No. 35156-1-II.The Court of Appeals of Washington, Division Two.
August 7, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-01526-3, Thomas P. Larkin, J., entered June 30, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
PENOYAR, J.
Titus Peterson appeals his conviction for unlawful possession of a controlled substance (UPCS). He challenges some of the trial court’s findings of fact without providing argument or citing authority. Additionally, Peterson argues that the trial court erred in applying the fellow officer rule to misdemeanor arrests. He asserts that under RCW 10.31.100, [1] the fellow officer rule applies to misdemeanors only if the offense is a traffic infraction. The State responds that the officers had probable cause to arrest Peterson for a felony. In his statement of additional grounds (SAG), Peterson argues that there were discovery violations and prosecutorial misconduct. The missing police reports occurred because of changes in defense counsel not prosecutorial misconduct. We affirm.
FACTS
The following facts are taken almost verbatim from the trial court’s findings of fact. On April 1, 2003, officers from the Tacoma Police Department special investigations division conducted an investigation of suspected narcotics activity in the area of 13th and Tacoma Avenue South within Tacoma, Washington. Sergeant Bieker had considerable experience in the investigation of street level narcotics dealing and had personally seen crack cocaine on many occasions. He knew from personal experience that a single piece of crack cocaine typically sold on the street for about twenty dollars.
The intersection of 13th and Tacoma Avenue South was known for unlawful drug use and drug trafficking. The April 1, 2003 investigation was a response to citizen complaints. At the time, the area was being used daily for the open sale, purchase, and smoking of narcotics. Lieutenant Viehmann had personally witnessed drug transactions in the area and attended community meetings focused on the area’s drug problems. Officer Bornander made several drug arrests in the area prior to April 1, 2003. Sergeant Bieker, Sergeant Caron, Officer Bornander, Officer Smalls, and Lieutenant Viehmann all participated in the April 1, 2003 narcotics investigation. The officers were in radio communication with each other and were part of a joint investigation.
Sergeant Bieker was in plain clothes in an unmarked patrol car with tinted windows. After he parked his unmarked car, he observed a black female in a yellow jacket make contact with a white male approximately 15 to 20 feet away from his car.[2]
Sergeant Bieker watched the white male extend his hand with a twenty dollar bill in his fingers and the black female drop a “square” piece of what he believed was a “rock” or piece of crack cocaine in the palm of the white male’s hand and take the twenty dollar bill. Clerk’s Papers (CP) at 62.
The amount of money paid to the black female was consistent with a crack cocaine sale. The manner in which the hand-to-hand transfer of the item occurred in exchange for currency was consistent with a street level crack cocaine sale. The trial court found that Sergeant Bieker witnessed the black female sell crack cocaine to the white male for twenty dollars.
After witnessing the black female exchange crack cocaine for money, Sergeant Bieker radioed the other officers in the investigation, informing them of his observations. Sergeant Bieker then observed the black female make contact with several other persons, but was unable to discern the nature of those contacts. He watched the black female walk to the corner of 13th and Tacoma Avenue South and make contact with Peterson. Other people were milling about the area and making contact with Peterson and the black female.
The trial court found that street level drug dealers frequently use a “middler” or a middle person to participate in a drug sale so that the dealer is insulated from direct contact with a buyer. CP at 65. During this type of street drug dealing, the dealer commonly holds the main crack cocaine supply. The dealer will typically give the middler one to three rocks of cocaine at a time to sell to a prospective buyer. The middler will then make contact with the buyer and complete the crack cocaine sale in exchange for currency. The procedure protects the dealer from having to make a hand-to-hand sale to the buyer. This is to decrease the risk of arrest while carrying a large supply of crack cocaine. It is common for a street drug dealer to hide the bulk supply of crack cocaine down the front of his pants.
Sergeant Caron and Officer Bornander viewed 13th Avenue from the second floor of a building. They used high powered binoculars to view Peterson and the black female walk west bound on 13th Avenue until they reached the alcove of a doorway. Peterson kept his back to the street in an effort to conceal what he was doing. Officer Bornander viewed Peterson from the side. He watched while Peterson pulled his shirt out with his hands, tucked it under his chin, and placed both of his hands down his pants. While Peterson was digging in his pants, the black female attempted to shield him from view. She stood back to back with Peterson, with her facing the street. Peterson had both hands down his pants for several seconds. The black female looked up and down the hill to see if they were being watched.
Peterson then turned his head back to the female. The black female cupped her right hand facing up and reached behind her back without looking at Peterson. Peterson then removed his hands from his pants, and placed an object in her hand. The black female placed the item in her jacket pocket. She walked away from Peterson, while he remained in the doorway tucking in his shirt. Based on the officers’ observations, training, and experience, the trial court found that Peterson retrieved crack cocaine from his pants and delivered it to the black female.
Peterson walked up the hill on 13th Avenue where he was approached by five to seven people. Once a person engages in a drug transaction on the street, it is common for others in the area to approach that person in hope of getting drugs.
The trial court found that the black female engaged in another drug transaction, before returning to Peterson again. When she contacted Peterson, the black female handed him an item. She then walked back down the street where she made contact with another female. The black female exchanged an item with the other female. After the exchange, she went back to Peterson and gave him an item again. The trial court found that these encounters were drug transactions.
