State Of Washington, V Charles Wayne Mclean ( 2013 )

FILED
C,:01JRT OF APPEALS
01%' 1SVII!
2013 OCT 22 AM 3: 555
ST4 ST0Pa
UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43522 -5 -II
Appellant,
V.
CHARLES WAYNE McLEAN, UNPUBLISHED OPINION
WORSWICK, C. J. — The State appeals the superior court' s order vacating Charles
McLean' s district court conviction for driving under the influence of alcohol. The State argues
that the superior court erred by ruling that ( 1) the traffic stop was pretextual and therefore
unconstitutional and ( 2) McLean received ineffective assistance of counsel because his trial
counsel failed to object to improper opinion testimony. We agree with the State, reverse the
superior court' s vacation of McLean' s conviction, and reinstate McLean' s conviction.
FACTS
Shortly after midnight on August 18, 2010, Trooper Richard Thompson of the
Washington State Patrol was traveling westbound on State Route 500 in Clark County. Ahead of
Trooper Thompson was a car driven by Charles McLean; no other vehicles were present.
No. 43522 -5 -II
Trooper Thompson had training and experience in identifying impaired drivers. Through
this training and experience, he knew that ( 1) alcohol causes delayed reactions that can result in a
driver',s drifting through the lane of travel and (2) alcohol impairs a person' s ability to
simultaneously perform multiple tasks such as maintaining the speed limit, staying within a lane,
and using turn signals. Trooper Thompson estimated that in 2010 he stopped about 400 drivers
for lane travel violations and he made over 200 arrests for driving under the influence.
McLean' s car caught Trooper Thompson' s attention because it was weaving from side to
side within the left lane. Even though McLean was driving the speed limit, McLean' s weaving
made Trooper Thompson suspect that McLean might have been impaired. Trooper Thompson
followed McLean' s car and saw it cross the fog line' three times. Trooper Thompson then
activated his lights and initiated a traffic stop.
Once McLean pulled over, Trooper Thompson approached and advised that he stopped
McLean for driving in the left lane without passing, weaving through the lane, and discarding a
lit cigarette after Trooper Thompson activated his emergency lights. Trooper Thompson
immediately smelled an odor of intoxicants coming from the vehicle." Clerk' s Papers ( CP) at
116.
After administering field sobriety tests, Trooper Thompson arrested McLean for driving
under the influence of alcohol. McLean refused to provide a breath sample to measure his blood
alcohol content. The State charged McLean with three counts: violating ignition interlock
The fog line separates the left lane from the shoulder and a concrete barrier.
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No. 43522 -5 -II
requirements, third degree driving while his license was suspended, and driving under the
influence of intoxicants.
McLean filed a motion to suppress evidence obtained from the traffic stop, arguing that
Trooper Thompson did not have a reasonable suspicion that McLean was driving under the
influence. The district court held a hearing and denied McLean' s motion in an oral ruling.
McLean then pleaded guilty to violating ignition interlock requirements and driving while his
license was suspended, but he proceeded to trial on the driving under the influence charge.
During a jury trial, the State elicited testimony about Trooper Thompson' s training and
experience in identifying impaired drivers. The State asked Trooper Thompson why he stops
some drivers on suspicion of driving under the influence without ultimately arresting them.
Trooper Thompson replied that he arrests drivers for driving under the influence only if he
believes they are impaired by alcohol or drugs. McLean' s counsel did not object to this
testimony.
Later, while testifying about the incident involving McLean, Trooper Thompson stated
that he arrested McLean for driving under the influence. Again, McLean' s counsel did not
object. The jury found McLean guilty of driving under the influence and, in a special verdict,
found that he refused a lawful request to test his blood or breath.
McLean appealed to the superior court, arguing that ( 1) the district court erred by
denying his motion to suppress because the traffic stop was pretextual and ( 2) he received
ineffective assistance of counsel when his attorney failed to object to Trooper Thompson' s
for dismissal The State then
testimony. The superior court agreed and remanded with prejudice.
No. 43522 -5 -II
sought discretionary review in this court, which our commissioner granted. Ruling Granting
Review, State v. McLean, No. 43522 -5 -II (Wash. Ct. App. July 30, 2012).
DISCUSSION
I. DENIAL OF MCLEAN' S MOTION TO SUPPRESS
The State first argues that the superior court erred because the district court correctly
denied McLean' s motion to suppress evidence from the traffic stop. McLean argues ( 1) that, as a
threshold matter, we cannot effectively review the superior court' s reversal because the district
court failed to enter written findings and conclusions on the motion to suppress and ( 2) that the
traffic stop was pretextual and therefore unconstitutional. We agree with the State.
