State Of Washington, V Lance Williams Evans ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43736 -8 -II
Respondent,
V.
LANCE WILLIAM EVANS, UNPUBLISHED OPINION
Abbellant.
JOHANSON, J. — Following a stipulated facts bench trial, Lance William Evans appeals
his second degree unlawful firearm possession conviction. Evans claims that ( 1) the police
unlawfully arrested him without probable cause and ( 2) his trial counsel provided ineffective
assistance. We affirm because Evans failed to preserve the probable cause challenge for appeal
and his trial counsel performed reasonably.
FACTS
Grants
On March 14, 2012, at 5: 58 PM, Lakewood Police Officers Jeremy Prater and
responded to unit 17 in the Avalon Place Apartments after the neighbor living in unit 18 called
911. The neighbor had reported that the woman from unit 17, later identified as Karen Rojo,
1
The record does not provide Officer Grant' s first name.
No. 43736 -8 -II
came to his apartment and asked him to call 911 because a man was in Rojo' s apartment waving
a gun at her daughter.
Hearing this information, Officer Prater believed he was responding to a " high- risk"
incident. When Officers Prater and Grant arrived at the complex two minutes later, at 6: 00 PM,
2
to unit 17 and observed a white male through the open front door, later
they proceeded
identified as Evans, sitting on a chair just inside the apartment. The officers took positions of
cover outside the apartment and directed Evans to walk out and lay face down on the ground.
Evans complied. A third officer then handcuffed Evans while Officers Prater and Grant cleared
the apartment, finding no other occupants —Rojo' s daughter was not in the apartment.
After the officers secured the area, Officer Prater contacted the neighbor who called 911,
and he located Rojo. Rojo informed Officer Prater that her daughter' s friend " Lance" came to
her apartment carrying a bag she described as a " man purse," and that Lance was upset because
her daughter owed him money. Clerk' s Papers ( CP) at 68. Rojo stated that Evans waved a small
black gun around and said, " No one is leaving until I get my money." CP at 68.
At 6: 09 PM, Officer Prater returned to where Evans was detained, confirmed with Evans
that his name was Lance, and then advised Evans of his Miranda3 rights. Evans indicated that he
understood his rights and agreed to speak with Officer Prater. When Officer Ryan Hamilton
arrived, he secured the " man purse" for safekeeping because the residents of unit 17 denied
ownership and wanted it removed. Evans eventually admitted owning the " man purse" and
2 The 911 report did not identify any other details about the man, other than his being a male.
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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No. 43736 -8 -II
being a convicted felon. Officer. Hamilton advised Evans of his Ferrier4 warnings, and Evans
consented to him searching the " man purse." Officer Hamilton found three knives and a small
black handgun. The officers then placed Evans in a patrol car and transported him to jail.5
The State charged Evans with second degree unlawful firearm possession and
unlawfully carrying a weapon capable of producing bodily harm.7 Evans moved to suppress his
statements, and he moved to suppress the gun due to an improper warrantless search; but he did
not challenge the legality of his arrest. After a CrR 3. 5 and 3. 6 hearing, the trial court found
Evans' s statements and gun admissible at trial.
After the trial court denied Evans' s suppression motions, Evans stipulated that the
evidence police obtained at the apartment would be admissible at trial and that the State had
sufficient evidence to convict him of second degree unlawful firearm possession; in exchange for
the stipulation, the State dismissed the unlawful carrying charge. Evans specifically reserved the
right to appeal the evidentiary suppression rulings. The trial court accepted Evans' s stipulation
and found him guilty of second degree unlawful firearm possession. Evans appeals.
ANALYSIS
I. PROBABLE CAUSE
Evans argues, for the first time on appeal, that officers unlawfully arrested him without
probable cause. We disagree because based on the record before us, the officers had probable
4 State v. Ferrier, 136 Wash. 2d 103, 960 P.2d 927 ( 1998).
5 The record does not indicate when the officers considered Evans formally arrested.
6
RCW 9. 41. 040( 2)( a)( i).
7
RCW 9. 41. 270( 1).
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No. 43736 -8 -II
cause to arrest Evans. Therefore, Evans did not preserve this issue for appeal because he cannot
show actual prejudice, and he does not satisfy RAP 2. 5( a).
