State v. Guzman-Cuellar

• Decision Date: 30 March 1987
• Docket Number: GUZMAN-CUELLA,No. 15783-3-I,A,15783-3-I
• Citation: 47 Wn.App. 326,734 P.2d 966
• Parties: STATE of Washington, Respondent, v. Luisppellant.
• Court: Washington Court of Appeals

Page 326

47 Wn.App. 326

734 P.2d 966

STATE of Washington, Respondent, v. Luis GUZMAN-CUELLAR, Appellant.

No. 15783-3-I.

Court of Appeals of Washington Division 1.

March 30, 1987.

Reconsideration Denied May 7, 1987.

Neil Fox, Washington Appellate Defender, Seattle, for Luis Guzman-cuellar

Barbara Linde, Deputy Prosecuting Atty., Seattle, for the State.

RINGOLD, Acting Chief Judge.

Luis Guzman-Cuellar appeals from a judgment and sentence entered after a jury conviction of murder in the first degree.

On the evening of July 1, 1984, six people were at the Duchess Tavern in Seattle. The people included the bartender, Robert Van Syoc; four regular patrons, Donna Stake, David Scott Hartshorn, James Hatch and Patrick Thornton; and a stranger, Luis Guzman-Cuellar (Guzman).

Guzman participated in a game of pool with Van Syoc, Thornton and Hatch in which he lost two dollars. The game appeared to be friendly and no hostilities were evident. Thornton went over to Guzman to collect the two dollars after the game. They were observed speaking to each other but no money was seen changing hands. Guzman then left the tavern.

Shortly thereafter, around 1:50 a.m., someone burst through the front door of the tavern, fired a pistol and fled. Thornton was hit in the back by the shot and later died due to the wound. Van Syoc, Hatch and Hartshorn all recognized the assailant as the same person with whom they had played pool earlier that evening. Stake did not recall seeing the assailant prior to the shooting. The police were summoned and obtained a description of the assailant. The following description was broadcast to all police cars about 2 a.m.:

Mexican or Cuban male, 30-33, 5'4"", 120 lbs., medium or dark complexion, wearing a white sweatshirt with cutoff Officer John Guich was patrolling the area near the tavern when he heard the broadcast. At about 2:30 a.m., Guich was approximately 3/4 of a mile from the tavern when he spotted an individual walk out of a residential driveway, cross the street and enter another yard walking between a fence and a garage. Though Guich had not received any report of trespassing that evening, his first reaction was that the individual might be a prowler. He called to the individual to come over to the car.

sleeves and a brown fedora hat, having long, dark curly hair, a beard, a mustache or goatee and a mole or scar or birthmark on his nose, possibly on a ten speed bicycle, heading in an unknown direction.

Despite a language barrier, Guich was able to ascertain that the individual, Guzman, lived approximately 10 blocks away and was new to the area. After a short while, Guich recognized that Guzman's appearance matched that of the shooting suspect in several respects. Guich patted down Guzman and handcuffed him, and waited for another police unit.

After the backup unit arrived, Guich continued with the trespass investigation. He ascertained that Guzman did not have permission to be in the yard where he was stopped. Guzman was arrested for criminal trespass.

At this point, Guzman was turned over to the other police unit for transport to the tavern for a showup. Van Syoc and Hartshorn identified Guzman as the man with whom they played pool earlier and the one who shot Thornton. Stake asserted that Guzman looked "real familiar" and that she was 80 percent sure he was the assailant. Hatch did not take part in the showup and had his first opportunity to identify Guzman as the assailant at trial.

Guzman was taken to the police station for interrogation. After waiving his rights, Guzman admitted going to the tavern and playing pool. He denied being the assailant.

Two days after the shooting, a pistol with a broken handle was found inside a glove lying on the front lawn of the residence where Guzman was initially stopped. The gun After a trial by jury, Guzman was convicted of murder in the first degree as charged. The jury also returned a special verdict that he was armed with a deadly weapon.

                was later identified as the murder weapon.   Martin Easterling, a bartender at another tavern, testified that this pistol was the same one he had seen Guzman carrying in a glove in the waistband of his pants weeks before the shooting
                

Guzman appeals asserting a number of errors.

PROPRIETY OF INITIAL STOP

Guzman argues that he was illegally seized when Officer Guich asked him to stop and come over to the police car. Guzman maintains that the officer lacked a reasonable objective suspicion of criminal activity that would justify an investigatory stop. He contends that traveling on foot from one private yard to another is quite consistent with a number of lawful and normal actions. He argues that the investigatory stop and subsequent arrest for criminal trespass were not warranted and were merely utilized as a pretext to detain him to facilitate the murder investigation.

