FILED MARCH 11, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37222-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CHAUN T. HERKIMER, ) ) Appellant. )
LAWRENCE-BERREY, J. — Chaun Herkimer appeals his convictions of residential
burglary, second degree burglary, and third degree malicious mischief. He argues he
received ineffective assistance of counsel due to counsel’s failure to move for suppression
of evidence of an unconstitutional stop and seizure. We decline to review this claim
because the record is insufficient to show actual prejudice. Herkimer’s remedy is through
a personal restraint petition.
FACTS
Florence Brock was awakened around 3:30 a.m. one January morning by what
sounded like an object falling near the front door to her house. She got out of her bed to
investigate. As she came down the hall, an inside light was switched on. She knew No. 37222-7-III State v. Herkimer
someone was in her house. She asked who was there, turned the corner to look, and saw
a young muscular man. He cursed then fled. Brock called 911.
Spokane County Deputy Sheriff Brandon Cinkovich was dispatched to Brock’s
house around 3:34 a.m. It was snowing at the time and fresh snow had accumulated on
the ground. The deputy was a few hundred feet from the house when he received the call.
The deputy noticed shoeprints in the snow leading away from Brock’s house. At
the same time, he saw a Jeep Cherokee traveling away from the house. The deputy noted
the Jeep was coming from the direction the shoeprints led and was driving very fast for
the snowy conditions. There were no other cars on the road. Based on this, he decided to
follow the Jeep.
The deputy quickly lost sight of the Jeep but was able to track it due to the freshly
fallen snow. The tracks ended in the driveway of a house at 4012 East Third. In the
driveway was the Jeep.
The deputy noticed that the driver and passenger were inside the Jeep. He issued
several commands for them to show their hands, but neither complied. After five to eight
minutes, and as other deputies arrived, the two finally complied and got out of the Jeep.
The driver was identified as Chaun Herkimer.
2 No. 37222-7-III State v. Herkimer
Herkimer was detained and handcuffed. At some point, likely near the point of
handcuffing Herkimer, Deputy Cinkovich read Miranda1 warnings to Herkimer and
placed him in the patrol car. Herkimer commented that the reason he was stopped was
probably because he was driving around Mead late at night and pulled into a stranger’s
driveway.
The deputy asked to look at the soles of the shoes that Herkimer and his passenger
were wearing. Herkimer said that his shoes were “AND1,” they were popular in the area,
and many people in Mead wore them. Report of Proceedings at 135-36.
Sergeant Jerad Kiehn arrived at the scene and looked at the soles of Herkimer’s
shoes. He then went to Brock’s house and determined that a shoeprint in the snow
leading up to the house matched the soles of Herkimer’s shoes.
Deputy Jessica Baken arrived at Brock’s house shortly thereafter. She followed
Herkimer’s shoeprints where they led to Brock’s shop. She noticed the padlock and
doorframe to the shop were damaged and that a box that had been inside the shop was
near the front steps to Brock’s house.
The State charged Herkimer with residential burglary, second degree burglary, and
third degree malicious mischief. Prior to trial, the court conducted a CrR 3.5 hearing to
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 37222-7-III State v. Herkimer
determine the admissibility of Herkimer’s statement about pulling into a stranger’s
driveway. Defense counsel did not file a suppression motion. Herkimer was found guilty
on all charges.
Herkimer appeals his convictions.
ANALYSIS
Herkimer argues he received ineffective assistance of counsel because counsel
should have moved to suppress the shoeprint evidence due to an unconstitutional stop and
arrest. We decline to review his argument.
As a general rule, appellate courts will not consider issues raised for the first time
on appeal. RAP 2.5(a). However, a claim of error may be raised for the first time on
appeal if it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3).
We treat constitutional errors differently under RAP 2.5(a) because they often
result in serious injustice to the accused and might adversely affect public perceptions of
the fairness and integrity of judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87,
757 P.2d 492 (1988). On the other hand, “permitting every possible constitutional error
to be raised for the first time on appeal undermines the trial process, generates
unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources
of prosecutors, public defenders and courts.” State v. Lynn, 67 Wn. App. 339, 344, 835
4 No. 37222-7-III State v. Herkimer
P.2d 251 (1992). Consequently, RAP 2.5(a)(3) is not intended to afford criminal
defendants a means for obtaining new trials whenever they can identify some
constitutional error on appeal. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995). Rather, the asserted error must be “manifest.” Id. “The defendant must identify
a constitutional error and show how, in the context of the trial, the alleged error actually
affected the defendant’s rights; it is this showing of actual prejudice that makes the error
‘manifest’, allowing appellate review.” Id.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee a defendant the right of effective assistance of
counsel. Herkimer’s claim thus affects a constitutional right. The question here is
whether the error is “manifest.”
To demonstrate ineffective assistance of counsel, a defendant must make two
showings: (1) defense counsel’s representation was deficient, and (2) defense counsel’s
deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). With respect to the second showing,
the defendant must show that the trial court likely would have granted the suppression
5 No. 37222-7-III State v. Herkimer
motion if it had been made. McFarland, 127 Wn.2d at 334. Thus, only where the record
on review is sufficiently developed can an appellate court review the claim of error. Id.
