STATE v. THOMPSON, 23805-5-II (Wash.App. 1-12-2001)

No. 23805-5-II.The Court of Appeals of Washington, Division Two.
Filed: January 12, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Clark County, No. 98-1-00277-8, Hon. James D. Ladley, September 9, 1998, Judgment or order under review.

Counsel for Appellant(s), George A. Kolin, Attorney At Law, P.O. Box 173, Washougal, WA 98671-0173.

Counsel for Respondent(s), Sonya L. Langsdorf, Clark Co. Prosc. Atty. Ofc., P.O. Box 5000, Vancouver, WA 98666-5000.

ROBIN HUNT, A.C.J.

Dale L. Thompson appeals his convictions for unlawful possession of cocaine and bail jumping. He argues the trial court erred by (1) denying his motion to suppress; (2) allowing an anonymous jury; (3) failing to instruct the jury on the defense of necessity and unanimity about the type of controlled substance; and (4) failing to dismiss the possession charge because the evidence was insufficient. We affirm.

FACTS I. The Suppression Hearing
At the CrR 3.6 hearing, Deputy Sheriff Steve Nelson described the service of a search warrant on a residence in Vancouver, Washington. The targets of the search warrant were `someone named Shea’ and Kip Richardson.[1] The officers were aware of `drug activity’; that it was `Kip’s house’; and that Shea and possibly her boyfriend were living there. Nelson’s role in the search was to serve as the `path finder.’[2]

The officers knocked, identified themselves, waited five to ten seconds, and then `force[d] open the door.’ `The first thing [Nelson] saw was [Thompson] sitting on the couch in the living room.’ Thompson was ordered to raise his hands, which he did; `and once the residence was secured . . . Thompson was told to stand up.’ When Nelson contacted Thompson, Thompson’s `demeanor . . . was fine. There was [sic] no problems at all.’

But Nelson became concerned for his safety when he saw `a rectangular pouch holding an object which was secured on the right side of [Thompson’s] belt.’ When Nelson had served search warrants for illicit drugs in the past, he had often found weapons. While Thompson was standing with his arms in the air, another officer removed a stun gun from Thompson’s pouch, and Nelson patted Thompson down, finding `in one of his pants pockets an object consistent in rigidity and size as a small pocket knife.’ Nelson removed the object; `it was a small pipe with marijuana residue in the bowl.’

Nelson then `did a complete search of . . . Thompson’ and found a [s]mall . . . clear plastic baggy, stuffed inside one of his socks. The substance inside of it was an off-white color, which field tested positive for . . . methamphetamine.

During Nelson’s encounter with Thompson, Thompson never threatened Nelson, and he complied with Nelson’s orders. Thompson may have been ordered to the floor during service of the search warrant, but he was not under arrest at that time.

The trial judge denied Thompson’s motion to suppress, ruling:

They had the search warrant. They go to the residence. . . . They’re looking for two people apparently. Kip Richardson and Shea. . . . And they know that they may run into Shea’s boyfriend, and I don’t know if Mr. Thompson is Shea’s boyfriend. I’m not really concerned about that. They knocked and waited five to ten seconds and then broke the door down. . . . [T]he only significance of breaking the door down is the fact that it heightened their concern that no one came to the door and answered it but they may be running into resistance. Made people more aware of the possibility of danger inside. Once they get in, Mr. Thompson’s seated on the couch. He doesn’t look like he’s harmful at all and going to cause anybody any harm. They asked him to stand up. He stands up and raises his hands, and Officer Nelson sees a pouch on his belt and he’s concerned that the pouch may indeed contain a weapon . . . and, lo and behold, what happens? It does. . . . That’s exactly what he was concerned about. . . . They find the stun gun before they conduct the patdown. I think if I found the stun gun there — it was on the belt — I would be more concerned that there would be further weapons. . . . They have reason to look further. They patted, they found the pipe. They reached in. They thought it was a knife. Reached in and pulled out the pipe and enough to give them probable cause to arrest him. . . . I think it’s fine. I’m going to leave it in place.

