State Of Washington v. Lavell Mitchell , 190 Wash. App. 919 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72221-2-1
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
LAVELLE XAVIER MITCHELL,
Appellant. FILED: November 2, 2015
Appelwick, J. — Mitchell was convicted of unlawful possession of a firearm in the
first degree. The firearms were discovered when a fare enforcement officer stopped him
to check proof of fare payment as he exited a Metro bus. Mitchell argues he was
unlawfully detained and the trial court erred by not suppressing evidence of the firearms.
We affirm.
FACTS
On March 2, 2012, fare enforcement officer (FEO) Christopher Johnson was
checking passengers' proof of payment on King County Metro Transit (Metro) RapidRide
buses.1 Lavelle Mitchell and several other passengers exited a RapidRide bus at Pacific
1 At the time, FEO Johnson was a security officer employed on a contract with
Metro. FEOs are not police officers. Their role is to ensure individuals riding on public
transportation have paid the fare. This task is particularly important with the RapidRide
buses, which allow travelers to prepay their fare and enter through the bus's rear door
without showing proof of payment to the driver.
No. 72221-2-1/2
Highway South near 240th Street. FEO Johnson was waiting at the bus stop, by the bus's
rear door. As Mitchell and the other passengers exited from the rear of the bus, FEO
Johnson asked each of them to display proof of fare payment.
Mitchell was unable to provide proof of his fare payment. He told FEO Johnson
that he had paid the fare with cash and received a transfer, but he gave his transfer to
another passenger as he departed the bus. FEO Johnson responded that proof of
payment is nontransferable.
At that point, FEO Johnson asked for Mitchell's identification. Mitchell did not have
his identification with him. He verbally provided FEO Johnson with his name, date of
birth, and address instead. FEO Johnson then radioed for assistance in verifying
Mitchell's identity. King CountySherriff Deputy George Drazich, who was already nearby,
was dispatched to assist FEO Johnson. He arrived in a matter of minutes. When Deputy
Drazich ran Mitchell's information, he discovered that Mitchell had an outstanding warrant
for his arrest.
Deputy Drazich then placed Mitchell under arrest and handcuffed him. Before
searching Mitchell incident to arrest, Deputy Drazich asked Mitchell if he had any
weapons. Mitchell revealed that he was carrying two guns in his jacket. Deputy Drazich
searched Mitchell and recovered two loaded revolvers.
Mitchell had been previously convicted as a juvenile of a serious offense. As a
result, he was charged with unlawful possession of a firearm in the first degree.
Before trial, Mitchell moved to suppress the evidence obtained through the search
incident to arrest, arguing that the original detention was unlawful. The trial court denied
this motion.
No. 72221-2-1/3
At trial, Mitchell asserted the affirmative defense that at the time of his prior
conviction he had not received statutory notice that it was illegal for him to possess a
firearm. Mitchell was convicted as charged. He appeals.
DISCUSSION
I. Authority to Stop
Mitchell argues that the trial court erred in denying his motion to suppress, because
FEO Johnson was not authorized to stop him. When reviewing a motion to suppress, we
evaluate findings of fact under the substantial evidence standard. State v. Lew. 156
Wash. 2d 709, 733, 132 P.3d 1076 (2006). Conclusions of law are reviewed de novo. Id,
We may affirm the trial court for any reason supported by the record and the law. State
v. Kellev. 64 Wash. App. 755, 764, 828 P.2d 1106 (1992).
Mitchell's argument requires us to decide whether FEO Johnson was statutorily
authorized to request proof of payment from passengers disembarking the bus. Chapter
35.58 RCW defines the scope of authority of FEOs for metropolitan municipal
corporations, including Metro.2 First, RCW 35.58.580 sets out certain responsibilities of
persons traveling on public transportation. They must pay the established fees and
produce proof of fare payment when asked by someone tasked with monitoring fare
2 In the court below, the State asserted that chapter 81.112 RCW authorized FEO
Johnson to ask Mitchell for proof of fare payment. The trial court accepted the State's
argument and concluded that FEO Johnson had authority to stop and request proof of
payment under Title 81 and chapter 7.80 RCW. As the State now concedes, chapter
81.112 RCW does not apply to Metro—it explicitly governs regional transit authorities, not
metropolitan municipal corporations. RCW 81.112.020. But, chapter 35.58 RCW mirrors
chapter 81.112 RCW—RCW 35.58.585 gives Metro FEOs the same powers that RCW
81.112.210 gives Sound Transit FEOs. Therefore, we may affirm the trial court on this
basis if we conclude chapter 35.58 RCW provided FEO Johnson the authority to stop
Mitchell. See Kellev, 64 Wash. App. at 764 (noting that the trial court can be affirmed on
any basis supported by the record and the law).
