State Of Washington v. Derrick Lamont Thomas

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
r^o O

STATE OF WASHINGTON, ~~
No. 71738-3-1 fe m^
Respondent,
DIVISION ONE -J &S
v.

UNPUBLISHED OPINION m
DERRICK LAMONT THOMAS, en

Appellant. FILED: July 7, 2014

Appelwick, J. —Thomas appeals his convictions for violation of a protection order,

third degree driving while license suspended or revoked, first degree unlawful possession

of a firearm, and unlawful possession of a controlled substance (cocaine). Thomas

contends that the procedure used for peremptory challenges violated his public trial right.

He argues that the statements he made to a community corrections officer while

handcuffed in the back of a patrol car should have been suppressed, because he was not

first given Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),

warnings. He challenges the prosecutor's repeated use of the phrase "we know" in

closing. He argues that the trial court should have dismissed the cocaine possession

charge under the mandatory joinder rule, because it was not presented to the jury in the

first trial. He asserts a double jeopardy violation for the same reason. He argues, and

the State concedes, that his misdemeanor sentences exceed the statutory maximum by

one day. We affirm, but remand for correction of a sentencing error.

FACTS

On June 24, 2012, Officer Reginald Gutierrez was dispatched to 4840 South I

Street in Tacoma for possible narcotics activity at the house. When Gutierrez arrived, he

approached Derrick Thomas, who was outside the house detailing a car. Gutierrez asked
No. 71738-3-1/2

Thomas where he lived. Thomas responded, "'Here'" and pointed at the 4840 South I

Street house. Gutierrez requested identification from Thomas. Thomas replied that he

did not have any. Gutierrez then asked Thomas for his name and date of birth. Not

believing Thomas's answer, Gutierrez detained Thomas. Thomas then revealed his

name and admitted he had an outstanding arrest warrant. Gutierrez arrested Thomas

and read him his Miranda rights.

Thomas was released from jail on July 14, 2012. The address he registered with

the Department of Corrections (DOC) was his mother's home on South Hosmer in

Tacoma.

DOC Officer Thomas Grabski decided to stake out the 4840 South I Street house

the day Thomas was released. Grabski had received information from another officer

that Thomas was living at the house in violation of community custody, and that firearms

and controlled substances might be located there. Grabski is a community corrections

officer charged with seeking out probation violators. He was not actively supervising

Thomas at the time.

Officer Grabski recruited five police officers to assist him in investigating whether

Thomas was in possession of guns and drugs. Grabski briefed the officers and instructed

them to pull Thomas over on his orders.

Around 7:00 p.m., Grabski watched a vehicle pull up to the front of the 4840 South

I Street house. Thomas got out of the car and entered the house without knocking.

Thomas's driver's license was suspended at the time. A few minutes later, Thomas left

the house and got back into the car. Later that night, Thomas again drove up to the
No. 71738-3-1/3

house. Thomas, a woman, and two children got out and went inside. A short time later,

Thomas left the house and drove away again.

As Thomas drove away, Grabski radioed to the assisting officers to pull Thomas

over for driving with a suspended license. When Grabski arrived, Thomas was

handcuffed in the back of a patrol car. Grabski did not inform Thomas of his Miranda

rights. Grabski asked Thomas whether he lived at the 4840 South I Street residence,

whether he had property inside, and whether he had a key to the house. Thomas

responded that he had property there and a key to the house, but did not live there.

Grabski then accompanied Thomas and the other officers back to the house to

search for firearms and drugs. Thomas remained detained in the patrol car during the

search. The woman who answered the door said Thomas was her boyfriend and they

had children together. She told the officers that Thomas did not live there, but kept some

property there.

The officers searched the entire house, except the children's bedrooms. They

found men's clothing in the master bedroom, as well as a loaded shotgun and shotgun

shells. They also discovered scales and a small baggie of cocaine inside a pill bottle.

The cocaine was located in a drawer with both men's and women's underwear. They

found court and DOC documents, as well as a receipt, in Thomas's name in the master

bedroom.

