                                                                         FILED
                                                                    SEPTEMBER 21, 2017
                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 34327-8-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
CARL R. MOORE JR.,                             )
                                               )
                     Appellant.                )

       SIDDOWAY, J. -     Carl Moore appeals his convictions for possession of a

controlled substance (methamphetamine ), arguing that the trial court erred when it failed

to suppress evidence discovered in a search incident to his second warrantless arrest for a

single crime and impermissibly commented on th¢ evidence, his trial lawyer provided

ineffective assistance of counsel by failing to objtjct to irrelevant and prejudicial

testimony, and the trial court imposed discretionary legal financial obligations (LFOs)
No. 34327-8-111
State v. Moore


without inquiring into Mr. Moore's current or futur~ ability to pay. 1 The only possible

error was not preserved. We affirm.


                     FACTS AND PROCEDURAL! BACKGROUND
                                                         !

                                                         '

       On June 4, 2015, detectives with the Quad qities Drug Task Force attempted to
                                                         I



locate Shannon Grove, who had been cooperating 'fith law enforcement as a controlled

buyer of narcotics but had "[gone] sideways" on th¢ task force; Detective Jonathan Coe, a
                                                         i



task force member, described her as "dealing behintl our backs" in violation of her
                                                         I




contract. Report of Proceedings (RP) at 8. Knowi*g from Ms. Grove's prior disclosures.

that she obtained methamphetamine from out-of-to-}vn suppliers at Gary Kemper's home
                                                      I

in Clarkston Heights, detectives surveilled the area ;of his home in hopes of sighting her.

       As expected, Ms. Grove was observed leavi$g Mr. Kemper's home in the
                                                     I



passenger seat of a red pickup truck driven by Carl !Moore. Officers followed the truck

and initiated a stop. While another officer spoke w~th Ms. Grove, Detective Coe spoke

with Mr. Moore.

       The detective's knowledge of Mr. Moore's ~ackground combined with his

presence at the Kemper home and accompaniment py Ms. Grove led Detective Coe to
                                                     I




       1
         In a statement of additional grounds for review, Mr. Moore makes additional
arguments that the State's only witness testified falsely at trial in several instances. We
reject those challenges, since "[ c ]redibility determihations are for the trier of fact and
cannot be reviewed on appeal." State v. Camarillo( 115 Wn.2d 60, 71, 794 P.2d 850
(1990).

                                              2
No. 34327-8-111
State v. Moore


suspect Mr. Moore was using or selling methamph~tamine. After advising him of his

Miranda 2 rights, Detective Coe questioned Mr. Moore, asking ifhe had any narcotics.

Mr. Moore said he did not, but his demeanor sugge~ted otherwise to the detective, who
                                                             I



told Mr. Moore, "Look, Carl, got drugs on you [sic], I can work with you, we can help

take care of this, so why don't you just take 'em out." RP at 88. Mr. Moore did,

emptying his pockets of a "baggie" containing thre¢ smaller baggies of
                                                             '



methamphetamine and a glass smoking pipe. In re~ponse to Detective Coe's proposal
                                                         i


that Mr. Moore ameliorate charges by cooperating with the task force, Mr. Moore

answered that he would. The detective put Mr. Mopre in handcuffs, placed him under

arrest for the drug possession, and had other office~s transport him to the jail, telling Mr.
                                                         I




Moore, "I'll get back to you." RP at 22.
                                                         '
       Moments after officers left for the jail with Mr. Moore, Detective Coe was told

that a robbery suspect who had also been at the Ke~per home was attempting to elude

officers who had signaled him to pull him over. T}ie detective got in his own car to assist

in the pursuit. After the pursuit escalated into an officer-involved shooting, Detective

Coe and others were sequestered indefinitely for an investigation. Knowing it would be

difficult to timely complete a probable cause affidaivit in support of Mr. Moore's arrest

and detention, Detective Coe called the jail and sptjke with Mr. Moore. He told Mr.
                                                     !




       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. C~. 1602, 16 L. Ed. 2d 694 (1966).

                                              3
No. 34327-8-III
State v. Moore

                                                             '

Moore he would be released without charges in exchange for cooperating with law

enforcement, and told Mr. Moore to call him after ~is release.
                                                             '
                                                             I

       Mr. Moore did not thereafter call Detective cpoe, and the detective's calls to the

cell phone number he had been given by Mr. Moor~ were not answered. Because Mr.
                                                             i
Moore was transient, Detective Coe was unable to ~ocate him.

