State Of Washington v. Matthew Christopher Cherry

Filed
Washington State
Court of Appeals
Division Two
November 24, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45396-7-II
Respondent,
v.
MATTHEW CHRISTOPER CHERRY, PART PUBLISHED OPINION
Appellant.
LEE, J. — Matthew Christopher Cherry appeals his convictions and sentence for unlawful
possession of a controlled substance and tampering with evidence, arguing that (1) the trial court’s
findings of fact supporting the trial court’s suppression rulings are inaccurate; (2) the trial court
erred in admitting his post-arrest statements and the methamphetamine pipe found in his car; (3)
the trial court erred in finding his consent to a car search was freely and voluntarily given; (4) the
trial judge lacked authority to sign the CrR 3.6 findings; (5) the trial court erred in failing to grant
his requests for a new attorney; and (6) the trial court erred in imposing discretionary legal financial
obligations.
In the published portion of our opinion, we hold that (1) any inaccuracies in the challenged
findings were harmless; (2) Cherry’s post-arrest statements, including his consent to the search of
his car, did not violate his right to remain silent; and (3) Cherry’s consent to the search was
No. 45396-7-II
voluntary. In the unpublished portion of our opinion, we address the remainder of Cherry’s
arguments and hold that (4) any error in the successor judge’s signing of the CrR 3.6 findings was
harmless; (5) the record does not show that Cherry had a conflict with his attorney sufficient to
warrant the appointment of new counsel; and (6) because Cherry challenges his legal financial
obligations for the first time on appeal, we decline to consider the challenge. Accordingly, we
affirm Cherry’s convictions and sentence.
FACTS
After Cherry was arrested for driving with a suspended license, he consented to a search of
his car. A pipe containing methamphetamine residue was found. When Cherry was booked into
jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was
seen between his legs. The State charged Cherry by amended information with unlawful
possession of a controlled substance and tampering with evidence.
Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the
officers threatened to have his car impounded if he did not consent to its search and that his consent
was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the
admission of his post-arrest statements.
CrR 3.6 Hearing
Judge Steven Dixon presided over the CrR3.6 hearing. During the CrR 3.6 hearing,
Bremerton Police Officer Steven Forbragd, Officer Dale Roessel, and Cherry testified. Forbragd
testified that he was on patrol when he saw Cherry driving down the street. Forbragd also testified
that he had previously engaged in “countless” contacts with Cherry, including one at a hotel two
days earlier, and that he signaled for Cherry to stop because he knew that Cherry’s driver’s license
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No. 45396-7-II
was suspended. Verbatim Report of Proceedings (VRP) (July 31, 2013) at 5. After Cherry
stopped, Forbragd arrested him for driving with a suspended license, put him in the patrol car, and
advised him of his Miranda rights.1 Cherry stated that he did not want to make any statements.
When Forbragd asked Cherry to confirm who was in the car, Cherry identified his two
passengers. When asked whether either passenger could take the car, Cherry responded that
neither had a license and that he did not know anyone who did. Forbragd then informed Cherry
that his car would be impounded for security purposes.
After the passengers left the scene, Forbragd asked Cherry if he would consent to a search
of his car. Forbragd told Cherry that he did not have to consent, and Cherry replied that he did not
want to consent. Cherry added that there were no drugs in the car because he had used them earlier,
and he laughed.
Based on that comment and his knowledge of Cherry’s drug history, Forbragd called for
an officer to bring a drug dog to the scene and so informed Cherry. While they were waiting for
Roessel and his K-9 unit to arrive, Cherry told Forbragd that he could search the car. Forbragd
asked Cherry to confirm his consent and told him that he could revoke it at any time. Forbragd
denied telling Cherry that he would not impound the car if Cherry consented to its search.
Roessel arrived and confirmed with Cherry that he was consenting to a search of his car.
Roessel testified that he informed Cherry that he did not have to consent and that he could revoke
consent at any time. Roessel also told Cherry that his consent to the search would not influence
the decision to impound his car.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 45396-7-II
During the search, Cherry told Forbragd that there might be a methamphetamine pipe in
the car. When the search revealed a methamphetamine pipe in a backpack, Cherry admitted
ownership of both. Forbragd testified that he ultimately decided against impounding the car
because of Cherry’s cooperation and because the car was not parked illegally.
