State Of Washington, V Teral Anthony Thomas

FLED
COURT OF APPEALS
DrVISION : I
2614 JUL 29 All I I : 38
A O' VGA 1 d TON
IN THE COURT OF APPEALS OF THE STATE OF WASHI
DIVISION II
STATE OF WASHINGTON, No. 44711 -8 -II
Respondent,
v.
TERAL ANTHONY THOMAS, UNPUBLISHED OPINION
Appellant.
MAxA, J. — Teral Anthony Thomas appeals his convictions of second degree assault,
felony violation of a pretrial no contact order ( 3 counts) ( domestic violence), and third degree
malicious mischief (domestic violence). He claims that ( 1) the police obtained a residential
search warrant without probable cause, ( 2) the trial court violated his right to counsel by not
inquiring into the breakdown of the attorney -client relationship in response to his request for new
counsel, ( 3) he was denied his right to effective assistance of counsel, and ( 4) he is entitled to an
evidentiary hearing on whether governmental misconduct interfered with his attorney -client
privilege. We find no error, and affirm.
44711 -8 -II
FACTS
AL1
Thomas and dated for approximately two years before the relationship ended in early
2012. AL subsequently obtained a no contact order precluding Thomas from coming within 500
feet of her residence, school, or place of employment.
On August 17, 2012, AL called the police to report that Thomas had contacted her at
Wal -Mart where she worked, violating the no- contact order. AL and Kenneth Ness, a co- worker,
identified Thomas as the person that had contacted AL in the store and again in an outside
employee' s lounge. The police went to Thomas' s residence but were unable to locate him there.
On August 22, 2012, AL and Ness were outside of the Wal -
Mart store when a man yelled
at the couple and then punched Ness, breaking his nose and glasses. The man knocked Ness to
the ground and repeatedly struck him. Daniel Buhman witnessed the attack. Ness testified that
the assailant asked AL, "This is who you want to be with ?" Report of Proceedings ( RP) at 164.
At the scene, AL gave a statement to a police officer during which she identified the assailant as
Thomas. After searching the area and going to Thomas' s residence, the police were unable to
find him.
On September 2, 2012, AL called the police to report that Thomas had again violated the
no- contact order. This time AL was in her car near a bus stop close to her work when Thomas
approached and asked her to talk. When she said no, he walked behind her car, striking and
denting it.
The police obtained a search warrant for the residence Thomas shared with his
grandparents. They apprehended Thomas hiding between the bed and wall in his grandmother' s
1 We use the victim' s initials to protect her privacy.
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bedroom. Later, the police obtained photographs of text messages that Thomas had sent to AL
that evening.
The State charged Thomas with second degree assault, three counts, of a protection order
violation, and malicious mischief. On February 13, 2013, Thomas, pro se, filed a CrR 8. 3
motion to dismiss based on governmental misconduct. In the motion he alleged that Thurston
County Jail staff seized confidential legal materials he needed in order to prepare for trial. On
February 20, 2013, Thomas, through counsel, moved for a continuance to investigate what
happened to these legal materials. The trial court denied the continuance request because the
alleged seizure took place in December and it was only now being brought to the court' s
attention. The trial court also was concerned that due to his military service, Ness would be
unavailable to testify if the trial was continued.
The trial court also considered Thomas' s pro se motion to remove defense counsel and
appoint new counsel. The trial court denied this motion, ruling:
Mr. Thomas, I appreciate your concerns, but, in fact, Mr. Shackleton has been
representing you this morning, has been doing quite an intelligent and apt job. He
is raising, clearly, all of the important issues for this Court to consider, filed the
motions in limine and the like. I'm going to deny your request. There's nothing in
this record to suggest that Mr. Shackleton is not appropriately representing you in
this matter. You don't have the right to an attorney of your choosing. And I don't
find a basis to grant your motion, so I'm denying that motion.
RP at 28 -29.
A jury found Thomas guilty of all charged offenses and by special verdict that the
protection order violations and malicious mischief were against members of the same family or
household. Thomas appeals.
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ANALYSIS
A. PROBABLE CAUSE FOR WARRANT
Thomas argues that probable cause did not support the search warrant used to enter his
residence, as there was no evidence establishing his presence in the home. However, because
Thomas did not move to suppress any evidence related to the search, he waived this claim and
we do not consider it. State v. Mierz, 127 Wn.2d 460, 468, 901 P. 2d 286 ( 1995). Thomas cites
RAP 2. 5( a)( 3) for the proposition that an appellant may raise a manifest constitutional error for
the first time on appeal. But he provides no analysis under this rule and has failed in his burden
to establish that his claim involves manifest error. State v. McFarland, 127 Wn. 2d 322, 334,
899 P. 2d 1251 ( 1995). 2
B. REQUEST FOR NEW COUNSEL
Thomas argues that the trial court violated his constitutional right to counsel by refusing
to review his written motion for a new attorney, in not inquiring into the conflict, and in not
appointing new counsel. We disagree.