       Then, on October 7, 2015, while Detective     Goe was surveilling another house
known to be a narcotics trafficking site, he saw Md Moore arrive at the house, enter, and
                                                         I
                                                         I
                                                         i

leave about 15 minutes later. After a deputy in a m~rked car pulled over Mr. Moore's

pickup, Detective Coe arrived, pointed out to Mr. Moore that he had never made contact
                                                         I



or done anything to cooperate, and stated, "I'm goi~g to arrest you for the drugs that you

had." RP at 31. During a search incident to arrest, !the detective found narcotics in Mr.

Moore's pocket. Detective Coe then completed probable cause reports for both arrests.
                                                         I
       The State charged Mr. Moore with two counts of possession of methamphetamine,

one each for the substances discovered in June and )October. In a pretrial motion to
                                                     I
                                                     '

suppress, Mr. Moore argued that the information afailable to task force members at the

time of the June 4 stop "fail[ ed] to give rise to a re~sonable suspicion of specific criminal
                                                     I




activity on the part of either Mr. Moore or his pass¢nger" so, "the stop of Mr. Moore's
                                                     I
                                                     I


vehicle was unlawful and all fruits of the unlawful ~top must be suppressed." Clerk's

Papers (CP) at 32-33. He argued that the October Stop "constitutes fruit of the poisonous
                                                     I

                                                     I


tree, as it is the Un-attenuated byproduct of the initirl unlawful stop on June 4." CP at 33.
                                                     I




                                              4
No. 34327-8-III
State v. Moore


The trial court denied the suppression motion, concluding that officers had reasonable

suspicion on June 4 that the occupants of Mr. Moore's pickup truck were involved in

illegal drug activities. It concluded that the controlled substances seized on June 4 and

October 7 were, respectively, the result of a lawful investigative detention and of a lawful
                                                         i


search incident to arrest.

       Following a one-day trial at which Detectiv~ Coe was the only witness, the jury

found Mr. Moore guilty on both counts. The baggies alleged to be those obtained from

Mr. Moore in June and October and lab reports ideq.tifying their contents as
                                                         I




methamphetamine had been offered by the State anµ admitted without objection.

       The trial court sentenced Mr. Moore to eigh~ months for each count, to run
                                                     I

concurrently, and imposed $4,770 in LFOs. While !the judgment and sentence contained

a boilerplate finding of Mr. Moore's ability to pay tlhe LFOs, the trial court did not

inquire into ability to pay on the record. Mr. Moorf did not object. He now appeals.

                                        ANALYSIS:

                       Violation of Fourth Amendment and CrR 3.2.1
                                                     i

       Mr. Moore first argues that the evidence obthined during the October arrest should

have been suppressed because re-arresting Mr. Moq,re on the same evidence that

supported his June arrest was unconstitutional undtjr the Fourth Amendment to the United

States Constitution without first obtaining a warranjt. His reasoning is this:

      •       An arrest requires a warrant or probable cause.

                                              5
No. 34327-8-111
State v. Moore


      •       Where a warrantless arrest is made, C~R 3.2.l(a) provides, consistent with
              the Fourth Amendment, that "[a] perspn who is arrested shall have a
              judicial determination of probable cause no later than 48 hours following
              the person's arrest, unless probable cause has been determined prior to such
              arrest."
      •       There was no judicial determination qf probable cause within 48 hours
              following Mr. Moore's warrantless artest on June 4.
      •       In accordance with the reasoning of srate V. Watkins, 399 So. 2d 153, 154
              (La. 1981) and United States v. Holmes, 452 F.2d 249,260 (7th Cir. 1971),
                                                             I

              we should hold that once the 48-hour ~ime frame for a judicial
              determination of probable cause is mi~sed, any arrest thereafter requires a
              warra11t-lest police continually re-arrest individuals on the same evidence
              without the protection against unreas1nable police interference provided by
              a neutral magistrate.                      i




Mr. Moore admits that no Washington case directly supports his challenge. 3 He contends
                                                         '



this argument was sufficiently raised below by def~nse counsel's claim that the October
                                                         '
                                                         !