Cherry testified that after his arrest, Forbragd told him that if he was truthful, his car would
not be impounded. Cherry understood that to mean that if he was completely cooperative, his car
would not be towed. Cherry denied that Forbragd told him he could refuse to consent to the search
and testified that he consented only after Forbragd threatened impoundment. Cherry added that
two days earlier, he had slammed his hotel door in Forbragd’s face because the officer was
invading his privacy. On cross-examination, Cherry admitted that he had multiple prior
convictions for theft and one for making a false statement to a public officer. He estimated that he
had 30 prior contacts with Bremerton police.
In his oral ruling, Judge Steven Dixon resolved the conflict between the officers’ and
Cherry’s testimony in the officers’ favor. Judge Dixon found no basis to believe that the officers
threatened to impound the vehicle unless Cherry consented to its search. Judge Dixon further
found that the officers twice told Cherry he did not have to consent and observed that Cherry’s
prior extensive contact with Bremerton police and his behavior during the arrest belied his
testimony that he felt threatened. Judge Dixon noted that even if the officers told Cherry that they
would not impound his car if he was truthful, this statement did not require him to be completely
cooperative. Furthermore, even if the officers did threaten to impound the car if Cherry did not
consent, Cherry’s “criminal sophistication” was such that the threat was not coercive. VRP (July
31, 2013) at 66. Judge Dixon concluded that Cherry’s consent to search was freely and voluntarily
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given. Judge Dixon denied the motion to suppress and requested that the parties submit written
findings of fact and conclusions of law.
CrR 3.5 Hearing
Judge Anna Laurie presided over the CrR 3.5 hearing. Officer Forbragd again testified
about Cherry’s stop and arrest, and Cherry’s statement that he did not want to make any comments
after being informed of his Miranda rights. Forbragd added that after dealing with Cherry’s
passengers, he asked Cherry for consent to search his car. Cherry declined to consent and said that
there were no drugs in the car because he had used them earlier.
Forbragd testified further that after Cherry changed his mind and consented to the search,
he again spoke of smoking methamphetamine earlier that day and said that there might be a
methamphetamine pipe in the car. Forbragd then asked Cherry if he was willing to talk, and Cherry
said that he was. Forbragd testified that he never made any promises or threats to induce Cherry’s
statements and that Cherry never requested an attorney.
Cherry testified that the officers threatened to tow his car if he did not talk to them, that he
never admitted using drugs earlier in the day, and that he requested an attorney when he received
the Miranda warnings. On cross-examination, he acknowledged that he had 13 prior convictions
for crimes of dishonesty.
In her oral ruling, Judge Laurie stated that “consistent with but independent of Judge
Dixon’s rulings that I also find the defendant’s belief that there was [a] threat causing him duress
to be less than credible.” 1 VRP at 60. Judge Laurie found that Cherry volunteered the statements
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No. 45396-7-II
about the absence of drugs in the car and about using methamphetamine earlier in the day and
concluded that all of Cherry’s statements were admissible.2
Trial and Sentencing
At trial, a jury found Cherry guilty as charged. The State requested consecutive sentences
totaling 18 months’ incarceration, and defense counsel requested a low-end sentence of 6 months
and concurrent sentencing. The trial court imposed 9 months on the possession conviction and a
concurrent sentence of 364 days on the tampering conviction, with 184 days suspended.
Cherry appeals.
ANALYSIS
A. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence to determine whether
substantial evidence supports the trial court’s findings of fact and whether those findings, in turn,
support the trial court’s conclusions of law. State v. Russell, 180 Wash. 2d 860, 866, 330 P.3d 151
(2014). Unchallenged findings of fact are verities on appeal. State v. Bonds, 174 Wash. App. 553,
562, 299 P.3d 663, review denied, 178 Wash. 2d 1011 (2013). We review a trial court’s legal
conclusions de novo. State v. Roden, 179 Wash. 2d 893, 898, 321 P.3d 1183 (2014).
Most of the trial court’s written findings of fact are unchallenged and are thus verities.
Cherry challenges the accuracy of a few CrR 3.5 and 3.6 findings, and we address those challenges
before proceeding to a de novo review of the trial court’s legal conclusions.
2
The defense did not object to the admission of statements that Cherry made during the jail
booking process.
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No. 45396-7-II
B. CHALLENGED FINDINGS OF FACT
We review challenged findings of fact to determine whether they are supported by
substantial evidence, which is evidence sufficient to persuade a fair-minded, rational person of
their truth. State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006). However, most of Cherry’s
challenges address omissions in the findings rather than their factual support.3
1. CrR 3.6 Findings
Cherry challenges finding of fact IV, which states as follows:
That the defendant had contact with [Officer Forbragd] a couple of days
prior and in that contact, the Officer had asked to come in to his hotel room and
search for drugs, which the defendant refused and slammed the door shut on the
Officers.
