State v. Shaver

Schultheis, J.

James Edwin Shaver appeals his judgment and sentence on drug charges. He contends the convictions should be reversed and the case remanded or dismissed due to: (1) ineffective assistance of counsel, (2) erroneous denial of his pretrial motion to suppress, (3) prosecutorial misconduct, and (4) denial of his motion for a new trial. Finding Mr. Shaver received ineffective assistance of defense counsel, we reverse.

*378Facts

Mr. Shaver was charged in the Klickitat County Superior Court with: (1) manufacturing methamphetamine (RCW 69.50.401(a)(l)(ii)); (2) conspiracy to manufacture methamphetamine (RCW 69.50.401 and .407); and (3) possession of methamphetamine (RCW 69.50.401(d)). Just prior to trial the State amended the information to add two counts of distribution of a controlled substance to a person under the age of 18 (RCW 69.50.406). Mr. Shaver filed a CrR 3.6 motion to suppress evidence seized as the result of an allegedly defective search warrant. The motion was ultimately denied.

The day trial was to begin, the State informed the court it had added two new witnesses to its list of witnesses for trial. Defense counsel objected on the basis of timeliness and also disclosed he had previously represented both of the new witnesses in criminal matters. Mr. Shaver refused to waive his speedy trial rights and/or any conflict of interest his attorney would have when cross-examining these witnesses. Initially, the court refused to allow the two witnesses to testify at trial. The next day, on the State’s motion for reconsideration, the trial court reversed its earlier decision and determined it was proper to allow one of the former clients, Marvin Dean Gregory, to testify. It concluded current case law allowed defense counsel to continue to represent Mr. Shaver even though counsel had represented Mr. Gregory in the past since the subject of Mr. Gregory’s prior representation was not substantially related to Mr. Shaver’s current charges. Further, the court determined the interests of the former and current clients were not materially adverse. See State v. Ramos, 83 Wn. App. 622, 922 P.2d 193 (1996); State v. Hunsaker, 74 Wn. App. 38, 873 P.2d 540 (1994).

Defense counsel then argued that a defense witness, Robert Estes, had been intimidated by the prosecutor in a jailhouse interview prior to trial. Mr. Estes was listed as both a defense and prosecution witness. A hearing occurred *379outside the presence of the jury. At its conclusion, the court found no evidence of witness intimidation and required Mr. Estes to testify, but limited questioning to matters that would not elicit incriminating responses. The trial proceeded and the defense made a motion to dismiss the charges at the conclusion of the State’s case in chief, which was denied.

Mr. Shaver testified on his own behalf. He admitted he was a methamphetamine user but denied manufacturing, conspiring to manufacture, or delivering the drug as charged in the information. On direct examination, defense counsel asked Mr. Shaver questions about some, but not all, of his prior criminal convictions. This opened the door for the State to impeach Mr. Shaver with a prior felony drug conviction that was similar to one of the counts charged in the current trial. Mr. Shaver candidly admitted the former drug conviction in response to the prosecutor’s questions.

At the conclusion of the trial, a jury found Mr. Shaver guilty of four of the five charges. He requested a new trial but the motion was denied. Mr. Shaver was sentenced in the standard range.

Analysis

1. CrR 3.6 Motion

Mr. Shaver contends the trial court erred when it denied his motion to suppress evidence seized as the result of an allegedly defective search warrant. He argues that neither the informant’s basis for knowledge nor his credibility was sufficiently established to allow the magistrate to make an appropriate probable cause determination prior to issuing the search warrant.

An appellate court limits its review of findings of fact entered following a suppression motion solely to “those facts to which error has been assigned.” State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Unchallenged findings are verities on appeal. Id. at 644.

*380Unfortunately, no findings or conclusions were submitted with the record on appeal, which is a procedural anomaly. “A separate assignment of error for each finding of fact a party contends was improperly made must be included with reference to the finding by number.” RAP 10.3(g). When parties challenge findings of fact, they must include them verbatim in the brief or attach a copy of them in an appendix to the brief. RAP 10.4(c). Mr. Shaver complied with neither rule. Instead, he merely claims the trial court erred in denying his motion to suppress based on the State’s inability to meet the Aguilar-Spinelli1 test regarding confidential informants. Because the CrR 3.6 hearing and the court’s oral decision were included in the record we hesitantly address the issue despite Mr. Shaver’s inadequate briefing. However, the trial court’s oral findings of fact are treated as unchallenged, and thus verities on appeal. Hill, 123 Wn.2d at 644.

Mr. Shaver’s contention regarding the sufficiency of the affidavit of probable cause ultimately depends on whether the court’s findings support its legal conclusion that the incriminating evidence was lawfully obtained as the result of a valid search warrant. The appellate court conducts a de novo review of conclusions of law in an order pertaining to a suppression motion. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).