Insufficient record to show trial court likely would have suppressed evidence
Herkimer argues the record is sufficiently developed for this court to conclude the
trial court likely would have suppressed the shoeprint evidence had defense counsel so
moved. We disagree.
The stop
An officer is allowed to stop and briefly detain someone as part of an investigative,
Terry2 stop. A Terry stop is permissible where the officer had an “individualized,
reasonable, articulable suspicion” based on specific facts that the detained person was or
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MARCH 11, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37222-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CHAUN T. HERKIMER, ) ) Appellant. )
LAWRENCE-BERREY, J. — Chaun Herkimer appeals his convictions of residential
burglary, second degree burglary, and third degree malicious mischief. He argues he
received ineffective assistance of counsel due to counsel’s failure to move for suppression
of evidence of an unconstitutional stop and seizure. We decline to review this claim
because the record is insufficient to show actual prejudice. Herkimer’s remedy is through
a personal restraint petition.
FACTS
Florence Brock was awakened around 3:30 a.m. one January morning by what
sounded like an object falling near the front door to her house. She got out of her bed to
investigate. As she came down the hall, an inside light was switched on. She knew No. 37222-7-III State v. Herkimer
someone was in her house. She asked who was there, turned the corner to look, and saw
a young muscular man. He cursed then fled. Brock called 911.
Spokane County Deputy Sheriff Brandon Cinkovich was dispatched to Brock’s
house around 3:34 a.m. It was snowing at the time and fresh snow had accumulated on
the ground. The deputy was a few hundred feet from the house when he received the call.
The deputy noticed shoeprints in the snow leading away from Brock’s house. At
the same time, he saw a Jeep Cherokee traveling away from the house. The deputy noted
the Jeep was coming from the direction the shoeprints led and was driving very fast for
the snowy conditions. There were no other cars on the road. Based on this, he decided to
follow the Jeep.
The deputy quickly lost sight of the Jeep but was able to track it due to the freshly
fallen snow. The tracks ended in the driveway of a house at 4012 East Third. In the
driveway was the Jeep.
The deputy noticed that the driver and passenger were inside the Jeep. He issued
several commands for them to show their hands, but neither complied. After five to eight
minutes, and as other deputies arrived, the two finally complied and got out of the Jeep.
The driver was identified as Chaun Herkimer.
2 No. 37222-7-III State v. Herkimer
Herkimer was detained and handcuffed. At some point, likely near the point of
handcuffing Herkimer, Deputy Cinkovich read Miranda1 warnings to Herkimer and
placed him in the patrol car. Herkimer commented that the reason he was stopped was
probably because he was driving around Mead late at night and pulled into a stranger’s
driveway.
The deputy asked to look at the soles of the shoes that Herkimer and his passenger
were wearing. Herkimer said that his shoes were “AND1,” they were popular in the area,
and many people in Mead wore them. Report of Proceedings at 135-36.
Sergeant Jerad Kiehn arrived at the scene and looked at the soles of Herkimer’s
shoes. He then went to Brock’s house and determined that a shoeprint in the snow
leading up to the house matched the soles of Herkimer’s shoes.
Deputy Jessica Baken arrived at Brock’s house shortly thereafter. She followed
Herkimer’s shoeprints where they led to Brock’s shop. She noticed the padlock and
doorframe to the shop were damaged and that a box that had been inside the shop was
near the front steps to Brock’s house.
The State charged Herkimer with residential burglary, second degree burglary, and
third degree malicious mischief. Prior to trial, the court conducted a CrR 3.5 hearing to
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 37222-7-III State v. Herkimer
determine the admissibility of Herkimer’s statement about pulling into a stranger’s
driveway. Defense counsel did not file a suppression motion. Herkimer was found guilty
on all charges.
Herkimer appeals his convictions.
ANALYSIS
Herkimer argues he received ineffective assistance of counsel because counsel
should have moved to suppress the shoeprint evidence due to an unconstitutional stop and
arrest. We decline to review his argument.
As a general rule, appellate courts will not consider issues raised for the first time
on appeal. RAP 2.5(a). However, a claim of error may be raised for the first time on
appeal if it is a “manifest error affecting a constitutional right.” RAP 2.5(a)(3).
We treat constitutional errors differently under RAP 2.5(a) because they often
result in serious injustice to the accused and might adversely affect public perceptions of
the fairness and integrity of judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87,
757 P.2d 492 (1988). On the other hand, “permitting every possible constitutional error
to be raised for the first time on appeal undermines the trial process, generates
unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources
of prosecutors, public defenders and courts.” State v. Lynn, 67 Wn. App. 339, 344, 835
4 No. 37222-7-III State v. Herkimer
P.2d 251 (1992). Consequently, RAP 2.5(a)(3) is not intended to afford criminal
defendants a means for obtaining new trials whenever they can identify some
constitutional error on appeal. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251
(1995). Rather, the asserted error must be “manifest.” Id. “The defendant must identify
a constitutional error and show how, in the context of the trial, the alleged error actually
affected the defendant’s rights; it is this showing of actual prejudice that makes the error
‘manifest’, allowing appellate review.” Id.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution and article I, section 22 of
the Washington Constitution guarantee a defendant the right of effective assistance of
counsel. Herkimer’s claim thus affects a constitutional right. The question here is
whether the error is “manifest.”
