State v. Theodore Harris

8 Wn.App.2d 1068

STATE OF WASHINGTON, Respondent, v. JAMES ELLIOT THEODORE HARRIS, Appellant.

No. 51031-6-II

Court of Appeals of Washington, Division 2

May 14, 2019

UNPUBLISHED OPINION

SUTTON, J.

James Harris appeals his convictions for first degree unlawful possession of a firearm, unlawful possession of a controlled substance, obstruction of a law enforcement officer, and making a false or misleading statement to a public servant with the firearm and drug offenses alleging that Harris was on community custody at the time of the commission of the offense. He argues that the State failed to establish a sufficient chain of custody to support the admission of a firearm and ammunition. In a statement of additional grounds (SAG), Harris also argues that he received ineffective assistance of counsel because his defense counsel failed to bring a motion to suppress based on an unlawful Terry^[1] stop. In a supplemental brief, Harris argues that he is entitled to relief from various legal financial obligations (LFOs) imposed in his judgment and sentence. We hold that the trial court did not abuse its discretion by admitting the firearm and ammunition at trial and that Harris did not receive ineffective assistance of counsel. We also hold that the trial court improperly imposed LFOs. Accordingly, we affirm Harris's convictions and remand to the sentencing court to reconsider the imposition of LFOs.

FACTS

Shortly after midnight on April 5, 2016, Officer Scott Campbell was on patrol when he ran a records check on a white Mercedes sedan. The records check indicated that the car had been reported stolen. Before Officer Campbell activated his patrol vehicle's emergency lights, the driver of the vehicle pulled to the curb. Officer Campbell pulled behind the vehicle and activated his emergency lights. A passenger in the car, later identified as Harris, began to exit the vehicle, but Officer Campbell ordered him to remain in the vehicle, and Harris complied.

After an additional police officer arrived, they ordered the driver of the vehicle to exit; she complied and was detained. Officer Campbell then ordered Harris to exit the vehicle and walk backwards towards him. Instead, Harris ran away from the officers. Officer Campbell gave chase, repeatedly shouting for Harris to stop. Harris ran through several residential yards, along an alley, across a street, and continued through an alley before running around a garage and into the backyard of a residence. Officer Campbell lost sight of Harris after he ran around the garage but found Harris hiding behind a small fence separating the alley from the backyard.

After placing Harris in handcuffs, Officer Campbell saw a small silver-colored revolver wrapped in electrical tape on the alley side of the fence. The revolver was about five feet from where Harris had been hiding and within his line of flight from the vehicle. Officer Eric Chell, who arrived to assist, found that the revolver was loaded with two live rounds of .32 automatic caliber ammunition. During a search incident to arrest, Officer Campbell discovered a single .32 automatic caliber round in Harris's pocket.

Harris identified himself with a false name. After Officer Campbell arrested Harris and gave Harris his Miranda^[2] warnings Harris denied knowing anything about the revolver found by the fence. He also denied knowing that the car was stolen. He explained that he ran from the officers "[b]ecause I got dope. I'm a crack head." Clerk's Papers (CP) at 35; Report of Proceedings (RP) (3/27/17) at 43.

The State charged Harris with first degree unlawful possession of a firearm, unlawful possession of a controlled substance obstructing a law enforcement officer, and making a false or misleading statement to a public servant, with the firearm and drug offenses alleging that Harris was on community custody at the time of the commission of the offense. Harris waived his right to a jury trial, and the case proceeded to a bench trial.

At trial, Officer Campbell testified about the incident. Officer Campbell recalled noticing the revolver on the alley side of the fence near where Harris had been hiding. He testified that it was the first time he had come across a .32 automatic caliber revolver like that during his time as a police officer. Officer Campbell testified that he pointed out the revolver to the other officers and maintained custody of Harris. Officer Campbell explained that two other officers maintained custody of the firearm while the forensic team came to the scene to process and collect the revolver as evidence.