RALJ 9. 1 governs review of the district court' s decision, whether by us or by the superior
court. State v. Ford, 110 Wash. 2d 827, 829 -30, 755 P.2d 806 ( 1988). In reviewing the district
court' s decision on a motion to suppress, we review factual determinations for substantial
evidence and conclusions of law de novo. RALJ 9. 1( a), ( b); State v. Garvin, 166 Wash. 2d 242,
249, 207 P.3d 1266 ( 2009). Because neither party has challenged the district court' s factual
determinations, they are verities on appeal. City ofSeattle v. May, 151 Wash. App. 694, 697, 213
P.3d 945 ( 2009), aff'd, 171 Wash. 2d 847 ( 2011). Accordingly, our review is limited to a de novo
deterinination of whether the district court properly derived conclusions of law from its factual
findings. State v. 4rmenta, 134 Wash. 2d 1, 9, 948 P.2d 1280 ( 1997).
A. This Case Is Reviewable
As a threshold matter, McLean argues that we cannot effectively review the district
court' s decision because it failed to enter written findings of fact and conclusions of law
following the hearing on McLean' s CrRLJ 3. 6 motion to suppress. This argument lacks merit.
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No. 43522 -5 -II
CrRLJ 3. 6( b) requires the district court to " state findings of fact and conclusions of law"
supporting its ruling on a motion to suppress evidence. ( Emphasis added.) But CrRLJ 3. 6 does
not require the district court' s findings and conclusions to be in writing. State v. Osman, 147
Wn. App. 867, 881 n. 8, 197 P.3d 1198 ( 2008), rev' d on other grounds, 168 Wash. 2d 632 ( 2010);
2
State v. Anderson, 51 Wn. App. 775, 778 n. l, 755 P.2d 191 ( 1988). Accordingly, the absence of
written findings and conclusions does not preclude our review of the district court' s denial of a
motion to suppress. Anderson, 51 Wn. App. at 778 n. 1.
McLean further claims that the district court' s oral decision failed to address his
argument that the traffic stop was pretextual. We disagree because the district court properly
declined to reach the issue of pretext. The district court concluded that Trooper Thompson
stopped McLean on the basis of a reasonable suspicion that McLean was driving under the
influence of alcohol. Thus, for Trooper Thompson to conduct a traffic stop to investigate
McLean for driving under the influence, " the use of pretext would be unnecessary." State V.
Ladson, 138 Wash. 2d 343, 353, 979 P.2d 833 ( 1999). McLean' s threshold arguments fail.
B. The Traffic Stop Was Lawful
The State argues that Trooper Thompson conducted a lawful traffic stop based on a
reasonable suspicion that McLean was driving under the influence. McLean argues that the
traffic stop was unconstitutional because it was pretextual. We agree with the State.
2 CrRLJ 3. 6 is unlike CrR 3. 6, which requires the superior court to enter written findings and
conclusions on a motion to suppress. Anderson, 51 Wn. App. at 778 n. 1.
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No. 43522 -5 -II
Both the Fourth Amendment and article I, section 7 of the Washington Constitution
prohibit unreasonable seizures. State v. Kennedy, 107 Wash. 2d 1, 4, 726 P.2d 445 ( 1986). A
traffic stop is a seizure. Kennedy, 107 Wn.2d at 4. Warrantless seizures are per se unreasonable,
unless an exception to the warrant requirement applies. Ladson, 138 Wn.2d at 349. The State
bears the burden of establishing an exception to the warrant requirement. Ladson, 138 Wn.2d at
350.
One exception is an investigative stop, including a traffic stop, that is based on a police
officer' s reasonable suspicion of either criminal activity or a traffic infraction. State v. Arreola,
176 Wash. 2d 284, 292 -93, 290 P.3d 983 ( 2012); see Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
20 L. Ed. 2d 889 ( 1968). A reasonable suspicion exists when specific, articulable facts and
rational inferences from those facts establish a substantial possibility that criminal activity or a
traffic infraction has occurred or is about to occur. State v. Snapp, 174 Wash. 2d 177, 197 -98, 275
P.3d 289 ( 2012).
When reviewing the lawfulness of an investigative stop, we evaluate the totality of the
circumstances presented to the police officer. State v. Doughty, 170 Wash. 2d 57, 62, 239 P.3d 5732010). Those circumstances may include the police officer' s training and experience. State v.
Glover, 116 Wash. 2d 509, 514, 806 P.2d 760 ( 1991).