Shortly after these exchanges, Peterson entered a grocery store. Officer Bornander described everything he observed about Peterson and the black female’s interactions to Sergeant Caron. Based on his own observations, as well as Officer Bornander’s, and Sergeant Bieker’s, Sergeant Caron determined that Peterson was loitering for the purpose of drug activity in violation of Tacoma Municipal Code (TMC) 8.72.010. Sergeant Caron contacted Lieutenant Viehmann and Officer Smalls and directed them to arrest Peterson. He advised them that he witnessed Peterson participate in a drug transaction. Sergeant Caron gave a description of Peterson and his location at the store. Lieutenant Viehmann and Officer Smalls were in uniform, in a marked patrol car out of the area, at the time they received the communication from Sergeant Caron. They found Peterson in the store and arrested him.
In a physical pat down incident to arrest, Lieutenant Viehmann found a large amount of crack cocaine in the front of Peterson’s pants. The bag contained more than 30 rocks of crack cocaine. He also found seventy-five dollars on Peterson. The trial court found that crack cocaine is ingested by smoking. The search of Peterson indicated that he had no pipe or other smoking device on his person. The court found that cocaine users typically have a smoking device on their person and usually possess one or two rocks of crack cocaine. The 30 rocks of crack cocaine found on Peterson were not consistent with personal use.
Peterson was charged with (1) unlawful possession of a controlled substance, with intent to deliver within 1000 feet of a school bus route stop while under community placement; and (2)
resisting arrest.[3]
Before trial, Peterson requested that the court appoint a different attorney to represent him. The court found that Peterson and his attorney were having communication issues and appointed a new attorney. The new attorney realized that he did not have all of the police reports. He asked Peterson’s previous attorney about the missing discovery. When Peterson’s new attorney could not get a clear answer from the previous attorney, he asked the State for the missing police reports. The State provided the reports within two days of the request.
Both the prosecutor and defense counsel agreed that Peterson’s previous attorney had all of the police reports and went over them with Peterson. Defense counsel stated that the late reports did not affect the motion he had submitted to the court. Prior to the motion hearing, defense counsel interviewed Officer Bornander and Lieutenant Viehmann. Defense counsel stated that he received all of the reports before trial. Sergeant Caron testified at a motion hearing prior to trial and was cross examined. Sergeant Caron did not write a police report. The trial court found that there was no prejudice to Peterson based on when his second attorney received the police reports. In his SAG, Peterson appeals this finding and requests dismissal of the charges based on prosecutorial misconduct.
Peterson was found guilty of both UPCS charges and resisting arrest by bench trial. The court found that Peterson possessed cocaine with intent to deliver to others through his accomplice, the black female in the yellow jacket. The trial court found that the location where Peterson possessed the cocaine was 696 feet from one school bus stop and 660 feet from another. Additionally, the court found that Peterson was on community custody when he was selling cocaine.
Peterson appeals.
ANALYSIS
I. Trial Court’s Factual Findings.
Peterson assigns error to the trial court finding that: (1) the officers witnessed Peterson engage in a drug transaction; (2) Sergeant Caron advised the arresting officer that he had witnessed Peterson participate in a drug transaction with the black female; and (3) Peterson was observed transferring small objects for currency.
Peterson does not include argument or authority in his brief challenging the trial court’s findings on his drug transactions and the officers’ observations. The only argument Peterson advances pertains to applying the fellow officer rule to a misdemeanor. Because Peterson does not provide argument or authority to challenge the trial court’s factual findings, these assignments of error are waived. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); RAP 10.3(a)(5) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record). We need not consider whether there was substantial evidence to support the trial court’s factual findings.
Furthermore, credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). The trial court found the officers’ testimony credible. It also found the evidence of the drug transactions persuasive. We do not disturb these determinations on appeal. Considering the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that: (1) the officers witnessed Peterson engage in a drug transaction; (2) Sergeant Caron advised the arresting officer that he witnessed Peterson participate in a drug transaction with the black female; and (3) Peterson was observed transferring small objects for currency.
II. Probable Cause to Arrest.
Peterson argues that the trial court erred in applying the fellow officer rule to a misdemeanor arrest. The fellow officer rule provides that where police officers are acting together as a unit, cumulative knowledge of all the officers involved in the arrest may be considered to decide whether there was probable cause to apprehend a particular subject. Staats v. Brown, 139 Wn.2d 757, 791, 991 P.2d 615 (2000).
Sergeant Caron told the uniformed officers to arrest Peterson for loitering for purpose of drug activity, a gross misdemeanor.[4] The trial court applied the fellow officer rule to the gross misdemeanor charge. However, we “may sustain a trial court on any correct ground, even though that ground was not considered by the trial court.” Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986).