stop had no legal basis. Alternatively, he argues that it was ineffective assistance of
                                                         I

                                                         I

counsel not to have made this argument in support ~f suppression.
                                                     I

       This argument was not sufficiently raised in ithe trial court. Neither in his
                                                     I




       3
         He characterizes State v. Bradford, 95 Wn. App. 935, 978 P.2d 534 (1999), as
                                                     1




indirectly providing support by considering suppre$sion as a remedy for a violation of
CrRLJ 3.2.1. But in that case, the violation of the t1t1le was one circumstance considered
in determining whether the defendant's confession ~o a crime following a too-long
detention was involuntary. This court concluded ttlat while it did not condone the
"unnecessary and unwarranted delay" in the preli~nary appearance, the delay was "but
one of the factors to be taken into consideration in ~etermining whether [the] confession
was voluntary for [the] purposes of the Fifth Amen~ment." Id. at 949. After reviewing
the factors, this court found the confession was volpntary. Id. It was the possible
involuntariness of the confession that would have supported reversal, not the rule
violation.

                                              6
No. 34327-8-111
State v. Moore


memorandum in support of suppression nor at the hiearing did defense counsel mention

CrR 3.2.1, or the two cases whose reasoning Mr. Moore now asks us to embrace, or, for

that matter, any Fourth Amendment jurisprudence requiring judicial determination of

probable cause following a warrantless arrest.

       RAP 2.5(a) states the general rule for appellate disposition of issues not raised in

the trial court: appellate courts will not entertain th~m. State v. Guzman Nunez, 160 Wn.
                                                          I
                                                          i

App. 150, 157, 248 P.3d 103 (2011) (citing State v. 'Scott, 110 Wn.2d 682, 685, 757 P.2d

492 (1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2tjl2). This rule exists to afford the trial

court an opportunity to correct errors as they are ra~sed, thereby preserving the use of
                                                          i
                                                          I

judicial resources. Scott, 110 Wn.2d at 685; Smith~- Shannon, 100 Wn.2d 26, 37, 666
                                                          !




P.2d 351 (1983).
                                                      I

       Mr. Moore argues that if the error was not pteserved, the conviction is nonetheless

reversible on the basis of ineffective assistance of dounsel. Effective assistance of
                                                      !




counsel is guaranteed by both the federal and state ~onstitutions. U.S. CONST. amend. VI;
                                                      I



WASH. CONST. art. I, § 22; Strickland v. Washingto~, 466 U.S. 668, 686, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460,471,901 P.2d 286 (1995). To

demonstrate ineffective assistance of counsel, a de(endant must show two things: "( 1)
                                                     !



defense counsel's representation was deficient, i.e., it fell below an objective standard of
                                                     I'

reasonableness based on consideration of all the ci~cumstances; and (2) defense counsel's

deficient representation prejudiced the defendant, i.e., there is a reasonable probability

                                              7
No. 34327-8-111
State V. Moore


that, except for counsel's unprofessional errors, theiresult of the proceeding would have

been different." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)

(citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). When a claim

can be disposed of on one ground, this court need nbt consider both. Strickland, 466 U.S.

at 697.

          Washington courts strongly presume counsei's representation was effective.

McFarland, 127 Wn.2d at 335. A claim of ineffect~ve assistance of counsel can be raised
                                                           I




for the first time on appeal. State v. Kyllo, 166 Wnj2d 856, 862, 215 P.3d 177 (2009).
                                                           !




          To determine whether trial counsel's failure ~o raise this issue was deficient
                                                           I



performance, we consider whether the warrantless October arrest was arguably improper.
                                                       !

                                                       I


Mr. Moore's argument is essentially that the proba*le cause supporting one arrest cannot
                                                       !
                                                       I


constitutionally support re-arrest-instead, an arres~ warrant must b~ obtained.
                                                       !



          "To implement the Fourth Amendment's prQtection against unfounded invasions
                                                       I
                                                       I




of liberty and privacy, the [United States Supreme]/Court has required that the existence
                                                       I



of probable cause be decided by a neutral and detaqhed magistrate whenever possible."

Gerstein v. Pugh, 420 U.S. 103, 112, 95 S. Ct. 854,i 43 L. Ed. 2d 54 (1975). The Fourth
                                                       !