On July 16, 2012, the State charged Thomas with first degree unlawful possession

of a firearm (Count I), violation of a protection order (Count II), and third degree driving

while license suspended or revoked (DWLS, Count III).
No. 71738-3-1/4

On October 16, 2012, the State filed an amended information in open court adding

a charge of unlawful possession of a controlled substance, specifically cocaine. Thomas

was arraigned on the additional charge the same day.

The proceedings were then recessed for nearly two months. Trial commenced on

December 10, 2012. However, because the October amended information was not filed

until January 2013, it did not appear in the computer record at the time of trial. The parties

proceeded on only the three original charges: unlawful possession of a firearm, violation

of a protection order, and DWLS. Defense counsel later recalled that the State told her

that it decided not to proceed on the cocaine possession charge. Thomas did not move

to consolidate the charges.

At trial, Thomas objected to admission of his statements to Grabski while detained

in the patrol car. The trial court noted Thomas's standing objection. Nevertheless,

Grabski testified that Thomas said he had a key to the 4840 South I Street house, had

just come from there, and kept personal belongings there.

The jury found Thomas guilty of the two misdemeanors: violation of a protection

order and third degree DWLS. RCW 46.20.342(1 )(c); RCW 26.50.110(1). However, the

jury could not reach a verdict on unlawful possession of a firearm. After polling the jury,

the trial court declared a mistrial on that charge. The State immediately announced its

intention to proceed to retrial. The court imposed a one year suspended sentence for the

two misdemeanors.

On January 17, 2013, the State charged Thomas by amended information with first

degree unlawful possession of a firearm (Count I) and unlawful possession of a cocaine

(Count IV). Thomas was arraigned the same day.
No. 71738-3-1/5

On January 23, 2013, Thomas moved to dismiss the cocaine possession charge

with prejudice under the mandatory joinder rule, CrR 4.3.1. Thomas argued that due

process and speedy trial considerations prohibited the State from adding a new charge

after the original trial. The trial court denied Thomas's motion to dismiss.

At Thomas's second trial, the jury heard recorded jail calls in which Thomas tells

a woman that he does not want police to know where he lives, so he would give his

mother's address and only come home late. He expressed concern about police tearing

"our" room apart every week. In another call, the same woman says that she put

Thomas's clothes away and discusses "when you come home." The jury also heard a

call in which Thomas tells a friend that he was arrested at "my house." His friend asks

him, "Your baby mama's house?" Thomas responds affirmatively. Thomas then

repeatedly refers to "my house."

The jury found Thomas guilty of unlawful possession of a firearm and unlawful

possession of cocaine. Thomas appeals.

DISCUSSION

I. Public Trial Right

Thomas argues the trial court's peremptory challenge procedure violated his public

trial right. He asserts that peremptory challenges were closed to the public, but the court

did not analyze the State v. Bone-Club. 128 Wn.2d 254, 906 P.2d 325 (1995), factors

before conducting this portion of voir dire. In Bone-Club, the Washington Supreme Court

set forth a five-factor test that courts must use to evaluate the constitutionality of a

proposed courtroom closure. ]d. at 258-59.
No. 71738-3-1/6

At both trials, the parties exercised their peremptory challenges by silently passing

a piece of paper back and forth. At the first trial, the court stated:

At this time, ladies and gentlemen of the jury, the attorneys will be passing
back and forth this sheet of paper that Ms. [Jane] Pierson is picking up and
delivering to Mr. [James] Curtis. And they're going to be writing down their
peremptory challenges.

During this process, the only rule is you have to stay in your seat,
although you could stand up and stretch. But we don't want you to move
around because, if you start playing musical chairs, we would have more
difficulty remembering who answered what to the questions. So ifyou'd like
to speak softly to your neighbor, if you'd like to pull out knitting or a book,
please make yourself comfortable. This usually takes about ten minutes.

Then the record notes, "(Peremptory challenges exercised.)" An unreported sidebar

followed. The trial court subsequently announced, "Ladies and gentlemen of the jury, the

lawyers have exercised their peremptory challenges," and called out the numbers of the

jurors to be seated for trial. The trial court followed the same procedure in the second

trial. During both trials, the parties' peremptory challenge forms were filed in open court

the same day they were exercised. The forms specified each party's peremptory

challenges, the order in which they made the challenges, and the challenged jurors' name

and number.

