                                                                                         FILED
                                                                                   OOIlRT OF
                                                                                                  APPEALS
                                                                                         DIVISION JI
                                                                                2o15 JAN 13
                                                                                            111111 16
                                                                                 STATE   OF
                                                                                              WASHINGTON
                                                                                BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHIGTON

                                             DIVISION II

 STATE OF WASHINGTON,                                                         No. 45132 -8 - I1


                                 Respondent,


        v.

                                                                         UNPUBLISHED. OPINION
DAVID TALYNN PECK,


                                 Appellant.




       MAXA, J. —    David Peck appeals his first degree robbery conviction, claiming that the

trial court erred in denying his motion to suppress DNA (deoxyribonucleic acid) evidence and in

excluding his " other suspect" evidence. In a statement of additional grounds ( SAG), Peck claims

ineffective assistance of counsel for defense counsel' s failure to pursue an alibi defense and

failure to challenge the seizure of a wig containing DNA evidence introduced at trial. He also

claims that the State improperly showed a photograph of the wig to several witnesses and

improperly introduced evidence of his criminal history. We affirm.

                                                     FACTS


        On March 11, 2012, Moe Jones closed a Clark County Pizza Hut restaurant at 1: 25 AM.

One of her tasks was to take the evening deposit to the bank. Elisabeth McMurray, who worked

that evening as a delivery person, was to follow Jones to the bank where Jones could make the

deposit. As Jones   was   getting into her   car   with the   deposit,   a man grabbed   the door,   stuck a gun
45132 -8 -II



in her face,   and said, "   Give   me   the money."   Report   of   Proceedings ( RP) (   July 1, 2013) at 40.

Jones handed him the money.

        McMurray, noticing that Jones was in trouble, took the Pizza Hut magnetic sign off her

car and hit the man over the head with it. When Jones yelled at her that the man had a gun,


McMurray ran to her car and the man ran through the bushes down a trail leading to an adjacent

apartment complex.




        Both Jones and McMurray described the man as a five -foot seven, 140 pound, white male

wearing a black wig, sunglasses and bulky dark clothing, and carrying a black handgun.

Deputies searched the area and recovered a wig in a recycling bin at the adjacent apartment

complex. They also detained Ryan Stallman, who was walking in the vicinity of the Pizza Hut

with his girlfriend. When the deputies took Jones and McMurray to see Stallman, they both said

that Stallman was not the robber. The deputies released Stallman after verifying his alibi, taking

his statement, and obtaining a DNA sample.

        DNA testing of the wig revealed the presence of Peck' s DNA. It also excluded Stallman

as a contributor to the major DNA component on the wig. Detective Jared Stevens interviewed

Peck in the Clark County Jail, where Peck was being held on an unrelated charge. Detective

Stevens read Peck his Miranda' rights, asked Peck about the robbery, and requested a DNA

sample to compare to the DNA found in the wig. He told Peck that submitting his DNA would

be a good way to prove he was innocent. Detective Stevens also told Peck that if Peck did not




1
    Miranda    v.   Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
45132 -8 -II



consent to the DNA swabbing, he would request a search warrant to obtain the sample. Peck

consented.



        When Detective Stevens asked Peck about the robbery, Peck denied robbing the Pizza

Hut   and   did   not   know why his DNA       was on    the wig. Peck then said that       sometimes   he "[ h] as


too   much    to drink   and   does crazy   stuff."   RP ( June, 21, 2013)   at   21.   Peck added that he had


dressed up as a woman the previous Halloween and had worn a wig.

        A forensic scientist with the Washington State Patrol tested the DNA samples and


testified that the DNA from the wig was a mixed profile with Peck as the major contributor. She

testified that because there were only trace amounts of the other contributor insufficient to

profile, it was very unlikely that the other contributor was the robber, and that only one person in

2. 2 quintillion would match Peck' s DNA.


        The State charged Peck with first degree robbery and third degree theft. In a pretrial

hearing, Peck moved to suppress his statements to Detective Stevens and the DNA test results.