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payment. RCW 35.58.580(1). Failing to pay the required fare or produce proof of
payment when asked is a civil infraction. RCW 35.58.580(2)(a)-(b). Additionally, RCW
35.58.585(1) empowers metropolitan municipal corporations to designate individuals to
monitor fare payment. These persons have all the powers granted to enforcement
officers under RCW 7.80.050 and 7.80.060. RCW 35.58.585(2)(b). This means an FEO
can issue a notice of civil infraction when the infraction occurs in the officer's presence,
request identification, and detain a person for a period of time reasonably necessary to
identify the person. RCW 7.80.050-.060. RCW 35.58.585(2)(b) also specifically grants
FEOs the additional authority to:
(i) Request proof of payment from passengers;
(ii) Request personal identification from a passenger who does not
produce proof of payment when requested;
(iii) Issue a citation conforming to the requirements established in
RCW 7.80.070; and
(iv) Request that a passenger leave the bus or other mode of public
transportation when the passenger has not produced proof of payment after
being asked to do so by a person designated to monitor fare payment.
In challenging the legality of the stop, Mitchell does not dispute that FEOs have
the authority to request proof of payment from passengers. Rather, he construes the
word "passenger" in RCW 35.58.585 very narrowly. He argues that the word "passenger"
includes only those persons physically present on a mode of public transportation. Under
this theory, an FEO may request proofof payment from someone currently traveling on a
bus, because that traveler's freedom of movement is already restricted by his or her
presence on a moving vehicle. He argues that once the person disembarks the bus,
additional authority is needed to request proof of payment, because to do so an FEO
must first stop the person.
No. 72221-2-1/5
We disagree with Mitchell's reading of RCW 35.58.585(2)(b)(i). Here, there is no
question Mitchell was a passenger. FEO Johnson witnessed Mitchell disembarking the
bus. He asked Mitchell and the other departing passengers for their proof of payment as
they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred
the obligation to display proof of payment when asked. See RCW 35.58.580(1), .020(16)
(defining "proof of payment" as "evidence of a fare prepayment authorized by a
metropolitan municipal corporation or a city-owned transit system for the use of buses or
other modes of transportation."). Under these facts, FEO Johnson acted within the scope
of his statutory authority by requesting proof of payment from Mitchell. Additional
authority to detain was unnecessary.
And, when FEO Johnson asked Mitchell to show his proof of payment, Mitchell
voluntarily responded that he did not still have his transfer. In other words, he failed to
show proof of payment—a civil infraction under RCW 35.58.580(2)(b). This triggered
RCW 35.58.585(2)(b)(ii), which authorized FEO Johnson to request personal
identification from Mitchell. He did so, and Mitchell was unable to provide government
issued identification. Mitchell's failure to provide identification triggered RCW 7.80.060.
Under this provision, FEO Johnson had the authority to detain Mitchell for the time
reasonably necessary to identify him. RCW 7.80.060. Accordingly, FEO Johnson
radioed for assistance and, within minutes, Deputy Drazich arrived and confirmed
Mitchell's identity. At each step of this encounter, FEO Johnson acted within the scope
of his statutory authority.
Despite this clear statutory authority, Mitchell contends that FEO Johnson
unlawfully detained him by asking him to show proof of payment. He argues that FEO
No. 72221-2-1/6
Johnson had no reason to believe Mitchell had committed an infraction until after he
requested proof of payment, so the detention was unlawful. Mitchell relies on State v.
Duncan, 146 Wash. 2d 166, 43 P.3d 513 (2002) for this proposition, but he misreads that
case. Duncan recognized that, when investigating a civil infraction, an officer does not
need a reasonable articulable suspicion of criminal activity to detain someone. See 146
Wash. 2d at 179 (distinguishing stops for criminal activity from stops for civil infractions).
Instead, the prevailing consideration is whether the officer acted within the scope of his
statutory authority. See id. The sole statutory authority there was RCW 7.80.050, which
permits an enforcement officer to issue a notice of civil infraction when the infraction
occurs in the officer's presence or the officer has reasonable cause to believe a civil
infraction was committed. Id. at 178. But, RCW 35.58.585 explicitly gives FEOs powers
above and beyond those granted to officers under RCW 7.80.050—including the power
to request proof of payment. RCW 35.58.585(2)(b). Considering FEO Johnson's
statutory authority under RCW 35.58.585(2)(b), if requesting proof of payment constitutes
a detention, it is a lawful detention.
Mitchell does not challenge the constitutionality of chapter 35.58 RCW.3 It is
sufficient that the stop and detention of Mitchell was statutorily authorized. We hold that
the trial court did not err in refusing to suppress the evidence obtained as a result of the
subsequent search incident to arrest.
3 Mitchell challenged the constitutionality of the mirrored chapter 82.112 RCW in
the court below. However, he has not raised that argument on appeal.
No. 72221-2-1/7
II. Ineffective Assistance of Counsel
Mitchell also argues that he received ineffective assistance of counsel.
Specifically, he claims that he never received oral notice that he had lost the right to own
or possess a firearm and that the transcript from his prior offense proceedings shows this.
He contends that his trial attorney should have investigated that transcript to corroborate
his testimony.
