State Of Washington, Respondent V Juan Jose Gomez Vasquez, Appellant (Majority)

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F1LE F APPEALS DIVISION II @ CURT ZOI 11 . UL - 8 AM 10: . 08 STATE CF WASHINGTON bV at IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 43422 -9 -II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION JUAN JOSE GOMEZ VASQUEZ, Appellant. Consolidated with Nos. 44485 -2 -II, 44616 - -II, 44607 -3 -II 2 In re Personal Restraint of JUAN JOSE GOMEZ VASQUEZ, Petitioner. A jury found Juan Jose Gomez Vasquez guilty of unlawful delivery JOHANSON, C. J. of a controlled conviction, committed substance contrary to RCW 69. 50. 401( 2)( b). contending that ( 1) prosecutorial Vasquez' s right grounds ( SAG) to he received misconduct, representation. self - and three personal and ( 3) ineffective Gomez Vasquez appeals his assistance of counsel, ( 2) the State that the trial court erroneously denied Gomez Gomez Vasquez also filed two statements of additional restraint petitions ( PRP) which are consolidated with this Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II appeal. 1 We hold that ( 1) Gomez Vasquez' s ineffective assistance of counsel claims fail because he is and to demonstrate resulting unable ill intentioned and incurable by prejudice, ( 2) the prosecutor' s misconduct was not flagrant instruction, ( 3) that Gomez Vasquez waived his right to self - representation by proceeding through trial with counsel, and ( 4) that Gomez Vasquez' s SAG arguments fail. We also deny Gomez Vasquez' s PRPs. Accordingly, we affirm his conviction. FACTS I. BACKGROUND Kevin Gordon used drugs for over 25 years. In June 2011, police pulled Gordon over and found at the an ounce of methamphetamine scene and inquired as in Gordon' s to Gordon' s Officer Don Walkinshaw arrived possession. to willingness work for the police. Aware that he was facing up to 20 years in prison if convicted on his charges, Gordon agreed to plead guilty when offered a more lenient sentence in exchange for his work as a confidential informant ( CI). Shortly thereafter, Gordon began to conduct " reliability buys" for Officer Walkinshaw. 2 Report of Proceedings ( RP) at 197. In August 2011, Officer Walkinshaw put Gordon in contact with Officer James On August 18, Gordon went to the police station and, in the presence of Officer Buchanan. Buchanan, called and spoke to Gomez Vasquez reaching an agreement to exchange cash for drugs at a location in Pierce County. Before taking Gordon to the meeting location, Officer Buchanan conducted a standard prebuy search which required Gordon to empty his pockets and submit to a thorough search, frisk, and pat down of his person. Officer Buchanan provided Gordon with a scale and prerecorded money to purchase a quarter ounce of methamphetamine. 1 The Stated filed a motion commissioner of our court to strike denied that the exhibits motion. attached to Gomez Vasquez' s PRPs. A Consol. Nos. 43.422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II Gordon went to the location where he and Gomez Vasquez agreed to meet while Officer Buchanan his investigation team and other members of conducted surveillance. But because the technology unit was unavailable, Officer Buchanan was unable to record audio or video of the day' s events. passenger. returning a Gordon arrived at the location and entered a van in which Gomez Vasquez was a Gordon gave Gomez Vasquez the money and Gomez Vazquez left on a bicycle few minutes later with a package that needed to be " weigh[ ed] out," but Gordon discovered that the scale he had been given was not functioning, so he was taken to Gomez Vasquez' s residence to complete the transaction. Members of Officer Buchanan' s surveillance team followed the van from the original location back to Gomez Vasquez' s home as Gordon relayed the changing Vasquez' plans s residence where to Officer Buchanan Gordon via text message. Gordon arrived at Gomez was given a quarter ounce of methamphetamine. After the transaction, Officer Buchanan retrieved Gordon who produced a baggie of what was later confirmed to be methamphetamine. Officer Buchanan again searched Gordon. On August 30, Officer Buchanan applied for a search warrant. On September 7, Officer Buchanan and several other members of the Tacoma Police Department executed the search warrant at the residence where Gordon purchased the methamphetamine. During the ensuing search, police recovered marijuana, prescription pills, a gun, a scale, and documents with Gomez Vasquez' s name on them. But the officers did not find methamphetamine or any of the marked money Gordon used to buy the Miranda2 search, Officer Kenneth Smith Vasquez agreed to speak read Gomez Vasquez warnings. drugs. During the Afterwards, Gomez Gomez Vasquez initially claimed that he. only to Officer Buchanan. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 3 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II consumed drugs, but when he was advised that police had observed the earlier controlled buy, Gomez Vasquez admitted to selling methamphetamine and heroin. II. PROCEDURE The State initially charged Gomez Vasquez with two counts of unlawful delivery of a controlled substance, second degree unlawful possession of a firearm, two counts of possession of a legend drug, and unlawful possession of a controlled substance. But the State amended the charges to one count of unlawful delivery of a controlled substance. A. PRETRIAL MOTIONS Either by agreement of both parties or for administrative necessity, Gomez Vazquez' s trial date was continued a total of five times. Although his counsel agreed to continue the case, Gomez Vasquez himself objected to any continuance during his omnibus hearing, desiring that the record reflect the assertion of his speedy trial rights. Gomez Vasquez refused to sign each subsequent order continuing the trial date. Gomez Vasquez also moved to suppress the admissions he made during the execution of the search warrant on grounds that he did not knowingly and voluntarily waive his right to remain silent. Notwithstanding some evidence that Gomez Vasquez appeared tired or possibly high on drugs, the trial court ruled that the statements were made after Gomez Vasquez voluntarily waived his Miranda rights. Additionally, Gomez Vasquez filed a motion in which he claimed to waive his right to counsel and contended that he wished to represent himself pro se. But Gomez Vasquez was represented by counsel throughout trial and did not bring this motion to the trial court' s attention until the day he was scheduled to be sentenced. 4 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II B. TRIAL TESTIMONY AND POST -TRIAL PROCEEDINGS At trial, Officer Buchanan testified on behalf of the State. On redirect examination, the prosecutor asked Officer Buchanan to describe the items found in the house and elicited the following testimony: THE STATE:] So [ defense counsel] was asking you about some of the things you found in the house. Did you find a scale in the house? OFFICER BUCHANAN:] Yes. THE STATE:] Did you find a gun in the house? OFFICER BUCHANAN:] Yes. THE STATE:] Did you find bullets in the house? OFFICER BUCHANAN:] Yes. 2 RP 208. at various Then, in closing little " pegs" argument, the State utilized a " peg theory," arguing that the supported Gordon' s version of the events and showed Gomez Vasquez' s guilt. Responding to testimony that no methamphetamine was found during the search of Gomez Vasquez' s residence, the prosecutor stated, Ask yourselves, think about this, why did Mr. Gordon tell you that they went to this house? What did they did Officer Buchanan tell hang what other need? you You remember. said, a scale, right? What that he found in that house? little peg for Mr. Gordon, up another he told you. drugs. He right. A scale. I' m going to Everything keeps supporting You didn' t find any methamphetamine, no, but I found some You didn' t find any methamphetamine, but I found a loaded handgun. 