Clerk’s Papers (CP) at 78. Cherry faults this finding because it does not mention his comments
after he invoked his right to remain silent and before he consented to the search. But this finding
describes a prior incident between Cherry and Forbragd. Other unchallenged findings describe
the discussion between Cherry and Forbragd following his arrest. This challenge fails.
Cherry next challenges finding of fact VII, which states:
That while Officer Roessel was searching the defendant’s vehicle, Officer
Forbragd stayed inside the patrol car with the defendant in a place where the
defendant could watch the search in case the defendant chose to revoke his consent.
The defendant never revoked his consent and gave further consent to search the
trunk of the vehicle.
CP at 78. Cherry argues that this finding neglects to mention the coercive atmosphere and Cherry’s
desire to avoid impound. Cherry does not challenge the facts included in this finding. Therefore,
3
Cherry also assigns error to two conclusions of law on the basis that they are actually findings of
fact that are unsupported by substantial evidence. We do not address these assignments of error
because they are not supported by argument. RAP 10.3(a)(6); State v. Goodman, 150 Wash. 2d 774,
782, 83 P.3d 410 (2004).
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No. 45396-7-II
in the absence of any showing that this finding is not supported by substantial evidence, Cherry’s
challenge fails.
Finally, Cherry challenges finding of fact X on the ground that it refers to information that
was not offered at the CrR 3.6 hearing. This finding states as follows:
That the defendant was transported to the jail where the defendant was
booked for several counts. Officer Forbragd later tested the pipe which did test
positive for methamphetamine. The defendant has 53 prior misdemeanor
convictions and 4 felony convictions.
CP at 79.
There was no testimony at the hearing about the number of offenses for which Cherry was
booked, the testing of the pipe, or the fact that Cherry has 53 prior misdemeanors and 4 prior
felonies. However, Cherry did testify during the CrR 3.6 hearing that he has 30 prior
misdemeanors and 5 prior felonies. The number of Cherry’s current or prior convictions, as well
as the results of the field test, were irrelevant to the conclusion that his consent to search was
voluntary; thus, any error in this finding is harmless.
2. CrR 3.5 Findings
Cherry challenges two findings for failing to describe the questions that preceded his
consent to search. They are as follows:
IV.
That while Officer Forbragd was waiting for Officer Roessel to respond, the
defendant changed his mind and told the Officer that he would give his permission
for the Officer to search the vehicle. He again indicated that there was nothing left
in the vehicle. This was not in response to another request by the Officer to search
the vehicle.
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No. 45396-7-II
V.
That Officer Roessel arrived on the scene and spoke with the defendant
briefly to confirm that the defendant was giving his permission to search the
vehicle. The defendant stated that he did give his consent for the search. The
defendant was specifically told that he could refuse consent to search the vehicle.
CP at 74.
Here again, while not in these specific findings, other unchallenged findings include the
exchanges between Officer Forbragd and Cherry that preceded his consent. Therefore, we reject
this challenge.
Cherry also challenges finding of fact V and finding of fact VIII, complaining about the
inclusion of Officer Roessel’s statements before, during, and after the search even though the
officer did not testify at the 3.5 hearing. 4 Roessel did not testify during the 3.5 hearing, and
evidence of his statements to Cherry and the results of the car search was not admitted at that
hearing. However, the issue at the 3.5 hearing was the voluntariness of Cherry’s statements to
Forbragd. Forbragd testified that he never made any threats or promises to induce Cherry’s
4
Finding of fact VIII provides as follows:
That Officer Roessel search [sic] the trunk and located a backpack with a
photograph. The defendant admitted that the photograph was of his daughter. A
methamphetamine pipe was also located in the same backpack. At first the
defendant claimed that the backpack was not his but then admitted the backpack
and the methamphetamine pipe both belonged to him. The Officers on scene
determined that the vehicle was far enough off of the road way to leave at the scene
and canceled the tow. The Officers never threatened the defendant that the vehicle
would be towed if he did not give consent to search the vehicle.
CP at 75.
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No. 45396-7-II
statements. The trial court’s conclusion that Cherry’s statements were admissible did not depend
on Roessel’s conduct or the search. Again, any error in this regard is harmless.
Having rejected Cherry’s challenges to the findings of fact, we turn to a de novo review of
the trial court’s conclusions that Cherry’s postarrest statements were admissible and that his
consent to search was voluntary.
