State Of Washington v. Dylan Womer

Filed
Washington State
Court of Appeals
Division Two
March 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47025-0-II
Respondent,
v.
DYLAN JAMES WOMER, UNPUBLISHED OPINION
Appellant.
LEE, J. — Dylan James Womer was convicted of vehicular homicide for driving while
intoxicated, recklessly, and with disregard for the safety of others. Womer appeals his conviction
and sentence, arguing that (1) the superior court erred by admitting the results of his blood test
because (a) the superior court’s CrR 3.6 findings of fact are not supported by substantial evidence
and (b) exigent circumstances did not exist under Missouri v. McNeely1; (2) he received ineffective
assistance of counsel when (a) counsel failed to move to suppress crime scene and autopsy
photographs of the victim, and (b) when counsel failed to move to suppress the results of his blood
alcohol test on the basis of State v. Figeroa Martines2; and (3) the trial court erred by imposing
legal financial obligations without inquiring into his current or future ability to pay. We disagree
and affirm.
1
133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
2
182 Wn. App. 519, 331 P.3d 105 (2014), rev’d, 184 Wn.2d 83, 355 P.3d 1111 (2015).
No. 47025-0-II
FACTS
On April 25, 2013, around 12:30 a.m., Dylan Womer was driving in Thurston County,
Washington, with his friend riding in the front passenger seat. The vehicle crashed, striking a tree
on the passenger side. The vehicle was “nearly ripped in half.” 2 Verbatim Report of Proceedings
(VRP) at 205. The passenger died at the scene, his right arm amputated and his right leg partially
amputated. Womer was transported to the hospital.
Washington State Trooper Daniel Walwark was dispatched to the scene of the collision
and arrived at 12:48 a.m. Washington State Patrol Sergeant Jason Greer was also dispatched to
the scene shortly after 1:00 a.m. While travelling from Tacoma to the scene, Sgt. Greer
communicated with Trooper Walwark, and after getting Trooper Walwark’s initial observations
about the scene, instructed Trooper Walwark to go to the hospital to make contact with Womer
and “keep an eye on” him. VRP (Dec. 9, 2013) at 12.
Trooper Walwark left the scene at between approximately 1:30 and 2:00 a.m. to make
contact with Womer at the hospital. When Trooper Walwark got to the hospital, Womer’s hospital
room smelled like alcohol, Womer’s eyes were “very bloodshot and watery,” and Womer’s speech
was “repetitive, fast, fast rate of speech, and fairly slurred.” 2 VRP at 212. Womer told Trooper
Walwark that he had drunk “four to five shots of alcohol,” and smoked methamphetamine and
marijuana. 2 VRP at 214.
Sgt. Greer arrived at the scene of the collision at about 2:00 a.m. He observed “an alcohol
bottle” and determined that the position of the deceased body indicated that the deceased person
was the passenger in the car. VRP (Dec. 9, 2013) at 25. Sgt. Greer communicated his observations
to Trooper Walwark between 2:00 and 2:30 a.m. After talking with Sgt. Greer, Trooper Walwark
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No. 47025-0-II
instructed hospital staff to draw a blood sample from Womer for testing and placed Womer under
arrest.
The State charged Womer with vehicular homicide by operating a motor vehicle: (a) while
intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW
46.61.520(1)(a), (b), and (c). Womer pleaded not guilty.
A. PRETRIAL
1. Womer’s First CrR 3.6 Motion to Suppress
Womer moved to suppress the results of the blood test, arguing that the results were
inadmissible because officers had not obtained a warrant. Womer argued that under Missouri v.
McNeely, a suspect’s dissipating blood alcohol concentration does not constitute a per se exigent
circumstance that justifies a warrantless search. The State argued that the totality of the
circumstances, including Womer’s dissipating blood alcohol concentration, constituted exigent
circumstances.
At the suppression hearing, Sgt. Greer testified to the following events. Just after 1:00
a.m., Sgt. Greer was called to investigate a collision and was advised by his dispatcher that Trooper
Walwark was at the scene. Sgt. Greer then called Trooper Walwark “to get some information prior
to responding,” but Trooper Walwark did not answer. VRP (Dec. 9, 2013) at 10. Trooper Walwark
called Sgt. Greer back “about 10 or 15” minutes after 1:00 a.m. VRP (Dec. 9, 2013) at 10. Trooper
Walwark told Sgt. Greer the collision involved a car hitting a tree and “[t]he car was kind of split
in half,” there was a deceased passenger, and that someone associated with the collision, a
“possible driver,” was being transported to a nearby hospital. VRP (Dec. 9, 2013) at 10, 14.