3 RP he at 304. object Gomez Vasquez did not object to Officer Buchanan' s testimony on redirect nor did to the prosecutor' s closing argument. The jury found Gomez Vasquez guilty as charged. At sentencing, Gomez Vasquez complained that the court failed to address the various pro se motions that he had submitted before and after trial, including a motion for arrest of judgment and new trial. The trial court denied his motion for a new trial the following week. 5 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II Gomez Vasquez appeals his conviction for unlawful delivery of a controlled substance and his sentence of 75 months confinement. Gomez Vasquez also filed three PRPs which are consolidated by order to his direct appeal. ANALYSIS I. INEFFECTIVE ASSISTANCE OF COUNSEL Gomez Vasquez argues that his trial counsel rendered ineffective assistance by failing to move to exclude prejudicial gun evidence and by failing to object or request a sidebar once the testimony involving the weapon was adduced. Because Gomez Vasquez fails to show resulting prejudice, his ineffective assistance of counsel argument fails. A. RULES OF LAW To prevail on an ineffective assistance of counsel claim, a defendant must show both deficient performance and resulting prejudice; failure to show either prong defeats this claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002). An appellate court reviews an ineffective assistance claim de novo, beginning with a strong presumption that trial counsel' s performance was adequate and reasonable and giving exceptional deference when evaluating counsel' s strategic decisions. Strickland v. Washington, 466 U. S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011) ( Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)). defendant must show that counsel' s reasonableness. McNeal, 145 Wn.2d at quoting State v. Thus, to establish deficient performance, a performance fell below an objective standard of 362. To establish prejudice, a defendant must show that but for counsel' s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U. S. at 694. 6 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II B. COUNSEL' S FAILURE TO OBJECT Here, counsel for Gomez Vasquez, did not object to Officer Buchanan' s testimony regarding the gun found during the search nor did counsel object to the prosecutor' s gun remarks during closing argument. Because the unlawful firearm possession charge was dismissed before trial, evidence relating to the gun was no longer relevant to Gomez Vasquez' s case and the trial court likely would have sustained an objection under ER 402. 3 Even assuming such an objection would have been sustained, Gomez Vasquez cannot show that the only two against result of fleeting the trial would references Gomez Vasquez on to the the have been different gun unlawful absent throughout the trial. delivery charge was the gun evidence. There were In addition, the State' s evidence decidedly strong. Tacoma police identified Gomez Vasquez as a participant in a controlled drug buy. Gordon was searched before he met with Gomez Vasquez and Gordon produced a quantity of methamphetamine upon his departure from Gomez Vasquez' from Gomez Vasquez. When s residence. questioned Gordon testified that he bought methamphetamine Officer Buchanan, Gomez Vasquez admitted by dealing methamphetamine and heroin. Consequently, Gomez Vasquez does not demonstrate that his trial counsel rendered ineffective assistance by failing to object to the admission of the gun evidence because there is no reasonable probability that, but for counsel' s deficient performance, the outcome of the case would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). 3 Under ER 402, relevant evidence is generally admissible and relevant if it makes " the "[ e] vidence which is not relevant existence of any fact that is of or less probable." ER 401. Evidence of the gun seizure does not make the existence of any fact of consequence to the determination of the unlawful delivery charge more or less probable. is not admissible." consequence Evidence is to the determination of the action 7 more probable 2 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 - -II / 44607 -3 - II C. FAILURE TO EXCLUDE GUN EVIDENCE In the alternative, Gomez Vasquez argues that his trial counsel was ineffective in failing to in limine to move exclude the gun evidence. Counsel' s failure to make a motion does not support an ineffective assistance of counsel claim unless Gomez Vasquez can show that the motion would have been properly State granted. v. Price, 127 Wn. 1171 ( 2005), aff'd, 158 Wn.2d 630, 146 P. 3d 1183 ( 2006). App. 193, 203, 110 P. 3d Gomez Vasquez must make this showing based on the record developed in the trial court. McFarland, 127 Wn.2d at 337. After the State amended the information leaving only the unlawful delivery charge, the gun evidence was rendered entirely irrelevant because it had no tendency to make any element of the remaining charge more or less ER 401. probable. Although the amended information was filed on the day trial began, counsel for Gomez Vasquez said that he had an opportunity to review discuss the and amendments a week before the trial. Therefore, counsel knew that evidence of the weapon was no longer relevant and could be prejudicial, but he opted not to attempt to exclude this evidence in his trial memorandum. The trial court likely would have granted a motion to exclude the gun evidence on grounds that it was irrelevant and overly 4 prejudicial. Accordingly, we find that defense counsel' s performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362. But notwithstanding his ability to satisfy the deficient performance prong, Gomez Vazquez' s ineffective assistance claim fails because. he 4 The State urges us to conclude that counsel' s decision not to bring a motion was tactical because it was consistent with the defense' s theory that the evidence found belonged to other There was evidence found, including documents bearing names other than Gomez Vasquez, which already demonstrated the fact that the residence was shared. Contrary to the State' s position, there appears to be no legitimate trial tactic associated with this residents failure. of the home. 2 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 - -II / 44607 -3 - II cannot . show that the outcome of the trial would have been different but for his counsel' s deficient performance. McFarland, 127 Wn.2d at 335. Evidence of a connection between a criminal defendant and a firearm can be highly prejudicial when such a connection is unassociated with the underlying crime. State v. Rupe, 101 Wn.2d 664, 708, 683 P. 2d 571 ( 2001) ( 1984); 5 State v. Freeburg, 105 Wn. App. 492, 501, 20 P. 3d 984 stating that courts have uniformly condemned evidence of dangerous weapons, even though found in the possession of a defendant, which have nothing to do with the crime charged). But as we discussed above, the State provided strong evidence of Gomez Vasquez' s guilt, including physical evidence of drugs from controlled buys and Gomez Vasquez' s own admission that he sold quantities of methamphetamine and heroin. Gomez Vasquez fails to show that the outcome would have been different even had his trial counsel moved to exclude evidence of the gun and, thus, he cannot demonstrate prejudice. His ineffective assistance of counsel arguments fail. II. PROSECUTORIAL MISCONDUCT Gomez Vasquez also argues that the prosecutor engaged in prosecutorial misconduct during redirect examination of Officer Buchanan and also at closing argument. We disagree. 5 The Rupe court noted that many individuals view guns with great abhorrence and that some may react solely to the fact that someone who has committed a crime has dangerous weapons. 101 Wn.2d at 708. 