When reviewing a trial court' s refusal to appoint new counsel, we consider "( 1) the
extent of the conflict, ( 2) the adequacy of the [ trial court' s] inquiry, and ( 3) the timeliness of the
motion." State v. Cross, 156 Wn.2d 580, 607, 132 P. 3d 80 ( 2006) ( quoting In re Pers. Restraint
of Stenson, 142 Wn.2d 710, 724, 16 P. 3d 1 ( 2001)). Applying these inquiries, we review the trial
court' s decision for an abuse of discretion. Cross, 156 Wn.2d at 607.
2
However, we do address this issue pursuant to Thomas' s ineffective assistance of counsel
argument, and conclude that probable cause did support the warrant.
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1. Extent of the Conflict
Thomas argues he had an irreconcilable conflict with his attorney, and the trial court
erred in not appointing new counsel. When the trial court asked Thomas to explain his position
he responded:
I'd like the Court to know I feel that my attorney is ineffective. I brought up to
him several times on several occasions of things pertaining to my case, such as
witnesses, my alibi, so on and so forth, and he has failed yet to get any of my
witnesses or my alibi. And it's a big part in my defense, and I really, really do
need them.
Also, I filed I talked to him about filing a couple of motions as soon
a couple --
as I got in here pertaining to Sergeant Barnes committing perjury, and he stated
that that was a professional error. So I wanted that to be addressed to the Court as
well.
And I brought up issues to him several times, and I feel that he's ineffective,
because he has yet to do what I asked him.
RP at 27.
This is not the type of conflict that raises Sixth Amendment concerns because there was
no actual conflict of interest. Cross, 156 Wn.2d at 609. Instead, this appears to be a
disagreement about the approach defense counsel was taking in developing a defense. Such
disagreement over trial strategy is insufficient to find a cognizable conflict. Stenson, 142 Wn.2d
at 729. "[ T] his is the type of conflict that courts generally leave to the attorney and client to
work out, absent ineffective assistance of counsel." Cross, 156 Wn.2d at 609.
2. Adequacy of Trial Court' s Inquiry
Thomas argues that the trial court' s limited inquiry was inadequate. He claims that the
trial court should have made some effort to obtain his written motion or to have reviewed a copy
of the motion that Thomas offered during the hearing.
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The trial court was unable to consider Thomas' s written motion because it was not in the
court file and apparently had not yet been filed. However, the trial court did have defense
counsel' s statement that his client wanted him removed and Thomas' s explanation quoted above.
Rather than reading the document in open court while the parties waited, the trial court prudently
asked Thomas to explain his concerns. Previously, defense counsel had explained to the trial
court that he did not think that the Rules of Professional Conduct prevented him from continuing
to represent Thomas. Under the circumstances, the trial court conducted an adequate inquiry.
See State v. Schaller, 143 Wn. App. 258, 271, 177 P. 3d 1139 ( 2007) ( " a trial court conducts
adequate inquiry by allowing the defendant and counsel to express their concerns fully. ").
3. Timeliness
Thomas first asked for a new attorney on February 20, 2013. At that time, defense
counsel explained to the court that Thomas was in the process of filing his motion. As of the
first day of trial, the court had not received his motion, but did allow Thomas to make his motion
orally. The trial court intended to begin jury selection but reluctantly postponed the trial because
of the State' s late disclosure of a video recording. The trial court also was concerned because
Ness was leaving for basic training in 10 -12 days and would not be available to testify in person.
Timeliness weighed in favor of denying the motion.
The trial court did not abuse its discretion in denying Thomas' s motion for a new
attorney. The extent of the conflict, if any, was tactical. The trial court allowed Thomas to
adequately explain his concerns. And there were timing concerns that would have affected the
trial. Thomas' s claim fails.
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C. EFFECTIVE ASSISTANCE OF COUNSEL
Thomas argues that he was denied his constitutional right to effective assistance• of
counsel because defense counsel ( 1) failed to move for suppression of evidence resulting from
the allegedly invalid search warrant, (2) introduced hearsay testimony from Buhman that served
as the only substantive evidence of identity of the August 22 assault, ( 3) failed to object to
hearsay testimony from AL and a police officer regarding the September 2 incident, and ( 4)
advocated against his client' s wishes by not withdrawing as counsel and not advocating for
withdrawal. We disagree.