The trial court denied both motions, finding that Peck gave his statements voluntarily and had

freely consented to giving a DNA sample.

            Peck sought to introduce as other suspect evidence that the deputies had stopped Stallman


shortly after the robbery near the Pizza Hut restaurant. The trial court denied Peck' s request.

            To undermine Peck' s statement to Detective Stevens that he had dressed up as a woman

on Halloween, a jail records supervisor testified that Peck was in custody from 8/ 24/ 2011 to

1/ 4/ 2012 and from 10/ 28/ 2010 to 11/ 16/ 2010. And a member of the identifications unit testified


that the fingerprints and photograph taken from Peck during the 8/ 24/ 2011 booking matched

those taken during his current booking.



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45132 -8 -1I




          A jury found Peck guilty of both charged counts. At sentencing, Peck sought a new trial

because defense counsel failed to present an alibi defense. The trial court denied the motion as


untimely. Peck appeals.

                                                              ANALYSIS


A.           MOTION To SUPPRESS DNA EVIDENCE


             Peck argues that the trial court erred in denying his motion to suppress the DNA evidence

taken during his custodial interrogation with Detective Stevens. He claims that the State failed to

prove that he voluntarily consented to the search. We disagree.

             1.        Legal Principles


             Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth

Amendment of the United States Constitution and article I, section 7 of the Washington

Constitution. State             v.   Garcia- Salgado, 170 Wn. 2d 176, 184, 240 P. 3d 153 ( 2010). Such a search


must be supported by a warrant unless the search meets one of the exceptions to the warrant

requirement.            State   v.   Winterstein, 167 Wn.2d 620, 628, 220 P. 3d 1226 ( 2009). Consent is an


exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 803, 92 P. 3d 228

 2004).


             The State has the burden of demonstrating that a defendant' s consent was voluntary.

State   v.   Russell, 180 Wn.2d 860, 871, 330 P. 3d 151 ( 2014). We consider the totality of the


circumstances in evaluating the voluntariness of the consent. Id. In making this evaluation, we

consider (        1)   whether       Miranda   warnings     had been   given prior    to obtaining   consent, (     2) the degree


of education and intelligence of the consenting person, and ( 3) whether the consenting person

had been          advised of     his   right not   to   consent.   Id. No   one   factor is dispositive. Id.   at   872.
45132 -8 -II




         We review a trial court' s findings of fact following a suppression hearing for substantial

evidence       in the    record   to    support   them.     State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266


 2009). Evidence is substantial when it is enough to persuade a fair -minded person of the truth of


the   stated premise.        Id. We treat          unchallenged       findings   of   fact   as verities on appeal.     State v.


Valdez, 167 Wn.2d 761, 767, 224 P. 3d 751 ( 2009). We review de novo the trial court' s conclusions


of   law pertaining to the        suppression of evidence.               Garvin, 166 Wn.2d at 249.


          2.      Finding of Voluntary Consent

          Peck     assigns error        only to   finding   of   fact 22,   which provides: "    Based on the totality of

the circumstances the court finds that the DNA reference sample was provided voluntarily by the

Defendant."         Clerk' s Papers ( CP) at 124. But there is substantial evidence supporting this

finding.       First,   unchallenged      finding   of   fact 20   provides: "   Deputy Stevens asked the Defendant

to   provide a     DNA     reference sample and           he   agreed."     CP at 124. This finding supports the

finding that Peck' s consent was voluntary.

          Second, Detective Stevens interviewed Peck in a secure room in the jail, visible to jail

staff. He gave Peck the Miranda warnings, which Peck waived. Detective Stevens testified that

he did not tell Peck that he had to give a DNA sample or make any threats or promises to get him

to give a DNA sample, and that Peck agreed to give a DNA sample without any reluctance. This

testimony clearly supports the trial court' s finding that Peck' s consent was voluntary.

