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City of Tacoma v. Durham5/7/1999
lay investigation if to do so would gravely endanger human life).
In light of the entire statute, considering both legislative intent and plain language, we hold that the RALJ court properly determined that Officer Quinn effected a valid arrest. Fresh pursuit is a more flexible doctrine under RCW 10.93.120 than it was at common law, and we interpret the statute liberally to allow for an arrest under the circumstances presented here. The individual need not know he is being pursued, nor must the active pursuit cross a boundary.
We also note that, even if the elements of fresh pursuit were not satisfied under RCW 10.93.120, there was an independent basis for a valid arrest. According to RCW 10.93.070(2), a police officer may cross over to another jurisdiction and make an arrest "{i}n response to an emergency involving an immediate threat to human life or property". In this case, Officer Quinn was responding to a 911 call by Stewart, who observed Durham's car weaving across the center line after it ran a red light and nearly struck his car. Clearly, this situation presented an emergency, and Quinn reasonably responded across jurisdictional lines. Such erratic driving was an immediate threat to human life or property.
II.
Durham next contends that his lawyer provided ineffective assistance when he failed to challenge the legality of his arrest and move to suppress the evidence obtained pursuant thereto. In order to establish ineffective assistance of counsel, the defendant must show both unreasonable performance, and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); State v. Contreras, 92 Wn. App. 307, 318, 966 P.2d 915 (1998).
It is strongly presumed that counsel's performance was reasonable. McFarland, 127 Wn.2d at 335-37. Just as an appellate lawyer is not considered ineffective for failing to raise every conceivable non-frivolous claim of error, a trial lawyer cannot be faulted for failing to make a record of every such allegation. See generally, In re Lord, 123 Wn.2d 296, 314, 868 P.2d 835, 123 Wn.2d 737, cert. denied, 513 U.S. 849 (1994). Regarding the prejudice component, the defendant must show that if his lawyer had brought a motion to suppress, there is a reasonable probability that the motion would have been granted. McFarland, 127 Wn.2d at 337 n. 4; Contreras, 92 Wn. App. at 317.
Durham's trial lawyer did not challenge the arrest under RCW 10.93. However, as discussed above, such a challenge would not have been successful, because the arrest was valid under both the fresh pursuit and the emergency sections of RCW 10.93.070. Although this legal issue was not frivolous, Durham's trial lawyer did not fall below the standard of reasonable performance by failing to make a record on this claim. We hold that Durham fails to establish either the performance or the prejudice prong of ineffective assistance of counsel.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, C.J.
We concur: Houghton, J. Hunt, J.
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