State v. Davis

• Decision Date: 04 September 2013
• Docket Number: No. 42844–0–II.,42844–0–II.
• Citation: 308 P.3d 807,176 Wash.App. 385
• Parties: STATE of Washington, Respondent, v. Tawana Lea DAVIS, Appellant.
• Court: Washington Court of Appeals

176 Wash.App. 385

308 P.3d 807

STATE of Washington, Respondent,

v.Tawana Lea DAVIS, Appellant.

No. 42844–0–II.

Court of Appeals of Washington,

Division 2.

Sept. 4, 2013.

Jordan Broome McCabe, McCabe Law Office, Bellevue, WA, for Appellant.

Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA, for Respondent.

QUINN–BRINTNALL, J.

[176 Wash.App. 386]¶ 1 On September 23, 2011, a jury found Tawana Lea Davis guilty of three counts of unlawful delivery of a controlled substance (methamphetamine) within 1,000 feet of a school bus route stop or perimeter of a school ground, and unlawful use of a building for drug purposes. ¹ Davis appeals, arguing that (1) her counsel was ineffective for failing to challenge the probable cause basis for the search warrant; (2) insufficient evidence supports the delivery of a controlled substance convictions; (3) insufficient evidence supports the school zone enhancements; (4) the trial court violated her right to present a complete defense by limiting certain testimony bearing on the credibility of the State's witnesses; (5) the trial court erred in allowing the presentation of impermissible hearsay evidence; and (6) RCW 69.53.010(1), the statute criminalizing use of a building for drug purposes, is unconstitutional as applied. Davis also argues, in a statement of additional grounds (SAG), that she received ineffective assistance of counsel because trial counsel failed to “object, request a mistrial, or address in any way” that a juror was nodding off during part of the trial; the Bremerton Police Department violated its own manual in handling the confidential informants in this case; and the cumulative error doctrine requires reversal. SAG at 2.

¶ 2 In the published portion of this opinion, we address Davis's argument that RCW 69.53.010(1) is unconstitutional as applied. Because RCW 69.53.010(1) does not apply to the circumstances alleged in this case, we vacate Davis's conviction for unlawful use of a building for drug purposes and remand for resentencing. The remaining issues are fact specific and are addressed in the unpublished portion of our opinion; because Davis received effective assistance of counsel, probable cause supported issuing the search warrant, sufficient evidence supports her delivery of a controlled substance convictions and school zone enhancements, and the remainder of Davis's arguments lack merit, we affirm Davis's unlawful delivery of a controlled substance convictions along with the school zone enhancements.

FACTS

Background

¶ 3 In November 2010, Bremerton Police Detective Matthew Musselwhite was conducting several methamphetamine-related drug investigations in the City of Bremerton. As part of that effort, Musselwhite “intended on starting an investigation into Tawana Davis's methamphetamine distribution, specifically from the Chieftain Motel,” where Davis lived and worked as a maid. 2 Report of Proceedings (RP) at 165–66. Musselwhite had Laura Sutton—a confidential informant (CI) seeking a favorable recommendation from law enforcement on pending drug charges—arrange to purchase drugs from Davis.²

¶ 4 A little before noon on November 16, Detective Musselwhite and Bremerton Police Sergeant Randy Plumb met with Sutton at a secure location not far from the Chieftain. The officers conducted a “thorough search of Ms. Sutton's person, including her vehicle.” 2 RP at 170. Although no contraband was found on Sutton, officers did locate “some drug paraphernalia and a small amount of methamphetamine in the car.” 2 RP at 170. After briefly interviewing Sutton about these contraband items, the officers determined that Sutton was not “trying to hide anything” and decided to continue with the controlled buy. 2 RP at 172. Musselwhite gave Sutton $80 in prerecorded funds, discussed the plan for the buy, then told Sutton where to meet him and Plumb after “the deal was done.” 2 RP at 173. At that point, Sutton left in her own vehicle.

¶ 5 The officers followed, keeping visual surveillance of Sutton's vehicle the whole time. After Sutton arrived at the Chieftain, Detective Musselwhite “saw her get out of her car and walk in the direction of the ... hotel office” but then “lost sight of her after she walked towards the rooms.” 2 RP at 174. According to Musselwhite, the Chieftain presented “a bit of a surveillance problem” because law enforcement could not come too close to the motel without residents alerting other residents of their presence. 2 RP at 179. Thus, although the officers could maintain visual surveillance of CIs' vehicles from afar, they could not see which motel rooms CIs entered to purchase drugs.