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No. 47025-0-II
While driving to the scene of the collision, based on the information provided by his
dispatcher, Sgt. Greer had the impression that the driver of the car was impaired and that Womer
was the driver. However, before conducting his own investigation of the collision, Sgt. Greer did
not believe he had enough evidence to apply for a warrant.
After arriving at the scene close to 2:00 a.m. and conducting his own investigation, Sgt.
Greer believed he had sufficient probable cause to believe that Womer was the driver and that
alcohol contributed to the collision. He found alcohol at the scene and the position of the body
indicated that the deceased person was the passenger. Based on his own investigation, Sgt. Greer
determined that probable cause existed for a warrant to take a blood sample from Womer.
However, in Sgt. Greer’s experience, “it would take the trooper maybe an hour or so to write the
warrant. Depending on the judge’s availability and what numbers are called, that could take
another hour or so,” sometimes taking “many hours” to reach a judge. VRP (Dec. 9, 2013) at 17-
18. Sgt. Greer called Trooper Walwark between 2:00 and 2:30 a.m. to instruct him to obtain a
blood sample from Womer without a warrant.
Trooper Walwark testified that he was first dispatched to the collision at 12:47 a.m., and
he spoke with Sgt. Greer “about a half an hour after [he] arrived” at the scene of the collision.
VRP (Dec. 9, 2013) at 40. When they spoke, Trooper Walwark reported to Sgt. Greer that he was
at the scene of the collision, “it was a car versus tree collision; that there was one confirmed
deceased individual on the scene, and there was another individual associated with the scene”
being transported to a nearby hospital. VRP (Dec. 9, 2013) at 40.
Trooper Walwark was the only officer at the hospital. When Trooper Walwark made
contact with Womer, he noticed the smell of alcohol in Womer’s hospital room. Hospital staff
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No. 47025-0-II
told Trooper Walwark that Womer suffered minimal injuries and was cleared to be discharged.
Trooper Walwark spoke with Sgt. Greer, who was still at the scene of the collision, just before
2:30 a.m. Sgt. Greer told Trooper Walwark that he had established probable cause that Womer
was the driver and instructed him to obtain a blood sample from Womer. Trooper Walwark then
ordered the blood draw. To obtain a search warrant, Trooper Walwark would have gone to his
patrol car, parked in the rear parking lot of the hospital, leaving Womer ready for discharge and
without an officer present.
The trial court denied Womer’s motion to suppress the results of the blood draw. The court
found that
[E]xigent circumstances did exist . . . to justify the warrantless blood draw based
on the following facts: the time of day that the crash occurred; the time that had
already elapsed [following] the fatal collision; the anticipated delay of
approximately two hours before a search warrant could be obtained; the possibility
that the defendant would have been discharged from the hospital if Trooper
Walwark went to his patrol vehicle to prepare the search warrant affidavit.
Clerk’s Papers (CP) at 266.
2. The Blood Tests
On April 30, 2013, the Washington State Patrol Toxicology Laboratory tested Womer’s
blood sample. The test results revealed blood alcohol concentration of 0.08 and a
methamphetamine level of 0.23.
On August 14, in light of Division One’s July 21, 2014 decision in State v. Figeroa
Martines, 182 Wn. App. 519, 331 P.3d 105 (2014), rev’d, 184 Wn.2d 83, 355 P.3d 1111 (2015),
the State moved, under CrR 4.7(b)(2)(viii), for an order authorizing the State to test Womer’s
“blood samples previously seized pursuant to exigent circumstances.” Suppl. CP at 281. A
5
No. 47025-0-II
different Thurston County Superior Court judge granted the State’s motion and authorized the re-
test of Womer’s blood. Womer’s blood was re-tested, revealing a blood alcohol concentration of
0.071 and methamphetamine levels of 0.21.
3. Womer’s Second Motion to Suppress
In September 2014, Womer moved to suppress all evidence resulting from the blood draw
in April 2013, including the April 2013 test and the September 2014 re-test pursuant to Martines.
Womer argued that he was not read the “Implied Consent Warnings” that are statutorily required,
and therefore, the evidence was inadmissible. CP at 124. The trial court denied Womer’s motion
to suppress. The parties agreed that the jury would not be informed that Womer’s blood was tested
twice.