9 2 Consol. Nos. 43422 -9 -II / 44485 -2 -I1 / 44616 - -11 / 44607 -3 - 1I A. STANDARD OF REVIEW AND RULES OF LAW To establish prosecutorial misconduct, Gomez Vasquez has the burden of establishing that the challenged conduct was 626, 652, 81 P. 3d 830 ( 2003). in the full trial context, both improper and prejudicial. State v. Cheatam, 150 Wn.2d We review the prosecutor' s conduct " by examining that conduct including the evidence presented, ` the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. "' State omitted) ( v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal quotation marks quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)). When a defendant objects to alleged misconduct at trial, the defendant must show that the prosecutor' s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury' s verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012). If a defendant fails to object to misconduct at trial, he fails to preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned that it caused an enduring prejudice that could not have been cured with an 258 P. 3d 43 ( 2011). instruction to the jury. State v. Thorgerson, 172 Wn.2d 438, 442 -43, We focus more on whether the resulting prejudice could have been cured, rather than the flagrant or ill-intentioned nature of the remark. Emery, 174 Wn.2d at 762. B. ANALYSIS Specifically, Gomez Vasquez argues that the prosecutor improperly elicited and exploited irrelevant and highly prejudicial evidence of the gun and ammunition. But he failed to object to either instance of alleged prosecutor' s conduct was occurred during the misconduct. flagrant and Accordingly, he must first demonstrate that the ill intentioned. redirect examination of The first instance of alleged misconduct Officer Buchanan. On cross- examination, Gomez Vasquez questioned Officer Buchanan about the search of his residence and inquired as to what 10 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II evidence that search produced. Gomez Vasquez' s trial counsel asked a series of questions meant to challenge the credibility of Gordon' s information and to emphasize the lack of incriminating evidence police recovered when Gomez Vasquez' s home was searched. In response, the prosecutor elicited the testimony from Officer Buchanan regarding the seizure of the gun and ammunition in an attempt to show that, notwithstanding the failure to seize methamphetamine or marked bills, the search still resulted in the seizure of evidence tending to Gordon' s information that illegal activity support occurred in the residence. The prosecutor asked whether Officer Buchanan found a gun and ammunition amongst several other items seized. Gordon' s While the seizure of the scale and other controlled substances may have supported assertion that the residence was used for criminal drug activity, the gun and ammunition was irrelevant as it pertained to Gomez Vasquez and the charges against him. Moreover, Gordon never alleged that Gomez Vasquez was armed during any of their previous encounters nor did Gordon claim to have seen guns inside Gomez Vasquez' s residence. Because the connection between a criminal defendant and a firearm can have prejudicial effect, it was improper for the prosecutor to elicit testimony which created such a connection. But the prosecutor' s conduct cannot be characterized as so flagrant and ill intentioned that a curative instruction could not have obviated any prejudice. State v. Stenson, 132 Wn.2d 668, 726 -27, 940 P. 2d 1239 ( 1997), cert. denied, 523 U. S. 1008 ( 1998). A limiting instruction could have easily cured what little prejudice may have resulted from Officer Buchanan' s testimony. In closing argument, the prosecutor used the " peg" approach in discussing the evidence; not to suggest that the items seized at the residence proved Gomez Vasquez' s guilt, but attempted rather to bolster Gordon' s credibility which the defense had vigorously attacked 11 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II The prosecutor implored the jury to believe Gordon' s testimony despite the throughout the trial. relatively fruitless search. He said, W] hy did Mr. Gordon tell He you that said, a scale, right? that house? A scale. they went to this house? What did they need? What did Officer Buchanan tell you that he found in I' m going to hang up another little peg for Mr. Gordon, Everything keeps supporting methamphetamine, no, but I found right. what some he told you. drugs. other You didn' t find any You didn' t find any methamphetamine, but I found a loaded handgun. 3 RP at 304. While a prosecuting attorney does have wide latitude in closing to argue reasonable inferences from the Thorgerson, including evidence respecting the credibility of witnesses, evidence, 172 Wn.2d at 448, Gordon provided no testimony to support the notion that weapons were connected to Gomez Vasquez' s drug sales or that any would be found during a search. Accordingly, it was improper for the prosecutor to attempt to connect the gun to Gomez Vasquez fails to 443. A when show it was not associated with enduring limiting prejudice instruction that could the underlying was not curable have cured by charge. But again, Gomez Vasquez instruction. any resulting prejudice. Thorgerson, 172 Wn.2d at Accordingly, we hold that Gomez Vasquez has failed to preserve this issue for review. III. RIGHT TO SELF- REPRESENTATION Gomez Vasquez next argues that reversal is required because he was deprived of his constitutional right to self representation when he filed a motion to proceed pro se a month before his trial, a motion that the court failed to consider. We hold that Gomez Vasquez' s argument fails because he waived his self representation right by proceeding through trial with - representation by counsel. Criminal defendants have an explicit right to self representation under the Washington Constitution and an implicit right under the Sixth Amendment to the United States Constitution. 12 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II WASH. CONST. art. I, § 22; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d This right is so fundamental that it is afforded despite its potentially detrimental 562 ( 1975). impact on both the defendant and the administration of justice. State v. Madsen, 168 Wn.2d 496, 503, 229 P. 3d 714 ( 2010) ( citing Faretta, 422 U. S. right requires reversal." and our Stenson, 132 Wn.2d Supreme Court have held that presumption against a 504 ( internal defendant' courts s waiver of quotation marks omitted) ( at his at 834)). "[ U]njustified denial of this [ pro se] 737. But both the United States Supreme Court are or required her right to to indulge in "' every reasonable counsel. ' Madsen, 168 Wn.2d at quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986 P. 2d 790 ( 1999), cent. denied, 531 U. S. 1125 ( 2001)). The right to proceed pro Wn.2d 561, 586, 23 P. 3d 1046, is se cent. neither absolute nor self executing. denied, 534 U.S. 964 ( 2001). State v. Woods, 143 When a defendant requests pro se status, the trial court must determine whether the request is unequivocal and timely. Stenson, 132 Wn.2d at 737. Even when a request is unequivocal, a defendant may still waive the right of self representation by subsequent words or conduct. 844, 851, 51 P. 3d 188 ( 2002) ( citing State v. Vermillion, 112 Wn. App. State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 ( 1995)), review denied, 148 Wn.2d 1022 ( 2003). Here, while he was represented by counsel, Gomez Vasquez filed a pro se motion demanding to exercise his rights to self representation along with what appears to be a request for standby counsel to assist him in filing motions, conducting interviews, and accessing forms. But there is no Sixth Amendment right to "` hybrid representation ' through which defendants may serve as co- counsel with their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P. 2d 1 1991) ( quoting State v. Bebb, 108 Wn.2d 515, 524, 740 P. 2d 829 ( 1987)). Furthermore, though the motion was received and stamped, there is no indication in the record that Gomez Vasquez 13 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II the issue for ever noted his trial hearing. Moreover, Gomez Vasquez proceeded through the entirety of with representation his by appointed counsel. Gomez Vasquez did not bring the motion to the court' s attention at any point during trial nor did he express any desire to renew his request despite opportunity to ample address the court. It was only after the jury returned a guilty verdict, on the day that was originally scheduled for sentencing, that Gomez Vasquez both voiced his frustration over the court' s failure to address his earlier motion and also alleged that his trial counsel had .been ineffective. Accordingly, we hold that Gomez Vasquez, by proceeding with counsel throughout his trial, waived his right of self representation. IV. STATEMENT OF ADDITIONAL GROUNDS Gomez Vasquez raises a litany of issues in his SAG. He appears to argue that ( 1) probable cause to issue a search warrant was lacking because the affidavit of probable cause contained false reliable CI court erred and under in misleading the basis denying of statements, ( knowledge Gomez Vasquez' 2) the State failed to demonstrate that Gordon was a and veracity s motion to prongs of Aguilar- Spinelli, suppress post Miranda 6( 3) the trial statements, ( 4) the State did not prove the delivery element of the charge because police did not actually see an exchange and no audio or video recording exists, ( 5) reversal is required because the court continued the case over Gomez Vasquez' s objections in violation of his speedy trial rights, and 6) failure to identify " CI #2" was a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963). We address each of these arguments in turn. We hold that these claims lack merit. 