Here, the traffic stop was lawful because Trooper Thompson had a reasonable suspicion
that McLean was driving under the influence. Trooper Thompson observed McLean' s vehicle
weave within its lane and cross onto the fog line three times. From the articulable fact of this
observation, and from his training and experience identifying driving under the influence, it was
rational for Trooper Thompson to infer that there was a substantial possibility that McLean was
No. 43522 -5 -II
driving under the influence. That substantial possibility establishes a reasonable suspicion
permitting Trooper Thompson to make a warrantless traffic stop. See Arreola, 176 Wn.2d at
3
292 -93; Snapp, 174 Wn. 2d at 197 -98.
Nonetheless, McLean claims that the traffic stop was pretext to investigate him for
driving under the influence.4 We disagree.
A traffic stop is pretextual if it is conducted not to enforce a violation of the traffic code
but to investigate some other crime, unrelated to driving, for which reasonable suspicion and a
warrant are lacking. Ladson, 138 Wn.2d at 349.5 McLean claims ( 1) Trooper Thompson had a
reasonable suspicion only of McLean' s driving in the left lane without passing, and ( 2) Trooper
Thompson lacked a reasonable suspicion of driving under the influence. But as we have
explained above, Trooper Thompson had a reasonable suspicion that McLean was driving under
the influence, and he conducted this traffic stop to investigate that crime. Therefore this traffic
stop was not pretextual. McLean' s argument fails.
3 The State further argues that the superior court misplaced its reliance on State v. Prado, 145
Wn. App. 646, 186 P.3d 1186 ( 2008) ( holding that a one -second incursion over the shoulder line
did not establish a reasonable suspicion of a failure to remain " as nearly as practicable" within a
single lane of travel). Because we review the district court' s decision de novo, we do not address
the superior court' s reasoning. State v. Weaver, 161 Wash. App. 58, 63, 248 P.3d 1116 ( 2011).
4 The State asserts that McLean failed to preserve his claim of pretext because he raised it for the
first time on appeal in the superior court. But the State is incorrect. In his memorandum
supporting his motion to suppress, McLean argued to the district court that the traffic stop was
pretextual.
A pretextual traffic stop violates article I, section.7 of the Washington Constitution. Ladson,
138 Wn.2d at 353; see also Arreola, 176 Wn.2d at 294. But a pretextual traffic stop does not
violate the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769,
135 L. Ed. 2d 89 ( 1996).
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No. 43522 -5 -II
11. INEFFECTIVE ASSISTANCE OF COUNSEL
The State further argues that McLean did not receive ineffective assistance of counsel.
McLean claims he received ineffective assistance of counsel when his attorney did not object to
Trooper Thompson' s allegedly improper opinion testimony. We agree with the State.
Whether a defendant received ineffective assistance of counsel is a mixed question of law
and fact, which we review de novo. In re Pers. Restraint ofFleming, 142 Wash. 2d 853, 865, 16
P.3d 610 ( 2001). When claiming ineffective assistance of counsel, a defendant bears the burden
of satisfying the two - rong test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
p
2052, 80 L. Ed. 2d 674 ( 1984). State v. Hendrickson, 129 Wash. 2d 61, 77 -78, 917 P.2d 5631996). First, the defendant must show that counsel' s performance was deficient. Fleming, 142
Wn. 2d at 865. Second, the defendant must show that the deficient performance prejudiced the
defendant' s case. Fleming, 142 Wn.2d at 865. A failure to satisfy either prong is fatal to an
ineffective assistance of counsel claim. Strickland, 466 U. S. at 687.
McLean' s counsel did not object to Trooper Thompson' s testimony that ( 1) he arrests
drivers for driving under the influence only if he believes they are impaired by alcohol or drugs
and ( 2) he arrested McLean. McLean now contends that his counsel was ineffective for failing
to object because Trooper Thompson' s testimony conveyed an improper opinion that McLean
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was guilty. We disagree.
6 McLean concedes that Trooper Thompson properly opined that McLean was intoxicated. See
City of Seattle v. Heatley, 70 Wash. App. 573, 576, 578 -79, 854 P.2d 658 ( 1993). But McLean
argues that Trooper Thompson' s testimony " went well beyond proper opinion" because he also
stated that he arrested McLean. Br. of Resp' t at 26.
No. 43522 -5 -II
McLean fails to carry his burden to show that his attorney' s performance was deficient.
See Hendrickson, 129 Wn.2d at 77 -78. When determining whether counsel' s performance was
deficient, we begin with a strong presumption of counsel' s effectiveness. State v. McFarland,
127 Wash. 2d 322, 335, 899 P.2d 1251 ( 1995). Counsel' s performance is deficient if it falls below
an objective standard of reasonableness, under all the circumstances. Fleming, 142 Wn.2d at
865 -66. But counsel' s performance is not deficient if it can be characterized as a legitimate trial
tactic. State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 ( 2009).