¶ 6 After about 10 minutes, Sutton reemerged from the hotel and returned to the secure location. At the secure location, Sutton gave Detective Musselwhite “about a gram” of methamphetamine which she said she purchased from Davis. 2 RP at 180. After discussing the details of the transaction, Musselwhite thoroughly searched Sutton's person while Sergeant Plumb searched her vehicle. Neither search revealed hidden contraband or money. Next, Musselwhite showed Sutton a photomontage he had previously prepared. Sutton immediately selected a photo of Davis as the person she had purchased the drugs from.

¶ 7 On December 3, 2010, Sutton performed a similar controlled buy with Detective Musselwhite and Sergeant Plumb. During this second controlled buy, she purchased .4 grams of methamphetamine from Davis.

¶ 8 To strengthen his narcotics distribution cases, Detective Musselwhite often used “multiple informants” to purchase drugs from “the same target.” 2 RP at 206. Thus, on December 30, 2010, Musselwhite asked another CI familiar with Davis, Robert White, to purchase methamphetamine from her. White was already working as a CI for Musselwhite in a different case and, in that case, “all of his information that was provided ... was found to be true.” 2 RP at 207.

¶ 9 On the day of this buy, Detective Musselwhite and Bremerton Police Detective Steven Polonsky met White at a secure location, searched his person and vehicle for contraband, and talked about the plan. Musselwhite gave White $130 of prerecorded money to purchase a “teener,” or approximately 1.75 grams of methamphetamine. 2 RP at 210. As with the buys involving Sutton, the detectives lost sight of White shortly after he reached the Chieftain. White left the Chieftain only a few minutes after arriving. As he later told Musselwhite, rather than meeting Davis in her motel room as planned, the deal happened “hand-to-hand through a car window in the parking lot of the motel” because Davis was leaving as White arrived. 2 RP at 213.

¶ 10 After following White back to the secure location, Detectives Musselwhite and Polonsky searched White's person and vehicle, finding no contraband. White gave Musselwhite a baggie of what appeared to be imitation narcotics. The officers confronted White but he maintained that because the buy happened so quickly (and not in Davis's motel room as expected), he did not realize that the substance was fake. White told Musselwhite that during the next controlled buy, he would confront Davis about the fact that “that stuff was bad.” 2 RP at 212.

¶ 11 The final controlled buy took place On January 14, 2011. Detective Musselwhite and Sergeant Plumb used White as the CI for the buy. At the secure location, neither officer found contraband on White's person or in his car. Musselwhite “planned to use a video recording device on the informant during the course of the buy” because the equipment was available and after setting up the camera, gave White $140 in prerecorded funds.³ 2 RP at 218. As before, Musselwhiteobserved White leave his vehicle at the Chieftain but lost sight of him before he entered Davis's room. Davis had apparently switched rooms since White was last at the hotel and, accordingly, White “had to go to the front desk and ask them because [he] couldn't find [Davis's] room.” 3 RP at 407.

[176 Wash.App. 391]¶ 12 After about 10 minutes, White returned to his vehicle and left to meet Detective Musselwhite and Sergeant Plumb at the secure location. White gave Musselwhite the baggie “he said he obtained from [Davis] in the motel room in room 102” and Musselwhite “immediately noticed that it was far less methamphetamine in the baggie” than was expected. 2 RP at 220. Plumb searched White's vehicle and, in the backseat, found “pieces of methamphetamine ... laying openly on the backseat.” 2 RP at 220. White denied knowing how the drugs got on the backseat but later admitted to dumping “some in the back for later.” 3 RP at 417. White also told Musselwhite that upon Davis insisting that it was “the house rules,” he dumped a little of the methamphetamine out on Davis's table for her boyfriend. 3 RP at 415. Because of this, White presumed that, unlike the first buy, the methamphetamine was real.

¶ 13 On January 18, following the CIs' three successful purchases of methamphetamine from Davis, Detective Musselwhite obtained a search warrant for the Chieftain's room 102. After knocking and announcing police presence multiple times, Musselwhite attempted unsuccessfully to open the door with a room key. After that, he “breached the door by kicking it, entered, and contacted Ms. Davis.” 2 RP at 233. After reading Davis her Miranda⁴ rights, Musselwhite had a conversation with her in which she acknowledged her actions in distributing and selling methamphetamine.

¶ 14 As Detective Musselwhite spoke with Davis, other officers searched her motel room. They found “some drug paraphernalia, some digital scales, packaging materials, unused packaging materials, some used packaging materials that had residue in them that appeared to be methamphetamine residue, [and] some other items that are associated with methamphetamine distribution and usage.” 3 RP at 251. Davis admitted that all of the items were hers. After the conversation, Davis “was transported to the Kitsap County Jail and booked...