6 See Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 ( 1969); Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 ( 1964). 14 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II A. PROBABLE CAUSE TO ISSUE SEARCH WARRANT Gomez Vasquez argues that the facts and circumstances leading to the issuance of the search warrant did not support a finding of probable cause. He alleges that the search warrant affidavit contained false and misleading statements such that he should have been entitled to a Franks? hearing. He argues further that there was not a sufficient nexus between the place to be searched and the item to be seized. We hold that probable cause existed and that any mistakes in the affidavit were not deliberate falsifications nor did the affiant recklessly disregard the truth. We conclude further that there was a nexus between the criminal activity, the items to be seized, and the place to be searched. A search warrant 138 Wn.2d 133, may only issue upon a determination 140, 977 P. 2d 582 ( 1999). of probable cause. State v. Thein, An application for a warrant must state the underlying facts and circumstances on which it is based in order to facilitate a detached and independent evaluation of the evidence by the issuing magistrate. Thein, 138 Wn.2d at 140. A magistrate exercises judicial discretion in determining whether to issue a warrant and that decision is 2002). reviewed for abuse of discretion. State v. Vickers, 148 Wn.2d 91, 108, 59 P. 3d 58 We accord great deference to the magistrate and view the supporting affidavit for a search warrant in light of common sense. Vickers, 148 Wn.2d at 108. Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of criminal activity can be found at the place to be searched. 7 State v. Maddox, 152 Wn. 2d 499, 505, 98 P. 3d 1199 ( 2004). Accordingly, " probable Franks v. Delaware, 438 U. S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 ( 1978). 15 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched." State v. Goble, 88 Wn. App. 503, 509, 945 P. 2d 263 ( 1997). ( citing 1 WAYNE R. LAFAVE, SEARCH & SEIZURE § 3. 7( d), at 372 ( 3d ed. 1996)). Here, Gomez Vasquez spends significant time and effort arguing that falsifications and misrepresentations in the affidavit lead to an erroneous finding of probable cause. But many of the alleged misrepresentations are contained in the prosecuting attorney' s declaration of probable cause filed after the search warrant had been executed, instead of the affidavit requesting the 8 search warrant. The only mistake contained in Officer Buchanan' s affidavit was his use of the wrong name twice in one paragraph. This was clearly a clerical error because Officer Buchanan used Gomez Vasquez' s correct name and date of birth in between the two mistaken instances. Viewing the affidavit in a light of common sense it is clear that Officer Buchanan intended to refer only to Gomez Vasquez. It was not an abuse of discretion for the magistrate to ignore these inconsistencies because a defendant is entitled to a Franks hearing only when he submits an offer of proof showing deliberate falsehood or reckless disregard for the truth; negligent or innocent mistakes are insufficient. Vickers, 148 Wn.2d at 114. Gomez Vasquez cites Maddox as further support that probable cause to issue the search warrant was Maddox, lacking. Gomez Vasquez attempts to analogize this case with Maddox because, like the search methamphetamine. of Gomez Vasquez' s residence revealed But Maddox is clearly distinguishable. no physical evidence of There, it was not the fact that no methamphetamine was found which gave rise to the argument that probable cause was lacking, 8 Our review is limited to the four corners of the Wn.2d 177, 182, 196 P. 3d 658 ( 2008). 16 probable cause affidavit. State v. Neth, 165 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II but rather the fact that law enforcement learned before executing the warrant that an immediate search would likely not produce methamphetamine. Maddox, 152 Wn.2d at 503, 507. Furthermore, the Supreme Court held that redetermination of probable cause in Maddox was unnecessary because Maddox' s statements to the CI did not affect probable cause supporting the to authorization warrant' s search for paraphernalia and other evidence of drug dealing. 152 Wn.2d at 513. Here, law enforcement involved in the search of Gomez Vasquez' s residence did not receive any information prior to the warrant' s execution suggesting that they would no longer find methamphetamine in the house. Even had the officers been so informed, this information would not necessarily have negated probable cause when the warrant also authorized the officers to search for paraphernalia, books, records, and weapons associated with narcotics trafficking. Last, Gomez Vasquez appears to argue that the search warrant lacked the requisite nexus between the place to be searched and the items to be seized. In the days and weeks before the search warrant was executed, Gordon informed law enforcement that he had observed Gomez Vasquez with dealer quantities of methamphetamine and that Gordon could arrange to purchase drugs. Tacoma police conducted surveillance of Gomez Vasquez' s residence as a controlled drug buy took place there. Within 10 days of the search, a second CI approached police and informed them that he or she had been at the residence and had seen packaged methamphetamine and that Gomez Vasquez had been distributing methamphetamine from that location for several weeks. Accordingly, a sufficient nexus existed between Gomez Vasquez, his residence, and evidence of methamphetamine distribution to determine that probable cause existed. that the magistrate' s finding of probable cause was not an abuse of discretion. 17 We hold 2 Consol. Nos. 43422 -9 -II / 44485 -2 -1I / 44616 - -II / 44607 -3 -II B. GORDON' S RELIABILITY Gomez Vasquez contends that the State did not sufficiently demonstrate that Gordon was a reliable informant such that a search warrant could issue based on the information he provided. Washington continues to follow the Aguilar- Spinelli standard for establishing probable cause via informant. State an unidentified standard has two prongs " basis 813, 849, 312 P. 3d 1 ( 2013). v. Lyons, 174 Wn.2d 354, 359 of knowledge" and " n. 1, veracity." 275 P. 3d 314 ( 2012). This State v. 011ivier, 178 Wn.2d The basis of knowledge prong requires that the affidavit contain sufficient facts to convince a reasonable person of the probability the defendant is engaged in criminal activity and that evidence of criminal activity can be found at the place searched.'" 011ivier, 178 Wn.2d at 849 ( quoting Lyons, 174 Wn.2d at 359 & n. 2). Furthermore, this prong may be satisfied by a showing that the informant had personal knowledge of the facts provided to the Vickers, 148 Wn.2d at 112. affiant. The veracity prong requires that the affidavit contain information from which a determination can be made that the informant Jackson, 102 Wn.2d 432, 435, 688 P. 2d is to evaluate police the informants " track a number of times in the 136 ( record," past? is credible or 1984). the information reliable. State v. The most common way to satisfy this prong i. e., has he provided accurate information to the Jackson, 102 Wn.2d at 437. But a successful " track record" as a police informant is not the only method of demonstrating the present reliability of a CI successful v. controlled buys may themselves be sufficient to establish a CI' s reliability. State Casto, 39 Wn. App. 229, 233, 692 P. 2d 890 ( 1984); review denied, 103 Wn.2d 1020 ( 1985). As the Casto court explained, In a " controlled buy," an informant claiming to know that drugs are for sale at a particular place is given marked money, searched for drugs, and observed while sent into the specified location. If the informant " goes in empty and comes out 18 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II his full," confirmed. assertion that drugs were available is proven, and his reliability Properly executed, a controlled buy can thus provide the facts and circumstances necessary to satisfy both prongs of the test for probable cause. 