To justify an investigatory stop, an officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Kennedy, 107 Wash.2d 1, 5, 726 P.2d 445 (1986); State v. Williams, 102 Wash.2d 733, 739, 689 P.2d 1065 (1984). Officer Guich observed a man leave the driveway of one residence, cross the street and enter the fenced side yard of another residence shortly after 2 a.m. He thought the man might be a prowler. ¹ These facts were sufficient to warrant an investigatory stop.

Citing State v. Larson, 93 Wash.2d 638, 645, 611 P.2d 771 (1980), Guzman argues that the fact that the officer observed this activity in the early morning hours is irrelevant to the determination of the propriety of the initial Larson is inapplicable to this situation where early morning presence is supplemented by observations that could justify an inference that a crime had or was about to occur. The suspicious nature of the activity may be considered in conjunction with the time of occurrence.

                stop.   Guzman maintains that Larson stands for the proposition that mere presence in a high crime area during such hours does not justify an investigatory stop
                

Likewise, the fact that the police had not received a report of prowling in the area is not dispositive. It is generally recognized that crime prevention and detection are legitimate purposes for an investigatory stop. State v. Kennedy, supra, 107 Wash.2d at 5-6, 726 P.2d 445; 3 W. LaFave, Search and Seizure § 9.2 (1978). The police should not be required to wait for a crime report before being permitted to stop an individual to investigate suspicious activity evidencing commission of a crime.

Guzman also argues that the stop was unlawful because it is a defense to criminal trespass if the "actor reasonably believed that the owner of the premises ... would have licensed him to enter or remain...." Former RCW 9A.52.090(3). Guzman contends that Officer Guich did not consider the possible applicability of this defense before stopping him.

To justify the stop, Officer Guich needed only specific and articulable facts which, taken together with rational inferences from those facts, would reasonably warrant the intrusion. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879-1880; State v. Kennedy, supra, 107 Wash.2d at 5, 726 P.2d 445. Officer Guich had such facts before him and did not need to determine the absence of a defense prior to conducting the investigatory stop.

The stop of Guzman was reasonable under both article 1, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. State v. Kennedy, supra at 13, 726 P.2d 445.

Scope of the Investigatory Stop

In assessing the proper scope of the intrusion under the The initial purpose of the stop in this case was to ascertain if Guzman was a prowler. The scope of an investigatory stop, however, may be enlarged or prolonged as required by the circumstances if the stop confirms or arouses further suspicions. State v. Davis, 3 Conn.App. 359, 488 A.2d 837, 840 (1985); State v. Merklein, 388 So.2d 218, 219 (Fla.App.1980), rev. denied, 392 So.2d 1377 (1981); People v. Hardy, 142 Ill.App.3d 108, 96 Ill.Dec. 447, 452, 491 N.E.2d 493, 498 (1986); LaFave & Israel, Criminal Procedure § 3.8, at 298 (1984). Upon recognizing Guzman as a possible murder suspect, the scope of the investigatory stop broadened. As a lone officer in that situation, Officer Guich acted reasonably in patting down and handcuffing Guzman. State v. Williams, supra, 102 Wash.2d at 740 n. 2, 689 P.2d 1065; State v. Sweet, 44 Wash.App. 226, 235, 721 P.2d 560 (1986); State v. Wakeley, 29 Wash.App. 238, 243 n. 1, 628 P.2d 835 (1981) ("handcuffing may be 'reasonable as a corollary to the lawful stop.' ")

                federal and state constitutions, our Supreme Court has set forth three factors for consideration:  (1) the purpose of the stop;  (2) the amount of intrusion upon the suspect's liberty;  and (3) the length of time the suspect is detained.   State v. Williams, supra, 102 Wash.2d at 740, 689 P.2d 1065;   State v. Wheeler, 43 Wash.App. 191, 196, 716 P.2d 902 review granted, 106 Wash.2d 1001 (1986)
                

Given the purpose of the initial stop and the facts that the stop revealed, Officer Guich's actions did not exceed the proper scope of an investigatory stop.

TRANSPORT TO THE SHOWUP

After Guich arrested Guzman for criminal trespass, he turned him over to the other police unit for transportation to the tavern for a showup. Guzman and the officers arrived at the tavern approximately 10-25 minutes after the initial investigatory stop by Officer Guich. Guzman argues that the transport to the showup was unlawful because the officers lacked probable cause to arrest him for the murder.

As stated in Commonwealth v. Lumb, 288 Pa.Super. 11, 430 A.2d 1188 (1981) where, as here, a valid custodial arrest is made and the arrested person is subjected to identification proceedings related to an entirely separate...