II. TRIAL
At trial, Nelson again described his contact with Thompson, adding that:

(1) the search warrant was executed around noon; (2) he (Nelson) had pointed his gun at Thompson upon entering the home; (3) it is standard police procedure during search warrant execution to order home occupants to the floor, and Thompson was `probably not’ treated differently; and (4) upon finding the pipe, he (Nelson) smelled the residue, identified it as `burnt marijuana,’ and told Thompson he was under arrest. Nelson also described how he had prepared two reports detailing the search warrant execution and that in the first report, he had erroneously written that the substance recovered from Thompson’s sock `was field tested for methamphetamine and tested positive.’[3] In the second report, Nelson wrote that the substance `field tested positive for cocaine.’ A forensic scientist testified that the substance in the baggy removed from Thompson was .2 grams of cocaine, and that if there had been any methamphetamine present, he `would have more than likely seen it.’ Sergeant Kenneth Garrison, the `on-scene supervisor’ during the warrant execution, testified he did not `notice [Thompson’s pouch] immediately’ upon seeing Thompson and that `[t]he pouch was found in the patdown.’ According to Sergeant Garrison, Thompson was handcuffed and on the floor before being patted down. Garrison further testified he field tested the substance in the bag removed from Thompson’s sock and it `came up negative’ for methamphetamine; he `then . . . did a cocaine field test, which turned up positive.’ Thompson renewed his motion to suppress, arguing: [Garrison] believed the pouch was not found until a patdown occurred, which was after Mr. Thompson would have been on the floor and in handcuffs. I don’t think that meets the requirement of the law.

The trial court again denied the motion, ruling, Officer Nelson’s recollection was that he saw the pouch at the beginning — the stun gun was removed at the very beginning of the relationship between Nelson and Thompson. There’s a little dispute I would agree in Garrison’s testimony but I’m still going to deny the Motion to Suppress.

The State then established that on February 13, 1998, Thompson had been placed on supervised release upon posting bail, but he failed to appear for his February 20 arraignment on a charge of unlawfully possessing amphetamine. An arrest warrant issued and Thompson was returned to court to face an additional bail jumping charge. Thompson was again released and again failed to appear for his scheduled May 11 trial. On May 20, 1998, a second bail jumping count was added to the information. Thompson turned himself over to authorities on June 19, 1998. On August 11, 1998, the information was amended, substituting cocaine for amphetamine. Thompson’s only witness at trial was Glen Hansen, a bounty hunter. Hansen testified that when Thompson was released on bail, Thompson began assisting him `in the recovery of . . . persons who had jumped bail.’ Based on Thompson’s assistance, confederates of one captured bail jumper were `attempting to locate Mr. Thompson.’ Hansen advised Thompson `to find a rock and crawl under it [b]ecause the individuals that were looking for him . . . did not appear to have any favorable intentions.’ `[Thompson] maintained telephone contact with [Hansen] prior to surrendering himself to [Hansen]’ in June 1998.

Thompson proposed a defense-of-necessity jury instruction, which the trial court rejected:

We’ve got a person who moves out for five weeks after the date that he could have or should have surrendered. He could have called the officers. He could have called anybody. If we allow a person to remain out and not appear for trial because somebody is threatening him, the doors are open. . . . Now in this case . . . there is a reasonable alternative. Even if he is threatened, he could call law enforcement. . . . He didn’t have to stay out for five weeks. All he did was to call Hansen and say, hey, I’m ready to go, and that was on the 19th, which is very very close to the time that he was — the bond was forfeited.

In closing argument, the prosecutor explained that the original charge of possession of amphetamine had been based on Nelson’s erroneous first report. The prosecutor then told the jury: `The State did amend the Information so you’re not considering the amphetamine, you’re considering the cocaine, which is what the drug actually tested positive for.’ On August 27, 1998, the jury found Thompson guilty on one count of unlawful possession of a controlled substance (cocaine) and two counts of bail jumping.

Thompson appealed. On August 3, 2000, we remanded to the trial court for entry of findings of fact and conclusions of law.[4]
Thereafter, neither party filed an optional supplemental brief.

ANALYSIS I. `Mere Presence’ During Execution of Search Warrant
`[E]ven without probable cause or reasonable suspicion of criminal activity, it is reasonable for an officer executing a search warrant at a residence to briefly detain occupants of that residence, to ensure officer safety and an orderly completion of the search.’ State v. King, 89 Wn. App. 612, 618-19, 949 P.2d 856 (1998). But an individual’s mere presence at a place that is the subject of a search warrant does not justify a search of his or her person. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); State v. Broadnax, 98 Wn.2d 289, 301, 654 P.2d 96 (1982), abrogated on other grounds by Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). `Therefore, a reasonable suspicion that a person is armed and dangerous must exist as to each individual to be frisked.’ Broadnax, 98 Wn.2d at 296.

Here, officers lawfully detained Thompson while they secured the residence in preparation for executing the search warrant. Deputy Sheriff Nelson saw Thompson’s black pouch worn outside his waist and became concerned for his safety before Thompson was searched for weapons. That Sergeant Garrison did not `notice [Thompson’s pouch] immediately’ and that `[t]he pouch was found in the patdown’ do not negate Nelson’s having seen the pouch and becoming concerned for his safety before the patdown.