Whether the right to a public trial has been violated is a question of law that we

review de novo. State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012). The Sixth

Amendment and article I, section 22 of the Washington Constitution guarantee a criminal

defendant's right to a public trial. U.S. Const, amend. VI; Wash. Const, art. I, § 22.

Article I, section 10 of the Washington Constitution provides the additional guarantee that

"[j]ustice in all cases shall be administered openly, and without unnecessary delay."
No. 71738-3-1/7

There is a strong presumption that courts are to be open at all stages of trial.

Sublett, 176 Wn.2d at 70. However, the public trial right is not absolute, jd. at 71. It may

be overcome "to serve an overriding interest based on findings that closure is essential

and narrowly tailored to preserve higher values." Id. To determine whether the public

trial right applies, the Court recently adopted the "experience and logic" test. Id. at 72-

73. The experience prong asks whether the place and process have historically been

open to the press and the general public. Id at 73. The logic prong asks whether public

access plays a significant positive role in the functioning of the particular process in

question. Jd. Ifyes to both, the public trial right attaches and the Bone-Club factors must

be considered before any closure. ]d

The right to a public trial extends to voir dire of prospective jurors. Presley v.

Georgia. 558 U.S. 209, 213, 130 S. Ct. 721, 175 L Ed. 2d 675 (2010); State v. Wise. 176

Wn.2d 1, 11, 288 P.3d 1113 (2012). In cases where Washington courts found an

improper closure during jury selection, the trial court conducted discussions with and/or

dismissed potential jurors in a closed courtroom, chambers, or other private setting,

outside the public eye. See, e.g., Wise, 176 Wn.2d at 6-7 (partial voir dire in chambers);

State v.Brightman, 155 Wn.2d 506, 509,122 P.3d 150 (2005) (courtroom closed to public

during voir dire); State v. Tinh Trinh Lam, 161 Wn. App. 299, 301, 254 P.3d 891 (2011)

(interview of juror in chambers), review granted, 176 Wn.2d 1031, 299 P.3d 20 (2013).

However, not every interaction between the court, counsel, and defendants will

implicate the public trial right or constitute a closure if closed to the public. Sublett, 176

Wn.2d at 71. Thus, before determining whether there is a public trial violation, we must

first consider whether the proceeding at issue constitutes a closure at all. Id. A closure
No. 71738-3-1/8

"occurs when the courtroom is completely and purposefully closed to spectators so that

no one may enter and no one may leave." State v. Lormor. 172 Wn.2d 85, 93, 257 P.3d

624(2011).

The record here does not support Thomas's claim that a closure occurred. Voir

dire, including individual questioning of prospective jurors, took place in open court. The

peremptory challenge form identified challenged jurors by name and number, the order

in which counsel made the challenges, and the party that made them. Members of the

public saw the dismissed jurors leave and saw which jurors remained. The court did not

orally recount which party challenged each juror. But, the trial court filed the peremptory

challenge forms in open court the same day they were exercised. The forms then became

part of the public record. In the first trial, defense counsel made a Batson1 challenge to

one of the State's peremptory challenges. This was conducted on the record in open

court.

Furthermore, Division Three of this court recently held that exercising for-cause

and peremptory challenges in a sidebar conference does not violate the public trial right.

State v. Love, 176 Wn. App. 911, 920, 309 P.3d 1209 (2013). Applying the experience

and logic test, the Love court found no evidence suggesting that peremptory challenges

were historically made in public. ]d at 918. And, the court reasoned that the written

record of the challenges satisfied the public's interest and assured "that all activities were

conducted aboveboard, even if not within public earshot." ]d at 920. Adopting Love,

Division Two of this court also held that exercising peremptory challenges at a clerk's

1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L Ed. 2d 69 (1986).

8
No. 71738-3-1/9

station does not violate the public trial right. State v. Dunn, Wn. App. , 321 P.3d

1283, 1285 (2014).

