State v. Long
| Decision Date | 14 August 2012 |
| Docket Number | 41613-1-II |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. RICHARD THOMAS LONG, Appellant. |
UNPUBLISHED OPINION
Richard Thomas Long appeals his conviction and sentence for unlawful possession of methamphetamine. He argues that (1) the trial court's failure to hold a CrR3.5 hearing violated the criminal rule and his constitutional rights; (2) insufficient evidence supports his conviction for constructive possession of methamphetamine; (3) he received ineffective assistance of counsel because (a) counsel failed to present specific legal authority, and (b) counsel failed to object to prejudicial irrelevant evidence; and (4) the trial court erred by denying him a sentence below the standard range. We affirm his conviction and sentence because there are no reversible errors.
Department of Corrections (DOC) Specialist John Tulloch had a DOC arrest warrant for Richard Long. Based on a tip that Long was staying at a local address, Officer Tulloch, Community Corrections Officer (CCO) Michael Boone and Thurston County Deputy Sheriff Brian Cassidy visited the address. Looking into the yard, Deputy Cassidy saw someone running towards the back of the property. The homeowner told Officer Tulloch that Long was staying on the property and that Officer Tulloch should look for him in the trailer at the back of the property.
Officer Tulloch and CCO Boone approached the trailer, identifying themselves and their intent. After receiving no response they entered the trailer and found Long squatting on a bed in the corner, such that a bulkhead wall concealed him from direct observation. They did not see anyone else in or around the trailer. Officer Tulloch saw a black backpack on the bed immediately next to where Long was squatting. He asked Long if the backpack belonged to him and Long said, "yes." 1 Report of Proceedings (RP) at 36. When Officer Tulloch lifted the backpack to bring it with him as he left, he saw two pipes, side by side, where the bag had been—a thicker stone pipe and a thinner, clear glass pipe with burnt residue on the bowl. Officer Tulloch asked Long if the pipes were his; Long replied that the marijuana pipe (thicker pipe) was his and that he did not know to whom the other pipe belonged. The Washington State Patrol laboratory identified methamphetamine residue in the glass pipe and marijuana residue in both the stone pipe and in a tin container found in Long's possession.
The State charged Long with one count of unlawful possession of a controlled substance—methamphetamine, contrary to RCW 69.50.4013(1). The parties signed an ex parte consolidated omnibus order providing, "Defendant's statements may be admitted into evidence without hearing by stipulation of the parties." Clerk's Papers (CP) at 8.
Officer Tulloch testified that Long told him that the backpack belonged to him. Long did not object. There were no questions or answers regarding a Miranda warning.[1] Officer Tulloch also testified that Long told him that the marijuana pipe belonged to him and that he did not know to whom the other pipe belonged. Long did not object.
CCO Boone testified that he and Officer Tulloch restrained Long. As with Officer Tulloch's testimony, there were no questions or answers regarding a Miranda warning. During cross-examination, CCO Boone testified that after restraining Long, he searched him and found a small container with marijuana residue. Long asked CCO Boone if he found any controlled substances other than the marijuana in that container and CCO Boone stated that he did not.
Deputy Cassidy testified that he assisted the other officers. He testified that he asked them whether the backpack actually belonged to Long, and Officer Tulloch told him that it did. Long did not object.
During closing argument, the State told the jury:
[W]e all sat through voir dire and listened to the number of people in the panel that said I don't think marijuana is a big deal, I think pot is no big deal. So it's not surprising that he would claim ownership of the marijuana pipe but . . . he would not claim ownership of that [methamphetamine] pipe.
During Long's closing argument, he told the jury that when police arrested him, he did not give a false name, or try to resist or run away. Long told the jury, that he readily admitted that the backpack belonged to him. He further argued that when police asked, "Whose stuff is this?" He replied, "Marijuana pipe is mine, but that's [the other pipe] not mine." 1 RP at 187. Long emphasized that he was cooperative and displayed no signs of using methamphetamine. Long reminded the jury that he was not on trial for possessing paraphernalia or for possessing marijuana residue and argued that the State had not proven his actual charges. The jury found Long guilty of one count of unlawful possession of a controlled substance—methamphetamine.