To prevail on an ineffective assistance of counsel claim, the defendant must show not
only that defense counsel' s representation was deficient, but also that the deficient representation
prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011). Prejudice
exists if there is a reasonable probability that except for counsel' s errors, the result of the
proceeding would have differed. Grier, 171 Wn.2d at 34. When reviewing an ineffective
assistance of counsel claim, we begin with the presumption that counsel' s assistance was
effective. Grier, 171 Wn. 2d at 33. This presumption continues until the defendant shows in the
record the absence of legitimate or tactical reasons supporting his counsel' s conduct. Grier, 171
Wn.2d at 33 -34.
1. Not Filing a Motion to Suppress
Thomas argues that defense counsel should have moved to suppress based on lack of
probable cause supporting the search warrant. He argues that failing to suppress allowed the
State to introduce evidence that he was hiding in the house and that the jury could use this as
substantive evidence of his guilty conscience.
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But a motion to suppress would not have succeeded because probable cause did support
the warrant. A magistrate may issue a search warrant only if supported by probable cause. See
State v. Garcia- Salgado, 170 Wn. 2d 176, 186 -87, 240 P. 3d 153 ( 2010). Probable cause means
that the facts and circumstances described " establish a reasonable inference that the defendant is
probably involved in criminal activity and that evidence of the crime may be found at a certain
location." State v. Jackson, 150 Wn.2d 251, 264, 76 P. 3d 217 ( 2003).
Officer Barnes' s warrant application informed the magistrate that the victim had
identified Thomas as the suspect, that he lived at 8528 48th Court Northeast in Olympia, that his
driver' s license bore this address, that Thomas' s grandfather confirmed Thomas lived there, that
the cell phone used to send threatening text messages to AL was within a mile of the home, that
the phone shut off when the police began investigating the residence, and that all of this occurred
at 2: 00 a.m. on a Monday. A neutral and detached magistrate could draw reasonable inferences
from these facts and circumstances to conclude that Thomas and the cell phone were at his
residence. State v. Maddox, 152 Wn.2d 499, 599, 98 P. 3d 1199 ( 2004). Thomas' s claim of
ineffective representation as to the failure to suppress fails.
2. Eliciting Identity Evidence from Buhman
On cross -examination of Buhman, defense counsel elicited testimony that after the
August 22 assault AL and Ness identified Thomas as the assailant. Thomas argues that his
counsel was ineffective because this hearsay testimony undermined his defense of mistaken
identity. We disagree.
Thomas' s counsel was presented with a situation where Buhman had identified Thomas
as the assailant on direct examination but failed to identify him in court. The State asked
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Buhman, " What happened that you observed that led you to talk to law enforcement ?" RP at 86.
Buhman responded, " As I came out of [Wal -Mart], I saw a gentleman and a lady walking up, and
the -- it would be the defendant, Teral - -." RP at 86 ( emphasis added). However, after testifying
that he would recognize the assailant if he saw him again, Buhman stated that he did not see him
in the courtroom.
Given this testimony, defense counsel may have had a tactical reason to explore what AL
and Ness had said at the scene. Because Buhman identified Thomas as the assailant during
direct examination, defense counsel may have wanted to discredit that testimony. By having
Buhman explain that AL and Ness identified Thomas at the scene, defense counsel succeeded in
undermining Buhman' s identification of Thomas by getting him to admit that ( 1) he did not
know the assailant and ( 2) he only reported Thomas' s name because AL had identified the
assailant to him while he was speaking with the 911 operator. This was a legitimate tactical
decision.
Further, Thomas' s argument that Buhman' s cross -examination testimony was the only
evidence identifying Thomas as the assailant is incorrect. AL also testified that she told police at
the scene that Thomas was the assailant, and as discussed below this statement was not hearsay
under ER 801( d)( 1)( iii). As a result,. asking Buhman to state what AL said at the scene caused
no prejudice. Thomas' s ineffective assistance of counsel claim on this basis fails.
3. Failure to Object to Identification Testimony
At trial, AL did not identify Thomas as the person who assaulted Ness. However, she
testified that at the scene she told police that Thomas was the assailant. Similarly, at trial AL
was unable to identify Thomas as the person who hit her car on September 2, but testified that on
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the night of the incident she told police that she suspected Thomas was the person who hit her
car. And a police officer testified that AL told him that Thomas was the person who hit her car.
Thomas argues that defense counsel was ineffective because he failed to object to ( 1) AL' s
testimony about identifying Thomas at the time of the two incidents, ( 2) the police officer' s
testimony about the September 2 incident, and ( 3) to request a limiting instruction for that
testimony. We disagree.