A. STANDARD OF REVIEW AND RULES OF LAW
before the trial. court. RAP
Generally, we will not entertain a claim of error not raised
2. 5( a). An exception to that general rule is RAP 2. 5( a), which requires an appellant to
demonstrate a manifest error affecting a constitutional right. State v. Gordon, 172 Wash. 2d 671,
676, 260 P.3d 884 ( 2011). Stated another way, the appellant must identify a constitutional error
and show how the alleged error actually affected the appellant' s rights at trial. State v. O' Hara,
167 Wash. 2d 91, 98, 217 P.3d 756 ( 2009).
To determine if an error is of constitutional magnitude, we look to whether, if the
defendant' s alleged error is true, the error actually violated the defendant' s constitutional rights.
O' Hara, 167 Wash. 2d at 98 -99. An error is manifest if it is so obvious on the record that the error
warrants appellate review. O' Hara, 167 Wash. 2d at 99 -100. But appellants must also demonstrate
actual prejudice," meaning the defendant must plausibly show the asserted error had practical
and identifiable consequences at trial. Gordon, 172 Wash. 2d at 676. For an appellant to
demonstrate actual prejudice by trial counsel' s failure to move to suppress a warrantless arrest,
she or he must show that the trial court likely would have granted the motion if made. State V.
McFarland, . 27 Wash. 2d 322, 333 -34, 899 P.2d 1251 ( 1995).
1 To determine actual prejudice, that
the trial court likely would have granted the motion if made, we necessarily must preview the
merits of an appellant' s alleged error. See State v. Walsh, 143 Wash. 2d 1, 8, 17 P.3d 591 ( 2001).
Probable cause exists where the facts and circumstances within the arresting officer' s
knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a
person of reasonable caution to believe that an offense has been or is being committed. State v.
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No. 43736 -8 -II
Knighten, 109 Wash. 2d 896, 899, 748 P.2d 1118 ( 1988). We must consider the arresting officer' s
special experience and expertise in evaluating the reasonableness of the officer' s probable cause
determination. Knighten, 109 Wash. 2d at 899.
A custodial arrest occurs if a reasonable detainee under the circumstances would consider
himself or herself under full custodial arrest; the subjective perception of the arresting officers is
irrelevant. State v. Glenn, 140 Wn. App. 627, 638, 166 P.3d 1235 ( 2007). We look to several
factors to determine if a detainee could reasonably consider himself or herself under full
custodial arrest: whether the suspect is handcuffed, whether the suspect is placed in a patrol
vehicle for transport, and whether the suspect is told that he or she is under arrest. State v.
Radka, 120 Wash. App. 43, 49, 83 P.3d 1038 ( 2004).
B. ANALYSIS
Here, even assuming without deciding that an arrest without probable cause is an error of
constitutional magnitude, Evans fails to demonstrate actual prejudice. Evans cannot show that
the trial court likely would have granted the motion to suppress the arrest had Evans made the
motion. Thus, he cannot satisfy RAP 2. 5( a).
In Glenn, Division One of this court held that officers have probable cause to arrest a
person when they receive a citizen' s report that someone is pointing a gun at a person, and the
facts and circumstances known to the arresting officers would cause a reasonable person to
believe that the identified person either pointed the gun or still possessed the gun. 140 Wash. App.
at 638 -39. In Glenn, a seven -year -old boy told his mother that a man driving by pointed a gun at
him, and the boy' s mother called police. 140 Wn. App. at 631. The boy' s mother saw a car
matching what her son described, copied the license plate, and reported it to police. Glenn, 140
Wn. App. at 631. When police arrived and interviewed the boy, a car drove by and the boy
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No. 43736 -8 -II
identified it as the same car from which the man pointed the gun. Glenn, 140 Wash. App. at 631.
The officers stopped the car, found that the plates matched the plates reported by the boy' s
mother, and arrested the driver. Glenn, 140 Wn. App. at 631. Division One held that probable
cause supported the driver' s arrest because the citizen' s report, combined with the matching
vehicle plates, would cause a reasonable person to believe that the driver pointed the weapon
from his car and still had the weapon on his person. Glenn, 140 Wash. App. at 638 -39.
Like Glenn, officers here responded to a high -
risk, firearm- related citizen' s report that a
man was waving a gun at a female in unit 17 at the Avalon Place Apartments. Within two
minutes of receiving the call, officers observed a male in unit 17, verifying a portion of the
citizen' s report. After the officers secured the scene, they confirmed the 911 call and learned
that " Lance" had waved the gun in the apartment. Officer Prater then confirmed with Evans that
his name was Lance and advised him of his Miranda rights; after Officer Hamilton found
Evans' s gun in his " man purse," the officers placed him in a patrol car and transported him to
jail. Like Glenn, probable cause supported Evans' s arrest based on ( 1) the citizen' s initial report
that a man waved a gun at a woman in apartment 17, ( 2) the officers observed Evans inside
apartment 17, ( 3) the officers confirmed what happened with the citizen informant 911 caller and
Rojo identified the gunman as " Lance," and ( 4) the officers identified the man removed from
apartment 17 as " Lance." Those facts, taken together, as in Glenn, would lead a reasonable
person to believe that Evans waved a gun and still had a gun on his person. See 140 Wash. App. at
638 -39. Thus, the officers had probable cause for the arrest.