In People v. Zielinski, 414 N.E.2d 1113, 1116 (Ill.App.Ct. 1980), the court upheld a patdown for weapons when officers observed `a black leather pouch on defendant’s belt’ after stopping a car driven by a suspected rapist, possibly armed with a knife. Other courts have similarly upheld frisks for weapons after observing a bulge in the suspect’s clothing. E.g., Pennsylvania v. Mimms, 434 U.S. 106, 107, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (during traffic stop for an expired license, officer was justified in frisking defendant upon `notic[ing] a large bulge under [defendant’s] sports jacket’); United States. v. Proctor, 148 F.3d 39, 41 (1st Cir. 1998) (officer justified in frisking anonymous defendant who had arrived at residence where a search warrant was being executed following a controlled deliver of marijuana; `officer noticed a bulge in [defendant’s] jacket pocket’); United States v. Hill, 545 F.2d 1191 (9th Cir. 1976) (officer questioning bystander of bank robbery was justified in frisking bystander upon seeing bulge in bystander’s clothing `which was consistent with the presence of a weapon’); Commonwealth v. Graham, 721 A.2d 1075, 1076 (Pa. 1998) (officer who `noticed a bulge in [defendant’s] front left pocket’ while executing an arrest warrant on a person with whom defendant had been conversing was justified in frisking defendant); People v. Morales, 581 N.E.2d 730, 734
(Ill.App.Ct. 1991) (officer who witnessed defendant engage in a possible drug purchase or sale and who `thought the large bulge in defendant’s jacket was a weapon’ was justified in frisking defendant). And in United States v. Baker, the Fourth Circuit reversed the district court’s ruling that a bulge alone would not justify a patdown for weapons, and held:

Based on the inordinate risk of danger to law enforcement officers during traffic stops, observing a bulge that could be made by a weapon in a suspect’s clothing reasonable warrants a belief that the suspect is potentially dangerous, even if the suspect was stopped only for a minor violation.

78 F.3d 135, 137 (4th Cir. 1996).

Consistent with these cases, Professor LaFave notes that, although an officer’s right to frisk for weapons is nearly automatic where the suspect may be involved in the `type of crime for which the offender would likely be armed,’ for less dangerous crimes, such as trafficking in small quantities of narcotics, there must be other circumstances to justify the frisk for weapons, such as the officer’s observation of `a characteristic bulge in the suspect’s clothing.’ 4 Wayne R. LaFave, Search Seizure § 9.5(a), at 255, 257 (3rd ed. 1996).

Here, deputy Nelson observed a black pouch attached to Thompson’s belt, which caused Nelson to be concerned for his safety. He knew from prior experience that occupants of houses searched for narcotics often were armed. Thus, the facts and law justified Nelson’s patdown of Thompson for weapons. The trial court did not err in denying Thompson’s motion to suppress.[5]

II. Jury Anonymity
Washington courts have not addressed the issue of jury anonymity. But federal appellate courts have adopted the rule that trial courts `should not order the empaneling of an anonymous jury without (a) concluding that there is strong reason to believe the jury needs protection, and (b) taking reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his fundamental rights are protected.’

United States v. Edmond, 52 F.3d 1080, 1090 (D.C. Cir. 1995) (quoting United States v. Paccione, 949 F.2d 1183, 1192 (2nd Cir. 1991)); accord United States v. Thai, 29 F.3d 785, 800-01 (2nd Cir. 1994).

Thompson argues he was denied the right to a fair jury trial under the State and federal constitutions because the trial court `allow[ed] an anonymous jury.’ But the facts do not support his argument. Thompson’s jury was not anonymous; rather, the venire members’ names were announced in open court. Thompson’s only cite to the record regarding the jury’s alleged anonymity is that the `addresses of the jurors [we]re not included on any of the information sheets.’ (Emphasis added). His trial counsel `view[ed] that [omission] as sort of an anonymous or semi-anonymous jury’ and `challenge[d] . . . the panel as a whole.’ The trial court denied the challenge without explanation. Whether defense counsel was permitted, or even attempted, to obtain the omitted information on voir dire is unclear because Thompson failed to include in the appellate record transcription of the jury voir dire before and after his challenge. See RAP 9.2(b) (`A party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review.’). Thompson has failed to demonstrate that the trial court abused its discretion in denying his challenge[6] or that the trial court’s ruling prejudiced him.[7]

III. Jury Instructions A. The Necessity Defense
`We review a trial court’s decision to reject a party’s jury instruction for an abuse of discretion.’ State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336, review denied, 136 Wn.2d 1021, 969 P.2d 1065 (1998). `An instruction is sufficient if it correctly states the law, is not misleading, and permits counsel to argue his theory of the case.’ State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73
(1980).