Lack of notice of the firearm prohibition is an affirmative defense to unlawful
possession of a firearm. State v. Breitunq, 173 Wash. 2d 393, 403, 267 P.3d 1012 (2011).
The defendant has the burden of proving this defense by a preponderance of the
evidence. Id. To succeed, the defendant must show that when he was convicted of the
prior offense, he did not receive either oral or written notice that it was illegal for him to
own a firearm. Id; see also RCW 9.41.047(1 )(a) (requiring the convicting court to notify
a person orally and in writing when a conviction makes him or her ineligible to possess a
firearm).
We review ineffective assistance of counsel challenges de novo. State v.
Sutherbv. 165 Wash. 2d 870, 883, 204 P.3d 916 (2009). To succeed, the defendant must
show both that counsel's performance was deficient and that counsel's deficient
performance prejudiced the defendant. Strickland v. Washington. 466 U.S. 668,687,104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The record below may well show that trial counsel did not investigate the transcript
of Mitchell's prior sentencing hearing. But, whether the failure to do so was ineffective
turns on whether the transcript would have shown what Mitchell claims. That transcript
is not in the record on appeal. Nor is there evidence that it was shown to the sentencing
No. 72221-2-1/8
court. Therefore, we cannot conclude on this record that counsel was deficient or that
Mitchell was prejudiced. 4 See State v. Garcia. 45 Wash. App. 132, 140, 724 P.2d 412
(1986) ("A party seeking review has the burden of perfecting the record so that the
appellate court has before it all the evidence relevant to the issue.").
III. Lack of Notice Affirmative Defense
We review affirmative defenses for sufficiency of the evidence. State v. Lively, 130
Wn.2d 1,17, 921 P.2d 1035 (1996). This analysis asks whether, viewing the evidence in
the light most favorable to the State, a rational trier of fact could have found that the
defendant failed to prove the defense by a preponderance of the evidence. Id.
Even without corroborating evidence, Mitchell claims no reasonable juror could
have concluded that he had both written and oral notice of the firearm prohibition. Mitchell
asserts that "there is simply no evidence in the record" that the convicting court notified
him that he was ineligible to possess a firearm. But, the State showed that Mitchell
received written notice. It introduced Mitchell's statement on plea of guilty, which the trial
court admitted into evidence.5 This document was signed by Mitchell and acknowledged
the consequences of a guilty plea—including that he would lose the right to own or
possess firearms. Mitchell's statement on plea of guilty, in addition to providing that
Mitchell was ineligible to possess firearms, contained a bracketed statement in capital
4 Additionally, though Mitchell only asserts that his trial attorney should have
discovered the sentencing court transcript, the convicting court transcript would have also
been necessary to corroborate his testimony that he never received oral notice. RCW
9.41.047(1 )(a) (providing that the convicting court has the responsibility of informing an
individual of the firearm prohibition).
5 The name on both the statement on plea of guilty and the disposition order is
Lavelle Brown. Mitchell testified that at that time, his last name was Brown. He confirmed
that he signed both documents.
8
No. 72221-2-1/9
letters: "[JUDGE MUST READ THE FOLLOWING TO OFFENDER]." The trial court also
admitted Mitchell's disposition order into evidence. This document similarly notified
Mitchell that he could not own, use, or possess a firearm. It was signed by the judge,
Mitchell, and Mitchell's attorney.
But, Mitchell points out that these exhibits do not establish that he was actually
given oral notice. He claims the burden rested with the State to affirmatively establish
evidence of oral notice. Mitchell's argument rests on an inaccurate reading of State v.
Minor, 162 Wash. 2d 796, 174 P.3d 1162 (2008) and Breitung, 173 Wash. 2d 393. In both
cases, the record was silent on the question of oral notice, so the court assumed no oral
notice was given. Minor, 162 Wash. 2d at 800; Breitung, 173 Wash. 2d at 403. But, neither
Minor nor Breitung shifted the burden of establishing oral notice to the State. See Minor.
162 Wash. 2d 800-04 (no discussion of the burden of proof); Breitung, 173 Wash. 2d at 403
("Lack of notice under RCW 9.41.047(1) is an affirmative defense, which Breitung must
establish by a preponderance of the evidence.").
Here, the only evidence to support his claim that he was not given oral notice he
could not possess firearms came from Mitchell himself. He testified that he did not
remember receiving oral notice. The State cross-examined him about the gaps in his
memory regarding the statement on plea of guilty. The jury was free to make its own
judgment as to whether Mitchell's statements were credible. State v. Camarillo, 115
Wash. 2d 60, 71, 794 P.2d 850 (1990) (noting that credibility determinations are for he trier
of fact). Construing this evidence in the light most favorable to the State, the jury could
have disbelieved Mitchell. No additional evidence from the State would have been
necessary to conclude that Mitchell failed to prove the affirmative defense by a
No. 72221-2-1/10
preponderance of the evidence. We reject Mitchell's challenge to the sufficiency of the
evidence on the affirmative defense.
We affirm.
WE CONCUR:
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