                                                                                                     FLED
                                                                                              COURT OF APPEALS
                                                                                                   DrVISION : I

                                                                                            2614 JUL 29        All I I : 38

                                                                                               A    O'   VGA     1 d TON



    IN THE COURT OF APPEALS OF THE STATE OF WASHI

                                                 DIVISION II



STATE OF WASHINGTON,                                                       No. 44711 -8 -II


                                   Respondent,


         v.



TERAL ANTHONY THOMAS,                                               UNPUBLISHED OPINION


                                   Appellant.




         MAxA, J. —      Teral Anthony Thomas appeals his convictions of second degree assault,

felony   violation of a pretrial no contact order ( 3 counts) (   domestic   violence),   and third degree


malicious mischief (domestic violence).          He claims that ( 1) the police obtained a residential


search warrant without probable cause, (         2) the trial court violated his right to counsel by not

inquiring into the breakdown of the attorney -client relationship in response to his request for new

counsel, (    3) he was denied his right to effective assistance of counsel, and ( 4) he is entitled to an


evidentiary hearing on whether governmental misconduct interfered with his attorney -client
privilege.     We find   no error, and affirm.
44711 -8 -II



                                                  FACTS

                        AL1

         Thomas   and         dated for approximately two years before the relationship ended in early

2012. AL subsequently obtained a no contact order precluding Thomas from coming within 500

feet of her residence, school, or place of employment.


         On August 17, 2012, AL called the police to report that Thomas had contacted her at

Wal -Mart where she worked, violating the no- contact order. AL and Kenneth Ness, a co- worker,

identified Thomas as the person that had contacted AL in the store and again in an outside

employee' s lounge. The police went to Thomas' s residence but were unable to locate him there.

         On August 22, 2012, AL and Ness were outside of the Wal -
                                                                 Mart store when a man yelled

at the couple and then punched Ness, breaking his nose and glasses. The man knocked Ness to

the ground and repeatedly struck him. Daniel Buhman witnessed the attack. Ness testified that

the   assailant asked   AL, "This is   who you want   to be   with ?"   Report of Proceedings ( RP) at 164.


At the scene, AL gave a statement to a police officer during which she identified the assailant as

Thomas. After searching the area and going to Thomas' s residence, the police were unable to

find him.


          On September 2, 2012, AL called the police to report that Thomas had again violated the


no- contact order. This time AL was in her car near a bus stop close to her work when Thomas

approached and asked her to talk. When she said no, he walked behind her car, striking and

denting it.

          The police obtained a search warrant for the residence Thomas shared with his

grandparents. They apprehended Thomas hiding between the bed and wall in his grandmother' s

 1 We use the victim' s initials to protect her privacy.


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44711 -8 -II



bedroom. Later, the police obtained photographs of text messages that Thomas had sent to AL

that evening.

        The State charged Thomas with second degree assault, three counts, of a protection order


violation, and malicious mischief. On February 13, 2013, Thomas, pro se, filed a CrR 8. 3

motion to dismiss based on governmental misconduct. In the motion he alleged that Thurston

County Jail staff seized confidential legal materials he needed in order to prepare for trial. On

February 20, 2013, Thomas, through counsel, moved for a continuance to investigate what

happened to these legal materials. The trial court denied the continuance request because the

alleged seizure took place in December and it was only now being brought to the court' s

attention. The trial court also was concerned that due to his military service, Ness would be

unavailable to testify if the trial was continued.

        The trial court also considered Thomas' s pro se motion to remove defense counsel and

appoint new counsel. The trial court denied this motion, ruling:

        Mr. Thomas, I appreciate your concerns, but, in fact, Mr. Shackleton has been
        representing you this morning, has been doing quite an intelligent and apt job. He
        is raising, clearly, all of the important issues for this Court to consider, filed the
        motions in limine and the like. I'm going to deny your request. There's nothing in
        this record to suggest that Mr. Shackleton is not appropriately representing you in
        this matter. You don't have the right to an attorney of your choosing. And I don't
         find a basis to grant your motion, so I'm denying that motion.