4. Crime Scene and Autopsy Photographs
The State sought to admit digital photographs of the victim at the crime scene and during
the autopsy. Womer and the State agreed on the photos to be shown at trial. Womer stated:
The photos at the scene where the victim was found, they are not terribly shocking,
although they might shock some people. Some of the autopsy show the immediate
cause of death was traumatic head injury . . . I don’t have an objection to the State
showing photos of the actual skull fracture, and, unfortunately, you cannot really
see the skull fracture from the outside.
. . . It seems to me that the State is probably within its right, given its burden
of proof, to show at least those photos because, like I said, it’s difficult [to see].”
1 VRP (Dec. 8, 2014) at 12-13. The trial court asked Womer and the State whether there would
be an issue of “shock of jurors.” 1 VRP (Dec. 8, 2014) at 13. Womer responded: “that’s what
voir dire is about.” 1 VRP (Dec. 9, 2014) at 14.
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No. 47025-0-II
B. TRIAL
The deputy coroner, testified that the victim’s right arm was amputated, his sweat pants
were ripped off, and his lower right leg was partially amputated. The forensic pathologist, testified
that the victim’s death was caused by blunt force trauma, using the various crime scene and autopsy
photographs to explain her testimony.
Washington State Patrol Sgt. Michael Bassett testified about his investigation into the
collision, including the collision reconstruction. Sgt. Bassett testified that based on the
investigation and collision reconstruction, it is likely that Womer was driving “faster than . . . 61
to 77 miles [per] hour on the night of the collision.” 3 VRP at 446.
Andrew Gingras, a forensic scientist at the Washington State Patrol Toxicology
Laboratory, testified regarding the blood test.3 Gingras testified that Womer’s blood alcohol
concentration was 0.071 plus or minus 0.0058. Gingras also testified to the effects of alcohol on
the body, like affecting fine motor movement, gross motor skills, concentration, speech, and
vision. Gingras further testified that based on Womer’s blood levels of 0.21 milligrams per liter
of methamphetamine, it is possible that Womer had recently consumed methamphetamine.
Gingras described the effects of methamphetamine and that it often results in jerky motor control,
restlessness, and affects reaction times and decision-making.
Womer testified that he was driving approximately 60 miles per hour and that he knew the
posted speed limit varied between 35 and 40 miles per hour. Womer also testified that he and the
victim smoked a small bowl of methamphetamine and drank about four to five shots of rum.
3
There was no mention of two blood tests; the testimony was based on the second, September
2014 blood test.
7
No. 47025-0-II
The jury was instructed on three alternative methods of committing vehicular homicide—
for operating a motor vehicle while intoxicated, in a reckless manner, or with disregard for the
safety of others. The jury returned a special verdict finding Womer guilty under all three
alternatives. The trial court sentenced Womer to 124 months of confinement and imposed
mandatory legal financial obligations (LFOs). Womer appeals.
ANALYSIS
A. THE BLOOD SAMPLE
Womer argues that (1) the trial court’s findings of fact are unsupported by substantial
evidence, and (2) the trial court erred by denying his motion to suppress the results of the blood
test because exigent circumstances did not exist to justify taking a blood sample without a warrant
under Missouri v. McNeely, 133 S. Ct. 1552. We disagree.
1. CR 3.6 Hearing—Findings of Fact and Conclusions of Law
Womer argues that the trial court’s findings of fact numbers 9, 13, 14, 20, and 21 are
unsupported by substantial evidence.4 We disagree.
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 which we review de novo. State v. Russell, 180 Wn.2d
860, 866, 330 P.3d 151 (2014). Substantial evidence is evidence sufficient to persuade a fair-
minded person of the finding’s truth. Russell, 180 Wn.2d at 866. We treat unchallenged findings
4
Womer challenges finding of fact number 16, but fails to offer any argument regarding his
challenge. Therefore, we do not consider Womer’s challenge to finding of fact 16. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
8
No. 47025-0-II
of fact as verities on appeal. State v. Pierce, 169 Wn. App. 533, 544, 280 P.3d 1158, review denied,
175 Wn.2d 1025 (2012). On issues of credibility, we defer to the trier of fact. State v. Homan,
181 Wn.2d 102, 106, 330 P.3d 182 (2014).
a. Finding of Fact 9
Finding of Fact 9 reads: “At some point between 1:15 to 2:15 A.M., Trooper Walwark
returned Sgt. Greer’s telephone call and advised Sgt. Greer of his initial findings.” CP at 264.