Amendment requirement of a judicial determinatiob of probable cause is "a prerequisite

to extended restraint of liberty following arrest," h~wever, not to the arrest itself. Id. at

114 (emphasis added). Despite the preference for use of arrest warrants when feasible,

"[T]he Court ... has never invalidated an arrest supported by probable cause solely

                                                8
No. 34327-8-III
State v. Moore


because the officers failed to secure a warrant." /d.,at 113 (citations omitted). Rather,

"[T]he Fourth Amendment requires a timely judicial determination of probable cause as a

prerequisite to detention," id. at 126, and as "a con4ition for any significant pretrial

restraint of liberty." Id. at 125. "[A] jurisdiction that provides judicial determinations of

probable cause within 48 hours of arrest will, as a general matter, comply with the

promptness requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44,
                                                      i


56-57, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991).      I
                                                      I

                                                      !
        In Washington, the requirement for a prompt judicial determination of probable
                                                      I



cause is codified in CrR 3.2.l(a). See Harrison Me'rn 'I Hosp. v. Kitsap County, 103

Wn.2d 887,891, 700 P.2d 732 (1985) (noting CrR h.2A 4 "was designed to protect a

prisoner's constitutional privileges"). Consistent with the Fourth Amendment's
                                                      I



protection against the serious consequences of prolbnged detention, CrR 3 .2.1 provides

that at the time of the preliminary appearance of a defendant who was subjected to a

warrantless arrest, the court must proceed to determine probable cause if bail or other

conditions to release are ordered. CrR 3.2.l(b), (e)(2). CrR 3.2 provides that "[i]fthe

court does not find, or a court has not previously ftjund, probable cause, the accused shall

be released without conditions."




        4
            Former CrR 3.2A (1992) was renumbered rs CrR 3.2.l(a)-(b) effective April 3,
2001.

                                              9
No. 34327-8-III
State v. Moore


         Mr. Moore was released without conditions $hortly following his June arrest. He

was arrested "early in the morning." RP at 109. H¢ "was almost immediately released"

because Detective Coe knew he would be unable toi complete a probable cause report due

to the investigation of the officer-involved shooting. RP at 120. The exact amount of

time Mr. Moore was detained that day is unknown, :but it appears to have been only a few

hours.

         Mr. Moore was re-arrested at an unknown time on October 7. On October 8, at
                                                        !




9:12, 5 a bond hearing was held and Mr. Moore's bap was set at $25,000. Because the

court denied release without bail, it evidently detenpined that probable cause existed. It
                                                    I



appears Mr. Moore was held for less than 48 hours before receiving his constitutionally

guaranteed hearing: several hours in June and perh4ps 24 hours in October. There is no
                                                    I



discemable error.

         The two non-Washington decisions Mr. Mo<)>re urges us to find persuasive are

distinguishable. In Watkins, a pre-McLaughlin decision, the defendant was ordered
                                                    '



released after he was detained for more than 72 hours following a warrantless arrest

without going before a neutral magistrate. Watkins, 399 So. 2d at 154. Moments after

his release, he was re-arrested without a warrant an~ without a determination of probable
                                                    I




         5
          Presumably 9: 12 a.m., although the crimin~l minutes prepared by the district
court do not specify. See Contact District Court, AlsoTIN COUNTY,
http://www.co.asotin.wa.us/district-court/contact/ [https://perma.cc/EG3T-KULX]
(listing hours for Asotin County District Court as 8:00 a.m. to 5:00 p.m.).

                                             10
No. 34327-8-111
State v. Moore


cause, and was denied release. Id. at 155. The Lou;tsiana Supreme Court held this

procedure was a "revolving door" that allowed the State to circumvent the release order.

Id. at 156. While recognizing that "there is no 'absolute immunity' from rearrest after

release" for violation of its 72-hour rule, the court r~asoned that the State must have legal

grounds for re-arrest, which it concluded in Mr. wJtkins's circumstances required a
                                                         i

                                                         '
warrant. Id. at 155 (quoting State v. Wallace, 392 ~o. 2d 410,413 (La. 1980)).

