State v. Pierce
| Decision Date | 11 July 2006 |
| Docket Number | No. 32861-5-II.,32861-5-II. |
| Citation | 134 Wn. App. 763,142 P.3d 610 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Wade William PIERCE, Appellant. |
Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.
J. Andrew Toynbee, Lewis County Prosecuting Atty. Office, Chehalis, WA, for Respondent.
¶ 1 Wade William Pierce appeals his convictions for possession of methamphetamine, possession of drug paraphernalia, carrying a concealed weapon without a permit, and possession of a dangerous weapon. He claims that his waiver of a jury trial was not valid under the state constitution. He also claims that a firearm enhancement was improper because only a deadly weapon enhancement was charged in the information. Finally, he claims that the trial court erroneously rejected his unwitting possession defense. We affirm the convictions but remand for resentencing on the deadly weapon enhancement.
¶ 2 Lewis County Sheriff Deputy Jason Mauermann was on patrol around 5 p.m. on March 10, 2004, when he saw Pierce's car drifting over the center line. Suspecting a DUI, Mauermann pulled Pierce over. As he approached the car, Mauermann noticed a lot of movement inside. He told Pierce to put his hands on the steering wheel, but Pierce kept reaching into places that Mauermann could not see.
¶ 3 Mauermann had Pierce exit the vehicle and after he did, Mauermann noticed two plastic baggies containing what appeared to be methamphetamine on the driver's seat. After arresting Pierce, Mauermann searched Pierce and the car and found additional methamphetamine, drug paraphernalia, a digital scale, a spring-bladed knife, and a handgun.
¶ 4 Shortly after his arrest, Pierce told Mauermann that the methamphetamine was his and that he was taking it to a friend to make some money. Pierce said that he had purchased the gun for his son but that he had it with him for protection. He also said that he bought the spring-loaded knife in Oregon and thought that it was all right to carry it. Pierce told Mauermann that he was driving erratically because he was steering with his knees while trying to answer his cell phone. Mauermann concluded that Pierce was not under the influence of alcohol or drugs.
¶ 5 Pierce was charged with possession of a controlled substance with intent to deliver while armed with a deadly weapon, unlawful use of drug paraphernalia, carrying a concealed pistol without a permit, and possession of a dangerous weapon: a spring-loaded double-edged knife.
¶ 6 Shortly before trial, Pierce waived his right to a jury trial by submitting a written waiver. The following exchange then occurred in open court:
Report of Proceedings (RP) (01/13/05) at 1-2.
¶ 7 At the beginning of trial, the trial court also addressed the issue.
¶ 8 Pierce testified at trial that he purchased the gun and the scale along with the cell phone at a garage sale about an hour before Mauermann pulled him over. He said the man holding the garage sale was trying to raise money for his son, who was in jail.
¶ 9 Pierce further testified that he charged the cell phone in his car for about five minutes while he was driving but that the phone still would not come on. He then pulled into the center of the road and put his knee under the steering wheel so he could open the phone to see if the battery was there. As he opened the phone, a straw and baggies fell out onto his lap. Right then, Pierce said he heard the siren and saw Mauermann's lights behind him. Pierce said he tried to hide one of the baggies in a cigarette case.
¶ 10 The trial court convicted Pierce as charged except that it did not find intent to deliver but, rather, convicted Pierce of the lesser included offense of possession of a controlled substance. The court's written conclusions of law also said: "The defendant was armed with a deadly weapon, to wit: a .380 caliber pistol." Clerk's Papers (CP) at 19.
¶ 11 At sentencing, Pierce received an 18-month firearm enhancement.
¶ 12 Pierce claims that his waiver of his jury trial right was invalid under Washington's state constitution. He claims that a valid waiver of the state constitutional right to a jury trial requires more than a valid waiver of the corresponding federal right. He argues that a waiver of the state constitutional right to a jury trial is valid only if the defendant is fully aware of the meaning of the state constitutional right. Without citing authority, Pierce claims that he needed to understand his right to participate in jury selection, his right to an impartial jury, his right to a 12-person jury, his right to be presumed innocent until proven guilty beyond a reasonable doubt, and his right to a unanimous verdict.
¶ 13 Pierce urges us to analyze his claim under State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). The Gunwall case describes six nonexclusive criteria for determining whether, in a given situation, the Washington State constitution extends broader rights to its citizens than does the United States constitution. State v. Gunwall, 106 Wash.2d at 58, 720 P.2d 808.1
¶ 14 Pierce also cites to article I, sections 212 and 22,3 of the Washington constitution claiming they mandate a higher level of protection so that waiver of the jury trial right must be stringently examined. He claims that textual differences between the state and federal constitutions demonstrate that waiver of the state constitutional right requires more than a waiver of the corresponding federal right. He does not cite authority for these propositions. He simply claims that his waiver was invalid because the record does not demonstrate that he understood certain aspects of his jury trial right.
¶ 15 Washington courts have already determined that the right to trial by jury under Washington's state constitution is broader than the federal constitutional jury trial right. State v. Hobble, 126 Wash.2d 283, 298, 892 P.2d 85 (1995) (citing Pasco v. Mace, 98 Wash.2d 87, 99, 653 P.2d 618 (1982)). For example, the court in Pasco held that the state constitution, unlike the federal, provides the right to a jury trial for any adult criminal offense, including petty offenses. Pasco, 98 Wash.2d at 99, 653 P.2d 618.
¶ 16 Washington already has rules governing a defendant's waiver of the jury trial right. A defendant may waive the right as long as the defendant acts knowingly, intelligently, voluntarily, and free from improper influences. State v. Stegall, 124 Wash.2d 719, 724-25, 881 P.2d 979 (1994). We will not presume that the defendant waived his jury trial right unless we have an adequate record showing that the waiver occurred. State v. Woo Won Choi, 55 Wash. App. 895, 903, 781 P.2d 505 (1989), superseded on other grounds as recognized by State v. Anderson, 72 Wash.App. 453, 458-59, 864 P.2d 1001 (1994) (citing Seattle v. Williams, 101 Wash.2d 445, 451, 680 P.2d 1051 (1984)).
¶ 17 In examining the record, we consider whether Pierce was informed of his constitutional right to a jury trial. Woo Won Choi, 55 Wash.App. at 903, 781 P.2d 505. We also examine the facts and circumstances generally, including Pierce's experience and capabilities. Woo Won Choi, 55 Wash.App. at 903, 781 P.2d 505. A written waiver, as CrR 6.1(a)4 requires, is not determinative but is strong evidence that the defendant validly waived the jury trial right. Woo Won Choi, 55 Wash.App. at 904, 781 P.2d 505. An attorney's representation that his client knowingly, intelligently, and voluntarily relinquished his jury trial rights is also relevant. Woo Won Choi, 55 Wash.App. at 904, 781 P.2d 505. Courts have not required an extended colloquy on the record. Stegall, 124 Wash.2d at 725, 881 P.2d 979; State v. Brand, 55 Wash.App. 780, 785, 780 P.2d 894 (1989). Instead, Washington requires only a personal expression of waiver from the defendant. Stegall, 124 Wash.2d at 725, 881 P.2d 979.
¶ 18 Washington's rule on jury trial waiver contrasts with the rules for waiving other rights. For example, when a defendant wishes to waive the right to counsel and proceed pro se, the trial court must usually undertake a full colloquy with the defendant on the record to establish that the defendant knows the relative advantages and disadvantages of proceeding pro...
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