State v. Moore, 34327-8-III
| Decision Date | 21 September 2017 |
| Docket Number | No. 34327-8-III,34327-8-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CARL R. MOORE JR., Appellant. |
SIDDOWAY, J. — Carl Moore appeals his convictions for possession of a controlled substance (methamphetamine), arguing that the trial court erred when it failed to suppress evidence discovered in a search incident to his second warrantless arrest for a single crime and impermissibly commented on the evidence, his trial lawyer provided ineffective assistance of counsel by failing to object to irrelevant and prejudicial testimony, and the trial court imposed discretionary legal financial obligations (LFOs) without inquiring into Mr. Moore's current or future ability to pay.1 The only possible error was not preserved. We affirm.
On June 4, 2015, detectives with the Quad Cities Drug Task Force attempted to locate Shannon Grove, who had been cooperating with law enforcement as a controlled buyer of narcotics but had "[gone] sideways" on the task force; Detective Jonathan Coe, a task force member, described her as "dealing behind our backs" in violation of her contract. Report of Proceedings (RP) at 8. Knowing from Ms. Grove's prior disclosures that she obtained methamphetamine from out-of-town suppliers at Gary Kemper's home in Clarkston Heights, detectives surveilled the area of his home in hopes of sighting her.
As expected, Ms. Grove was observed leaving Mr. Kemper's home in the passenger seat of a red pickup truck driven by Carl Moore. Officers followed the truck and initiated a stop. While another officer spoke with Ms. Grove, Detective Coe spoke with Mr. Moore.
The detective's knowledge of Mr. Moore's background combined with his presence at the Kemper home and accompaniment by Ms. Grove led Detective Coe tosuspect Mr. Moore was using or selling methamphetamine. After advising him of his Miranda2 rights, Detective Coe questioned Mr. Moore, asking if he had any narcotics. Mr. Moore said he did not, but his demeanor suggested otherwise to the detective, who told Mr. Moore, "Look, Carl, got drugs on you [sic], I can work with you, we can help take care of this, so why don't you just take 'em out." RP at 88. Mr. Moore did, emptying his pockets of a "baggie" containing three smaller baggies of methamphetamine and a glass smoking pipe. In response to Detective Coe's proposal that Mr. Moore ameliorate charges by cooperating with the task force, Mr. Moore answered that he would. The detective put Mr. Moore in handcuffs, placed him under arrest for the drug possession, and had other officers transport him to the jail, telling Mr. Moore, "I'll get back to you." RP at 22.
Moments after officers left for the jail with Mr. Moore, Detective Coe was told that a robbery suspect who had also been at the Kemper home was attempting to elude officers who had signaled him to pull him over. The detective got in his own car to assist in the pursuit. After the pursuit escalated into an officer-involved shooting, Detective Coe and others were sequestered indefinitely for an investigation. Knowing it would be difficult to timely complete a probable cause affidavit in support of Mr. Moore's arrest and detention, Detective Coe called the jail and spoke with Mr. Moore. He told Mr.Moore he would be released without charges in exchange for cooperating with law enforcement, and told Mr. Moore to call him after his release.
Mr. Moore did not thereafter call Detective Coe, and the detective's calls to the cell phone number he had been given by Mr. Moore were not answered. Because Mr. Moore was transient, Detective Coe was unable to locate him.
Then, on October 7, 2015, while Detective Coe was surveilling another house known to be a narcotics trafficking site, he saw Mr. Moore arrive at the house, enter, and leave about 15 minutes later. After a deputy in a marked car pulled over Mr. Moore's pickup, Detective Coe arrived, pointed out to Mr. Moore that he had never made contact or done anything to cooperate, and stated, "I'm going to arrest you for the drugs that you had." RP at 31. During a search incident to arrest, the detective found narcotics in Mr. Moore's pocket. Detective Coe then completed probable cause reports for both arrests.
The State charged Mr. Moore with two counts of possession of methamphetamine, one each for the substances discovered in June and October. In a pretrial motion to suppress, Mr. Moore argued that the information available to task force members at the time of the June 4 stop "fail[ed] to give rise to a reasonable suspicion of specific criminal activity on the part of either Mr. Moore or his passenger" so, "the stop of Mr. Moore's vehicle was unlawful and all fruits of the unlawful stop must be suppressed." Clerk's Papers (CP) at 32-33. He argued that the October stop "constitutes fruit of the poisonous tree, as it is the un-attenuated byproduct of the initial unlawful stop on June 4." CP at 33.The trial court denied the suppression motion, concluding that officers had reasonable suspicion on June 4 that the occupants of Mr. Moore's pickup truck were involved in illegal drug activities. It concluded that the controlled substances seized on June 4 and October 7 were, respectively, the result of a lawful investigative detention and of a lawful search incident to arrest.
Following a one-day trial at which Detective Coe was the only witness, the jury found Mr. Moore guilty on both counts. The baggies alleged to be those obtained from Mr. Moore in June and October and lab reports identifying their contents as methamphetamine had been offered by the State and admitted without objection.
The trial court sentenced Mr. Moore to eight months for each count, to run concurrently, and imposed $4,770 in LFOs. While the judgment and sentence contained a boilerplate finding of Mr. Moore's ability to pay the LFOs, the trial court did not inquire into ability to pay on the record. Mr. Moore did not object. He now appeals.
Mr. Moore first argues that the evidence obtained during the October arrest should have been suppressed because re-arresting Mr. Moore on the same evidence that supported his June arrest was unconstitutional under the Fourth Amendment to the United States Constitution without first obtaining a warrant. His reasoning is this:
Mr. Moore admits that no Washington case directly supports his challenge.3 He contends this argument was sufficiently raised below by defense counsel's claim that the October stop had no legal basis. Alternatively, he argues that it was ineffective assistance of counsel not to have made this argument in support of suppression.
This argument was not sufficiently raised in the trial court. Neither in hismemorandum in support of suppression nor at the hearing did defense counsel mention CrR 3.2.1, or the two cases whose reasoning Mr. Moore now asks us to embrace, or, for that matter, any Fourth Amendment jurisprudence requiring judicial determination of probable cause following a warrantless arrest.
RAP 2.5(a) states the general rule for appellate disposition of issues not raised in the trial court: appellate courts will not entertain them. State v. Guzman Nunez, 160 Wn. App. 150, 157, 248 P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012). This rule exists to afford the trial court an opportunity to correct errors as they are raised, thereby preserving the use of judicial resources. Scott, 110 Wn.2d at 685; Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983).
Mr. Moore argues that if the error was not preserved, the conviction is nonetheless reversible on the basis of ineffective assistance of counsel. Effective assistance of counsel is guaranteed by both the federal and state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). To demonstrate ineffective assistance of counsel, a defendant must show two things: "(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 probabilitythat, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). When a claim can be disposed of on one ground, this court need not consider both. Strickland, 466 U.S. at 697.
Washington courts strongly presume counsel's representation was effective. McFarland, 127 Wn.2d at 335. A claim of ineffective assistance of counsel can be raised for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
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