An officer may arrest a person without a warrant if the officer has probable cause to believe that a person has committed or is committing a felony. RCW 10.31.100. Additionally, Washington courts have routinely applied the fellow officer rule to felonies. See State v. White, 76 Wn. App. 801, 805, 888 P.2d 169 (1995); State v. Alvarado, 56 Wn. App. 454, 457-58, 783 P.2d 1106 (1989). In White, the court found probable cause where officers observed the defendant make contact with people that were consistent with drug transactions White, 76 Wn. App. at 804. The officers did not actually observe drugs being exchanged. White, 76 Wn. App. at 804-05. It was sufficient that the defendant’s actions were consistent with a drug transaction according to the officer’s training and experience. Id.
In Alvarado, the officers observed the defendant exchange a bindle[5] for a large sum of money Alvarado, 56 Wn. App. at 457. The officers testified that based on their training and experience they believed the defendant was engaging in a drug transaction. Id. The court found probable cause to arrest for unlawful delivery of a controlled substance. Id.
In the present case, Sergeant Bieker observed the black female exchange what appeared to be a rock of crack cocaine with a white male for currency. Sergeant Bieker then observed the black female make contact with several other people, but was unable to ascertain what was exchanged. He observed the black female make contact with Peterson. Sergeant Caron and Officer Bornander observed Peterson and the black female exchange items. The officers saw Peterson remove something from the front of his pants, a common place for a drug dealer to hide the bulk supply of crack cocaine. The officers watched the black female and Peterson contact other people as well as contact each other again.
The officers testified that based on their training and experience, the black female was working as a middler for Peterson. Based on their observations, they believed Peterson was the drug dealer, while the black female made the direct contact with the buyers. All of this occurred at the intersection of 13th and Tacoma Avenue South which was known for unlawful drug use and drug trafficking. The investigation that led to Peterson’s arrest was a response to citizen complaints. The area was being used daily for the open sale, purchase, and smoking of narcotics. The officers had personally witnessed drug transactions in the area and attended community meetings focused on the area’s drug problems. They had made several drug arrests in the area.
Based on all of these observations, including the exchange of crack cocaine for money, the officers had probable cause to arrest Peterson for a felony.[6] The officers radioed their observations to each other. We determine probable cause using the information possessed by the police as a whole when they are acting in concert. White, 76 Wn. App. at 805. We may affirm on any grounds supported by the record. See State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004). We may uphold an arrest based on probable cause for a charge other then what the arresting officer announced. State v. Vangen, 72 Wn.2d 548, 552, 433 P.2d 691 (1967) (upholding arrest for probable cause of felony though officers said they arrested defendant for misdemeanor). We affirm Peterson’s convictions because the officers had probable cause to arrest for felony unlawful delivery of a controlled substance.
III. Search Incident to Arrest.
Peterson argues that the crack cocaine found during the search incident to arrest should be
suppressed because the arrest was illegal. An officer may conduct a search of the defendant’s person incident to a valid arrest. State v. Craig, 115 Wn. App. 191, 194-95, 61 P.3d 340 (2002). Because the arrest was lawful, the search incident to the arrest was valid.
IV. Discovery Violations and Prosecutorial Misconduct.
In his SAG, Peterson asserts that his case should be dismissed based on prosecutorial misconduct and discovery violations. He argues that he was prejudiced because his attorney was forced to request a continuance of the March 27, 2006 trial date based on the late discovery. Defense counsel told the trial court that he requested a one-day continuance of a motion hearing to look over the reports. Peterson’s attorney did not tell the court that the trial had to be continued.
On March 1, 2006, the trial court appointed a new defense attorney at Peterson’s request. The new attorney realized that he did not have all of the police reports. He asked Peterson’s previous attorney about the missing discovery, but did not get a clear answer. When the new attorney asked the State for the missing police reports, they were provided within two days of the request.
The prosecutor and defense counsel agreed that Peterson’s previous attorney had all of the police reports and went over them with Peterson. Defense counsel conceded that he did not see any prejudice to Peterson because of the police reports and that they did not affect the pretrial motion he had submitted to the court. Prior to the motion hearing, defense counsel interviewed Officer Bornander and Lieutenant Viehmann.
Peterson asserts that the State provided his attorney with Officer Bornander’s report on the day of trial. However, defense counsel stated that he received all of the reports before trial. According to Peterson, his attorney did not receive a report from Sergeant Caron, and did not know what he would testify to at trial. Sergeant Caron testified at a motion hearing prior to trial and was cross examined. Sergeant Caron did not write a police report. The trial court found that there was no prejudice to Peterson based on his second attorney receiving some of the police reports late. In his SAG, Peterson appeals this finding and requests dismissal of the charges based on prosecutorial misconduct.
Prosecutorial misconduct requires a showing that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and circumstances at trial State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681
(2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727. The trial court is in the best position to effectively determine if prosecutorial misconduct prejudiced a defendant’s right to a fair trial. State v. Carr, 13 Wn. App. 704, 709, 537 P.2d 844 (1975).
Peterson’s attorney was missing some of the police reports because his previous attorney did not turn them over. When defense counsel asked the State for more copies of the reports, they were immediately provided. Defense counsel stated that he had all the reports before trial and the late reports did not affect his strategy. There is no evidence of prosecutorial misconduct or discovery violations. We affirm Peterson’s convictions.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J., ARMSTRONG, J., concur.