RP at 28 -29.


         A jury found Thomas guilty of all charged offenses and by special verdict that the

protection order violations and malicious mischief were against members of the same family or

household. Thomas appeals.




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                                                          ANALYSIS


A.        PROBABLE CAUSE FOR WARRANT


          Thomas argues that probable cause did not support the search warrant used to enter his

residence, as there was no evidence establishing his presence in the home. However, because

Thomas did not move to suppress any evidence related to the search, he waived this claim and

we   do   not consider     it. State    v.    Mierz, 127 Wn.2d 460, 468, 901 P. 2d 286 ( 1995).        Thomas cites


RAP 2. 5( a)( 3) for the proposition that an appellant may raise a manifest constitutional error for

the first time on appeal. But he provides no analysis under this rule and has failed in his burden

to establish that his claim involves manifest error. State v. McFarland, 127 Wn. 2d 322, 334,

899 P. 2d 1251 ( 1995). 2

B.        REQUEST FOR NEW COUNSEL


          Thomas argues that the trial court violated his constitutional right to counsel by refusing

to review his written motion for a new attorney, in not inquiring into the conflict, and in not

appointing new counsel. We disagree.

           When reviewing         a   trial   court' s refusal   to   appoint new counsel, we consider "(   1) the


extent of   the   conflict, (   2) the adequacy of the [ trial court' s] inquiry, and ( 3) the timeliness of the

motion."     State   v.   Cross, 156 Wn.2d 580, 607, 132 P. 3d 80 ( 2006) ( quoting              In re Pers. Restraint

of Stenson, 142 Wn.2d 710, 724, 16 P. 3d 1 ( 2001)).                      Applying these inquiries, we review the trial

court' s decision for an abuse of discretion. Cross, 156 Wn.2d at 607.




2
 However, we do address this issue pursuant to Thomas' s ineffective assistance of counsel
argument, and conclude that probable cause did support the warrant.




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44711 -8 -II



          1.      Extent of the Conflict


          Thomas argues he had an irreconcilable conflict with his attorney, and the trial court

erred in not appointing new counsel. When the trial court asked Thomas to explain his position

he responded:


             I'd like the Court to know I feel that my attorney is ineffective. I brought up to
          him several times on several occasions of things pertaining to my case, such as
          witnesses, my alibi, so on and so forth, and he has failed yet to get any of my
          witnesses or my alibi.    And it's a big part in my defense, and I really, really do
          need them.
               Also, I filed         I talked to him about filing a couple of motions as soon
                               a couple --

          as I got in here pertaining to Sergeant Barnes committing perjury, and he stated
          that that   was a professional error.    So I wanted that to be addressed to the Court as
          well.

               And I brought up issues to him several times, and I feel that he's ineffective,
          because he has yet to do what I asked him.

RP at 27.


          This is not the type of conflict that raises Sixth Amendment concerns because there was

no actual conflict of interest. Cross, 156 Wn.2d at 609. Instead, this appears to be a


disagreement about the approach defense counsel was taking in developing a defense. Such

disagreement over trial strategy is insufficient to find a cognizable conflict. Stenson, 142 Wn.2d

at   729. "[   T] his is the type of conflict that courts generally leave to the attorney and client to

work out, absent       ineffective   assistance of counsel."   Cross, 156 Wn.2d at 609.


          2.      Adequacy of Trial Court' s Inquiry

          Thomas argues that the trial court' s limited inquiry was inadequate. He claims that the

trial court should have made some effort to obtain his written motion or to have reviewed a copy

of the motion that Thomas offered during the hearing.




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44711 -8 -II



        The trial court was unable to consider Thomas' s written motion because it was not in the

court file and apparently had not yet been filed. However, the trial court did have defense

counsel' s statement that his client wanted him removed and Thomas' s explanation quoted above.