C. RIGHT TO REMAIN SILENT
Cherry asserts that his post-arrest statements, including his consent to search, were
inadmissible because they were obtained in violation of his constitutional right to remain silent.
WASH. CONST. art. I, § 9: U.S. CONST. amend. V.5 We disagree.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V; Miranda v. Arizona, 384 U.S. 436,
439, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In Miranda, the United States Supreme Court
adopted a set of measures designed to protect a suspect’s Fifth Amendment right from the
“inherently compelling pressures” of custodial interrogation. 384 U.S. at 467. These safeguards
include a warning that the suspect has the right to remain silent. Maryland v. Shatzer, 559 U.S.
98, 104, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010).
The admissibility of statements obtained after a person in custody has decided to remain
silent depends on whether his right to cut off questioning was scrupulously honored. Michigan v.
5
The Washington Supreme Court has held that article I, section 9 is equivalent to the Fifth
Amendment and should receive the same interpretation. State v. Templeton, 148 Wash. 2d 193, 207-
08, 59 P.3d 632 (2002). Consequently, we decline Cherry’s invitation to apply a Gunwall analysis
to determine whether the state constitution offers greater protection in this regard. See State v.
Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986) (setting forth factors to determine whether state
constitution provides broader protection than federal constitution).
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No. 45396-7-II
Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975) (quoting Miranda, 384 U.S. at
474). The term “interrogation” under Miranda refers not only to express questioning by police
but to words or actions that are reasonably likely to elicit an incriminating response. Rhode Island
v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
1. Questions About Passengers
Cherry complains that after he received Miranda warnings and invoked his right to remain
silent, Officer Forbragd violated that right by asking questions about his passengers. But, as the
State points out, the questions about Cherry’s passengers were not intended to and did not elicit
incriminating information. Rather, the questions were intended to determine whether Cherry’s car
could be safely removed from the scene. See State v. Wheeler, 108 Wash. 2d 230, 238, 737 P.2d
1005 (1987) (asking routine questions during booking does not constitute unlawful interrogation
because such questions rarely elicit an incriminating response). The fact that there was no
testimony about these preliminary questions during the CrR 3.5 hearing and no findings of fact
addressing them supports our conclusion that they did not implicate Cherry’s right to remain silent.
See State v. Williams, 137 Wash. 2d 746, 751, 975 P.2d 963 (1999) (purpose of CrR 3.5 hearing is to
determine voluntariness of custodial statements).
2. Request for Consent to Search
Cherry next argues that the officers were not permitted to ask for consent to search his car
after he invoked his right to remain silent. We disagree.
The State argues that an officer does not need to give Miranda warnings before asking for
consent to search, and relies on cases holding that Miranda warnings are not required before asking
for consent to search. See, e.g., State v. Silvernail, 25 Wash. App. 185, 191, 605 P.2d 1279 (no
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No. 45396-7-II
Miranda warnings needed before asking for keys after consent to search given because request
“was not designed to elicit a testimonial response and Silvernail’s unexpected voluntary
admissions were not the product of police questioning”); review denied, 93 Wash. 2d 1021, and cert.
denied, 449 U.S. 843 (1980); State v. Rodriguez, 20 Wash. App. 876, 880, 582 P.2d 904 (1978)
(“Miranda warnings are not a prerequisite to a voluntary consent . . . The fact that a consent to
search might lead to incriminating evidence does not make it testimonial or communicative in the
Fifth Amendment sense.”). However, the cases relied on by the State do not address whether an
officer can ask for consent to search after a defendant has invoked Miranda and his privilege
against self-incrimination. No Washington case has addressed this specific issue.
Courts in other jurisdictions have held that once a defendant invokes the right to remain
silent, a subsequent request for consent to search does not violate the defendant’s Fifth Amendment
rights. In United States v. Hidalgo, the court held that consent to search requested and obtained
after defendant invoked his right to remain silent did not violate his Fifth Amendment rights
because the Fifth Amendment protects only against compelling incriminating evidence of a
testimonial nature and not against the compelled production of physical evidence. 7 F.3d 1566,
1568 (11th Cir. 1993). In so holding, the Hidalgo court rejected the premise that a consent to
search is an incriminating statement and stated that “‘[e]very federal circuit court which has
addressed the Miranda issue presented here has reached the conclusion that a consent to search is
not an incriminating statement.’” Hidalgo, 7 F.3d at 1568 (alteration in original) (quoting United
States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993); see also Garcia v. State, 979
So. 2d 1189, 1194 (Fla. Dist. Ct. App. 2008) (right to silence protects only testimonial or
communicative acts of suspect, and consent to search is neither), review denied, 11 So. 3d 355
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No. 45396-7-II
(2009); State v. Crannell, 170 Vt. 387, 392-93, 750 A.2d 1002 (2000) (request for consent to search
does not violate Fifth Amendment rights, including right to remain silent), overruled on other
grounds by State v. Brillon, 183 Vt. 475, 955 A.2d 1108 (2008), rev’d and remanded, 556 U.S. 81
(2009); State v. Turner, 136 Wis. 2d 333, 350-51, 401 N.W. 827 (1987) (requesting consent to
search does not violate defendant’s Fifth Amendment right to remain silent); and State v.
