to walk toward him.They walked together towards a motel located about a block from the hospital, where they were stopped by police.The route Ray described was the same route the police dog tracked from the park to Blackshear.

Blackshear was charged with one count of second degree robbery, alleged to have been committed while he was on community custody.A jury found Blackshear guilty.The trial court imposed a standard range sentence.He now appeals.

DISCUSSION

Ineffective Assistance of Counsel

Blackshear argues that the trial court violated his right to due process by admitting Couldry's identification of him as the robber because it was the product of an impermissibly suggestive single person showup identification procedure.He also contends that Couldry's in-court identification was tainted by the impermissibly suggestive out-of-court identification.^[1] Accordingly, Blackshear contends that defense counsel was ineffective for failing to file a CrR 3.6 motion to suppress the identification evidence.

At trial, defense counsel indicated in an oral motion in limine that he was making a "request to suppress the identification by Mr. Couldry as essentially an impermissible one-person show-up."VRP(12/26/12)at 24.Defense counsel conceded that he had not addressed this issue in his trial brief, but explained that he had not been able to interview Couldry until after the trial brief was due.The trial court denied the motion, but expressly stated that defense counsel could renew the argument upon offering authority to the court and the State.Defense counsel however, did not renew the motion or object to admission of the in-court identification during trial.

To demonstrate ineffective assistance of counsel, appellant must show that: "(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different."State v. MacFarland.127 Wn.2d 322, 334-35, 899 P.2d 1251(1995).We presume that counsel's representation was effective.State v Hendrickson.129 Wn.2d 61, 77, 917 P.2d 563(1996).This presumption can be overcome by a showing that "his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy."Davis, 152 Wn.2d at 673."A failure to establish either element of the test defeats the ineffective assistance of counsel claim."In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1(2004).

On this record, we cannot determine whether defense counsel's decision not to follow up his oral motion in limine with a written CrR 3.6 motion to suppress was unreasonable.Defense counsel stated that he decided to raise the suppression issue after interviewing Couldry and looking at the photographs.However, he had not yet thoroughly researched the issue at the time he orally raised it.It is possible that upon researching the issue, defense counsel reasonably believed that the motion to suppress Couldry's identification would not be successful, particularly where the remaining evidence implicated Blackshear in the crime.It is also possible that counsel simply neglected to follow up on the issue.

Regardless of whether defense counsel's representation was deficient, we conclude that the representation did not prejudice Blackshear.To establish a due process violation in an identification procedure, a defendant bears the burden of showing the procedure was impermissibly suggestive.State v. Linares, 98 Wn.App. 397, 401, 989 P.2d 591(1999).If the court determines the showup was impermissibly suggestive, it then considers "whether the procedure created a substantial likelihood of irreparable misidentification" under the totality of the circumstances.State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58(2002).In determining the reliability of an identification, courts consider the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation.Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401(1972);Linares, 98 Wn.App. at 401.

It is well-established that showup identifications are not per se impermissively suggestive.Neil v. Biggers, 409 U.S at 198;State v. Rogers, 44 Wn.App. 510, 515-516, 722 P.2d 1349(1986)."Showups held shortly after a crime is committed and in the course of a prompt search for the suspect have been found to be permissible."State v. Booth, 36 Wn.App. 66, 71, 671 P.2d 1218(1983)(citingState v. Kraus.21 Wn.App. 388, 392, 584 P.2d 946(1978)).Showups are not necessarily suggestive even if the suspect is handcuffed and standing near a patrol car or surrounded by police officers.State v. Guzman-Cuellar, 47 Wn.App. 326, 335, 734 P.2d 966(1987);State v. Shea.85 Wn.App. 56, 60, 930 P.2d 1232(1997), abrogated on other grounds byVickers.107 Wn.App. 960, 29 P.3d 752(2001);United States v. Hines....