To demonstrate ineffective assistance of counsel, a defendant must make two
showings: (1) defense counsel’s representation was deficient, and (2) defense counsel’s
deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). With respect to the second showing,
the defendant must show that the trial court likely would have granted the suppression
5 No. 37222-7-III State v. Herkimer
motion if it had been made. McFarland, 127 Wn.2d at 334. Thus, only where the record
on review is sufficiently developed can an appellate court review the claim of error. Id.
Insufficient record to show trial court likely would have suppressed evidence
Herkimer argues the record is sufficiently developed for this court to conclude the
trial court likely would have suppressed the shoeprint evidence had defense counsel so
moved. We disagree.
The stop
An officer is allowed to stop and briefly detain someone as part of an investigative,
Terry2 stop. A Terry stop is permissible where the officer had an “individualized,
reasonable, articulable suspicion” based on specific facts that the detained person was or
was about to be involved in a crime. State v. Flores, 186 Wn.2d 506, 520, 379 P.3d 104
(2016). A “generalized suspicion that the person detained is ‘up to no good’ [is not
enough]; the facts must connect the particular person to the particular crime that the
officer seeks to investigate.” State v. Z.U.E., 183 Wn.2d 610, 618, 352 P.3d 796 (2015).
Officers, being more highly trained than the average citizen, may spot something
suspicious that would go unnoticed by another person. State v. Moreno, 173 Wn. App.
479, 493, 294 P.3d 812 (2013). A court reviews “‘the totality of the circumstances
2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6 No. 37222-7-III State v. Herkimer
known to the officer at the inception of the stop.’” State v. Lee, 147 Wn. App. 912, 917,
199 P.3d 445 (2008) (quoting State v. Rowe, 63 Wn. App. 750, 753, 822 P.2d 290
(1991)).
Here, Deputy Cinkovich arrived at the burgled house and saw shoeprints belonging
to the reported burglar. At the same time, he noticed a Jeep speed by from the direction
the shoeprints had led. There is little question that the Jeep the deputy saw was the same
Jeep he later found parked in a driveway. Further, the driver and passenger of the Jeep
remained inside the Jeep, which created the reasonable impression that they parked there
to blend in rather than because they had arrived at their destination. Based on all of this,
the trial court likely would have rejected the argument that the deputy lacked an
individualized, reasonable suspicion that Herkimer was involved in the burglary. Rather,
the trial court likely would have concluded that the investigative Terry stop was
appropriate.
The arrest
Warrantless searches and seizures are presumed invalid unless an exception to the
Fourth Amendment and article I, section 7 applies. State v. Snapp, 174 Wn.2d 177, 188,
275 P.3d 289 (2012). The burden of proof is on the State to show that one of those
exceptions applies, such as probable cause. State v. Perez, 5 Wn. App. 2d 867, 871, 428
7 No. 37222-7-III State v. Herkimer
P.3d 1251 (2018), review granted, 193 Wn.2d 1008, 439 P.3d 1075 (2019). “Probable
cause exists where the facts and circumstances within the arresting officer’s knowledge
and of which the officer has reasonably trustworthy information are sufficient to warrant
a person of reasonable caution in a belief that an offense has been committed. Probable
cause is not a technical inquiry.” State v. Terrovona, 105 Wn.2d 632, 643, 716 P.2d 295
(1986) (footnote omitted). This determination rests on “the totality of facts and
circumstances within the officer’s knowledge at the time of the arrest.” State v. Fricks,
91 Wn.2d 391, 398, 588 P.2d 1328 (1979).
Here, Deputy Cinkovich had reasonable, trustworthy information that a burglary
had occurred. He was dispatched to a specific address to investigate a possible burglary
around 3:30 in the morning and upon arriving there, he saw shoeprints in the fresh snow.
He also had reasonable, trustworthy information that the people in the Jeep parked in the
driveway were the same people who drove quickly past the burgled house. The link
between the shoeprints in the fresh snow and the Jeep is thus the crucial focal point.
Unfortunately, the record before us is underdeveloped in that regard. The State
had no motive to develop those facts at the CrR 3.5 hearing where probable cause was not
an issue. Nor did the State have a motive to develop those facts at trial. At trial, the
State’s focus was linking the shoeprints in the fresh snow with the soles of Herkimer’s
8 No. 37222-7-III State v. Herkimer
shoes. Because the recor~ is not sufficiently developed for us to know whether the trial I
I
court would have granted a motion to suppress, we decline to review this issue.
Herkimer's remedy is thrpugh a personal restraint petition.
Affirmed. i
A majority of the Janel has determined this opinion will not be printed in the I
Washington Appellate R~ports, but it will be filed for public record pursuant to i
RCW 2.06.040.
Lawrence-Berrey, J. \ j WE CONCUR:
Siddoway, A.CJ. Staab, J.