State v. Rhone, No. 34063-1-II (Wash. App. 3/20/2007)
| Decision Date | 20 March 2007 |
| Docket Number | No. 34063-1-II.,34063-1-II. |
| Parties | STATE OF WASHINGTON, Respondent, v. THEODORE ROOSEVELT RHONE, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Pierce County Superior Court. Docket No: 03-1-02581-1. Judgment or order under review. Date filed: 11/18/2005. Judge signing: Honorable Linda Cj Lee.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 Ne 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.
Theodore Roosevelt Rhone appeals his convictions of first degree robbery with a firearm enhancement, unlawful possession of a controlled substance with intent to deliver also with a firearm enhancement, and first degree unlawful possession of a firearm. We hold that the police arrested Rhone when they seized him by force, handcuffed him, and placed him in a patrol car, the arresting officer had confirming information that there was a gun in the car, and the car had just come from the robbery site. We further hold that the officer had probable cause to arrest and that an arrest took place, even though he did not formally enunciate an arrest until after the search. Thus, he properly seized the firearm and drugs in a search incident to arrest. We also hold that his trial was fair, evidence was properly admitted, substantial evidence supports the controlled substance conviction, there was no ineffective assistance of counsel, and his sentence as a persistent offender was appropriate. We affirm.
On May 30, 2003, Pierce County Sheriff's Deputy David Shaffer received a dispatch indicating that there had been a suspicious vehicle in the Jack in the Box drive-thru window. The dispatch relayed that a red Camaro with three occupants, two black men and a white woman, had been through the drive-thru window. The car had a license plate number of 677 HCS. The dispatch also informed Deputy Shaffer that one of the occupants had displayed a gun and demanded money for a debt.
Fortuitously, Deputy Shaffer recognized the car description and license plate. He was a neighborhood patrol officer in Lakewood and had seen that car in his district at a known drug house.1 Acting on that knowledge, Deputy Shaffer drove to the house and found the red Camaro.
Concerned that the occupants of the car might have a weapon because of the dispatch and the location in Lakewood, Deputy Shaffer executed a felony stop with his weapon drawn. At the time of the stop, Rhone was getting out of the car's passenger side. When Deputy Shaffer ordered him to show his hands, Rhone slowly and deliberately looked at Deputy Shaffer and then leaned back into the car. These movements made Deputy Shaffer believe that Rhone had a weapon or was reaching for one. Rhone finally complied with the deputy's commands and Deputy Shaffer detained him.
By this time, other officers arrived and they removed the other two occupants, Phyllis Burg and Cortez Brown, from the car. As the officers removed Burg, she told them that they had just come from the Jack in the Box. The officer patted down all three occupants. Rhone had a knife without a handle, someone else's checkbook, and a $20 bill. All three were handcuffed and placed in separate police cars. As Deputy Shaffer started to return to the Camaro, Burg told him that there was a gun in the car.2 At some point during this process, Officer Darin Miller left to investigate the Jack in the Box events.
At this point, Deputy Shaffer decided to search the Camaro to locate and secure the gun. As he approached the car, he did not see anything in plain sight. After he began searching, he found the gun in a plastic bag wrapped inside a towel. Deputy Shaffer did not stop searching at that point and found a purple Crown Royal bag and small plastic tube. Inside these containers, he found crack cocaine.
Deputy Shaffer did not, however, declare that he was arresting the occupants until Officer Miller called him from the Jack in the Box. Officer Miller relayed that the Camaro had gone through the drive-thru window, contacted an employee, and demanded money from him. When, the employee refused, the occupants displayed a gun and the employee threw $30 into the vehicle. After receiving this information, Deputy Shaffer arrested all three for armed robbery.
At trial, Isaac Miller testified that he worked at Jack in the Box. He admitted that he had owed Rhone money but claimed that Brown, the Camaro's other male occupant, had already collected it. Miller noticed, however, that Rhone was holding a gun in his lap and pointing it at him. Miller decided to give Rhone the money and threw what he had in his pocket into the car.