Here, the trial court's procedure, together with timely public access to the record,

protected both "the core values of the public trial right" and the open administration of

justice. Sublett, 176 Wn.2d at 73. Because there was no courtroom closure, we hold that

no public trial right violation occurred.

II. Statements to Officer Grabski

Thomas argues that it constituted custodial interrogation when Officer Grabski

questioned him while he was handcuffed and detained in the back of a patrol car. At no

time during the encounter was Thomas advised of his Miranda rights. Therefore, Thomas

asserts, the trial court should have suppressed his statements to Officer Grabski that he

had property at 4840 South I Street, had just come from there, and had a key to the

house.

We review Miranda issues de novo. State v. Daniels, 160 Wn.2d 256, 261, 156

P.3d 905 (2007), adhered to on recons., 165 Wn.2d 627, 200 P.3d 711 (2009). Miranda

warnings must be given whenever a suspect is subject to custodial interrogation by a

State agent. Miranda, 384 U.S. at 467-68. If police conduct a custodial interrogation

without Miranda warnings, statements made by the suspect during the interrogation must

be suppressed. ]d at 479.

However, statements admitted in violation of Miranda are subject to harmless error

analysis. State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177 (1991). A constitutional

error is harmless ifwe are convinced beyond a reasonable doubt that any reasonable jury

would have reached the same result absent the error. State v. Gulov, 104 Wn.2d 412,
No. 71738-3-1/10

425, 705 P.2d 1182 (1985). Assuming without deciding that Thomas's Miranda challenge

has merit, we proceed to Thomas's argument that the error was not harmless. Thomas

asserts that his statements to Grabski provided circumstantial evidence that he had

dominion and control over the 4840 South I Street house sufficient to establish his

possession of the gun and cocaine found inside.

Under the "overwhelming untainted evidence" test, we look at only the untainted

evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt.

]d at 426. The following untainted evidence was elicited at Thomas's second trial

demonstrating his possession of the gun and cocaine. Gutierrez testified that on June

24, Thomas pointed to the 4840 South I Street house and said, '"I live here.'" Grabski

testified that he watched Thomas pull up to the house and go inside without knocking.

Later that same evening, Grabski saw Thomas again enter the home with a woman and

two children.

During the search of the home, Grabski found men's clothing in the master

bedroom, as well as DOC documents in Thomas's name. Testimony was elicited that the

woman at 4840 South I Street was Thomas's girlfriend and they had children together.

The woman said that Thomas sometimes lived at the house, but did not currently live

there.

The State also introduced jail calls where Thomas said he was arrested at "my

house"—referring to his "baby mama's house." In another call, he told a woman he did

not want police to know where he lived, so he would give his mother's address and come

home late. On another occasion, the same woman told him that she put all his clothes

away and discussed "when you come home."

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No. 71738-3-1/11

This untainted evidence overwhelmingly established that Thomas had property at

the 4840 South I Street house and was living there. Therefore, we hold that any error in

admitting Thomas's statements to Grabski was harmless.

III. Inconsistent Oral and Written Rulings

Thomas argues that the trial court erred in making written findings and conclusions

that he waived his Miranda rights before making the June statements to Officer Gutierrez.

Thomas asks this court to vacate the erroneous findings and conclusions.

Officer Gutierrez testified that on June 24, 2012, he encountered Thomas on the

street and asked him where he lived. Thomas pointed at the 4840 South I Street house

and said, "Here." A short time later, Thomas revealed his name to Gutierrez and admitted

that he had an outstanding arrest warrant. Gutierrez then arrested Thomas and

Mirandized him. Gutierrez did not question Thomas after advising him of his Miranda

rights. In a December 11, 2012 oral ruling, the trial court held that when Thomas told

Gutierrez where he lived, it was an initial social contact, so Gutierrez did not yet need to

advise Thomas of his Miranda rights. Thomas does not dispute the correctness of this

ruling.