39 Wn. App. at 234 ( quoting 1 WAYNE R. LAFAVE, SEARCH & SEIZURE § 3. 3( b) at 512 ( 1978)). Here, Gordon testified that he had known Gomez Vasquez personally for approximately a year. he Gordon, who had already conducted successful reliability buys told Officer Buchanan that could buy drugs from and came out SEIZURE § full. "' 3. 3( b) at Gomez Vasquez. During the controlled buy, Gordon "` went in empty Casto, 39 Wn. App. at 234 ( quoting 1 WAYNE R. LAFAVE, SEARCH & 512 ( 1978)). In his affidavit, Officer Buchanan explained that Gordon' s reliability as a CI was bolstered by his extensive involvement in the local drug scene, including a working knowledge of the street prices and packaging methods of various controlled substances. Officer Buchanan also stated that Gordon had provided information about drug trafficking and general criminal activity that proved to be true and correct. Accordingly, we hold that Gordon satisfies both prongs of the Aguilar-Spinelli test and, therefore, the magistrate did not abuse his discretion in finding that Officer Buchanan' s affidavit was sufficient to support a finding of probable cause to search Gomez Vasquez' s residence. C. SUPPRESSION OF POST -MIRANDA STATEMENTS Gomez Vasquez asserts that the trial court erred when it ruled that his statements to Officer Buchanan during the execution of the search warrant were admissible at his trial because Officer Buchanan testified that Gomez Vasquez appeared either tired or high. We hold that substantial evidence supports the trial court' s finding that Gomez Vasquez knowingly and voluntarily waived his Miranda rights. We review the trial court' s evidentiary rulings for abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P. 2d 929 ( 1995). A trial court abuses its discretion if its decision is 19 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II manifestly App. unreasonable or 183, 166, based on untenable 181 P. 3d 887 ( 2008). "[ grounds or reasons. State v. Wilson, 144 Wn. T] he rule to be applied in confession cases is that findings of fact entered following a CrR 3. 5 hearing will be verities on appeal if unchallenged, and, if challenged, they are verities if supported by substantial evidence in the record." State v. 133 Wn.2d 118, 131, 942 P. 2d 363 ( 1997). " Substantial evidence exists where there Broadaway, is a sufficient quantity of evidence in the record to persuade a fair- minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994). Due process requires Reuben, 62 Wn. App. 620, that a confession be voluntary 624, 814 P. 2d 1177, and review free of police coercion. State v. denied, 118 Wn.2d 1006 ( 1991). Whether a confession is voluntary depends on the totality of the circumstances under which. it was made. includes State v. Aten, 130 Wn.2d 640, 663 -64, 927 P. 2d 210 ( 1996). considerations of the location, length, and continuity of the This examination interrogation; the defendant' s maturity, education, physical condition, and mental health; and whether the police advised the defendant of his or her Miranda rights. State v. Unga, 165 Wn.2d 95, 101, 196 P. 3d 645 ( 2008). We do not disturb a trial court' s determination that statements were voluntary if there is substantial evidence in the record from which the trial court could have found voluntariness by a preponderance of the evidence. Aten, 130 Wn.2d at 664. Here, the trial court found that Gomez Vasquez' s statements were made after officers properly conducted Miranda warnings from a prepared card, correctly advising Gomez Vasquez of all of his rights. The trial court determined that Gomez Vasquez understood his rights and opted to speak to Officer Buchanan without coercion, thereby knowingly, voluntarily, and intelligently waiving his Miranda rights. 20 Consol. Nos. 43422 -9 -I1 / 44485 -2 -1I / 44616 -2 -1I / 44607 -3 -1I Testimony at the CrR 3. 5 hearing revealed that Gomez Vasquez told officers that he his understood Gomez Vasquez never claimed that he did not understand the English rights. language, that he was unable to hear the officers, or that he needed an attorney. Despite his apparent understanding of his rights, Gomez Vasquez answered affirmatively when asked he whether was willing to Officer Buchanan did testify that at some point speak with officers. during their conversation, he noticed that Gomez Vasquez appeared to be either half asleep or like someone who may have been high. But intoxication, though it may be considered a factor, is not dispositive of voluntariness. Aten, 130 Wn.2d at 664. Moreover, disrespectful when Officer law Smith testified enforcement began its that Gomez search of his Vasquez residence. was argumentative and Officer Smith stated that Gomez Vasquez asked officers what they were doing, told them they had no right to be there, and demanded to be read a search warrant. Thus, Gomez Vasquez was coherent enough to articulate his understanding of lawful procedure and to assert his rights in that sense. Accordingly, a sufficient quantity of evidence exists in the record to persuade a fair minded, rational person of the truth of the trial court' s finding that Gomez Vasquez' s statements were given knowingly, voluntarily, and intelligently. Hill, 123 Wn. 2d at 644. Therefore, the trial court did not abuse its discretion in ruling that the statements were admissible. D. INSUFFICIENT EVIDENCE OF DELIVERY ELEMENT Gomez Vasquez asserts that the State failed to prove his guilt because there was insufficient evidence on the delivery element of his charge. Specifically, Gomez Vasquez argues that there was no audio, video, or eyewitness account of Gomez Vasquez' s transaction with Gordon. We hold that Gomez Vasquez' s claim fails because the State presented sufficient evidence of all elements of the crime. 21 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II To determine whether evidence is sufficient to sustain a conviction, we review the evidence in the light The 282 ( 2003). relevant question essential elements of 35, 225 P. 3d favorable to the State. most the crime is "` beyond 237 ( 2010) ( quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d whether any rational fact finder could have found the a reasonable doubt.' Wentz, 149 Wn.2d at 347). State v. Drum, 168 Wn.2d 23, 34- In claiming insufficient evidence, the defendant necessarily admits the truth of the State' s evidence and all reasonable inferences that can be drawn from it. Drum, 168 Wn.2d at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)). We interpret the v. Hernandez, 172 Wn. quoting State 1022 ( 2013). v. Joy, App. evidence "' most strongly against the defendant. ' State 537, 543, 290 P. 3d 1052 ( 2012) ( internal quotation marks omitted) 121 Wn.2d 333, 339, 851 P. 2d 654 ( 1993)), review denied, 177 Wn.2d We consider both circumstantial and direct evidence as equally reliable and defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004). To find Gomez Vasquez guilty of unlawful delivery of a controlled substance, the jury was instructed that the State must prove the following elements beyond a reasonable doubt: 1) That on or about the 18th day of August, 2011, the defendant delivered a controlled substance; 2) That the defendant knew that the substance delivered was a controlled substance; Methamphetamine; and 3) That the acts occurred in the State of Washington. CP at The 68. jury was also instructed that "[ d] eliver means the ' actual or constructive or attempted transfer of a controlled substance from one person to another." CP at 67. The State presented evidence that Officer Buchanan took Gordon to a designated meeting location to purchase drugs from Gomez Vasquez. traveled to a residence in search of a Gordon met with Gomez Vasquez and the two men working scale. 