Rather than reading the document in open court while the parties waited, the trial court prudently

asked Thomas to explain his concerns. Previously, defense counsel had explained to the trial

court that he did not think that the Rules of Professional Conduct prevented him from continuing

to represent Thomas. Under the circumstances, the trial court conducted an adequate inquiry.

See State    v.   Schaller, 143 Wn.     App.   258, 271, 177 P. 3d 1139 ( 2007) ( " a trial court conducts


adequate inquiry by allowing the defendant and counsel to express their concerns fully. ").

        3.        Timeliness


        Thomas first      asked   for   a new   attorney   on   February   20, 2013. At that time, defense


counsel explained to the court that Thomas was in the process of filing his motion. As of the

first day of trial, the court had not received his motion, but did allow Thomas to make his motion

orally. The trial court intended to begin jury selection but reluctantly postponed the trial because

of the State' s late disclosure of a video recording. The trial court also was concerned because

Ness was leaving for basic training in 10 -12 days and would not be available to testify in person.

Timeliness weighed in favor of denying the motion.

        The trial court did not abuse its discretion in denying Thomas' s motion for a new

attorney. The extent of the conflict, if any, was tactical. The trial court allowed Thomas to

adequately explain his concerns. And there were timing concerns that would have affected the

trial. Thomas' s claim fails.




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44711 -8 -II



C.       EFFECTIVE ASSISTANCE OF COUNSEL


         Thomas argues that he was denied his constitutional right to effective assistance• of

counsel because defense counsel ( 1) failed to move for suppression of evidence resulting from

the allegedly invalid search warrant, (2) introduced hearsay testimony from Buhman that served

as   the only   substantive evidence of       identity   of the August 22   assault, (   3) failed to object to


hearsay testimony from AL and a police officer regarding the September 2 incident, and ( 4)

advocated against his client' s wishes by not withdrawing as counsel and not advocating for

withdrawal. We disagree.


         To prevail on an ineffective assistance of counsel claim, the defendant must show not


only that defense counsel' s representation was deficient, but also that the deficient representation
prejudiced      the defendant.   State   v.   Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011). Prejudice


exists if there is a reasonable probability that except for counsel' s errors, the result of the

proceeding would have differed. Grier, 171 Wn.2d at 34. When reviewing an ineffective

assistance of counsel claim, we begin with the presumption that counsel' s assistance was


effective.      Grier, 171 Wn. 2d   at   33. This presumption continues until the defendant shows in the


record the absence of legitimate or tactical reasons supporting his counsel' s conduct. Grier, 171

Wn.2d at 33 -34.


          1.     Not Filing a Motion to Suppress

          Thomas argues that defense counsel should have moved to suppress based on lack of

probable cause supporting the search warrant. He argues that failing to suppress allowed the

 State to introduce evidence that he was hiding in the house and that the jury could use this as

 substantive evidence of his guilty conscience.



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44711 -8 -II



             But a motion to suppress would not have succeeded because probable cause did support


the warrant. A magistrate may issue a search warrant only if supported by probable cause. See

State   v.   Garcia- Salgado, 170 Wn. 2d 176, 186 -87, 240 P. 3d 153 ( 2010). Probable cause means


that the facts and circumstances described " establish a reasonable inference that the defendant is


probably involved in criminal activity and that evidence of the crime may be found at a certain

location." State v. Jackson, 150 Wn.2d 251, 264, 76 P. 3d 217 ( 2003).


             Officer Barnes' s warrant application informed the magistrate that the victim had

identified Thomas as the suspect, that he lived at 8528 48th Court Northeast in Olympia, that his

driver' s license bore this address, that Thomas' s grandfather confirmed Thomas lived there, that


the cell phone used to send threatening text messages to AL was within a mile of the home, that

the phone shut off when the police began investigating the residence, and that all of this occurred

at 2: 00 a.m. on a Monday. A neutral and detached magistrate could draw reasonable inferences

from these facts and circumstances to conclude that Thomas and the cell phone were at his

residence.        State   v.   Maddox, 152 Wn.2d 499, 599, 98 P. 3d 1199 ( 2004). Thomas' s claim of


ineffective representation as to the failure to suppress fails.