However, on January 18, 2013, the trial court entered the written findings of fact:

4. The defendant was arrested and read his Miranda warnings. The
defendant waived his right to remain silent and agreed to speak with
the officer.

5. The defendant told the officer that he resided at the 4840 South I
residence.

The trial court then entered the following conclusions of law:

1. On June 24, 2012, the defendant was arrested and read his
[Miranda] warnings.

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No. 71738-3-1/12

2. The defendant made a knowing and voluntary waiver of his [Miranda]
rights and agreed to speak with the arresting officer.

3. The defendant statements are admissible.

No remand is necessary where ambiguous written findings of fact are

supplemented by the trial court's oral ruling. State v. Motherwell, 114 Wn.2d 353, 358

n.2, 788 P. 2d 1066 (1990). Similarly, failure to enter written findings and conclusions

under CrR 3.5 and 3.6 does not necessitate reversal where the trial court's

comprehensive oral ruling is sufficient to allow appellate review. State v. Bvnum, 76 Wn.

App. 262, 266, 884 P.2d 10 (1994). The trial court's written findings and conclusions are

at best ambiguous. The trial court's oral ruling is sufficient to allow our review, and

Thomas does not dispute its correctness. We therefore simply disregard the trial court's

written ruling.

IV. Prosecutorial Misconduct

Thomas argues that it constituted prosecutorial misconduct when the State

repeatedly used the phrase "we know" in closing. Thomas asserts that this improperly

aligned the jury with the prosecution, placed the prestige of the prosecutor's office in the

balance, and expressed the prosecutor's personal opinion of Thomas's guilt.

Prosecutorial misconduct is grounds for reversal if the prosecutor's conduct was

both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551

(2011). We review a prosecutor's conduct in the full context of the trial, including the

evidence presented, the total argument, the issues in the case, and the jury instructions.

Id. A defendant suffers prejudice only when there is a substantial likelihood that the

prosecutor's conduct affected the jury's verdict. ]d Absent a timely objection, reversal is

12
No. 71738-3-1/13

required only if the conduct was so flagrant and ill-intentioned that it caused an enduring

and resulting prejudice that could not have been neutralized by a curative jury instruction.

State v. Warren. 165 Wn.2d 17, 43, 195 P.3d 940 (2008).

Prosecutors have wide latitude in closing to draw reasonable inferences from the

evidence. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). However, they are

prohibited from using their power and prestige to sway the jury. In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 706, 286 P.3d 673 (2012). Likewise, they must refrain from

making comments "calculated to align the jury with the prosecutor and against the

[accused]." State v. Reed, 102 Wn.2d 140, 147-48, 684 P.2d 699 (1984).

The Ninth Circuit recognized that using "we know" blurs the line between legitimate

summary of evidence and improper vouching. United States v. Younger, 398 F.3d 1179,

1191 (9th Cir. 2005). The Younger court emphasized that prosecutors should not use the

phrase in closing. Id However, in that case, the prosecutors used the phrase to "marshal

evidence actually admitted at trial and reasonable inferences from that evidence, not to

vouch for witness veracity or suggest that evidence not produced would support a

witness's statements." jd Thus, the prosecutors'statements were not improper. Id The

Eighth Circuit likewise held that "we know" is not plain error if used to refer the jury to the

government's evidence and summarize the government's case against the defendant.

United States v. Bentlev, 561 F.3d 803, 812 (8th Cir. 2009). By contrast, "we know" is

improper when "it suggests that the government has special knowledge of evidence not

presented to the jury, carries an implied guarantee of truthfulness, or expresses a

personal opinion about credibility." jd

13
No. 71738-3-1/14

Here, the prosecutor used "we know" several times to simply recount the State's

evidence. For instance, the prosecutor stated that "we know" the date of Thomas's arrest,

that cocaine was found in the dresser drawer, that the seized shotgun was loaded, and

that DOC Officer Grabski began an investigation. Such use of "we know" was not

improper.