22 Members of the Special Investigation Unit Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -1I maintained surveillance on the moving vehicles. Gordon entered the residence where Gomez Vasquez weighed and bagged methamphetamine, a portion of which he handed to Gordon. Gordon then delivered the drugs he had been given to Officer Buchanan. Gomez Vasquez cites no authority that purports to require audio or video recordings or eyewitness accounts of controlled drug transactions to prove elements of a delivery charge. Furthermore, our courts have upheld convictions for possession and delivery of controlled substances where police witness their CI entering an apartment complex but were unsure as to which apartment he actually entered. See State v. Lane, 56 Wn. App. 286, 295 -96, 786 P. 2d 277 Here, the State presented enough evidence for a rational fact finder to have found the 1989). essential elements beyond a reasonable doubt. We hold that sufficient evidence supported Gomez Vasquez' s conviction. E. TIME FOR TRIAL AND SPEEDY TRIAL VIOLATION 1. CRR 3. 3 TIME FOR TRIAL RIGHT Gomez Vasquez next argues that his CrR 3. 3 rights were violated because the trial court continued the case several times, each time over Gomez Vasquez' s objection. We hold that no such violation occurred because the continuances were properly granted and the time for trial period was properly computed considering the applicable exclusions. CrR 3. 3 accords with the United States Supreme Court' s determination that states can prescribe reasonable periods for commencement of trials consistent with constitutional standards. 011ivier, 178 Wn.2d at 823 ( citing Barker v. Wingo, 407 U.S. 514, 524, 92 S. Ct. 2182, 33 L. Ed. 2d 101 ( 1972)). within 60 days Under CrR 3. 3( b)( 1)( i), of arraignment. an individual held in custody pending trial must be tried But certain time periods are excluded from the computation of 23 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II time, including continuances granted by the trial court. CrR 3. 3( e). With regard to continuances, CrR 3. 3( f)(2) explains, On motion of the court or a party, the court may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her The court must state on the record or in writing the reasons for the The bringing of such motion by or on behalf of any party waives that party' s objection to the requested delay. defense.... continuance. Here, Gomez Vasquez was in custody pending trial, so the 60 -day rule applied. CrR There were a total of five continuances and. Gomez Vasquez objected in each 3. 3( b)( 1)( i). instance. Three of the motions were brought upon agreement of the State and counsel for Gomez Vasquez for reasons associated with trial preparation. The trial court ordered the final two continuances on its own accord for administrative necessity because there were no courtrooms available for use. As mentioned, Gomez Vasquez' s own counsel sought three of the continuances about which he waived. complains. Consequently, as the rule expressly provides, any objection is therefore 011ivier, 178 Wn.2d at 824; CrR 3. 3( f)( 2). The trial court stated that the final two continuances it initiated were necessary for administrative reasons because there were no court rooms available. Our Supreme Court has concluded, however, that although trial preparation may be a valid reason for a continuance, court congestion is not. State v. Flinn, 154 Wn.2d 193, 200, 110 P. 3d 748 ( 2005). needs were 3. 3( 3). e)( for good Accordingly, the first three continuances sought for trial preparation cause and were thus excluded in the time for trial computation. CrR But the last two continuances, sought by the court for administrative necessity, resulted in an additional delay of five days which did count in the time for trial computation. The case was first continued on October 26 when the case was 47 total days old and 30 days 24 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II remained in the time for trial period according to the record. Trial was continued until December 13. On December 13, the case was continued until did not count against case was again continued until time for trial. continued remained. 26, 2012. On January 26, the These continuances were for trial preparation and, therefore, March 1. the 60 -day time for trial in the time for trial remained January period. period. Accordingly, as of March 1, 30 days still The final two continuances are included in computing the On March 1, the case was continued until March 5 and on March 5 it was to March 6. There is Thus, five additional days ran in the time for trial period and 25 days no violation of CrR 3. 3( b)( 1)( i) as 60 days did 9 Accordingly, we not elapse. hold that Gomez Vasquez' s time for trial right was not violated. 2. CONSTITUTIONAL SPEEDY TRIAL RIGHT Gomez Vasquez also argues that his speedy trial rights under the state and federal constitutions were violated as a result of the several continuances to which he objected. We disagree. Both the United States Constitution and the Washington Constitution provide a criminal defendant with the right to a speedy public trial. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. Our state constitution " requires a method of analysis substantially the same as the federal Sixth Amendment analysis and does not afford a defendant Iniguez, 167 Wn.2d 273, 290, 217 P. 3d 768 ( 2009). greater speedy trial rights." State v. We review de novo constitutional speedy trial claims. Iniguez, 167 Wn.2d at 280. A defendant' s constitutional rights to a speedy trial attach when a charge is filed or an arrest is made, whichever occurs first. State v. Corrado, 94 Wn. App. 228, 232, 972 P. 2d 515, 9 On the order for the penultimate continuance, the trial court stated that 26 days of speedy trial time remained. 25 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II review Some denied, 138 Wn.2d 1011 ( 1999). delay pretrial is often " inevitable and wholly justifiable," Doggett v. United States, 505 U. S. 647, 656, 112 S. Ct. 2686, 120 L. Ed. 2d 520 1992), the and any " inquiry into a speedy trial claim necessitates a functional analysis of the right in particular context of the case." States Supreme Court in Barker, delay, ( 3) the defendant' Barker, .407 U. S. we consider ( his s assertion of or at 522. 1) the length her right, and ( As first articulated by the United of pretrial 4) delay, ( 2) the reason for prejudice to the defendant. 407 U. S. at 530. But to trigger this analysis, defendant the must first demonstrate that the " interval between accusation and trial has crossed the threshold dividing ordinary from ` presumptively Doggett, 505 U. S. delay." prejudicial' at 651 -52 ( quoting Barker, 407 U. S. at 530 -31). We consider the duration of pretrial custody, the complexity of the charges, and the extent to which a case involves a reliance on eyewitness testimony. Iniguez, 167 Wn.2d at 292 ( citing Barker, 407 U. S. In Iniguez, at 531 & n. 31). upon a delay of more that ( 1) him the defendant had were not unavailable The than court complex; or their took minimum needed eight months. remained to 3) and ( memories pains Supreme Court found " our note 167 Wn.2d at presumptive[ ] 291 -92. in custody throughout this such fading," a based The court found it important period; ( 2) the charges against lengthy delay " could result in witnesses becoming thus impairing his that this eight month to trigger the Barker prejudic[ e]" delay defense. was, Iniguez, 167 Wn.2d at 292. however, " just beyond the bare inquiry." Iniguez, 167 Wn.2d at 293. 1° Here, as in Iniguez, Gomez Vasquez remained in custody pending trial and the charges against him were not complex. But the length of delay in Gomez Vasquez' s trial was shorter 10 See also 011ivier, 178 Wn.2d at 828 ( 23 -month delay enough to trigger Barker analysis). 