       Watkins would support Mr. Moore's argumejnt ifhe had been held for more than
                                                     I

                                                     I
48 hours in June without a probable cause hearing. As Mr. Moore contends, to allow law
                                                     i




enforcement to detain individuals for more than 48 lhours without a judicial determination
                                                     I


of probable cause, followed by release, re-arrest, and an additional 48 hours within which
                                                     i

to conduct a preliminary appearance, would subjec~ defendants to the prolonged detention
                                                     I
                                                     I

without a judicial determination of probable cause forbidden by the Fourth Amendment.
                                                     i
                                                     I

But that was not the situation here. Even Mr. Mo01re's combined June and October pre-

hearing detention (let alone the June detention itselb did not exceed 48 hours. The

concerns addressed in Watson do not apply.

      Holmes is similarly inapposite. There, a de(endant was arrested in March 1967

and, following an indictment, was released on bond. Holmes, 452 F.2d at 260. He was

then re-arrested in October without a warrant after fl superseding indictment was

returned. Id. On review, the Seventh Circuit found the re-arrest violated the Fourth

Amendment because it served no purpose:

                                             11
No. 34327-8-111
State v. Moore


      Not only must there be reason to believe tha~ a prospective arrestee is guilty
      of a crime; in addition, there must be some pµrpose to be served by making
      an arrest. During the entire period between :rr.,,Iarch and October 18, 1967,
      probable cause to believe that [the defendan~ had committed an offense
      continued to exist because he was under indiftment. But since he had been
      admitted to bail, no purpose could have bee11 served by continually
      rearresting him. Although at large, in conteri1plation of the law he
      remained in custody. In historic terms, he w~s the prisoner of his bail.
              The return of the second indictment j~stified a review of his
      custodial status. Additional charges might h~ve made a rearrest proper, to
      be followed either by termination of bail or cl modification of its conditions.
      In [this] case, however, when the second indjctment was returned, the judge
      ordered no change in his custodial status. Tte subsequent arrest, therefore,
      had no greater purpose than if there had bee no second indictment.
              We recognize that a variety of valid c uses for a rearrest of a person
      admitted to bail may exist, see Carlson v. L~ndon, 342 U.S. 524, 546-547,
      72 S. Ct. 525, 96 L. Ed. 547 [(1952)], but cehainly the continuing
      knowledge of his possible guilt of the offens~ charged in the indictment is
      not itself sufficient; otherwise, harassment b~ continual rearrests could be
      justified by the continuing existence of "probable cause."

Id. at 260-61 (footnotes omitted). Holmes applies what appears to be the general rule that

where one has been released on bail, he cannot be ~rrested in the same jurisdiction on the

same charge on which the original arrest was made1 See United States ex rel. Heikkinen
                                                     I
                                                    ;

v. Gordon, 190 F.2d 16, 19 (8th Cir. 1951), citedwfth approval in Carlson, 42 U.S. at

546 n.47. By contrast, upon his release in June, Mr. Moore had not been charged, was

not released on bail, and was under no formal requijrement to appear.
                                                    I




       Mr. Moore's novel argument on appeal has ijio basis in existing law. Failing to

make the argument in the trial court could not be d¢ficient performance.
                                                    I




                                             12
No. 34327-8-111
State v. Moore


                                Comment on the evidence     I




       Mr. Moore next assigns error to what he contends was a comment by the trial

court on the evidence in violation of the Washingtoh Constitution. At issue is the trial
                                                        !




court's statement, made shortly after admitting the ~aggies of methamphetamine as
                                                        j

                                                        !

exhibits: "Keep track of that. I don't want my cou1room becoming a superfund cleanup

site." RP at 124.

       Article IV, section 16 of the Washington Coµstitution provides: "Judges shall not
                                                        i
                                                        I


charge juries with respect to matters of fact, nor cmhment thereon, but shall declare the
                                                        !
                                                        !
                                                        i
law." "The purpose of this provision is to prevent ~jury from being influenced by
                                                        I



knowledge conveyed to it by the trial judge as to thb trial judge's opinion of the evidence
                                                        I



submitted." State v. Swan, 114 Wn.2d 613,657, 7~0 P.2d 610 (1990). A trial court

improperly comments on the evidence if it effectiv~ly removes "a disputed issue of fact
                                                    !




from the jury's consideration." State v. Becker, 131 Wn.2d 54, 65,935 P.2d 1321 (1997).
                                                    i