             2.    Eliciting Identity Evidence from Buhman

             On cross -examination of Buhman, defense counsel elicited testimony that after the

August 22 assault AL and Ness identified Thomas as the assailant. Thomas argues that his


counsel was ineffective because this hearsay testimony undermined his defense of mistaken

identity. We disagree.

             Thomas' s counsel was presented with a situation where Buhman had identified Thomas


as the assailant on direct examination but failed to identify him in court. The State asked



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44711 -8 -II



Buhman, " What happened that               you observed       that   led   you   to talk to law   enforcement ?"   RP at 86.


Buhman       responded, "      As I   came   out   of [Wal   -Mart],   I saw a gentleman and a lady walking up, and

the -- it   would   be   the   defendant, Teral - -." RP      at   86 (   emphasis added).        However, after testifying

that he would recognize the assailant if he saw him again, Buhman stated that he did not see him

in the courtroom.


            Given this testimony, defense counsel may have had a tactical reason to explore what AL

and Ness had said at the scene. Because Buhman identified Thomas as the assailant during

direct examination, defense counsel may have wanted to discredit that testimony. By having

Buhman explain that AL and Ness identified Thomas at the scene, defense counsel succeeded in

undermining Buhman' s identification of Thomas by getting him to admit that ( 1) he did not

know the assailant and ( 2) he only reported Thomas' s name because AL had identified the

assailant to him while he was speaking with the 911 operator. This was a legitimate tactical

decision.


            Further, Thomas' s argument that Buhman' s cross -examination testimony was the only

evidence identifying Thomas as the assailant is incorrect. AL also testified that she told police at

the scene that Thomas was the assailant, and as discussed below this statement was not hearsay

under   ER 801( d)( 1)( iii).         As a result,. asking Buhman to state what AL said at the scene caused

no prejudice. Thomas' s ineffective assistance of counsel claim on this basis fails.

            3.   Failure to Object to Identification Testimony

            At trial, AL did not identify Thomas as the person who assaulted Ness. However, she

testified that at the scene she told police that Thomas was the assailant. Similarly, at trial AL

was unable to identify Thomas as the person who hit her car on September 2, but testified that on



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44711 -8 -II



the night of the incident she told police that she suspected Thomas was the person who hit her

car. And a police officer testified that AL told him that Thomas was the person who hit her car.

Thomas argues that defense counsel was ineffective because he failed to object to ( 1) AL' s


testimony      about   identifying   Thomas   at   the time   of   the two incidents, ( 2) the police officer' s



testimony about the September 2 incident, and ( 3) to request a limiting instruction for that

testimony. We disagree.

          Thomas argues that AL' s and the police officer' s testimony was objectionable because it

was hearsay. However, ER 801( d)( 1)( iii) provides that a statement is not hearsay if the declarant

testifies at trial and is subject to cross -examination about the statement, and the statement is " one

of   identification    of a person made after      perceiving the      person."   Here, AL made the statements to


police identifying Thomas at the scene of both incidents after perceiving him to be the suspect.

Accordingly, the statements were not hearsay and were admissible as substantive evidence. Any

objection would have been overruled, and no limiting instruction would have been appropriate.

Thomas' s ineffective assistance of counsel claim on this basis fails.


          4.     Advocating Against Client

          Thomas argues that defense counsel abridged his duty of loyalty by not advocating for

removal and thus substituted his own interests for those of Thomas' s. He claims this violated

RPC 1. 2( a). He argues that this situation created an actual conflict of interest because if defense


counsel had advocated for removal, it would have subjected defense counsel to sanctions for


unprofessional conduct, thereby damaging his reputation and exposing him to civil liability. He

describes this as a " classic" actual conflict of interest, citing State v. Regan, 143 Wn. App. 419,

425, 177 P. 3d 783 ( 2008). We disagree.