26 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616- 2- 11/ Gomez Vasquez' s trial began almost exactly six months after his in Iniguez. delay than the 44607 -3 -I1 Although the State' s case rested in part on the eyewitness testimony of Gordon, it also arrest. rested largely on documentary evidence recorded by police during the investigation of Gomez Thus, it appears unlikely that Gomez Vasquez has met the threshold requirement to Vasquez. trigger the Barker test. Assuming Gomez Vasquez did trigger the Barker analysis, we examine the factors. The first two Barker factors U. S. at 530. concern the length and reason for the delay. Barker, 407 The State filed charges on September 7, 2011, and trial began on March 6, 2012. Notwithstanding the fact that the charges are not complex and even though Gomez Vasquez did spend the entire pretrial period in incarceration, less than six months is not necessarily an undue Iniguez, 167 Wn.2d delay. necessary to sort Regarding the reason for delay, careful assessment is 293. at the legitimate or neutral reasons for delay from improper reasons. A court looks to each party' s responsibility for the delay, and different weights are assigned to delay, primarily related to blameworthiness and the impact of the delay on defendant' s right to a fair trial. Barker, 407 U. S. at Courts often hold that even where continuances are sought over 531. the defendant' s objection, delay caused by defendant' s counsel is charged against the defendant under the Barker weighs against failing to act, balancing test. 011ivier, 178 Wn.2d the defendant because ' in furtherance of 834. And delay caused by the defense the attorney is the [ defendant' s] agent when acting, or the litigation. "' Ct. 1283, 173 L. Ed. 2d 231 ( 2009) ( at alteration Vermont v. Brillon, 556 U.S. 81, 90 -91, 129 S. in original) ( U. S. 722, 753, 111 S. Ct. 2546, 115 L. Ed. 2d 640 ( 1991)). 27 quoting Coleman v. Thompson, 501 Here, defense counsel' s stipulated Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II continuances for approximately four months accounted of delay." Therefore, the first two factors weigh in favor of the State. The third factor, the defendant' s assertion of his rights, clearly weighs in favor of Gomez Vasquez because he objected to each continuance. Gomez Vasquez refused to sign each order granting the continuance and he filed a pro se motion specifically asserting his speedy trial rights and objecting to any further continuance. The last factor is prejudicial to the defendant. Prejudice is judged by looking at the effect on the interests protected by the to right a speedy trial: ( 1) to prevent harsh pretrial incarceration, 2) to minimize the defendant' s anxiety and worry, and ( 3) to limit impairment to the defense. Iniguez, 167 Wn.2d period, there was at 295. likely Because Gomez Vasquez was incarcerated throughout the pretrial 12 anxiety and worry. But as explained in detail above, the evidence against Gomez Vasquez was significant and much of it was documented by law enforcement. Gomez Vasquez' s primary defense was that Gordon was not a credible informant and witness. A delay of less than six months did not impair this defense. On balance, the totality of the circumstances here does not support a finding of a speedy trial violation of constitutional magnitude. Even assuming he meets the threshold for a Barker analysis, three of the four factors weigh against Gomez Vasquez. We hold that no speedy trial violation occurred. 11 Trial was originally set for November 1, 2011, but the parties agreed to three continuances, pushing the trial date back until March 1, 2012. 12 But see Barker, 407 U.S. at 534 ( 10 -month pretrial incarceration not prejudicial absent actual impairment of defense). 28 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II F. FAILURE TO IDENTIFY CI #2 Gomez Vasquez contends that his right to a fair trial was violated because the State did not identify " CI #2" who apparently informed the police that he or she had also observed Gomez Vasquez dealing drugs from the residence in the days before police executed the search warrant there. set Gomez Vasquez also claims that this failure to disclose is a violation of the rules initially forth in Brady. We hold that Gomez Vasquez' s claim fails because the State' s anonymity of CI #2 did not infringe upon Gomez Vasquez' s constitutional rights. It is well established that the State has a legitimate interest in protecting the identity of CIs. State informant' s v. Moen, 150 Wn.2d 221, 230, 76 P. 3d 721 ( 2003). identity from disclosure is termed the " informers The ability to protect an privilege," which is the State' s right to withhold from disclosure the identity of persons who provide information to law enforcement concerning the commission of crimes. 173 P. 3d 323 ( 2007) ( citing State privilege 4. 7( f)( 2). is recognized 13 constitutional v. State v. Atchley, 142 Wn. App. 147, 155, Harris, 91 Wn.2d 145, 148, 588 P. 2d 720 ( 1978)). The RCW 5. 60. 060( 5); CrR in Washington by both statute and court rule. Disclosure is only required if the failure to disclose will infringe upon the rights of the defendant. 2). CrR 4. 7( f)( Courts typically must balance several competing factors in determining whether to disclose a CI' s identity, but Washington courts have held that where the CI provided information relating only to probable cause rather than the 13 CrR 4. 7( f)( states, 2) Disclosure of an informant' s identity shall not be required where the informant' s identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. Disclosure of the identity of witnesses to be produced at a hearing or trial shall not be denied. 29 2 Consol. Nos. 43422 -9 -I1 / 44485 -2 -II / 44616 - -II / 44607 -3 - 1I defendant' s guilt or innocence, disclosure of the CI' s identity is not required. Atchley, 142 Wn. App. at 156 ( citing State v. Casal, 103 Wn.2d 812, 816, 699 P. 2d 1234 ( 1985)). Here, the information provided by 2 appeared only in the declaration for CI # determination of probable cause. CI #2' s information only corroborated information that Gordon had already provided or was capable of providing. Moreover, CI #2 was not called as one of the State' s witnesses and therefore was uninvolved in the " guilt phase" of the trial. Accordingly, the fact that the identity of CI # 2 was not disclosed did not infringe upon Gomez Vasquez' s constitutional rights. Furthermore, the failure to disclose the identity of CI #2 was not a violation of the Brady rules. Under the Supreme Court' s current jurisprudence to establish a Brady violation, a defendant must demonstrate the existence of each of three necessary elements: "[( 1)] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [( 2)] inadvertently; 119 S. and [( Ct. 1936, that evidence must have been suppressed by the State, either willfully or 3)] prejudice must have ensued." 144 L. Ed. 2d 286 ( 1999). Strickler v. Greene, 527 U.S. 263, 281 -82, Gomez Vasquez cannot show that CI # 2' s information was favorable to him or that prejudice ensued from suppression of his or her identity. CI # 2' s information inculpated Gomez Vasquez, it was not exculpatory. Accordingly, his claim fails. G. MERITLESS CLAIMS Gomez Vazquez makes several additional claims in his SAG. These claims include ( 1) that Gomez Vasquez' s mere proximity to seized drugs was insufficient to support a charge of possession, ( 2) reliability buys Gomez Vasquez' s conviction should be reversed because some of Gordon' s were conducted for an officer other 30 than Officer Buchanan, ( 3) Officer Buchanan Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II committed official misconduct for including false information in his affidavit and complaint for search warrant, ( enforcement, ( 4) Gordon failed to complete his obligations under his contract with law 5) Gordon was not reliable because he was cooperating only to stay out of prison, 6) reversal is required because the prosecution should have given Gomez Vasquez Miranda warnings again after filing an amended information, and ( 7) reversal is required because Gomez Vasquez did not sign a Miranda Gomez Vasquez has failed to inform us of the card. rights nature and occurrence of these alleged errors and we are not required to search the record in support of these RAP 10. 