       Mr. Moore asserts that whether the substanc~ in the baggies admitted into
                                                    !


evidence was methamphetamine was a disputed iss~e of fact for the jury to resolve, but

the record belies this assertion. Rather than challertging whether the baggies in evidence

contained methamphetamine, defense counsel attempted to cast doubt on the chain of

custody, suggesting that the methamphetamine in e~idence had not come from Mr.
                                                    I




Moore. In closing argument, defense counsel told jurors:




                                            13
No. 34327-8-III
State v. Moore


              Is there a reasonable doubt that this sJbstance contains--that this
       bag contains methamphetamine[?] No. YoJ've got the lab reports.
              This is P-3. And you'll be able to takf this back in the jury room
       with you. And there's a lab report that goes !with it that says this substance
       is methamphetamine.
              This is P-1. And there's a lab report ~at goes with this that says that
       substance is methamphetamine.                  ·
              Is there a reasonable doubt there? No.

               The hang-up is in the possession. Be¢ause for all of the testimony
       that we heard ... we don't know when this got put in the bag. Det. Coe
       wasn't able to tell you. He doesn't know. Be doesn't know who took it up
       to the evidence vault. He can't tell you.    !


               Same with this one. He doesn't kno~ when this went in the
       evidence bag, when he wrote his initials on i~. He doesn't know when it got
       to the evidence vault .... He doesn't know /whether he took it there. He
       doesn't know [whether] one of the other det~ctives took it there.
                                                    I

                Am I suggesting that Det. Coe made, mistake[?] Yes ....
                                                    I



             Police officers are human. They mat¢ mistakes. We understand
      that. But if there's a possibility that Det. Cob made mistakes like he did all
      morning on the stand, that's a reasonable dohbt.
             Because remember, folks, ... no matj:er what the tape says, no
      matter what the stickers say, no matter whatJs on the lab report, there is
      nothing connecting the contents of these bags with Mr. Moore except the
      testimony of that mistaken officer.            ·

RP at 174-78.

      Mr. Moore argues on appeal that defense coµnsel' s closing argument is not

evidence. True. But his closing argument reveals what was and was not in dispute.

Because it was not disputed that the baggies admitt~d into evidence contained

methamphetamine, the trial court's attempt at hum<?r cannot be characterized as a

comment on the evidence.

                                            14
No. 34327-8-III
State v. Moore


                           Ineffective assistance: faiiure to object

       Mr. Moore next argues that his trial lawyer provided ineffective assistance of

counsel by failing to object to testimony from Detective Coe that was irrelevant,

prejudicial, or was prior bad act evidence precluded by ER 404(b ). As earlier discussed,

a claim of ineffective assistance fails unless it is demonstrated both that counsel's

performance was deficient and that the defendant sti1ffered prejudice as a result. Deficient
                                                       i

performance is not shown by matters relating to trial strategy or tactics. See State V.

Sardinia, 42 Wn. App. 533, 542, 713 P.2d 122 (1986). To prevail on an ineffective

assistance of counsel claim based on the failure to qbject, the defendant must show (1) an

absence of legitimate strategic or tactical reasons fqr failing to object, (2) that the

objection would likely have been sustained if raiseq, and (3) that the result of the trial

would have been different had the evidence not betm admitted. State v. Saunders, 91 Wn.

App. 575, 578, 958 P.2d 364 (1998).

       Mr. Moore first contends defense counsel shbuld have objected to Detective Coe's
                                                      '



statement that Mr. Moore was transient, made during the detective's recount of Mr.

Moore's failure to uphold his end of the cooperatiop agreement, which he also believes

was improper:

       Q      Did you make effort to make contact ~ith him?
       A      Yes. He had provided me with his c~ll phone number, and I called it
              a couple times afterwards and never dould get hold of him. And he
              was transient, so I couldn't find him.;


                                              15
No. 34327-8-III
State v. Moore


RP at 95. Mr. Moore argues that his transience and/ailure to uphold an agreement were

irrelevant to proving the offense, which simply reqtiires proof of the fact of possession

and the nature of the substance. He argues that the ¢!vidence served only to paint him in a

negative light to the jury.