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44711 -8 -II



        Regan is distinguishable. There, trial counsel was in the untenable position of following

his client' s wish to go to trial with the prospect of being compelled to testify against his client.

Division Three of this court reversed because this was " a classic example of a choice between

alternative courses of action that was helpful to defense counsel' s own interests and harmful to

Mr. Regan'     s.   And it   shows an actual conflict of      interest."   Regan, 143 Wn. App. at 429.

        Here, as we observed above, no actual conflict of interest existed. Defense counsel was


not put in the untenable position of choosing between his own and his client' s best interest.

Counsel simply told the court:

        Your Honor, this is my                I don' t believe that there is anything at
                                        client' s request.

        this point under the Rules of Professional Conduct that prevent me from
        representing him. But I know he wants the Court to, on his own motion, have me
        removed        as counsel and     the Court       appoint another    attorney.   So I will actually
        have him address the Court.


RP at 25. RPC 1. 2( a) requires an attorney to " abide by a client' s decisions concerning the

objectives of representation."        The comment to this rule anticipates that a lawyer and client will


disagree about how to attain the client' s objectives and suggests that the lawyer should consult


with his client and seek a mutually acceptable resolution of the disagreement. And then, if there

is a fundamental disagreement, the lawyer may withdraw or the client may discharge the

attorney.


         The most the record demonstrates is that Thomas expected his attorney to do more than

he was doing in his defense. Further, defense counsel merely told the trial court that he did not

believe that he had an ethical obligation to withdraw. And defense counsel had an ethical

obligation     to be   candid with   the trial   court.   RPC 3. 3.   Thomas' s claim is speculative and not




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based on objective fact. We find no conflict of interest requiring counsel to advocate for

withdrawing his representation. This basis for Thomas' s ineffective assistance claim also fails.
D.      GOVERNMENTAL MISCONDUCT


        Thomas argues that the trial court erred in not investigating whether the j ail staff had

seized a confidential letter Thomas had written to defense counsel. He asks this court to remand


for the purpose of determining whether governmental misconduct occurred, affected his trial, and

denied him his right to counsel, mandating dismissal of the charges. We reject this argument

based on insufficient evidence.

        In State   v.   Garza, 99 Wn.   App.   291, 293, 994 P. 2d 868 ( 2000), three inmates had their


legal materials seized as part of a security sweep following an attempted escape. Jail staff

retained the materials for up to 32 days, during which time at least one guard read the materials.

Garza, 99 Wn. App. at 294. The three inmates moved to dismiss based on governmental

misconduct. Garza, 99 Wn. App. at 294. Division Three of this court ruled that when the

officers actually examined and read the defendants' legal materials, they intruded into the

defendants'    private   relationship with their   attorneys.   Garza, 99 Wn. App. at 296. The court

remanded for the trial court to determine the extent of the intrusion and any prejudice from it, .

and to fashion an appropriate remedy. Garza, 99 Wn. App. at 301 -02.

         Here, Thomas alleges that the j ail staff seized a letter containing confidential information

that he had written for the purpose of recording his recollections so that he could better prepare a

defense. But Thomas presented no evidence that this letter exists, that the jail staff examined or


read it, or that there was any interference with the attorney -client privilege. Absent even a




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44711 -8 -II



scintilla of evidence to support his claim, Thomas fails to show that an evidentiary hearing is

necessary to address his allegation.

        Further, Thomas complained about the seizure of the letter on the day before trial in an

attempt to obtain a continuance, even though the seizure occurred approximately two months

earlier. The trial court reasonably could have concluded that Thomas simply was attempting to

delay the trial. Under these circumstances, the trial court did not err in declining to hold an

evidentiary hearing on alleged government misconduct.

        We affirm.


        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 in accordance with RCW

2. 06. 040, it is so ordered.




                                                                        J.
                                                       MAXA, J.




We concur:




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