Baumeister, 80 Or. App. 626, 628-29, 723 P.2d 1049 (asking for consent to search after defendant
invoked right to remain silent does not violate Fifth Amendment), review denied, 302 Or. 299
(1986).6
The trial court found that Officer Forbragd informed Cherry of his Miranda rights before
requesting Cherry’s consent to search the car. The request for consent to search was not designed
to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore,
law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent
to search his car after Cherry had invoked that right.
3. Statements About Drugs
The only statements at issue during the CrR 3.5 hearing were Cherry’s explanation, after
initially declining to consent to a search, that there were no drugs in the car because he had used
6
Other cases have applied the same rule when a defendant has requested an attorney. See United
States v. Bustamante, 493 F.3d 879, 892 (7th Cir. 2007) (though interrogation must cease after a
defendant in custody invokes his right to counsel, a request to search is not likely to elicit an
incriminating response and is not interrogation; “Miranda does not protect a defendant who is in
custody from a police officer’s request to search his vehicle”), cert. denied, 552 U.S. 1237 (2008);
State v. Hatfield, 246 Or. App. 736, 739, 743-44, 268 P.3d 654 (2011) (officer was not foreclosed
from asking for consent to search after defendant invoked his right to counsel), review denied, 352
Or. 341 (2012); and State v. Baldwin, 290 S.W.3d 139, 144 (Mo. Ct. App. 2009) (Missouri courts
have found that requesting consent to search after defendant requests counsel does not constitute
interrogation because consent is not incriminating response).
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No. 45396-7-II
them earlier and his subsequent statements during the search (after Cherry consented to a search)
that he had smoked methamphetamine earlier and that there might be a pipe in his car. We hold
that these statements were not made in response to any questioning in violation of Cherry’s right
to remain silent.
The trial court found:
That . . . Officer Forbragd went back to the vehicle and asked [Cherry] for consent
to search the vehicle. [Cherry] responded that he didn’t want them to search his vehicle
and that he had smoked all the drugs earlier in the day. [Cherry] then laughed.
....
That [Cherry] made the comment, not in response to questioning, that there may be
a pipe in the vehicle. [Cherry] stated that the pipe did not belong to him. Officer Forbragd
asked [Cherry] if he wished to talk to the Officer. [Cherry] stated that everything he says
usually gets used against him but that he would like to talk to the Officer.
CP at 74 (Findings of Fact III and VII.) . These unchallenged findings are verities on appeal.
Bonds, 174 Wash. App. at 563.
Cherry’s statements were not made in response to any questioning likely to elicit an
incriminating response. Even if Cherry’s statements were prompted by watching the police search
his car, as Cherry now argues, they were not prompted by unlawful interrogation. We see no
violation of Cherry’s right to remain silent. Thus, Cherry’s statements were properly admitted.
D. CONSENT TO SEARCH
Cherry argues that his consent to search was not voluntary, and therefore, the search
violated the Fourth Amendment and the evidence found during the search is inadmissible. We
disagree.
Consent to search is an exception to the warrant requirement. State v. Thompson, 151
Wash. 2d 793, 803, 92 P.3d 228 (2004). To show valid consent, the State must prove that the consent
14
No. 45396-7-II
was freely and voluntarily given. State v. O’Neill, 148 Wash. 2d 564, 588, 62 P.3d 489 (2003).
Whether consent was voluntary or the result of duress or coercion, express or implied, is a question
of fact. O’Neill, 148 Wash. 2d at 588. Factors used to determine whether a person has voluntarily
consented include whether Miranda warnings were given, the individual’s education and
intelligence, and whether he was advised of the right to consent. O’Neill, 148 Wash. 2d at 588.