The trial court determined that the affidavit in support of the application for the search warrant written and submitted by the investigating officer included a handwritten statement signed by the confidential informant (Cl), which relayed critical information to the officer investigating the drug crime that led to Mr. Shaver’s arrest. This investigating officer’s affidavit included his basis of knowledge surrounding the drug crime at issue and the reasons the Cl’s information was credible. These are the two prongs of the Aguilar-Spinelli test that must be satisfied prior to the search warrant issuing. The court made several find*381ings regarding the affidavit in support of the search warrant. They include: (1) the named Cl initially contacted the investigating officer to report the alleged methamphetamine operation at the home of Robert Estes; (2) the officer was told the Cl wanted to rid the community of drug dealers and also hoped for a favorable recommendation to the prosecutor regarding an outstanding criminal charge; (3) the investigating officer had been investigating the Estes household regarding illegal drug activity for many years prior to being contacted by the Cl and had personal knowledge of high foot and automobile traffic in and out of the Estes residence and knew from license plate numbers that many visitors to the residence were known drug users; (4) in response to the investigating officer’s directive, the Cl went to the Estes home; (5) while at the Estes home the Cl learned that Mr. Shaver was presently cooking meth and was teaching Mr. Estes to do so as well; (6) the comments Mr. Estes made to the Cl were statements against penal interests, which made the statements more credible; (7) the investigating officer knew the Cl for several years and knew the Cl had been involved in the drug subculture in the past; and (8) the Cl had previously provided reliable information to the investigating officer. The court then concluded that, taken as a whole, the information presented in the officer’s affidavit and the Cl’s personal, signed statement provided sufficient compliance with the two-prong test of Aguilar-Spinelli. As a result, it determined there was sufficient probable cause for the search warrant to issue and denied Mr. Shaver’s motion to suppress evidence. The findings support the court’s conclusion. The trial court did not abuse its discretion when it denied Mr. Shaver’s CrR 3.6 motion to suppress.

2. Ineffective Assistance of Defense Counsel

Next, Mr. Shaver claims the trial court erred when it refused to grant him a new trial on the basis of ineffective assistance of counsel. He lists five prejudicial errors committed by defense counsel: (1) failure to move in limine to *382exclude portions of his prior criminal record, (2) introducing his entire criminal history even though some of the offenses could not have been used for impeachment purposes, (3) failing to object to the State’s use of a previous drug conviction for impeachment purposes when the prejudice clearly outweighed the probative value, (4) deficient cross-examination of State witnesses, and (5) improperly arguing the motion to suppress.

We review an ineffective assistance of counsel claim de novo. State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). We indulge in a strong presumption that defense counsel’s performance is within the broad range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). The test for ineffective assistance of counsel is whether: (1) defense counsel’s performance fell below the objective standard of reasonableness, and (2) this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice results when it is reasonably probable that “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694).

Mr. Shaver contends he did not receive effective assistance of defense counsel, especially as it relates to the issue of a prior drug conviction from the state of Oregon. When called to the stand to testify in his own behalf the following colloquy took place between Mr. Shaver and his attorney:

Q . . . I meant to ask you earlier — you do have a criminal record; isn’t that—
A Yes, sir.
Q —right, Mr. Shaver? Okay. In fact, what charges were you charged with, and I believe convicted of?
A Burglary two was two of the charges, and then a walk away from work release, which is an escape, they call it.
*383Q Okay.
A It was a walk away on a pass, and I just didn’t return.
Q All right.
A That was back in 1985 and ’86.
Q Okay. That’s when you were charged with those?
A Yes.
Q And—
A I think I finally was convicted on everything in ’90 — in ’87,1 believe.
Q Okay. And that’s included — that’s the burglaries and the escape?
A Yes.
Q . . . Have you had any criminal violations whatsoever since those in ’85, ’86, ’87?
A No, sir.[2]

Later, during the State’s cross-examination of Mr. Shaver, the following occurred:

BY MR. HAGERTY [deputy prosecutor]:
Q Mr. Shaver, you indicated that you have burglary, burglary, and escape; is that correct?
A Yes, sir.
Q Do you also have a drug case.
A No (inaudible) drug case?
Q Did you also enter a judgment and conviction and sentence on a drug case in the State of—
A Yes, it was—
Q —Oregon?
A —in the State of Oregon. Yes, it was. It wasn’t shown on my — on my criminal history that you guys prepared.
Q . .. When you sat here and just testified, you didn’t mention anything about the possession conviction; did you?
*384A I didn’t know if it was listed or not.
Q Did you know you had it?
A Yes.
Q When he [defense counsel] asked you what crimes you were convicted of, didn’t you think it was important to admit that you had a felony—
A I was—
Q —drug conviction?[3]

Defense counsel did not object or even request a sidebar during this colloquy. This is the basis of Mr. Shaver’s ineffective assistance of counsel claim. He argues an adequate defense attorney would have made a pretrial motion to suppress the prior escape and drug convictions because their probative value did not outweigh the substantial potential for prejudice pursuant to ER 403. Additionally Mr. Shaver argues adequate defense counsel would have immediately objected to the line of questioning by the State regarding the drug crime that occurred in Oregon, or, at a minimum, requested a sidebar so the jury would not hear the conversation until the court had a chance to rule on the potential for prejudice. Mr. Shaver candidly admits the burglary convictions may have been allowed into evidence as crimes of dishonesty pursuant to ER 609(a)(2) but maintains the escape and drug convictions may well have been excluded if a hearing had taken place outside the presence of the jury ER 403,404, 609; State v. Bankston, 99 Wn. App. 266, 270-71, 992 P.2d 1041 (2000) (court must look at probative value and prejudice as well as consider and weigh Alexis4 factors).

Mr. Shaver argues, and we agree, that he was denied effective representation and that he was prejudiced as a result pursuant to the well known Strickland test. It appears defense counsel was caught by surprise regarding Mr. Shaver’s drug felony from the state of Oregon. Adequate representation should include accurate knowledge of prior *385criminal history, especially since the State had the information and used it to prepare a damaging cross-examination. We find it reasonably probable that defense counsel’s lack of preparation adversely affected the outcome of this proceeding.

Mr. Shaver also argues that defense counsel did not adequately cross-examine the State’s witnesses and did not sufficiently argue the CrR 3.6 motion to suppress. The record does not support these contentions. Because we determine Mr. Shaver was not adequately represented by defense counsel, his conviction must be reversed on this basis.

We do not address Mr. Shaver’s remaining contentions as they are not dispositive.

Reversed.

Kurtz, J., concurs.

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

Report of Proceedings (RP) at 389-90.

RP at 395-96.

State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980).