Burg testified that Rhone had asked Brown and her for a ride to Jack in the Box in her Camaro. Although she could not see Rhone's lap, she heard Rhone demanding $40, and saw money thrown into the car. She also testified that she saw Rhone with a plastic bag and that she saw a gun in that bag when Rhone threw it into the back seat after the police surrounded the Camaro. Both she and Brown denied placing the Crown Royal bag in the car.
Deputy Shaffer testified at length about the Crown Royal bag's contents. Inside the bag, he found five small baggies of crack cocaine. In addition, Deputy Shaffer testified that there was a handwritten note with "40's" written on it. 8 RP (Apr. 29, 2005) at 624-25. There was also $30 in cash in the bag.
Detective Oliver Hickman testified as an expert on street level crack cocaine transactions. He noted that a typical street sale involved selling amounts in $20 or $40 values. The crack cocaine rocks in this case were uniform in size, suggesting that they had been weighed and measured by a drug dealer. And the note with "40's" indicated that it was likely the drugs were packaged for sale in $40 increments. 10 RP (May 3, 2005) at 852. Detective Hickman conceded that a user could use all five packages in a week and that a dealer normally had a cell phone, pager, scale, and crib notes.
Based on these events, the State charged Rhone with unlawful possession of a controlled substance with intent to deliver and first degree robbery. Both of these counts included a firearm enhancement.3
Before trial, Rhone moved to suppress the evidence Deputy Shaffer seized during his search of the Camaro. The trial court denied the motion to suppress. The trial court found that Deputy Shaffer had a reasonable suspicion from the dispatch to stop the Camaro. After that lawful stop, he had a reasonable concern for his safety as well as a reasonable suspicion that Rhone had a weapon in the vehicle. Thus, the trial court found that Deputy Shaffer's search was lawful.
At the State's urging, the trial court also found that Deputy Shaffer had probable cause and lawfully arrested the Camaro's occupants after Officer Miller reported from the Jack in the Box. The trial court also concluded that Shaffer would have searched the vehicle had he waited until making a formal arrest and would have inevitably discovered the evidence.
Before trial, Rhone disputed the fairness of the jury selection process. The jury venire included two African Americans. One was excused for cause by agreement of both parties. The State used a peremptory challenge on the other. Rhone, acting pro se, challenged the jury panel on the grounds that the prosecutor made this decision on the basis of the potential juror's race. The trial court determined that Rhone failed to make a prima facie showing of racial discrimination and denied Rhone's motion for a new jury panel.
At trial, the witnesses testified as indicated above, with one notable incident. After he was excused, Miller walked by the defense table and said, "I could make it real easy on everybody and just say that I didn't recognize the gun." 7 RP (Apr. 28, 2005) at 529. The trial court determined that the jurors could not have heard the comment. Therefore, the trial court denied Rhone's motion for a mistrial.
The jury convicted Rhone of all counts. In addition, by special verdict, the jury found that Rhone was armed with a firearm during the drug and robbery crimes.
At sentencing, Rhone stipulated that he had three prior felony convictions: a 1993 first degree robbery conviction in Washington, a 1988 second degree assault in Oregon, and a 1981 Oregon first degree robbery conviction. The trial court determined that all three convictions were most serious offenses for the purposes of the persistent offender accountability act (POAA). RCW 9.94A.030(29). Thus, the trial court sentenced Rhone to life without the possibility of parole for the unlawful possession of a controlled substance with intent to deliver while armed with a firearm charge and the first degree robbery charge.
Rhone's primary issue on appeal is that the trial court should have suppressed the evidence Deputy Shaffer seized before he formally arrested Rhone. We hold that Deputy Shaffer had probable cause to arrest Rhone and the other occupants of the vehicle before he searched the car. We also hold that although Deputy Shaffer did not actually state that he was arresting Rhone and the others, he did place them under custodial arrest. Therefore, the search he conducted was a search incident to arrest, and the trial court properly denied Rhone's motion to suppress.
Because a trial court's suppression decision under CrR 3.6 involves both factual and legal questions, our review is in two parts. We review challenged findings of fact for substantial evidence, which is enough evidence to persuade a fair-minded rational person of the truth of the finding. State v. Vickers, 148 Wn.2d 91, 116, 59 P.3d 58 (2002). We treat unchallenged findings are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
If substantial evidence supports the challenged findings, we determine if the...
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