Womer does not articulate the specific basis of his challenge to this finding; instead, Womer
generally argues that “substantial evidence does not support the court’s finding that this event
occurred at 2:15 am.” Br. of Appellant at 27-28.
Sgt. Greer called Trooper Walwark shortly after being dispatched to the scene at 1:00 a.m.
Trooper Walwark did not answer, but he called Sgt. Greer back about 10 to 15 minutes after 1:00
a.m. Both Sgt. Greer and Trooper Walwark testified that during that call, Trooper Walwark told
Sgt. Greer about his initial findings at the scene. Trooper Walwark testified that he left the scene
between approximately 1:30 and 2:00 a.m. to make contact with Womer at the hospital, which was
before Sgt. Greer arrived at the scene at about 2:00 a.m. Based on the officers’ testimony, the
evidence is sufficient to persuade a fair-minded person of the truth of the finding. Thus, the trial
court’s finding of fact 9 that Trooper Walwark advised Sgt. Greer of his initial findings between
1:15 and 2:15 a.m. is supported by substantial evidence.
b. Finding of fact 13 and 14
Womer’s challenge to the findings is primarily focused on finding of fact 13 and 14.
Finding of fact 13 reads:
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No. 47025-0-II
At approximately 2:15 A.M., Sgt. Greer, while still at the scene of the collision,
contacted Trooper Walwark and advised Trooper Walwark that after his [Sgt.
Greer] investigation, he believed that he had probable cause to believe that the
individual at the hospital was the driver of the vehicle.
CP at 264. Finding of fact 14 reads:
The court finds, based on the testimony presented, that probable cause was not
developed until a few minutes prior to Sgt. Greer contacting Trooper Walwark at
approximately 2:15 A.M.
CP at 264.
Womer claims that substantial evidence does not support the court’s finding that Sgt. Greer
and Trooper Walwark “spoke on the phone and determined to take blood” from Womer at
approximately 2:15 a.m. and that officers did not establish probable cause to arrest until 2:15 a.m.
Womer argues that the finding is unsupported because Sgt. Greer testified that “they had the
‘impression’ that [Womer] was the driver” and “impaired” by about 1:05 a.m. Br. of Appellant at
26, 28 (quoting VRP (Dec. 9, 2013) at 24).
Womer is correct that Sgt. Greer testified that officers suspected that Womer was the driver
by 1:05 a.m. But, Sgt. Greer also testified that he did not believe he had enough evidence to apply
for a warrant because the only information he had was from his dispatcher, and he had not arrived
at the scene yet or conducted his own investigation. Sgt. Greer’s impression that Womer was the
driver at 1:05 a.m. is not the equivalent of Sgt. Greer establishing probable cause for a warrant at
1:05 a.m.5 See State v. Ruem, 179 Wn.2d 195, 202, 313 P.3d 1156 (2013) (“Probable cause
requires more than suspicion or conjecture.”).
5
To the extent that Womer is arguing that the officers should have applied for a warrant based on
their impression that Womer was the driver, he fails to provide supporting authority and his claim
fails. RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809.
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No. 47025-0-II
Sgt. Greer testified that he did not believe he had enough evidence to apply for a warrant
until he arrived at the scene and conducted his own investigation at about 2:00 a.m. After he was
able to conduct his own investigation of the scene, Sgt. Greer believed that Womer was the driver
and that alcohol may have contributed to the collision. Sgt. Greer then called Trooper Walwark.
Trooper Walwark testified that when Sgt. Greer called him just prior to 2:30 a.m., he was told that
they had probable cause to believe that Mr. Womer was the driver and to take a blood sample from
Womer. Thus, substantial evidence supports the trial court’s finding that the officers established
probable cause a few minutes prior to Sgt. Greer contacting Trooper Walwark at approximately
2:15 a.m. and that Sgt. Greer told Trooper Walwark at approximately 2:15 a.m. that he had
probable cause to believe Womer was the driver of the vehicle.