Thompson asserts that the trial court erred in rejecting his necessity defense instruction on the second bail-jumping charge. He apparently proposed two types of necessity defense instructions. The first proposed instruction read:

It is a defense to the crime of bail jumping that the defendant acted out of necessity as defined in this instruction.

The defense of necessity is available when the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from the violation of the law.

The second proposed instruction read:

It is a defense to the crime of bail jumping that the defendant acted out of necessity as defined in this instruction.

The defense of necessity is available:

1. He was under unlawful and present threat of death or serious injury, 2. He did not recklessly place himself in a situation where he would be forced to engage in criminal conduct, 3. He had not [sic] reasonable alternative, and 4. There was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Necessity is not a legislatively recognized defense. See ch. 9A.16 RCW. But assuming, without deciding, that necessity is a variant of the legislatively recognized defense of duress,[8] Thompson failed to `submit substantial evidence to support it.’ State v. Niemczyk, 31 Wn. App. 803, 807, 644 P.2d 759 (1982) (characterizing the defendants’ duress defense as a necessity defense `in the specific context of an escape charge’). Nor has any reported Washington case addressed the defense of necessity or duress with respect to a failure to appear after release on bail. But the Ninth Circuit Court of Appeals has addressed this issue in United States v. Atencio, 586 F.2d 744, 745 (9th Cir. 1978). Atencio was convicted for failing to appear for trial. On appeal, he argued that the trial court erred by not instructing `the jury on compulsion and duress as a legal excuse’ because he had fled the country after learning that someone `had put out a contract on his life.’ Atencio, 586 F.2d at 745. The Ninth Circuit rejected the defense, holding:

Because we believe that Atencio failed to present sufficient evidence as to the immediacy of the danger to which he would be subjected by appearing for trial, or evidence that he had no opportunity to do anything other than flee to avoid danger to himself, the court below did not err.

Atencio, 586 F.2d at 747 (emphasis added).

Likewise, Thompson failed to present evidence that he would have been in immediate danger had he appeared for trial or that his only recourse was to flee to avoid danger. The only evidence Thompson proffered was through bounty hunter Hansen, who testified that confederates of a captured bail jumper were `attempting to locate Mr. Thompson’; the confederates `did not appear to have any favorable intentions’; and he (Hansen) told Thompson, `find a rock and crawl under it.’ But there was no competent evidence establishing why Thompson did not appear for trial: Thompson did not testify; apparently he expected the jury to infer his motivations from Hansen’s limited testimony.

Accordingly, the trial court did not abuse its discretion in rejecting Thompson’s necessity defense jury instructions.

B. Jury Unanimity
`[A] defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed.’ State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). Thus, [w]hen the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. . . . [T]herefore . . . [t]he State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured.

When the State chooses not to elect, this jury instruction must be given to ensure the jury’s understanding of the unanimity requirement. Petrich, 101 Wn.2d at 572 (emphasis added).

Thompson contends the jury should have been `instructed regarding unanimity as to which controlled substance it found [he] had possessed beyond a reasonable doubt.’ But `[t]he Petrich rule applies only to multiple act cases (those cases where several acts are alleged, any one of which could constitute the crime charged).’ State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). Thus, a Petrich instruction was not required in Thompson’s case because the evidence showed only one possible act of possession.[9] Moreover, during closing argument, the prosecutor told the jury:

The original charge [of unlawful possession of amphetamine] was based on what . . . Nelson said in his report. . . . The State did amend the Information so you’re not considering the amphetamine, you’re considering the cocaine. . . .

That one officer mistakenly reported that the powdery substance field-tested positive for methamphetamine did not mandate a Petrich instruction; rather, it raises an issue of sufficiency of the evidence as to the type of controlled substance Thompson possessed.

IV. Sufficiency of the Evidence
Thompson contends that the evidence was insufficient to support his conviction. We disagree. In reviewing a claim of insufficient evidence, we determine `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (quotations omitted). `[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.’ State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).

Here, a rational trier of fact could have determined that the powdery substance in the baggy removed from Thompson’s sock was cocaine. Sergeant Garrison testified he field tested the substance and it `came up negative’ for methamphetamine, but he `then . . . did a cocaine field test, which turned up positive.’ Further, the forensic scientist testified that the substance was cocaine and that if there was any methamphetamine present, he `would have more than likely seen it.’ Nelson testified that his first report, indicating the substance field tested positive for methamphetamine, was erroneous, and that his second report correctly indicated the substance `field tested positive for cocaine.’ The evidence was sufficient. Affirmed.

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.

WE CONCUR: MORGAN, J., BRIDGEWATER, J.