McLean claims that " there was no possible tactical reason for trial counsel to refrain from
objecting" to Trooper Thompson' s testimony. Br. of Resp' t at 27. But it can be a legitimate
trial tactic to withhold an objection to avoid emphasizing inadmissible evidence. In re Pers.
Restraint ofDavis, 152 Wash. 2d 647, 714, 101 P.3d 1 ( 2004).
While laying foundation for testimony based on Trooper Thompson' s experience in
investigating driving under the influence of alcohol or drugs, the State asked why some of his
investigations do not lead to arrests. Trooper Thompson explained that " if you' re not impaired,
you' re not going to get arrested for DUI. So if I do the standardized field sobriety tests ... [ a] nd
determine that they' re not impaired; they do not get arrested." CP at 106 -07. Later, after
describing his investigation of McLean and administration of field sobriety tests, Trooper
Thompson stated, " I arrested [ McLean] for DUI." CP at 131. McLean' s attorney did not object
to these statements.
7 McLean asserts that the superior court implicitly determined that counsel' s failure to object was
not a legitimate trial tactic. But because we review the district court' s decision de novo, the
superior court' s determinations are not binding on us. Weaver, 161 Wn. App. at 63.
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No. 43522 -5 -II
Under the circumstances here, withholding an objection can be characterized as a
legitimate trial tactic seeking to avoid emphasizing Trooper Thompson' s testimony about
McLean' s intoxication and arrest. See Davis, 152 Wn.2d at 714. Because McLean' s counsel' s
performance did not fall below an objective standard of reasonableness, it was not deficient.
Fleming, 142 Wn.2d at 865 -66. Therefore McLean' s ineffective assistance claim fails.
McLean also fails to demonstrate prejudice.. A deficient performance prejudices the
defendant' s case when, within reasonable probabilities, the trial' s result would have been
different had the deficient performance not occurred.. Hendrickson, 129 Wn.2d at 78. Counsel' s
failure to object to evidence cannot prejudice the defendant unless the trial court would have
ruled the evidence inadmissible. Hendrickson, 129 Wn.2d at 79 -80; McFarland, 127 Wn.2d at
337 n.4. Here, McLean fails to show that Trooper Thompson' s testimony was inadmissible.
It is generally improper for a witness to opine that the defendant is guilty; to do so is to
invade the jury' s exclusive province. State v. Demery, 144 Wash. 2d 753, 759, 30 P.3d 12782001). To determine whether a witness' s statement is improper opinion testimony on the
defendant' s guilt, we consider the circumstances of the case, including the type of witness
involved, the nature of the testimony, the nature of the charges, the type of defense, and other
evidence before the trier of fact. Demery, 144 Wn.2d at 759; City ofSeattle v. Heatley, 70 Wn.
App. 573, 579, 854 P.2d 658 ( 1993).
However, a police officer may opine that, based on his experience and observations, the
defendant was intoxicated and impaired. Heatley, 70 Wn. App. at 579 -80. Under the
circumstances of this case, Trooper Thompson' s testimony did no more than convey his opinion
that McLean was intoxicated.
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No. 43522 -5 -II
Arguing to the contrary, McLean claims that " the fact of an arrest is not [ admissible as]
evidence because it constitutes the arresting officer' s opinion that the defendant is guilty." Br. of
Resp' t at 25. But McLean cites no authority stating that the fact of an arrest is categorically
inadmissible. And the two cases McLean cites are distinguishable.
McLean first cites State v. Carlin, 40 Wn. App. 698, 700 P.2d 323 ( 1985). In Carlin, a
police officer testified that a police dog followed a " fresh guilt scent" from the scene of a
burglary to the location where one defendant was found. 40 Wn. App. at 703; see id. at 700. But
the Carlin court stated that this testimony " arguably was an improper opinion" before deciding
that any error was harmless. 40 Wn. App. at 1703. Moreover, stating that a defendant emitted an
objectively ascertainable " guilt scent" is not comparable to stating the fact of an arrest.
McLean next cites Warren v. Hart, 71 Wash. 2d 512, 429 P.2d 873 ( 1967), another case that
fails to support his argument. Warren is a civil case in which defense counsel argued that the
jury should find that a driver was not negligent because police officers decided not to issue a
traffic citation at the scene of a car accident. 71 Wn.2d at 517. Warren says nothing about
admitting evidence showing the fact of a criminal defendant' s arrest.
Because McLean fails to show that evidence of his arrest was inadmissible, his attorney' s
failure to object to this evidence did not prejudice his case. McLean' s ineffective assistance of
counsel claim fails.
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No. 43522 -5 -II
The district court properly denied McLean' s motion to suppress, and McLean received
the effective assistance of counsel. Therefore, we reverse the superior court' s vacation of
McLean' s conviction, and we reinstate McLean' s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Worswick, C. J.
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