Womer points to Sgt. Greer’s testimony that he had decided to draw blood by “2:05” a.m.
to demonstrate that the finding lacks substantial evidence. Br. of Appellant at 27 (quoting VRP
(Dec. 9, 2013) at 26). To the extent that Womer is arguing that a discrepancy of 10 to 15 minutes
does not fall within the time frame of “approximately 2:15 a.m.,” his argument is unsupported by
authority and fails. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992); see DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).
c. Finding of Fact 20
Finding of fact 20 reads:
In Sgt. Greer’s experience, it takes approximately two hours from the time the State
Patrol begins its process to put together an affidavit to the time that the search
warrant is granted. Additionally, Trooper Walwark would have to physically leave
the defendant unattended to go out to his patrol vehicle to access his computer to
prepare the search warrant affidavit.
CP at 265.
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No. 47025-0-II
Womer argues that substantial evidence does not support the trial court’s finding that in
Sgt. Greer’s opinion it takes two hours to prepare an affidavit and get a search warrant. Br. of
Appellant at 26, 28. We disagree.
Sgt. Greer testified that in his experience, “it would take the trooper maybe an hour or so
to write the warrant. Depending on the judge’s availability and what numbers are called, that could
take another hour or so.” VRP (Dec. 9, 2013) at 17. Sgt. Greer also testified that, in his experience,
it has taken “many hours” to reach a judge.6 VRP (Dec. 9, 2013) at 18.
Thus, based on the testimony presented at the CrR 3.6 hearing, the trial court’s finding of
fact 20 is supported by substantial evidence. We hold that Womer’s challenge to this finding fails.
d. Finding of fact 21
Finding of fact 21 reads:
Prior to speaking with Sgt. Greer at approximately 2:15 A.M., Trooper Walwark
had received indication from the hospital that the defendant was ready to be
discharged. Therefore, had Trooper Walwark went [sic] outside to his patrol car to
prepare the search warrant affidavit, there was no assurance that the defendant
would have stayed inside the hospital.
CP at 265.
Womer argues that substantial evidence does not support the trial court’s finding that
Womer would have been free to leave while Trooper Walwark was preparing the affidavit in
support of the warrant. We disagree.
6
Also, Trooper Walwark testified that to obtain a search warrant, he would have gone to his patrol
car, parked in the rear parking lot of the hospital. Trooper Walwark further testified that if he had
gone to his patrol car to prepare the affidavit, there were no other officers present or available to
observe Womer.
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No. 47025-0-II
Trooper Walwark testified that “the hospital staff informed [him] that [Womer] was
medically cleared to be discharged . . . due to minimal injuries.” VRP (Dec. 9, 2013) at 42.
Trooper Walwark also testified that there was no other law enforcement available to observe
Womer, and that if he had gone to his patrol car, Womer could have been discharged and left the
hospital without his knowledge.
Thus, substantial evidence supports the trial court’s finding that had Trooper Walwark gone
outside to his patrol car to prepare the search warrant affidavit, there was no assurance that Womer
would have stayed inside the hospital. Accordingly, we hold that Womer’s challenge to finding
of fact 21 fails.
2. Exigent Circumstances
Womer contends that exigent circumstances did not exist to justify the warrantless blood
draw. We disagree.
Both the Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington State Constitution prohibit warrantless searches or seizures unless one of the
exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d
1266 (2009). “[T]he taking of blood samples constitutes a ‘search and seizure’ within the meaning
of U.S. Const. amend. 4 and Const. art. 1, § 7.” State v. Judge, 100 Wn.2d 706, 711, 675 P.2d 219(1984); State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991) (holding nonconsensual blood
test for suspected commission of vehicular homicide is a search), overruled on other grounds by
State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).
The State bears the burden of demonstrating that a warrantless search or seizure falls within
an exception to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 71, 917 P.2d 56313
No. 47025-0-II
(1996). One recognized exception allows a warrantless search and seizure if exigent circumstances
exist. McNeely, 133 S. Ct. at 1558. “[W]hile the natural dissipation of alcohol in the blood may
support a finding of exigency in a specific case, as it did in Schmerber, it does not do so
categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.”7 Id. at 1563; see State v.
Smith, 165 Wn.2d 511, 518, 199 P.3d 386 (2009).