       The evidence served the additional purpose of explaining why Mr. Moore was not

arrested for his June possession of narcotics until O~tober, however, which in tum

explained why, in October, the detective could perf"brm a search incident to arrest. So

Mr. Moore does not demonstrate that an objection tb the evidence would have been

sustained. And for tactical reasons, defense counsel might have preferred that the direct

examination move on from the fact that the detective and Mr. Moore had not been in

contact, rather than draw the jury's attention to the reasons why.

       Mr. Moore next assigns error to the following testimony about the Kemper

residence, specifically as it relates to alleged illicit behavior in proximity to a day care:

       That was the residence of Gary Kemper, whb lived up here in the-in the
       Heights, right there on 20th next to the day qare--right next to the day care.
       He was running drugs out of there. And we 'r], received lots of complaints
       because of the traffic, because of needles an'<f syringes being tossed into the
                                                       :

       yard where the kids play. The-the confronfation, the thefts in the area.
       Shannon Grove herself had told us that she ~as involved with Gary
       Kemper, trafficking narcotics, and told us who that they were getting it
       from. So we knew about her involvement Jith him. And that's where she
       was at.

RP at 84 (emphasis added); see also RP at 126 ("Ahd then the house is directly next to

the day care, to the south."). Mention of the day caire came up in the context of the

                                               16
No. 34327-8-111
State v. Moore

                                                        !

detective describing where the Kemper house was located, although what followed was

arguably irrelevant. An objection or request to striW.e likely would have been sustained.

But the information did not implicate Mr. Moore. And it provided support for defense

counsel's closing argument that Detective Coe was tnot credible because his claim to have

made a cooperation agreement with Mr. Moore ma4e no sense. Defense counsel argued

that Mr. Moore-a "small fish" to the task force-1{.new only Shannon Grove and Gary

Kemper, whose involvement in drug trafficking wa$ already well known to task force

members. RP at 51. The decision not to object could well have been tactical.

       Mr. Moore's next challenge relates to Detec~ive Coe's statement about a

"scenario" with Mr. Moore's son:

       Q       Prior to October 7 did you have any tjther contact with Mr. Moore?
       A       Not-not actual contact. He was-he was involved in a--scenario
               that--that occurred at a motel in Clar~ston involving him and his
               son.
       Q       He hadn't made any contact with your And you-had you--caught
               up with him?                          '
       A       Before that?
       Q       Before October 7.
       A       Oh. Oh. I'm sorry. I apologize. Noi No. Between the time of his
               arrest and release, and-and the time+-1 ultimately arrested him and
                                                    I

               put him in jail, he didn't have any co*act at all with us.

RP at 95. Here again, the detective's testimony di~ not implicate Mr. Moore. Defense

counsel could have made the tactical judgment not to draw attention or suggest, by

objecting, that it did.



                                            17
No. 34327-8-III
State v. Moore

                                                               i

       Mr. Moore then asserts defense counsel shotild have objected when, in reference
                                                               i



to the June arrest, Detective Coe stated: "I believe   [Mr. Moore] had a warrant or
                                                               !



something, too. I can't remember." RP at 94. But ~efense counsel addressed this
                                                               '

misstatement by the detective in a more effective w~y. Through cross-examination, he
                                                               !




obtained the detective's concession that he was mistaken, a concession that supported the

central theme of the defense closing argument: that ~he jury should reasonably doubt the

State's case because of a number of mistakes made ~y Detective Coe.
                                                           I
                                                           I


       Mr. Moore also objects to the following staNment that he was involved in an

earlier case:

       Q        You stopped him 'cause Shannon Grdve was in his car.
       A        Yes, initially, yes.
       Q        Okay. So,-But there was nothing aqout his behavior-
                                                           1

       A        No.                                        I

       Q        Okay. --give you any reason to be s~spicious of him.
       A        Other than-I've known him from th¢I past, and I know what he's
                been involved in.
       Q        Okay. I thought you testified earlier ~hat you hadn't met him face to
                face before.                           1
                                                       I


       A        No. Not that I can recall. But he ha~ been a participant in-
       Q        Okay. Okay.
       A        -prior case.
       Q        All right, Detective. All right.

