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State v. Pegs

December 27, 1999

STATE OF WASHINGTON,
RESPONDENT,
V.
LEONARD PEGS, JR.,
APPELLANT.



SOURCE OF APPEAL ---------------- Appeal from Superior Court of Snohomish County Docket No: 98-1-00211-0 Judgment or order under review Date filed: 08/13/1998 Judge signing: Hon. Linda Krese

The opinion of the court was delivered by: Per Curiam

UNPUBLISHED

Leonard Pegs, Jr., appeals the judgment and sentence entered against him for first degree possession of stolen property. For the first time on appeal, he claims his constitutional right against self-incrimination was violated by an officer's testimony that Pegs refused to talk about the incident when questioned. Because Pegs fails to establish that the alleged violation is a manifest constitutional error, we decline to review it. We affirm.

In January 1998, Pegs and James Ballou entered the Egghead computer store in Lynnwood and walked past store manager Paul Schnell. Schnell noticed that Ballou was wearing very baggy clothing. Pegs and Ballou walked toward a display case containing laptop computers. One of them then kneeled down in front of the display case while the other stood by.

Later, Schnell saw Pegs and Ballou leave the store. He noticed that Ballou had a rectangular bulge under the back of his jacket. Schnell followed them out of the store and asked Ballou if he wanted to leave the product on the sidewalk. Ballou answered, "No. What product?," and started walking away. Schnell then turned to Pegs and asked if his friend was going to walk home. Pegs answered that they did not come together and got in his car. Schnell proceeded to write down the car's license plate number. When Pegs asked Schnell what he was doing, Schnell replied that he was writing down information to give to the police. Pegs then asked if it would be okay to bring the product back or get his friend to bring it back. Schnell said that would be fine. Pegs then drove across the parking lot, picked Ballou up, and drove away.

Officer Rod Cohnheim stopped Pegs about two miles away. Officer Cohnheim testified that he asked Pegs and Ballou if they would like to talk about the incident and that they said they would not. Later, Schnell arrived and identified Pegs and Ballou. The police found a laptop computer inside the car with a serial number that matched the serial number on an empty computer box that was inside the store's display case. Schnell found that the display case had pry marks.

The State charged Pegs with first degree possession of stolen property. A jury found him guilty, and he appeals.

Manifest Error

For the first time on appeal, Pegs argues that Officer Cohnheim's testimony about Pegs' refusal to talk about the incident violated his Fifth Amendment right against self-incrimination. Pegs asserts that failure to raise the issue below does not preclude review. We disagree.

Under State v. Lynn,*fn1 analyzing alleged constitutional error raised for the first time on appeal is a four-step process:

First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.*fn2

Officer Cohnheim's testimony regarding Pegs' refusal to talk about the incident implicates the constitutional protection afforded against self-incrimination. The testimony was as follows:

{Counsel:} And was {Pegs} in the vehicle at the time you ...


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