Here, the totality of the circumstances justified a warrantless blood draw. The fatal crash
occurred in the early morning hours in an area understaffed by police. Womer was transported to
the hospital, and Trooper Walwark went to the hospital to make contact with him there. When
Sgt. Greer arrived at the scene of the collision at about 2:00 a.m., almost an hour and a half after
the collision, he began his investigation and determined that probable cause existed to believe
Womer was the driver and that alcohol may be involved. Sgt. Greer testified that, in his
experience, it could take over two hours to obtain a search warrant. Thus, by the time that police
established probable cause, about one-and-a-half to two hours had passed since the collision
occurred. And, around the same time that police established probable cause, hospital staff advised
Trooper Walwark that Womer was ready to be discharged from the hospital. Trooper Walwark
testified that he would have to go to his patrol car to write out an affidavit for a search warrant,
7
In Schmerber, the United States Supreme Court recognized that exigent circumstances justify a
warrantless blood draw where the accused was transported to the hospital and the police had
remained at the scene to investigate. Schmerber v. California, 384 U.S. 757, 771, 86 S. Ct. 1826,
16 L. Ed. 2d 908 (1966). According to the Court, the evidence could have been lost because “the
percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system.” Schmerber, 384 U.S. at 770; see McNeely, 133 S. Ct.
at 1558, 1560. The Court noted that “there was no time to seek out a magistrate and secure a
warrant.” Schmerber, 384 U.S. at 771; see McNeely, 133 S. Ct. at 1563.
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No. 47025-0-II
leaving Womer unattended by any law enforcement officer. The potential of Womer being
discharged from the hospital and leaving, coupled with the anticipated delay in obtaining a warrant,
threatened the officer’s opportunity to obtain an adequate blood sample via a search warrant. The
circumstances here did not allow police to obtain a warrant for a blood draw without “undermining
the efficacy of the search.” McNeely, 133 S. Ct. at 1561. We conclude that exigent circumstances
existed that justified a warrantless search.
However, even if the trial court erred by admitting the results of the blood test, any error
was harmless. “We apply a harmless error analysis when the trial court admits evidence that is a
product of a warrantless search.” State v. Smith, 165 Wn. App. 296, 316, 266 P.3d 250 (2011),
aff’d on other grounds by 177 Wn.2d 533 (2013). “A constitutional error is harmless if the
appellate court is convinced beyond a reasonable doubt that any reasonable jury would have
reached the same result in the absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d
1182 (1985), cert. denied, 475 U.S. 1020 (1986).
Womer was charged with causing the death of another while operating a motor vehicle: (a)
while intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW
46.61.520(1)(a), (b), and (c). The jury was instructed on all three alternatives.
The jury could have found beyond a reasonable doubt that the evidence independent of the
blood test results showed that Womer was intoxicated while operating a motor vehicle. Trooper
Walwark testified that he was trained to detect alcohol and drug impairment. Trooper Walwark
further testified that he observed that Womer’s hospital room smelled like alcohol, Womer’s eyes
were “very bloodshot and watery,” and Womer’s speech was “repetitive, fast, fast rate of speech,
and fairly slurred.” 2 VRP (Dec. 9, 2014) at 212. Trooper Walwark testified that his observations
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No. 47025-0-II
“are pretty indicative of using alcohol” and some suggest drug usage. 2 VRP (Dec. 9, 2014) at
212. Trooper Walwark also testified that Womer told Trooper Walwark that he had drunk “four
to five shots of alcohol,” and smoked methamphetamine and marijuana. 2 VRP (Dec. 9, 2014) at
214. Further, Gingras testified about the effects of alcohol and methamphetamines.
Therefore, even without the results of the blood test, the jury could have found Womer
guilty beyond a reasonable doubt of operating a motor vehicle while intoxicated. Accordingly,
Womer’s challenge to the warrantless blood draw fails.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Womer argues that he received ineffective assistance of counsel because trial counsel failed
to object to (1) the State’s offer of crime scene and autopsy photographs and (2) the State’s offer
of the blood test results. We disagree.
1. Legal Principles
We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d
870, 883, 204 P.3d 916 (2009). A defendant claiming ineffective assistance of counsel has the
burden to establish that (1) counsel’s performance was deficient and (2) the deficient performance
prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Failure to establish either prong is fatal to an ineffective assistance of
counsel claim. Strickland, 466 U.S. at 700.