However, other instances bordered on improper, because the prosecutor used "we

know" to suggest special knowledge of the evidence. For instance, referring to Thomas's

use of a different address, he stated, "But we know why he gave it. . . . He did not want

[the] DOC to tear apart his house." In the same vein, he asked, "So the question is, why

didn't he say he lived there? We know why. He didn't want Officer Grabski to search the

house." Again, referring to why Thomas's girlfriend said he did not live at the house, "Why

would she tell Grabski that? We know why, because she knew what the stakes were.

She knew that he didn't want them searching the room." Then the prosecutor asked the

jury why Thomas was so concerned about DOC searching in his room. He answered,

"We know why. We know why." He soon after reiterated, "Because we know they were

both afraid and wanted to avoid a DOC search." Defense counsel did not object to these

statements.

Though possibly improper, Thomas has failed to show that this latter use of "we

know" was so flagrant and ill-intentioned that it caused enduring and resulting prejudice

that no curative instruction could have neutralized. If Thomas objected, the trial court

could have instructed the prosecutor to refrain from using the phrase. Or, the court could

have at least reminded the jury that the prosecutor's argument is not evidence. This likely

would have cured any resulting prejudice.

14
No. 71738-3-1/15

And, Thomas has failed to show prejudice. Thomas did not dispute that the State

found cocaine and a loaded shotgun in the master bedroom at 4840 South I Street.

Rather, he disputed his possession of those items. However, as recounted above, there

was significant untainted evidence that Thomas had property at the house and lived there.

This evidence came in the form of officer testimony, recorded jail calls, seized documents

with Thomas's name on them, and Thomas's own statement to Officer Gutierrez. As

such, we hold that the prosecutor's use of the phrase "we know" did not constitute

prejudicial error.

V. Mandatory Joinder

Thomas argues that the trial court erred in denying his motion to dismiss the

cocaine possession charge under the mandatory joinder rule, CrR 4.3.1. We conduct de

novo review of the trial court's application of the mandatory joinder rule. State v.

Kindsvoqel. 149 Wn.2d 477, 480, 69 P.3d 870 (2003); State v. Kenvon, 150 Wn. App.

826, 833, 208 P.3d 1291 (2009).

CrR 4.3.1 (b) makes joinder of "related offenses" mandatory. In general, under this

rule, a defendant who has been tried for one offense is entitled to dismissal of a charge

for a related offense. CrR 4.3.1(b)(3). CrR 4.3.1(b)(2) provides that when a defendant

has been charged with two or more related offenses, he or she may move to consolidate

them for trial. Failure to move to consolidate "constitutes a waiver of any right of

consolidation as to related offenses with which the defendant knew he or she was

charged." CrR 4.3.1 (b)(2). CrR 4.3.1 (b)(3) then specifies that a "defendant who has been

tried for one offense may thereafter move to dismiss a charge for a related offense, unless

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No. 71738-3-1/16

a motion for consolidation of these offenses was previously denied or the right of

consolidation was waived as provided in this rule." (Emphasis added.)

Thomas argues that he did not need to move to consolidate in order to attain

subsequent dismissal. He asserts that it was not the role of defense counsel to urge her

client to be prosecuted. He also points out that his counsel informally approached the

prosecutor about the cocaine possession charge and was told that the State opted not to

proceed.

However, the language of CrR 4.3.1(b) is clear. A defendant may seek dismissal

of a related offense unless he waived his right of consolidation. CrR 4.3.1(b)(3). A

defendant waives his right of consolidation by failing to move to consolidate when he has

been charged with two or more related offenses. CrR 4.3.1(b)(2)-(3). By contrast, a

defendant does not waive his right to mandatory joinder when he does not know he will

later be charged with a related offense. State v. Dixon, 42 Wn. App. 315, 317, 711 P.2d

1046(1985).

Here, Thomas was charged with possession of cocaine and arraigned in open

court on October 16, 2012. Trial began two months later, but on only the three original

charges of firearm possession, violation of a protection order, and DWLS. At this point,

Thomas was aware of the cocaine possession charge. To preserve a CrR 4.3.1(b)(3)

motion to dismiss, Thomas needed to move to consolidate. He failed to do so, waiving

the right of consolidation. Accordingly, under the plain language of the mandatory joinder

rule, Thomas could not later move to dismiss the cocaine possession charge. We hold

that the trial court did not err in refusing to dismiss the cocaine possession charge under

the mandatory joinder rule.