10( c). claims. We hold that each claim contained in Gomez Vasquez' s SAG fails. V. PERSONAL RESTRAINT PETITION Gomez Vasquez filed three PRPs PRPs, Gomez Vasquez appears to argue which are consolidated with his that restraint was this direct unlawful appeal. because ( 1) In his his due process right to be heard was violated by the trial court' s failure to address his pretrial motions; 2) the trial court should because the impaneled have jury suppressed included 11 illegally seized evidence; ( women and 1 3) he was denied a fair trial man, none of whom were Hispanic; ( 4) the trial court erred in failing to instruct the jury as to the delivery element of his charge; and ( 5) his offender score was erroneously miscalculated: We deny the PRPs because Gomez Vasquez cannot demonstrate actual prejudice or a complete miscarriage of justice relating to any of his claims. We consider the arguments raised in a PRP under one of two different standards, depending re on whether the argument is based on constitutional or nonconstitutional grounds. Pers. Restraint of Davis, 152 Wn.2d 647, 671 -72, 101 P. 3d 1 ( 2004). constitutional error must show that the A petitioner raising error caused actual and substantial prejudice. 31 In In re Pers. Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II Restraint of Elmore, 162 Wn.2d 236, 251, 172 P. 3d 335 ( 2007). In contrast, a petitioner raising nonconstitutional error must show a fundamental defect resulting in a complete miscarriage of justice. Elmore, 162 Wn.2d at Additionally, Gomez Vasquez must support his claims of 251. error with a statement of the facts on which his claim of unlawful restraint is based and the to evidence available support his factual allegations. RAP 16. 7( a)( 2); In re Williams, 111 Wn.2d 353, 365, 759 P. 2d 436 ( 1988); see also In re Cook, 114 Wn.2d 802, 813 - 14, 792 P. 2d 506 Gomez Vasquez must present evidence showing his factual allegations are based on 1990). more than 118 Wn.2d 876, 886, 828 P. 2d 1086, conclusory inadmissible mere speculation, conjecture, or denied, 506 U. S. 958 ( 1992). cert. allegations are not sufficient. hearsay. In re Pers. Restraint of Rice, Rice, 118 Wn.2d at 886. Bald assertions and 14 First, Gomez Vasquez argues that his right to due process of law was violated when the trial court failed to that he motions15 address pretrial composed and filed pro se. But as explained above, Gomez Vasquez neglected to request hearings or otherwise bring these motions to the trial court' s Vasquez was Vasquez expressed attention until after given the the opportunity to jury returned a address frustration that the trial the court court had not guilty verdict. before he considered was his Furthermore, Gomez sentenced. pro se Gomez motions. In 14 Several of Gomez Vasquez' s arguments constitute bald assertions or conclusory allegations by facts or evidence. These contentions include ( 1) the prosecutor' s violation of a unsupported motion in limine prosecution, ( during 3) that the voire that Gomez Vasquez was subjected to malicious dire, ( 2) prosecutor suppressed documents, ( 4) that defense counsel could have objected with more frequency, ( 5) that the magistrate who issued the search warrant was unaware of Gordon' s contract to work as a CI, and ( 6) that Pierce County Jail staff denied Gomez Vasquez course." access to the PRP ( Feb. 26, 2013) courts at to " 20. argue[ ] all illegal issues before the court took its We decline to address these claims for the reasons mentioned above. 15 These included Gomez Vasquez' s motions to represent himself and his motion objecting to continuance of his trial date, both of which were central to other issues already addressed. 32 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II response, the trial judge stated that he had read those motions, that it was unclear what relief Gomez Vasquez sought, but that he would be happy to hear from Gomez Vasquez further. Gomez Vasquez addressed the court at length, imploring it to consider his new motions for a new trial and arrest of judgment. The trial court agreed to consider the motions, set sentencing over for one week, and subsequently denied the motions at Gomez Vasquez' s next appearance. Accordingly, Gomez Vasquez cannot show that he was denied the right to be heard and, moreover, he cannot demonstrate that any error caused actual and substantial prejudice. Elmore, 162 Wn.2d at 251. This argument fails. Second, Gomez Vasquez argues that the trial court should have suppressed the items seized from his residence when law enforcement executed the search warrant. Gomez Vasquez appears to argue that the seizures were a product of an illegal search, but Gomez Vasquez never moved to suppress the evidence at Consequently, to demonstrate actual prejudice, Gomez trial. Vasquez must establish from an adequate record that the trial court likely would have granted a suppression motion. Gomez Vasquez Gordon' s cannot reliability information State suffices make under to v. Contreras, 92 Wn. such both support a a showing. prongs of App. 307, 312, 966 P. 2d 915 ( 1998). As explained above, the State established the . Aguilar- Spinelli determination But of probable cause. test. Therefore, Gordon' s Also as explained above, there was a sufficient nexus between the place to be searched and the items to be seized. Accordingly, the search of Gomez Vasquez' s residence and the subsequent seizure of physical evidence were lawful. The trial court would not have granted a motion to suppress and, therefore, Gomez Vasquez cannot show actual prejudice. This argument fails. 33 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 -II Third, Gomez Vasquez argues that he was denied a fair trial because there were 11 women on the jury and no jury member was Hispanic. Gomez Vasquez is entitled to a trial by an impartial jury under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. State v. Momah, 167 Wn.2d 140, 147, 217 P. 3d 321 ( 2009), cert. 11 denied, 131 S. Ct. 160 ( 2010). women and 1 man resulted But Gomez Vasquez fails to show how a jury composed of in partiality or bias. Gomez Vasquez does not argue that preemptory strikes were used inappropriately or that challenges for cause were somehow improperly geared towards removal of the prospective male jurors. Ultimately, Gomez Vasquez fails to present evidence showing that his factual allegations are based on more than mere speculation or conjecture. Rice, 118 Wn.2d at 886. Gomez Vasquez has not demonstrated actual prejudice. Accordingly, this claim fails. Fourth, Gomez Vasquez contends that he is entitled to a new trial because the trial court committed reversible error in failing to instruct the jury regarding the delivery element of his charge. to But Gomez Vasquez is mistaken. The jury was instructed as to each element necessary commit also the instructed crime of unlawful as delivery to the legal definition of of a controlled substance. the term " deliver." Furthermore, the jury was Therefore, this claim fails. Fifth, Gomez Vasquez argues that his offender score was calculated improperly because his felonies for taking a motor vehicle without permission and felony eluding should have washed out" provision. under RCW 9. 94A.525. But Gomez Vasquez misreads the applicable statutory Taking a motor vehicle without permission and felony eluding are class C felonies. RCW 9A.56. 075( 2); RCW 46. 61. 024( 1). RCW 9. 94A.525( 2)( c) governs the " washing out" of class C felonies and provides, 34 Consol. Nos. 43422 -9 -II / 44485 -2 -II / 44616 -2 -II / 44607 -3 - II Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement ( including full -ime residential treatment) pursuant to t a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. The crimes committed which crimes Gomez Vasquez contends in 1998, 2002, 2003, and should 2005. wash out occurred in 1996. He also Accordingly, as of the 2005 crime, all of Gomez Vasquez' s prior felonies would have been considered for purposes of his offender score. During his bail hearing, counsel for Gomez Vasquez stated that Gomez Vasquez had been released was from custody in 2009. in custody as a result of Although the record does not reveal whether Gomez Vasquez the 2006 sentence, 16 it is clear that if he was in custody in 2009, then Gomez Vasquez necessarily could not have spent five consecutive years in the community as the statute requires. Accordingly, this claim also fails. We deny Gomez Vasquez' s PRP. 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. 16 The 2005 crime was unlawful possession of a controlled substance with intent to distribute. 35

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