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Our scrutiny of counsel’s performance
is highly deferential; we strongly presume reasonableness. Id. To rebut this presumption, a
defendant bears the burden of establishing the absence of any legitimate trial tactic explaining
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No. 47025-0-II
counsel’s performance. Id. If trial counsel’s conduct can be characterized as legitimate trial
strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective
assistance of counsel. Id.To establish prejudice, a defendant must show a reasonable probability that but for
counsel’s performance, the result would have been different. Id. at 34. When an appellant’s claim
for ineffective assistance of counsel is based on counsel’s failure to make a motion to suppress
evidence, the appellant “must show that the trial court likely would have granted the motion if
made.” State v. McFarland, 127 Wn.2d 322, 334, 337 n.4, 899 P.2d 1251 (1995); accord State v.
Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007).
2. Photographs
Womer argues that he received the ineffective assistance of counsel when his trial counsel
failed to move to suppress the crime scene and autopsy photographs. We disagree.
Here, the State sought to admit digital photographs of the victim at the crime scene and
during the autopsy. Trial counsel and the State agreed on the photos to be admitted. Trial counsel
stated that he did not object to the photographs because of the State’s burden of proof.
Womer argues that the photographs should not have been admitted because they were not
relevant and were only used to prove “the fact at issue that the defense did not even dispute.” Br.
of Appellant at 41. This argument fails.
Womer pleaded not guilty and asserted a general denial defense. Therefore, the State had
a burden to prove all of the elements of the charged crime, including those that Womer did not
dispute. See State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002) (holding the State must prove
each essential element of the crime beyond a reasonable doubt). To hold that evidence going to
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No. 47025-0-II
an element of the crime is irrelevant because it is undisputed would imply that the defendant must
dispute each element in order to put the State to its proof. This is contrary to basic principles of
criminal law. See State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011) (holding the State
has the burden of proof, and the defendant has no duty to present evidence).
Womer also argues that there was no “possible tactical reason” for trial counsel to fail to
move to suppress the admission of any of the photographs. Br. of Appellant at 41. However, the
record demonstrates that the State had several photographs it wanted admitted. Trial counsel
considered all of the evidence, successfully objected to some of the photographs, and based on the
State’s burden, determined that the State was within its right to present a limited number of agreed
upon photographs. Therefore, the record demonstrates that trial counsel made a legitimate tactical
decision not to move to suppress the admission of all the photographs.
Further, Womer has not demonstrated that the trial court would have excluded photographs
if trial counsel had made a motion to suppress. See McFarland, 127 Wn.2d at 334. The State “is
entitled to prove its case by evidence of its own choice.” Old Chief v. United States, 519 U.S. 172,
186-87, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); State v. Finch, 137 Wn.2d 792, 811, 975 P.2d
967, cert. denied, 528 U.S. 922 (1999). And while both the State and trial counsel acknowledged
that the photographs were gruesome, Womer has not offered authority that gruesome, or shocking,
or emotional photographs are inherently unfairly prejudicial.
As much as courts should and do keep a trial clear of potentially prejudicial matter,
this obligation, within our concept of a fair trial for an accused, must be applied
with the realities of the facts which the state is required to prove. A bloody, brutal
crime cannot be explained to a jury in a lily-white manner to save the members of
the jury the discomforture of hearing and seeing the results of such criminal
activity. Each slide shown had considerable probative value to prove relevant and
material issues in the case.
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No. 47025-0-II
State v. Adams, 76 Wn.2d 650, 656, 458 P.2d 558 (1969), rev’d on other grounds, 403 U.S. 947(1971).
Womer has not argued or demonstrated that a motion to suppress the photographs would
have likely been successful because the photographs were relevant to the cause of death and the
State has a right to present evidence to fulfil its burden of proof. Because Womer has not
demonstrated that trial counsel’s performance was deficient or prejudicial, his claim of ineffective
assistance of counsel fails.8
3. Motion to Suppress based on State v. Figeroa Martines
Womer argues that he received ineffective assistance of counsel because trial counsel failed
to move to suppress the results of the blood test because police did not obtain a separate warrant
to test the blood, rendering the results inadmissible under Figeroa Martines.9 We disagree.
In August 2014, the State moved for a court order under CrR 4.7(b)(2)(viii) to have
Womer’s blood tested, approximately three weeks after State v. Figeroa Martines was published
8
Womer asserts in the last paragraph of his argument, without authority or further argument, that
trial counsel was ineffective for failing to move for a mistrial after juror 8 fainted. We do not
address this assertion because Womer does not assign error to the failure to make a motion for a
mistrial, and fails to provide authority or adequate argument. RAP 10.3(a)(6).
Also, after Juror 8 fainted, at trial counsel’s request, the trial court excused juror 8 and brought in
an alternate juror. Therefore, Womer is unable to show prejudice.
