State v. Shaver

116 Wash. App. 375
CourtCourt of Appeals of Washington
DecidedApril 3, 2003
DocketNo. 20137-6-III
StatusPublished
Cited by16 cases

This text of 116 Wash. App. 375 (State v. Shaver) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Shaver, 116 Wash. App. 375 (Wash. Ct. App. 2003).

Opinions

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.

[378]*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 [379]*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.

[380]*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[381]*381ings regarding the affidavit in support of the search warrant.

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Cite This Page — Counsel Stack

Bluebook (online)
116 Wash. App. 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shaver-washctapp-2003.