Officer Peter Taing also testified at trial. He recalled discovering a .32 caliber, silver, revolver style handgun on the ground:

I discovered it on the ground, took ahold of it observed-tried to find the serial number on it. The handle and the barrel was wrapped in electrical tape, black electrical tape, so it wasn't present. I wasn't able to look at the serial number, and then Specialist Chell was able to make the firearm safe.

RP (3-28-17) at 63. Officer Taing testified that after Officer Chell had rendered the revolver safe, they placed it back on the ground where they discovered it and contacted forensics to come process it. Officer Taing recalled that he remained with the firearm until the forensic specialist, Lisa Rossi, arrived. Officer Taing testified that when Rossi arrived, she photographed the revolver, processed it, and took it into custody. Officer Taing also recalled that when Officer Chell rendered the revolver safe, it was loaded with two rounds of .32 caliber ammunition, inscribed with "W & W." RP (3-28-17) at 67.

The State handed Officer Taing "Exhibit 7," which Officer Taing identified as a box labeled with the incident number pertaining to the case, and designated as having been packaged by Rossi on April 5, 2016, when it was transferred to her custody. Officer Taing testified that Rossi had arrived at the scene of the incident to photograph the scene and take custody of the firearm. Officer Taing testified that the same silver revolver he had seen the morning of April 5th was in the box. When asked if the revolver was in the same condition as it was that morning, Officer Taing responded "No, sir. The electrical tape has been removed." RP (3-28-17) at 65. Officer Taing noted that aside from the electrical tape being removed, the revolver was in the same condition.

Officer Eric Chell also testified at trial. He recalled finding a silver revolver, wrapped in black electrical tape, near the fence where Harris had been hiding. Officer Chell testified that he had Officer Taing stand by the revolver to ensure that nothing happened to it before the forensic specialist could arrive. Officer Chell explained that in order to safely place the firearm into their evidence system, he had to ensure that it was unloaded. In rendering the revolver safe, Officer Chell removed two live rounds of .32 caliber ammunition from the action of the revolver and placed them into a small clear plastic baggy. He recalled that the baggy was retained for evidence by Rossi, and the revolver was placed into a cardboard box for evidence.

Officer Chell identified "Exhibit 6" as a plastic baggy containing the live rounds of ammunition he recovered from the revolver. He testified that they appeared to be in the same condition, noted the markings on the cartridge indicated a .32 automatic caliber, and indicated they were manufactured by "WW." RP (3-28-17) at 85. Officer Chell noted that the plastic baggy was labeled with the case number pertaining to the incident. Officer Chell also identified "Exhibit 7" as being a box, bearing the case number pertaining to the incident, and containing the revolver he rendered safe at the scene of the incident. Officer Chell testified that the revolver appeared to be in the same condition with the exception that the electrical tape had been removed from the firearm and the tape was placed in a clear plastic bag in the box.

The State moved to admit Exhibit 6-the two bullets. Harris objected as to foundation, arguing that Officer Chell did not enter the bullets into evidence or place his initials on the baggy.

The State responded:

[W]ith respect to the markings on the plastic baggy, those, I think, do go to a chain of custody argument that [Harris] could certainly make at closing argument, but I think proper foundation, which is relevance and identification, has been laid. Authentication has been laid, and this officer's testified [sic] that those are the rounds removed from that revolver and they appear to be in the same condition.

RP (3-28-17) at 100. The trial court acknowledged that there was "a chain of custody issue," but admitted the bullets. RP (3-28-17) at 100.

Detective Brian Vold also testified at trial. Detective Vold testified that he retrieved the revolver from the property room for testing. The State presented Detective Vold with Exhibit 7- the revolver-and Detective Vold identified it as having the appropriate case number for the incident and recognized his writings on the evidence tape. Detective Vold testified that his writings reflected the day he test fired the weapon and identified the cardboard box as the same box he retrieved when he tested the firearm. Detective Vold explained that when he got the revolver from the property room he took it to the police shooting range, examined it, looked at the serial number, fired the gun three times to confirm its operability, repackaged it, and returned it to the property room.

Detective Vold testified that the revolver in the box appeared in the same condition as it was when he test fired it. He explained "I don't come across many firearms of this make and model, this appearance. . . . [R]evolvers aren't commonly...