The trial court found that Officer Forbragd read Cherry his Miranda rights before asking
for consent to search his car, and that the officers informed Cherry that he had the right to refuse
consent. The trial court also found that during his previous encounter with Forbragd at his hotel,
Cherry had refused a search. In addition, the trial court found that the officers never threatened to
tow the car if Cherry did not consent to its search. These unchallenged findings support the trial
court’s conclusion that the consent to search was voluntary.
Where officers tell a defendant they will impound his car and request a search warrant if
he does not consent to its search, they are not being coercive. State v. Smith, 115 Wash. 2d 775, 790,
801 P.2d 975 (1990). Furthermore, this is not a case where the officers misrepresented their
authority in an attempt to obtain consent or stated that they would search the car with or without
consent. See Bumper v. North Carolina, 391 U.S. 543, 549, 88 S. Ct. 1788, 20 L. Ed. 2d 797
(1968) (a search conducted in reliance on a warrant cannot later be justified on the basis of consent
if the warrant was invalid); State v. Apodaca, 67 Wash. App. 736, 739-40, 839 P.2d 352 (1992)
(threats to obtain a search warrant may invalidate subsequent consent if grounds for obtaining
warrant did not exist), overruled on other grounds by State v. Mierz, 127 Wash. 2d 460, 901 P.2d 286
(1995). As our Supreme Court stated in upholding another consensual search, “Bowing to events,
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No. 45396-7-II
even if one is not happy with them, is not the same thing as being coerced.” State v. Lyons, 76
Wash. 2d 343, 346, 458 P.2d 30 (1969).
The trial court did not err in concluding that Cherry voluntarily consented to the search of
his car. Consequently, we reject Cherry’s argument that the fruits of that search, including the
pipe and Cherry’s admission of ownership, should have been suppressed.
We hold that the trial court did not violate Cherry’s Fifth Amendment rights by admitting
Cherry’s statements made after he invoked his right to remain silent. We further hold that a request
for consent to search the car after Cherry had invoked his Miranda rights did not violate Cherry’s
right to remain silent and that Cherry voluntarily consented to the search of his car. We also hold
that Cherry’s remaining arguments, addressed in the unpublished portion of this opinion, fail.
Accordingly, we affirm Cherry’s convictions.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2.06.040, it is so ordered.
ADDITIONAL FACTS
Presentation of Findings
Judge Dixon presided over the CrR 3.6 hearing and made an oral ruing. Judge Laurie
presided over the CrR 3.5 hearing, trial and sentencing. At sentencing, the State presented the CrR
3.6 and CrR 3.5 findings of fact and conclusions of law for the court’s signature. When asked,
Cherry’s attorney did not object to Judge Laurie signing the agreed CrR 3.6 findings and
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No. 45396-7-II
conclusions in Judge Dixon’s absence.7 Defense counsel added that he had endorsed the CrR 3.5
findings and that they accurately memorialized the oral ruling.
Requests for New Counsel
Cherry asked for a new attorney several times before the trial began on September 10,
2013. At an omnibus hearing on June 25, and after defense counsel informed the court that he had
spoken to Cherry “at some length” about the search issues, Cherry informed the court that he would
like his attorney to withdraw: “I don’t feel like he’s representing me fully to my indigent defense.
And I don’t need a warm body with a law degree—no disrespect—as my trial counselor.” VRP
(June 25, 2013) at 3, 4-5. The court denied Cherry’s request because there was no evidence that
his attorney could not competently represent him.
At a hearing on July 10, after defense counsel informed the court that he had been on
vacation the previous week but was currently working on the CrR 3.6 brief, Cherry said that he
needed to address the court about irreconcilable differences with his attorney. Cherry complained
that his attorney had not been to see him since the previous hearing and had said it would be best
if he took the plea bargain. When the court asked defense counsel if there was any reason that he
could not represent Cherry, counsel responded no, and the court ordered him to remain on the case.
On August 26, Cherry gave the court a letter stating that he was dissatisfied because his
attorney (1) had told the court on July 10 that he had not yet reviewed the police report; (2) had
violated the attorney/client privilege on more than one occasion; (3) was biased against him and
believed he was guilty, (4) would not interview or investigate the State’s expert witness; (5) would
7
Judge Laurie explained that Judge Dixon would be on the bench in Grant County for more than
two weeks.
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No. 45396-7-II
not propose a lesser included jury instruction for possession of drug paraphernalia; and (6) would
not have the methamphetamine pipe independently tested. Cherry added that he and defense
counsel had irreconcilable differences because of a breakdown in communication and that they
“never seem to see eye to eye on anything.” CP at 32. The court reviewed the letter and asked
defense counsel if he could continue working with Cherry. When counsel replied that he could,
the court stated that nothing in Cherry’s letter showed that a change of counsel was required and
denied his request for a new attorney.