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No. 71738-3-1/17

VI. Double Jeopardy

Thomas argues that his cocaine possession conviction in the second trial violates

double jeopardy, because the State abandoned that charge in the first trial under

circumstances indicating a lack of evidence. Claims of double jeopardy are questions of

law reviewed de novo. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).

Both the state and federal constitutions prohibit multiple punishments for the same

offense. U.S. Const, amend. V; Wash. Const, art. I, § 9. Jeopardy does not attach until

a defendant is actually at risk of conviction. State v. Corrado, 81 Wn. App. 640, 645, 915

P.2d 1121 (1996). Thus, jeopardy attaches when the jury is empaneled and sworn. Crist

v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978).

Thomas is correct that retrial is impermissible when the circumstances suggest

that the State's action was motivated by a concern that it could not prove its case. State

v. Wright, 165 Wn.2d 783, 805, 203 P.3d 1027 (2009). In Downum v. United States, the

prosecutor requested a midtrial dismissal due to the unavailability of a key prosecution

witness. 372 U.S. 734, 735, 83 S. Ct. 1033,10 L. Ed. 2d 100 (1963). The Supreme Court

held that double jeopardy barred retrial. Id at 737-38.

Jeopardy did not attach here. The jury was never empaneled and sworn on the

cocaine possession charge at the first trial. Thomas was therefore not at risk of being

convicted for cocaine possession. Nor did the State move to dismiss the cocaine

possession charge during the first trial based on lack of evidence, making this case

distinguishable from Downum. Any error went to mandatory joinder, which does not

implicate double jeopardy. State v. Dallas, 126 Wn.2d 324, 330-31, 892 P.2d 1082

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 No. 71738-3-1/18

(1995). As established above, Thomas waived his right to mandatory joinder. We hold

that there is no double jeopardy violation.

VII. Misdemeanor Sentence

Thomas argues that the trial court erred in sentencing him to a full year on his

misdemeanor convictions. The maximum sentence for a gross misdemeanor is 364 days.

RCW 9.92.020. The State concedes error. We accept the State's concession and

remand for correction of Thomas's misdemeanor sentence, because it exceeds the

statutory maximum by a day. In re Pers. Restraint of Mayer. 128 Wn. App. 694, 701-02,

117 P.3d 353 (2005).

VIII. Statement of Additional Grounds

In his statement of additional grounds, Thomas argues that the search of the 4840

South I Street house and seizure of evidence was unlawful, because the address was not

his registered address and he claimed he did not live there.

Individuals under community supervision may be searched based on a well-

founded or reasonable suspicion of a probation violation. State v. Winterstein, 167 Wn.2d

620, 628, 220 P.3d 1226 (2009). Despite this lesser expectation of privacy, though, the

Washington Supreme Court held that a probation officer must have probable cause to

believe that a probationer resides at a particular residence before searching that

residence. ]d at 630. Probable cause exists when the officer has information that would

lead a person of reasonable caution to believe that the probationer lives at the place to

be searched. ]d The information known to the officer must be reasonably trustworthy.

Id. Only facts and knowledge available to the officer at the time of the search should be

considered. Id at 630-31.

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No. 71738-3-1/19

Here, Grabski received a tip from another officer that Thomas was living at the

4840 South I Street house, in violation of his community custody. Grabski also knew from

past police reports and jail information that Thomas identified that address as his home.

Then, while staking out the house, Grabski observed Thomas enter without knocking.

Thomas left and returned some time later with a woman and two children, and again

entered the home. Based on this information, we hold that Grabski had probable cause

to believe that Thomas resided at the 4840 South I Street house.2 As such, the search

and seizure were lawful.

We affirm, but remand for correction of the sentencing error.

WE CONCUR:

3^-^y

2 Because we do not decide whether Thomas's statements to Grabski while
handcuffed in the patrol car were admitted in error, we do not consider that evidence in
support of probable cause.

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