Thomas argues that AL' s and the police officer' s testimony was objectionable because it
was hearsay. However, ER 801( d)( 1)( iii) provides that a statement is not hearsay if the declarant
testifies at trial and is subject to cross -examination about the statement, and the statement is " one
of identification of a person made after perceiving the person." Here, AL made the statements to
police identifying Thomas at the scene of both incidents after perceiving him to be the suspect.
Accordingly, the statements were not hearsay and were admissible as substantive evidence. Any
objection would have been overruled, and no limiting instruction would have been appropriate.
Thomas' s ineffective assistance of counsel claim on this basis fails.
4. Advocating Against Client
Thomas argues that defense counsel abridged his duty of loyalty by not advocating for
removal and thus substituted his own interests for those of Thomas' s. He claims this violated
RPC 1. 2( a). He argues that this situation created an actual conflict of interest because if defense
counsel had advocated for removal, it would have subjected defense counsel to sanctions for
unprofessional conduct, thereby damaging his reputation and exposing him to civil liability. He
describes this as a " classic" actual conflict of interest, citing State v. Regan, 143 Wn. App. 419,
425, 177 P. 3d 783 ( 2008). We disagree.
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Regan is distinguishable. There, trial counsel was in the untenable position of following
his client' s wish to go to trial with the prospect of being compelled to testify against his client.
Division Three of this court reversed because this was " a classic example of a choice between
alternative courses of action that was helpful to defense counsel' s own interests and harmful to
Mr. Regan' s. And it shows an actual conflict of interest." Regan, 143 Wn. App. at 429.
Here, as we observed above, no actual conflict of interest existed. Defense counsel was
not put in the untenable position of choosing between his own and his client' s best interest.
Counsel simply told the court:
Your Honor, this is my I don' t believe that there is anything at
client' s request.
this point under the Rules of Professional Conduct that prevent me from
representing him. But I know he wants the Court to, on his own motion, have me
removed as counsel and the Court appoint another attorney. So I will actually
have him address the Court.
RP at 25. RPC 1. 2( a) requires an attorney to " abide by a client' s decisions concerning the
objectives of representation." The comment to this rule anticipates that a lawyer and client will
disagree about how to attain the client' s objectives and suggests that the lawyer should consult
with his client and seek a mutually acceptable resolution of the disagreement. And then, if there
is a fundamental disagreement, the lawyer may withdraw or the client may discharge the
attorney.
The most the record demonstrates is that Thomas expected his attorney to do more than
he was doing in his defense. Further, defense counsel merely told the trial court that he did not
believe that he had an ethical obligation to withdraw. And defense counsel had an ethical
obligation to be candid with the trial court. RPC 3. 3. Thomas' s claim is speculative and not
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based on objective fact. We find no conflict of interest requiring counsel to advocate for
withdrawing his representation. This basis for Thomas' s ineffective assistance claim also fails.
D. GOVERNMENTAL MISCONDUCT
Thomas argues that the trial court erred in not investigating whether the j ail staff had
seized a confidential letter Thomas had written to defense counsel. He asks this court to remand
for the purpose of determining whether governmental misconduct occurred, affected his trial, and
denied him his right to counsel, mandating dismissal of the charges. We reject this argument
based on insufficient evidence.
In State v. Garza, 99 Wn. App. 291, 293, 994 P. 2d 868 ( 2000), three inmates had their
legal materials seized as part of a security sweep following an attempted escape. Jail staff
retained the materials for up to 32 days, during which time at least one guard read the materials.
Garza, 99 Wn. App. at 294. The three inmates moved to dismiss based on governmental
misconduct. Garza, 99 Wn. App. at 294. Division Three of this court ruled that when the
officers actually examined and read the defendants' legal materials, they intruded into the
defendants' private relationship with their attorneys. Garza, 99 Wn. App. at 296. The court
remanded for the trial court to determine the extent of the intrusion and any prejudice from it, .
and to fashion an appropriate remedy. Garza, 99 Wn. App. at 301 -02.
Here, Thomas alleges that the j ail staff seized a letter containing confidential information
that he had written for the purpose of recording his recollections so that he could better prepare a
defense. But Thomas presented no evidence that this letter exists, that the jail staff examined or
read it, or that there was any interference with the attorney -client privilege. Absent even a
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scintilla of evidence to support his claim, Thomas fails to show that an evidentiary hearing is
necessary to address his allegation.
Further, Thomas complained about the seizure of the letter on the day before trial in an
attempt to obtain a continuance, even though the seizure occurred approximately two months
earlier. The trial court reasonably could have concluded that Thomas simply was attempting to
delay the trial. Under these circumstances, the trial court did not err in declining to hold an
evidentiary hearing on alleged government misconduct.
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.
J.
MAXA, J.
We concur:
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