Before Cherry’s trial began on September 10, defense counsel presented motions in limine
and made a record concerning his proposed lesser-included instructions on possession of drug
paraphernalia. 8 When Cherry tried to speak to the court directly, the court told him to speak
through his attorney. Cherry then stated that he had filed a state bar association complaint against
his attorney and had not wanted him “the whole time.” 1 VRP at 20. The court responded that it
would not revisit his request for a new attorney.
Legal Financial Obligations
The trial court imposed various legal financial obligations at sentencing. In imposing the
standard legal financial obligations, the trial court made the following observation: “You have
probably got tens of thousands of dollars of [legal financial obligations] that you owe, and I’m
adding another almost 3,000, 4,000 dollars to that today. You are going to have to start, as part of
8
Counsel admitted that these instructions were invalid under State v. LaPlant, 157 Wash. App. 685,
239 P.3d 366 (2010) but would not expressly concede the issue because of Cherry’s disagreement
with his position.
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your program, to chip away at those and set up a payment plan with the clerk’s office.” VRP (Sept.
13, 2013) at 17.
ANALYSIS
A. CrR 3.6 FINDINGS OF FACT
Cherry argues that the CrR 3.6 findings are invalid because they were not signed by the
hearing judge. We disagree.
A successor judge generally lacks authority to enter findings of fact on the basis of
testimony heard by a predecessor judge. RCW 2.28.030(2); State v. Bryant, 65 Wash. App. 547,
549, 829 P.2d 209 (1992). Nevertheless, the parties may agree to allow a successor judge to make
findings of fact based on the evidence in the record. In re Marriage of Crosetto, 101 Wash. App.
89, 95-96, 1 P.3d 1180 (2000). In addition, a successor judge may sign findings that the defendant
has prepared, with the defendant’s consent. State v. Ward, 182 Wash. App. 574, 586, 330 P.3d 203,
review denied, 339 P.3d 634 (2014).
Judge Dixon presided over the CrR 3.6 hearing and gave an oral ruling. Six weeks later,
the prosecutor submitted agreed findings to Judge Laurie. When Judge Laurie explained that Judge
Dixon was not available and asked defense counsel if he objected to her signing the findings,
counsel replied that he did not. Under these circumstances, we find no error in the successor
judge’s signature. And, even if error did occur, it was harmless because Judge Dixon’s oral ruling
following the CrR 3.6 hearing was sufficient to allow appellate review of his ruling. State v.
Thompson, 73 Wash. App. 122, 130, 867 P.2d 691 (1994).
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No. 45396-7-II
B. REQUEST FOR NEW COUNSEL
Cherry argues next that the trial court erred in denying his requests for a new attorney. We
disagree.
Criminal defendants have a constitutional right to counsel. U.S. CONST. amend. VI; WASH.
CONST. art. I, § 22. The right to counsel secures the defendant a fair trial by ensuring a meaningful
adversarial process, rather than a meaningful attorney-client relationship. Wheat v. United States,
486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). To justify the appointment of new
counsel, a defendant “‘must show good cause to warrant substitution of counsel, such as a conflict
of interest, an irreconcilable conflict, or a complete breakdown in communication between the
attorney and the defendant.’” State v. Varga, 151 Wash. 2d 179, 200, 86 P.3d 139 (2004) (quoting
State v. Stenson, 132 Wash. 2d 668, 734, 940 P.2d 1239 (1997) (Stenson I), cert. denied, 523 U.S.
1008 (1998)). We review this issue for abuse of discretion. State v. Schaller, 143 Wash. App. 258,
267, 177 P.3d 1139 (2007), review denied, 164 Wash. 2d 1015 (2008).
Cherry asserted below that he had irreconcilable differences with his attorney that led to a
breakdown in communication. To determine whether he was entitled to new counsel, we examine
three factors: the extent of the conflict, the adequacy of the trial court’s inquiry into the conflict,
and the timeliness of the motion to substitute counsel. State v. Cross, 156 Wash. 2d 580, 607, 132
P.3d 80, cert. denied, 549 U.S. 1022 (2006); In re Pers. Restraint of Stenson, 142 Wash. 2d 710, 724,
16 P.3d 1 (2001) (Stenson II).
An irreconcilable conflict occurs when the breakdown of the attorney/client relationship
results in the complete denial of counsel. Stenson II, 142 Wash. 2d at 722; Schaller, 143 Wash. App.