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No. 43736 -8 -II
Evans cannot demonstrate from the record that the officers unreasonably arrested him by
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immediately ordering him to the ground and handcuffing him. The record shows that the
officers ordered Evans to the ground and handcuffed him because he allegedly brandished a
firearm just moments before they arrived. The officers placed Evans in a patrol vehicle and
transported him to jail only after confirming with Rojo that Evans had waved a firearm at her
daughter. The record does not indicate that officers ever told Evans he was under arrest when
they first handcuffed him to secure the area, and merely handcuffing a suspect in a high - isk
r
situation, by itself, does not constitute an arrest. See Radka, 120 Wn. App. at 49. Accordingly,
based on the record before us, we cannot say that the trial court would have found an absence of
probable cause to arrest Evans. Accordingly, Evans fails to demonstrate that the trial court likely
would have granted the motion to suppress the arrest had he challenged it at trial; therefore, he
does not demonstrate prejudice and fails to preserve this issue for appeal. See RAP 2. 5( a)( 3).
II. INEFFECTIVE ASSISTANCE
Evans next argues that defense counsel provided ineffective assistance by failing to
challenge the legality of his arrest and encouraging him to sign the stipulation. Defense counsel
was not ineffective because, as discussed above, challenging the defendant' s arrest would have
been futile and agreeing to a stipulation was a strategic, tactical decision designed to achieve a
favorable outcome.
8
Evans conflates probable cause and reasonable suspicion — he argues that officers unlawfully
arrested him, yet he mistakenly relies on reasonable suspicion cases. For example, he relies on
State v. Sieler, 95 Wash. 2d 43, to argue that the officers improperly
621 P.2d 1272 ( 1980),
detained and questioned him based on an unreliable tip; he argues that the officers needed
knowledge of the source' s reliability and needed to independently corroborate the tip before
detaining him. But Sieler is inapplicable here because it involved an officer detaining or
questioning someone, not having probable cause to arrest a suspect. 95 Wash. 2d at 45.
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No. 43736 -8 -II
To demonstrate ineffective assistance, the appellant must satisfy the two -
pronged
Strickland test. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674
1984); State v. Cienfuegos, 144 Wash. 2d 222, 226 -27, 25 P.3d 1011 ( 2001). For the first prong,
the appellant must show that counsel' s performance was deficient, meaning that counsel' s
performance falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688.
For the second prong, the appellant must show that counsel' s deficient performance prejudiced
his or her defense. Strickland, 466 U.S. at 688. If trial counsel' s conduct can be characterized as
legitimate trial strategy or tactics, it cannot substantiate an ineffective assistance claim. State v.
McNeal, 145 Wash. 2d 352, 362, 37 P.3d 280 ( 2002), cent. denied, 547 U.S. 1151 ( 2006).
First, Evans claims that defense counsel failed to provide effective assistance because he
did not challenge the legality of Evans' s arrest. But as reasoned above, the officers had probable
cause to arrest Evans. Because police had probable cause, any attempt by counsel to challenge
the legality of Evans' s arrest would have been futile. Therefore, counsel' s decision not to
challenge Evans' s arrest was reasonable and does not constitute ineffective assistance.
Second, Evans claims that defense counsel failed to provide effective assistance by
encouraging him to stipulate not only that the evidence against him was admissible, but that it
sufficiently supported his guilt. He claims this " hybrid" guilty plea and fact stipulation is not a
legally recognized method of resolving criminal prosecutions and deprived him of due process.
But Evans' s decision to stipulate to the admissibility and sufficiency of the evidence was a
strategic choice to obtain more favorable treatment —Evans knowingly and voluntarily stipulated
to the admissibility and sufficiency of the evidence against him in order to appeal the
suppression issue. And in exchange for Evans' s stipulation, the State dismissed the unlawful
carrying of a fireman charge. Because Evans' s stipulation strategically allowed him to appeal
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No. 43736 -8 -II
the suppression issue and avoid an unlawful carrying of a firearm conviction, it cannot serve as a
basis for an ineffective assistance claim. See McNeal, 145 Wash. 2d at 362. Accordingly, Evans' s
ineffective assistance of counsel claim fails.
We affirm.
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.
i
ON, J.
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