State v. Showers
| Decision Date | 24 June 2014 |
| Docket Number | No. 43996-4-II,43996-4-II |
| Parties | STATE OF WASHINGTON, Respondent, v. WILLIAM B. SHOWERS, Appellant. |
| Court | Washington Court of Appeals |
HUNT, J. — William B. Showers appeals his bench trial conviction for possession with intent to deliver heroin, possession of methamphetamine, and attempting to elude. He argues that (1) insufficient evidence supports his possession convictions; (2) the warrantless search of the backpacks found in his truck bed violated his rights under the Fourth Amendment1 and article 1, section 72; (3) admission of improper opinion testimony denied him his right to a fair trial; (4) defense counsel's failure to seek suppression of evidence and to object to improper opinion testimony constituted ineffective assistance; and (5) he (Showers) did not validly waive his state constitutional right to trial by jury. We affirm.
On July 6, 2012, City of Raymond Police Officer Eric Fuller observed a pickup truck traveling with a defective windshield and without a front license plate; William B. Showers waslater identified as the driver. Fuller observed Showers exit the highway and turn into the town of Raymond. Following Showers, Fuller observed him drive through a stop sign before pulling up to a curb, where a female exited from the passenger side, put on a backpack and a baseball cap, and walked away at a fast pace, pulling the baseball cap down over her face. Showers quickly drove away from the curb.
Fuller followed and activated his emergency lights to stop Showers. But Showers accelerated to approximately 50 MPH in a 25 MPH zone, turned onto Highway 101 at a speed that caused the pickup to sway, and spun the pickup in a complete 360-degree turn in the middle of Highway 101 before coming to a stop, facing the opposite direction of traffic. Pacific County Sheriffs Deputy Jonathon Ashley observed the pickup's spinout and had to brake and to pull over to the highway shoulder to avoid hitting the pickup. As Fuller pulled up to the stopped pickup, Showers revved the pickup's engine and sped off past Fuller into the oncoming lane of traffic, heading back towards Raymond. Fuller followed Showers; Ashley joined the pursuit.
Off-duty City of Cosmopolis Police Deputy Chief Heath Laymen observed Showers and the officers enter and exit Highway 101. Sitting in his open Jeep outside a Raymond printing shop near the Highway 101 merge lane, Laymen observed Showers drive past the printing shop at an estimated 60 MPH in a 25 MPH zone and travel into oncoming traffic, causing at least one vehicle to brake to avoid a head-on collision with Showers. Laymen observed Fuller's fully marked police car attempting to stop the pickup with its activated sirens and lights; Laymen later identified the pickup's driver as Showers.
Showers sped through Raymond at an estimated 50-60 MPH in a 25 MPH zone, driving through at least two stop signs. Standing in a park next to the fire station, City of Raymond FireDepartment paramedic William Didion heard tires screeching, saw Showers drive through the park directly towards him, and ran out of Showers' path to avoid being struck.
Fuller followed Showers traveling down an alley at more than 20 MPH over the alleyway's safe speed limit toward a child sweeping rocks and garbage in front of an auto parts store. The child's father heard tires squeal, ran out into the alley to find Showers' pickup a foot away from his child, and immediately pulled his child out of Showers' path.
Fuller continued to follow Showers out of the alley onto Alder Street and proceeded to the intersection of Second and Blake Streets, hoping to intercept Showers but could not locate him. Fuller stopped at the intersection of Second and Alder Streets, looked to the left, and observed the pickup abandoned in the middle of the street, with the driver's door open. Officers approached the pickup to ensure it was unoccupied, took the keys from the ignition so it could not be driven, and then began searching for Showers. Citizens in the area pointed and directed the officers to a local establishment, where a sweaty, out-of-breath, shirtless Showers was hiding in the restroom. The officers took Showers into custody.
Showers' Community Corrections Officer (CCO), Linda Tolliver, was called to the scene, where she observed Showers in the back of a police vehicle and his pickup truck with its doors open. In her capacity as Showers' CCO, Tolliver searched the pickup, located several backpacks in the bed of the truck, and, with Fuller's assistance, searched the backpacks3; insidethe backpacks they found heroin, two scales, several small plastic baggies, methamphetamine, a pipe and hypodermic needles.