at 268. A complete breakdown exists when a defendant refuses to cooperate or communicate with
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No. 45396-7-II
his attorney in any way, when the defendant has been at odds with his attorney for an extended
time and the relationship is punctuated by quarrels and threats, and when the attorney’s actions are
especially egregious. Stenson II, 142 Wash. 2d at 724-25. A disagreement about trial strategy does
not raise Sixth Amendment concerns. Cross, 156 Wash. 2d at 609. A defendant must show that the
breakdown exists because of identifiable misconduct by counsel; his loss of trust or confidence in
counsel does not require the appointment of new counsel. Varga, 151 Wash. 2d at 200; Stenson II,
142 Wash. 2d at 725.
We consider the record and the trial court’s judgment about counsel in reviewing an alleged
conflict. Stenson II, 142 Wash. 2d at 730. The record does not show that Cherry and his attorney
were unable to communicate or that their communication contained contentious language,
derogatory comments, or threats. Cherry’s allegations that his attorney was not representing him
fully, had not been to see him, and had urged him to plead guilty did not raise claims of identifiable
misconduct, nor did his complaints about trial strategy and his inability to see “eye to eye” with
his attorney. CP at 32.
Defense counsel moved to suppress Cherry’s statements and the results of the search, and
the denial of his motions resulted in the admission of highly incriminating evidence. Cherry did
not complain about his attorney after the trial began and consulted with him before deciding not
to testify. Moreover, jury deliberations lasted three times longer than the State’s presentation of
evidence, and the trial court imposed a lesser sentence than the State requested. The trial court
reminded Cherry of these facts in urging him to take responsibility for his actions:
THE COURT: Now, Mr. Cherry, I know that throughout this matter you had
concerns with [defense counsel] representing you, but you and I both saw how long
it took the jury to come to the conclusion.
THE DEFENDANT: Yes, I did see that. Yes.
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No. 45396-7-II
THE COURT: Yes. And that tells me that you had a pretty good advocate here in
the courtroom. To take that long, when they take three times longer than it takes to
present the evidence to deliberate, it means they were asking some questions and
they were doing some thinking. You also got a pretty good deal on your sentencing.
VRP (Sept. 13, 2013) at 19. We see no irreconcilable conflict on this record.
Cherry complains, however, that the trial court’s inquiry into his complaints was
inadequate, and he cites as support United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001).
After finding a complete breakdown in the attorney-client relationship, the Nguyen court also
found that the trial court’s inquiry into the defendant’s complaints about his attorney was
inadequate. Id. at 1004. The trial court asked only a few cursory questions, did not question the
defendant or his attorney privately, and did not interview the witnesses that the defendant offered
to support his claims. Id. at 1004-05.
We conclude that the trial court made an adequate inquiry into the merits of Cherry’s
complaints by affording him the opportunity to explain the reasons for his dissatisfaction and by
questioning counsel about the complaints. Varga, 151 Wash. 2d at 200-01; see Schaller, 143 Wn.
App. at 271 (formal inquiry not essential where defendant states his reasons for dissatisfaction on
the record). After Cherry submitted a letter detailing his objections about his attorney to the trial
court, the trial court reviewed those objections and questioned counsel before concluding that
nothing in the letter warranted a change of counsel. Although timely, Cherry’s requests for new
counsel did not demonstrate irreconcilable conflict, and we see no abuse of discretion in the trial
court’s denial of those requests.
C. ABILITY TO PAY LEGAL FINANCIAL OBLIGATIONS
Finally, Cherry contends that the trial court erred in imposing discretionary legal financial
obligations despite its understanding that he had no ability to pay those fees. This argument
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No. 45396-7-II
misrepresents the record, which shows that the trial court recognized that Cherry had considerable
fees to pay and would need to set up a payment plan. The trial court found, in the judgment and
sentence, that Cherry had the ability to pay..
Having failed to challenge this finding below, Cherry may not do so on appeal. State v.
Blazina, 174 Wash. App. 906, 911, 301 P.3d 492, rev’d and remanded, 182 Wash. 2d 827, 344 P.3d
680 (2015). Our decision in Blazina was issued before Cherry’s sentencing and provided notice
that the failure to object to LFOs during sentencing waives a related claim of error on appeal. 174
Wash. App. at 911. As our Supreme Court noted, an appellate court may exercise its discretion to
reach unpreserved claims of error. Blazina, 182 Wash. 2d at 830. We decline to exercise such
discretion here.
We affirm.
Lee, J.
We concur:
Maxa, P.J.
Melnick, J.
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