At sentencing, Long requested an exceptional sentence downward based on the de minimis amount of methamphetamine involved, the lack of evidence of his actual methamphetamine use, credit for time served, and because some jurors did not like that the State brought charges on residue cases.
The State argued that an exceptional sentence downward was not justified and instead requested a standard range sentence of 21 months. The sentencing court imposed an 18-month sentence, stating, "I did not find any exceptional sentence" and telling Long's counsel, "Mitigating factors, I could not do that." 2 RP at 229.
Long alleges several errors on appeal and we address each alleged error in turn.
Long argues that the trial court erred in admitting his statements to the police without holding a CrR 3.5 hearing. But Long stipulated to the admission of his statements and thereby waived any requirement to hold a CrR 3.5 hearing. Although a CrR 3.5[2] hearing is mandatory, under proper circumstances, a defendant can waive a voluntariness hearing and the formal entry of written findings. State v Nogueira, 32 Wn.App. 954, 957, 650 P.2d 1145 (1982). CrR 3.5 hearings are procedural devices designed to protect constitutional rights, thus, "[a]n attorney is impliedly authorized to stipulate to and to waive procedural matters" including a CrR 3.5 hearing. State v. Fanger, 34 Wn.App. 635, 637, 663 P.2d 120 (1983). A CrR 3.5 hearing "may be waived if done so knowingly and intentionally." Fanger, 34 Wn.App. at 637. Where counsel waives the CrR 3.5 hearing, he may not assail the court's failure to conduct one. State v. Ralph, 41 Wn.App. 770, 776, 706 P.2d 641, review denied, 104 Wn.2d 1027 (1985).
In Fanger, the defense filed a handwritten notation, stipulating waiver of a pretrial omnibus hearing. Fanger, 34 Wn.App. at 636. Someone acting in the name of Fanger's trial counsel signed the document. Fanger, 34 Wn.App. at 636. Fanger's trial court did not hold a CrR 3.5 confession hearing; at his trial, the interviewing officer and the detective testified to Fanger's statements without objection. Fanger, 34 Wn.App. at 636. On appeal, we held that based on the pretrial document, signed by his attorney's agent, and filed with the court, Fanger knowingly and intelligently waived the hearing. Fanger, 34 Wn.App. at 636.
Additionally, we held that Fanger also impliedly waived his rights under CrR 3.5 by failing at trial to raise the issue of invalid express waiver and by failing to object to the officers' testimony. Fanger, 34 Wn.App. at 638. We reasoned that a voluntariness hearing is not required "'absent some contemporaneous challenge to the use of the confession.'" Fanger, 34 Wn.App. at 638 (quoting State v. Rice, 24 Wn.App. 562, 566, 603 P.2d 835 (1979)).
At trial, Long and the State signed an ex parte consolidated omnibus order providing, "Defendant's statements may be admitted into evidence without hearing by stipulation of the parties." CP at 8. In addition, Long did not object to the officers' testimony at trial. Here, as in Fanger, Long's counsel stipulated to the admission of his custodial statements and Long did not object to the officers' statements at trial. We conclude that Long expressly and impliedly waived his CrR 3.5 hearing.
Long argues that insufficient evidence supports his conviction for methamphetamine possession because the State did not show that he resides in the trailer or that he otherwise had dominion and control over the trailer. We conclude that sufficient evidence supports Long's constructive possession of methamphetamine conviction. We test the evidence's sufficiency by asking whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). When a defendant challenges the evidence's sufficiency in a criminal case, we draw all reasonable inferences from the evidence in the State's favor. State v. Partin, 88 Wn.2d 899, 906–07, 567 P.2d 1136 (1977), overruled on other grounds by State v Lyons, __ Wn.2d __, 275 P.3d 314, 320 (2012). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the evidence's persuasiveness. State v. Raleigh, 157 Wn.App. 728, 736-37, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029 (2011).
To convict Long of possession of a controlled substance, the State needed to prove beyond a reasonable doubt that Long actually or constructively possessed methamphetamine. RCW 69.50.4013, .206(d)(2). Possession of a controlled substance is a strict liability crime. State v. George, 146 Wn.App. 906, 919, 193 P.3d 693 (2008). Possession may be actual or constructive. State v. Staley, 123 Wn.2d...
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