RP at 108 (emphasis added). Mr. Moore cannot demonstrate that an objection to the
                                                       I



detective's explanation would have been sustained by the trial court, which could have
                                                       '
viewed the detective's answer as responsive to defdnse counsel's line of inquiry. And

given the ambiguity of being "a participant" in a pr~or case, defense counsel might not
                                                       !



                                               18
No. 34327-8-III
State v. Moore


want to draw attention or suggest by moving to stri~e the testimony that Mr. Moore had
                                                             !




been a criminal participant.

       Finally, Mr. Moore argues defense counsel should have objected to the following
                                                             '



testimony that suggested Mr. Moore was a drug trafficker:

       Because there were three baggies, it appears ~o us--the only time that
       people do that is when they're going to be se~ling those bags. They'll pre-
                                                         ,


       measure up, they'll set them-you know,--srnaller baggies, so that if you
       want-20 or 40 or 60 they'll have them pre-tneasured out so they don't
       have to do it-like in a parking lot of sometliing. They just pull out the bag
       that you want, it's already ready to go, just l~e at a grocery store.

RP at 92 (emphasis added). Relatedly, Mr. Moore trgues an objection should have been
                                                         I




made to Detective Coe's testimony that the task forbe uses "people like Mr. Moore"-
                                                         1




meaning low-level drug traffickers-"to go into thtjse places that they've been buying

narcotics from and buying under our control." RP it 93.

       Given the detective's testimony elsewhere t~at Mr. Moore was "low on the

ladder," not a mid- to high-level trafficker of the sort targeted by the task force, Mr.

Moore does not demonstrate a reasonable probability that but for counsel's failure to

object, the outcome of the trial would have been different. RP at 93. The detective's

characterization of Mr. Moore as a small-time trafficker was inconsequential in the face

of the following evidence supporting the possession charges: the baggies and lab reports
                                                     !




(albeit attacked on chain of custody grounds), Mr. Moore's presence at known narcotics

trafficking locations in both June and October, his <,tdmission to Detective Coe in June
                                                     !




                                              19
No. 34327-8-III
State v. Moore


that the baggies in his possession contained methartjphetamine, and a recording of the

following exchange with Detective Coe at the time rf the June arrest:

       Q      Okay, but you bought this dope from ~hannon?
              [Silence.]                               •·
       Q      Okay, you said you were gonna be square, this is the time to be
              square.
       A      Yeah.
       Q      Is there any more in your ... your vetlicle?
       A      No, nothin', I-I don't know about th~ stuff I picked up, I don't
              know.                                      1




       Q      Okay.                                    ,
       A      I can't answer for her, [unintelligible]( but I know I don't have
              nothin' other than what she gave me.       i




Ex. P-5 at 2 min., 5 sec., through 2 min., 35 sec.

                                 Legal financial oblitations

       Mr. Moore next argues the trial court erred when it imposed LFOs without

conducting the required individualized inquiry into lhis ability to pay. But Mr. Moore

made no objection to the trial court's finding that ht had the present and future ability to
                                                     !



pay and thereby failed to preserve a claim of error. RAP 2.5(a); State v. Blazina, 182
                                                     1




Wn.2d 827, 833, 344 P.3d 680 (2015) ("[u]npreserired LFO errors do not command

review as a matter of right").

       Mr. Moore was sentenced on April 4, 2016, µiore than a year after Blazina. A

majority of the panel declines to review this unpres~rved claim of error.




                                             20
No. 34327-8-111
State v. Moore


                                     Appellate costs

       Mr. Moore asks us to waive appellate costs   ir he does not substantially prevail on
appeal. He complied with our June 10, 2016 Gene$1 Order6 by requesting the waiver in

his opening brief and simultaneously filing his report of continued indigency. Having

reviewed his report, we exercise our discretion to d~ny costs on appeal. See RAP 14.2.

      Affirmed.
                                                    I

      A majority of the panel has determined this ~pinion will not be printed in the

Washington Appellate Reports, but it will be filed tbr public record pursuant to RCW

2.06.040.




WE CONCUR:




                                                Pehnell, J.
                                 j




      6
        Gen. Order of Division III, In re the Matter of Court Administration Order re:
Request to Deny Cost Award (Wash. Ct. App.), htt~://www.courts.wa.gov/
appellate_trial_courts/?fa=atc.genorders_ orddisp&brdnumber=2016_001 &div=III.


                                           21