9
Womer also argues that “trial counsel’s failure to get the results of the blood test suppressed
undermines confidence in the outcome of the trial, particularly on the first alternative method of
committing the offense.” Br. of Appellant at 47. Counsel would not be ineffective for being
unsuccessful in his motions practice. The question here is whether counsel’s failure to make a
motion to suppress on the basis of Figeroa Martines was deficient.
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No. 47025-0-II
in July 2014.10 In Figeroa Martines, Division One of this court held that the “State may not
conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes
testing and specifies the types of evidence for which the sample may be tested.”11 182 Wn. App.
522. Martines does not involve a court order or speak to the validity of a court order under CrR
4.7(b)(2)(viii) instead of a warrant under CrR 2.3.
Here, trial counsel was not deficient for not moving to suppress the results of the test that
was performed without a warrant because the test was performed with a court order under CrR
4.7(b)(2)(viii).12 Therefore, the error that Womer alleges does not exist in the record. Furthermore,
if trial counsel had objected, it is not likely that the objection would have been upheld because the
blood was tested pursuant to court order and, therefore, not in violation of Martines.
Womer cannot demonstrate deficient performance or prejudice. Therefore, his claim of
ineffective assistance fails.13
10
Womer does not address the existence of or challenge the validity of the court order. “Normally,
a warrant in Washington State is issued under CrR 2.3, but neither the state constitution nor federal
constitution limits warrants to only those issued under CrR 2.3. “A court order may function as a
warrant as long as it meets constitutional requirements.” State v. Garcia-Salgado, 170 Wn.2d 176,
186, 240 P.3d 153 (2010). There is no indication that the court order here failed to meet those
constitutional requirements.
11
The Supreme Court reversed, holding that “a warrant authorizing extraction of a blood sample
necessarily authorizes testing of that sample for evidence of the suspected crime” and the search
“did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted
and tested for intoxicants.” Figeroa Martines, 184 Wn.2d at 94.
12
Womer also argues that trial counsel was probably unaware of the Figeroa Martines decision.
Br. of Appellant at 46. But trial counsel referenced Figeroa Martines in the second motion to
suppress, which demonstrates that trial counsel was aware that it existed.
13
Moreover, even if the trial court had ruled the results inadmissible, Womer has not demonstrated
that but for trial counsel’s failure to object, the outcome of the proceeding would have been
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No. 47025-0-II
D. LEGAL FINANCIAL OBLIGATIONS
Womer argues that the trial court erred by imposing LFOs and restitution without
considering Womer’s current or future ability to pay. Womer’s challenge fails.
First, Womer affirmatively waived any objection to the imposition of restitution and
standard LFOs. Therefore, we need not consider Womer’s challenge.
Second, Womer does not distinguish between mandatory LFOs, for which the trial court
need not consider the defendant’s ability to pay, and discretionary LFOs, which are subject to the
requirements of RCW 10.01.160(3); see State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755(2013). Here, the trial court imposed restitution, a crime victim assessment, a filing fee, and a
deoxyribonucleic acid (DNA) collection fee. Restitution is mandatory pursuant to RCW
9.94A.753(5). Lundy, 176 Wn. App. at 102. The crime victim assessment is mandatory under
RCW 7.68.035. Lundy, 176 Wn. App. at 102. The filing fee is mandatory pursuant to RCW
36.18.020(2)(a) and (h). Lundy, 176 Wn. App. at 102. And, the DNA collection fee is mandatory
under RCW 43.43.7541. Lundy, 176 Wn. App. at 102. Thus, the court imposed no discretionary
LFOs. “Because the legislature has mandated imposition of these legal financial obligations, the
trial court’s ‘finding’ of a defendant’s current or likely future ability to pay them is surplusage.”
Lundy, 176 Wn. App. at 103. Thus, Womer’s challenge fails.
We affirm.
different. Womer was charged with causing the death of another while operating a motor vehicle:
(a) while intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW
46.61.520(1)(a), (b), and (c). The jury was instructed on all three alternatives. The jury returned
a special verdict finding Womer guilty under all three alternatives. Therefore, even without the
results of the blood test, the jury could have found Womer guilty based on RCW 46.61.520(1)(b)
or (c).
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No. 47025-0-II
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.
Lee, J.
We concur:
Worswick, J.
Johanson, C.J.
22