          Third, Detective Stevens' statement that he would seek a warrant if Peck did not agree

was not    coercive. State         v.   Smith, 115 Wn.2d 775, 790, 801 P. 2d 975 ( 1990).                In fact, his


statement implied that Peck did not have to agree.




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45132 -8 -II



          Peck argues that his case is akin to that in State v. Munoz Garcia, 140 Wn. App. 609, 166

P. 3d 848 ( 2007).      In that case, Garcia signed a written consent for officers to search his car, but

the police had not read him Miranda warnings, he had had no sleep, and he was in custody. Id.

at 617. The trial court relied solely on the signed consent form in finding that consent was

voluntary. Id. at 626. Division Three of this court held that under these facts, the trial court
should have reviewed the totality of the circumstances and suppressed the evidence. Id.

          Munoz Garcia is inapplicable here. Peck was given Miranda warnings, and therefore


could have invoked those rights. The trial court could have implied that he knew that he could

refuse consent because he had extensive experience in the criminal justice system.

          The facts show that Peck' s consent was voluntary. Peck agreed to give a DNA sample

without resistance when Detective Stevens requested it. Under the totality of the circumstances

presented here, we hold that the trial court did not err in concluding that Peck' s consent was

voluntary and in denying the motion to suppress.

B.        OTHER SUSPECT EVIDENCE


          Peck claims that the trial court denied him his constitutional right to present a complete

defense when it excluded evidence that the deputies suspected Stallman. He argues that the

evidence against Stallman was equally inculpatory as that against him. We disagree.

          Before the trial     court   may     admit " other suspect"   evidence, "   some combination of facts or


circumstances must point to a nonspeculative link between the other suspect and the charged

crime."    State   v.   Franklin, 180 Wn.2d 371, 381, 325 P. 3d 159 ( 2014).             The proper inquiry is

whether the proffered evidence creates a reasonable doubt as to the defendant' s guilt, not

whether    it   establishes   the   guilt of   the third person beyond   a reasonable    doubt. Id.   at   381.   We




                                                              6
45132 -8 -II



review the exclusion of other suspect evidence under an abuse of discretion standard. Id. at 377

n.2.


        There initially was some indication that Stallman could be connected with the robbery.

Shortly after the robbery, the deputies stopped Stallman who was walking nearby with his

girlfriend. Stallman was not cooperative and the deputies were forced to draw their weapons

before he complied. Stallman was wearing dark clothing, carrying a black replica Officer' s

Model air pistol, and generally fit the description Jones and McMurray had given. The deputies

took Stallman into custody, gave him Miranda warnings, questioned him about the robbery, and

obtained a DNA sample.


        But further investigation essentially eliminated Stallman as a suspect. The deputies

recovered the wig in the opposite direction of where they had stopped Stallman. Stallman did

not have any money even though the robbery had taken place only a few minutes earlier. The

deputies brought Jones and McMurray to Stallman' s location and both women said that Stallman

was not the robber. Deputies confirmed Stallman and his girlfriend' s alibi that they were visiting

Stallman' s uncle at a nearby motel when the robbery took place. And the DNA testing of the

wig excluded Stallman.

        We agree with the trial court that admission of this nonprobative evidence would have


served only to confuse the jury because there was no nonspeculative link between Stallman and

the charged crime. Evidence of the deputies' suspicions about Stallman were not enough to raise

doubt about whether Peck committed the robbery. Accordingly, we hold that the trial court did

not err in excluding evidence that Stallman was a suspect.




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45132 -8 -II



C.      SAG ISSUES


        1.     Ineffective Assistance of Counsel


        Peck argues that he was denied his right to effective assistance of counsel because his


attorney failed to present his alibi defense and failed to challenge the lawfulness of the deputies'

seizure of the wig. We disagree.

        To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation

prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).


Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. Id. at 34. Prejudice exists if there is a reasonable probability that

except for counsel' s errors, the result of the proceeding would have differed. Id.

                  a.   Alibi Defense


        Peck claims that he had a sworn affidavit from an alibi witness that he was with her at the


time of the robbery. He argues that his attorney should have called her as a witness but did not

even put her on the witness list.