The State charged Showers with possession of heroin with intent to deliver, possession of methamphetamine, and attempting to elude a pursuing police vehicle. Showers waived his right to a jury trial and elected a bench trial. At a pretrial hearing, the trial court reviewed the written waiver that Showers had signed in consultation with his counsel, engaged in a colloquy with Showers about this waiver, and ruled that Showers understood his right to a jury trial and that his waiver of his right to a jury trial was knowing, intelligent, and voluntary.
At trial, three law enforcement officers testified that Showers had driven in a "reckless" manner as previously described. The trial court found Showers guilty of possession of heroin with intent to deliver, possession of methamphetamine, and attempting to elude a pursuing police vehicle. Showers appeals.
Showers contends that he did not validly waive his right to a jury trial. This argument fails.
Washington law requires that a defendant personally express a waiver of his or her jury trial right in order for the waiver to be valid. State v. Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 (2006). But Washington law does not require the trial court to conduct an extensive on-the-record colloquy with the defendant before determining whether the defendant validly waived his jury trial right. Pierce, 134 Wn. App. at 771. "As a result, the right to a jury trial is easier towaive than other constitutional rights." State v. Benitez, 175 Wn. App. 116, 129, 302 P.3d 877 (2013).
We review de novo the validity of a jury trial waiver. State v. Ramirez-Domiriguez, 140 Wn. App. 233, 239, 165 P.3d 391 (2007). A defendant's waiver of his or her jury trial right must be made knowingly, intelligently, voluntarily, and without improper influences. State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994). A written jury trial waiver "is strong evidence that the defendant validly waived the jury trial right." Pierce, 134 Wn. App. at 771. "An attorney's representation that the defendant's waiver is knowing, intelligent, and voluntary is also relevant" to a determination of whether the defendant's jury trial waiver was valid. Benitez, 175 Wn. App. at 128 (citing Pierce, 134 Wn. App. at 771). Additionally, we consider whether the trial court informed the defendant of his or her jury trial right. Pierce, 134 Wn. App. at 771.
Showers argues that under article I, sections 21 and 22 of the Washington Constitution, "a valid waiver of the state constitutional right to a jury trial requires a thorough understanding of the right." Br. of Appellant at 32. He argues that because the record does not prove that he thoroughly understood the right and the practical and legal consequences of his waiver, his waiver was not knowing, intelligent, and voluntary. Showers also asks us to overrule our recently affirmed jury trial waiver opinions in Benitez and Pierce, both upholding jury trial waivers in similar circumstances.
Showers argues that the six Gunwall4 factors establish that waiver of a jury trial under the state constitution requires a higher showing than waiver under the federal constitution. Showers recognizes that we recently rejected this same argument in Pierce and Benitez, but he arguesthese cases were wrongly decided and should be overturned. We rejected this argument in Pierce and Benitez because, in those cases, the defendants' reliance on Gunwall was misplaced. And we decline to revisit or to overrule those cases here.
Showers presented the trial court with a written waiver of his jury trial right. The trial court conducted a colloquy with him5, ensuring that (1) he understood his right to a jury trial, (2) he had discussed the matter with his attorney so he understood what he was waiving, and (3) his request was voluntary. These procedures show that Showers personally expressed his desire to waive his jury trial right and that his waiver was knowing, intelligent, and voluntary. The record supports the trial court's ruling that Showers validly waived his right to a jury trial.
For the first time on appeal, Showers challenges the warrantless search of the backpacks under both the Fourth Amendment6 and article 1, section 7,7 arguing that the officers unlawfully searched his vehicle without a search warrant. At trial, however, Showers neither filed a motion to suppress nor challenged the lawfulness of the vehicle search and the seizure of evidence from the vehicle. Because Showers failed to raise these arguments below, there was no suppression hearing and no record developed on which we can review these first time challenges.
A party must raise an issue at trial to preserve it for appeal, unless the party can show the presence of a '"manifest error affecting a constitutional right'" under RAP 2.5(a)(3). State v. Kirwin, 165 Wn.2d 818, 823, 203 P.3d 1044 (2009) (quoting State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)). Issue preservation rules "encourage 'the efficient use of judicial resources' . . . by ensuring that the trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals." State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011) (quoting State...
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