State v. Sexton
| Decision Date | 04 August 2020 |
| Docket Number | 52401-5-II |
| Parties | STATE OF WASHINGTON, Respondent, v. RICKY RAY SEXTON, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
A confidential informant told police that Ricky Ray Sexton was selling methamphetamine out of his home. The police obtained a warrant to search the home for any evidence related to the sale of methamphetamine. As the police arrived to execute the warrant, a man on the porch of the home saw them and ran inside. The police then announced their presence and the fact that they had a warrant over a loudspeaker as they rushed to and breached the door. The police seized methamphetamine and other drugs, as well as a firearm and several items typically used for packaging methamphetamine for sale.
The trial court denied Sexton's motions to suppress the evidence from the search and to represent himself. After a jury trial, Sexton was convicted of possession of methamphetamine with intent to deliver, possession of methylphenidate with intent to deliver, possession of oxycodone, and unlawful possession of a firearm.
Sexton appeals, arguing that the evidence seized from his home should have been suppressed because the police violated the knock and announce rule and probable cause had become stale by the time they executed the search warrant. He argues that the trial court violated his right of self-representation and improperly commented on the evidence in the jury instructions. Sexton also alleges errors related to the maximum sentence for his methylphenidate conviction and the imposition of a community custody condition. He claims that several legal financial obligations were improperly imposed. He also filed a statement of additional grounds (SAG) alleging ineffective assistance of counsel.
We affirm Sexton's convictions. The police's actions satisfied the knock and announce rule and were independently justified by exigent circumstances. Probable cause had not become stale. The trial court did not err in denying Sexton's motion to represent himself because his request was equivocal. The jury instructions on possession did not constitute a judicial comment on the evidence. None of the arguments in Sexton's SAG requires reversal.
We remand for the trial court to strike the improper legal financial obligations from Sexton's judgment and sentence, reexamine the imposition of the supervision assessment fee, correct the challenged community custody condition to prohibit Sexton from knowingly associating with drug users or sellers, and determine whether Sexton had a qualifying prior conviction under RCW 69.50.408(2) and resentence him if necessary.
A confidential informant told the police that they had recently been to Sexton's home and witnessed him selling methamphetamine. The informant said that Sexton regularly sold methamphetamine out of his home. The informant also said that they saw varying amounts of methamphetamine in different sized baggies, other packaging of various sizes, a handgun and a drug scale. Based on this information, police obtained a warrant to search Sexton's home for evidence of the crime of possession of a controlled substance with intent to deliver, including methamphetamine, firearms, and equipment and other items "of any kind which are used, or intended for use, in the manufacturing, compounding, processing delivering, packaging, importing or exporting of methamphetamine and/or any controlled substances." Clerk's Papers (CP) at 21. The warrant was issued within 72 hours of the informant being in Sexton's home.
The police conducted a threat assessment, identified this warrant as high risk, and assembled a special weapons and tactics team (SWAT) to execute the warrant. The threat assessment was based on information that Sexton was selling drugs at his home, he was known to carry a firearm, he had a large dog at his residence that could be used for counter surveillance and it would be difficult for police to surprise the occupants when executing the warrant due to the home's location and local topography.
In the early morning, nine days after the police received the tip from the informant, a SWAT team went to Sexton's home to serve the warrant. As the SWAT armored vehicle approached Sexton's home, police officers observed a man on the front porch who saw them and then ran inside the home. An officer yelled out that the operation was compromised, and several officers rushed up to the home to breach the door. The officer tasked with breaching the door testified that he did not knock and announce his presence because "compromise" had been called, although another officer testified that he was continuously broadcasting over the vehicle's loudspeaker system identifying the officers as police, explaining that they had a warrant, and ordering the occupants of the home to get on the ground. 1 Verbatim Report of Proceedings (VRP) (Feb. 13-14, 2018) at 59, 91.
Once inside, the police seized digital scales, a spiral notebook with names and numbers, a handgun, bottles containing oxycodone and methylphenidate, and several bags containing methamphetamine. The officers arrested Sexton, and the State charged him with one count of possession of methamphetamine with intent to deliver, one count of possession of methylphenidate with intent to deliver, one count of possession of oxycodone, and one count of unlawful possession of a firearm. The two counts of possession with intent to deliver also carried firearm enhancements.
Sexton moved to suppress evidence seized from the search of his home. At the hearing on the motion, police officers testified that in their experience methamphetamine is easily disposable and that suspects often try to dispose of drugs in similar circumstances. There was also testimony on the basis for classifying the warrant as high risk and the reasons for using a SWAT team to execute the warrant, as described above.
There was conflicting testimony about what message the police announced over the loudspeaker just before the officers breached the door, as well as the length of the delay between the beginning of those announcements and the breach. One officer testified that he announced over the loudspeaker "[T]his is the police, we have a warrant, get on the ground," and that the other officers breached the door 10 to 15 seconds later. Id. at 91-92. Another officer testified that the announcement was, "[P]olice search warrant, open the door," and the breach occurred three to five seconds later. Id. at 57, 64.
The trial court denied the motion to suppress. The court found that the basis for using a SWAT team was "information that the defendant may be dealing controlled substance out of his residence, was known to carry a firearm, had a large dog at his residence, and the difficulty of maintaining concealment while approaching the defendant's residence based upon its location and topography." CP at 121. The trial court found that each of the testifying officers was credible in their testimony. The court entered findings concerning the officers' conflicting testimony, finding that the officers informed the occupants of Sexton's home "of their presence, their identity, their purpose for being there, and to demand admittance." CP at 126. The court found that about 15 seconds passed between the beginning of the announcements and the moment the police breached the door.
The trial court orally concluded that the officers' actions satisfactorily complied with the knock and announce rule. In its written conclusions, the court determined that the delay in time between the officers' announcements and the forced entry was reasonable and did not violate the law. The court also ruled that exigent circumstances justified the officers' "expedient entry" into Sexton's home, based on the fact that the officers "had been observed by a person at the defendant's residence resulting in 'compromise' being called out, that the search warrant was issued for evidence that could be easily and quickly destroyed, and that Deputies had been advised that the defendant was known to carry a firearm." CP at 126.
The trial court also ruled that the nine-day delay in executing the warrant had not rendered probable cause stale. The warrant was served within 10 days and the suspected criminal activity as described in the affidavit establishing probable cause was ongoing in nature. The court also reasoned that the fact that Sexton was operating out of a single-family home, as opposed to a car or boat, suggested that the operation was ongoing rather than merely transitory.
The following day, when jury selection was set to begin, Sexton fired his attorney and verbally asked to represent himself, without filing a formal motion. The trial court asked Sexton if he intended to represent himself and Sexton replied, "At this time, yes." 2 VRP (Feb. 15, 2018) at 7. When the court asked him to clarify, Sexton discussed at length his frustrations with the proceeding up to that point and the emotional turmoil he was going through, saying he was "reluctantly" firing his attorney. Id. at 8. He indicated that the reasons he wanted to fire his attorney were personal disagreements, frustrations over numerous delays in the proceeding, the court's denial of his suppression motion, and the fact that he could no longer afford to pay the attorney. Sexton also informed the court that he had attempted to contact an attorney in Seattle that he indicated would assist him with his case. The court then engaged in a lengthy colloquy in which he asked about Sexton's knowledge of the legal system, discussed the risks of self-representation, and advised Sexton that he would be held to the same technical and procedural requirements as an attorney.
The trial court ultimately denied...
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