        Generally, the decision to call a witness or to present a particular defense is a tactical

decision     and cannot   be the basis   of an   ineffective   assistance claim.   Grier, 171 Wn. 2d   at   33. But


if the defendant can show that counsel' s choice was not a legitimate tactical decision, he may

prevail as long as he can show prejudice. Here, the record is insufficient to appraise defense

counsel' s decision not to call this witness as it involves matters outside the record. Therefore,




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45132 -8 -II



we cannot evaluate this ineffective assistance of counsel claim.2 See State v. McFarland, 127

Wn.2d 322, 335, 899 P. 2d 1251 ( 1995) (     reviewing court will not consider matters outside the

record on appeal).



                 b.    Seizure of Wig

        Peck next claims that defense counsel should have challenged the unlawful seizure of the


wig. He claims that there was no nexus between the crime and the wig and therefore the

deputies unlawfully seized it.

        But defense counsel could not challenge the deputies' seizure of the wig because Peck

did not have a personal privacy interest in the recycling bin where the officers found the wig.

Therefore, he did not having standing to raise such a challenge. See State v. Ague- Masters, 138

Wn.   App. 86, 99,    156 P. 3d 265 ( 2007) ( defendant   lacked standing to challenge search of co-

defendant). Therefore, Peck' s ineffective assistance of counsel claim on this basis fails.


        2.     Photograph of Wig

        Peck argues that the trial court erred in not allowing defense counsel to introduce a lineup

of wigs to test the witnesses' ability to identify the wig used during the robbery. He argues that

none of the witnesses identified the wig before trial and to do so with a photograph during trial

denied him his right to properly impeach the witnesses. We disagree.

        The admissibility of evidence rests within the trial court' s sound discretion. State v.

Atsbeha, 142 Wn.2d 904, 913 - 14, 16 P. 3d 626 ( 2001).        We will not reverse a trial court' s




2 Peck states that there was a colloquy on July 1, 2013 about presenting Dana Brixey as an alibi
witness. Our review of the trial transcripts does not find any such discussion. See RAP 10. 10( c)
 defendant must identify error so that court may review it without having to search entire trial
record).




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45132 -8 -II




decision to exclude evidence absent an abuse of discretion. State v. Cuthbert, 154 Wn. App. 318,

337, 225 P. 3d 407 ( 2010).


        The trial record shows that defense counsel sought to show Jones and McMurray other

wigs to impeach them should they identify the wig in the photograph as the same one as the

robber had worn. The State did not show Jones the photograph. During the State' s examination

of McMurray, it asked her if the wig shown in a photograph was similar to the one the robber

had worn. McMurray said that it was because of the color and length but that she did not know

if it was the same wig. Because neither witness identified the wig in the photograph as that worn

during the robbery, there was no impeachment purpose to be served by introducing additional

wigs. We hold that the trial court did not err in refusing to allow a lineup of wigs.

        3.     Criminal History

        Peck argues that the State improperly introduced evidence of his criminal history even

though he did not testify at trial. He claims that this propensity evidence unfairly prejudiced him

and denied him his right to a fair trial. We disagree.


        Peck did not object at trial to the State' s evidence that Peck was in custody during

Halloween      of   both 2010   and   2011.   Absent an objection, a party waives any claim of error

involving    the    admission of evidence.      RAP 2. 5(   a);   State v. Robinson, 171 Wn.2d 292, 304 -05,


253 P. 3d 84 ( 2011).     Nonetheless, the trial court would have overruled any such objection

because the State introduced this evidence to rebut Peck' s statement to Detective Stevens that he


had dressed up as a woman and worn a wig the previous Halloween. Further, the State did not

introduce why Peck was in custody, nor did it argue that his being in custody made it more likely

that he committed the robbery. Peck' s claim fails.



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45132 -8 -I1



        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.




 We concur:




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