State Of Washington, Resp. v. Neldin Licona-rivera, App. ( 2014 )

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20IM APR 28 AH 10:1*8
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69509-6-1
Respondent,
v. DIVISION ONE
NELDIN ODAIR LICONA-RIVERA, UNPUBLISHED OPINION
Appellant. FILED: April 28, 2014
Leach, J. — Neldin Licona-Rivera appeals his conviction for robbery in the
first degree. He claims that the admission into evidence of recordings of
telephone calls he placed to his mother and girl friend from the King County jail
violated his rights under Washington's privacy act, chapter 9.73 RCW, and article
I, section 7 of the Washington State Constitution. He also contests the court's
burden of proof instruction that described "beyond a reasonable doubt" as "an
abiding belief in the truth of the charge." Because Licona-Rivera cannot
challenge on appeal the admission of the telephone conversations and he fails to
show that the disputed jury instruction was improper, we affirm.
Background
On March 6, 2012, the State charged Licona-Rivera with robbery in the
first degree. While confined in the King County jail before trial, he placed
telephone calls to his girl friend and his mother. The jail recorded these
No. 69509-6-1 / 2
conversations. Before each phone call, both Licona-Rivera and the recipient
received audio notice that the conversation would be recorded.
At trial, over Licona-Rivera's objections, the court admitted into evidence
both of these jail telephone conversations. A jury found Licona-Rivera guilty as
charged.
Licona-Rivera appeals.
Analysis
Licona-Rivera claims that recording telephone calls he placed to his girl
friend and mother from the King County jail violated his rights under
Washington's privacy act and article I, section 7 of the Washington State
Constitution. He alleges that the trial court should have excluded these unlawful
recordings.
Before trial, Licona-Rivera moved to exclude both telephone
conversations for relevance under ER 801 and ER 803. He also argued that
their admission "presents hearsay and 6th Amendment problems." At trial,
Licona-Rivera advanced similar theories for exclusion. At no time did he oppose
admission of the recordings as barred by the privacy act or article I, section 7.
Generally, a failure to move in the trial court to suppress improperly
obtained evidence waives the right to raise the issue on appeal.1 RAP 2.5(a)(3)
allows a party to raise for the first time on appeal a "manifest error affecting a
constitutional right." "A manifest error is one that 'actually affected the
State v. Robinson, 171 Wash. 2d 292, 304, 253 P.3d 84 (2011).
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No. 69509-6-1 / 3
defendant's rights; it is the showing of actual prejudice that makes the error
manifest.'"2 Because Licona-Rivera's privacy act claim does not implicate a
constitutional right, we do not address it.
This court previews the merits of a constitutional argument to determine if
it is likely to succeed.3 Because Licona-Rivera has shown no constitutional error,
he may not challenge the admission of the recordings on constitutional grounds
for the first time on appeal.
Article I, section 7 of the state constitution provides that "[n]o person shall
be disturbed in his private affairs . . . without authority of law." To determine if a
certain interest is a private affair, "'a central consideration is the nature of the
information sought—that is, whether the information obtained . . . reveals intimate
or discrete details of a person's life.'"4
In State v. Archie,5 this court held that this privacy interest does not protect
"agreed to recordings or to the dissemination of a jail inmate's calls."6 We
recently affirmed this holding in State v. Hag.7 In Hag, we explained that "the
2 In re Pet, of Sease, 149 Wash. App. 66, 75, 201 P.3d 1078 (2009) (quoting
State v. McFarland. 127 Wash. 2d 322, 333, 899 P.2d 1251 (1995)).
3 State v. Walsh, 143Wn.2d 1,8, 17 P.3d 591 (2001 Writing State v. WWJ
Corp., 138 Wash. 2d 595, 603, 980 P.2d 1257 (1999)).
4 State v. Hag, 166 Wash. App. 221, 256-57, 268 P.3d 997 (alteration in
original) (quoting State v. Jorden, 160 Wash. 2d 121, 126, 156 P.3d 893 (2007)),
review denied. 174 Wash. 2d 1004 (2012).
5 148 Wash. App. 198, 199 P.3d 1005 (2009).
6 Hag, 166 Wash. App. at 257 (citing Archie, 148 Wash. App. at 203-04).
7 166 Wash. App. 221, 257-58, 268 P.3d 997, review denied. 174 Wash. 2d
1004(2012).
No. 69509-6-1 / 4
holding in Archie was based on the defendant's limited privacy rights as a
detainee, combined with warnings of possible recording."8
In Archie and Hag, signs posted near the telephones warned the inmates
that the calls would be recorded.9 And a recorded message at the beginning of
the phone calls provided a similar warning.10 In these cases, admitting into
evidence the recordings of jail telephone calls did not violate the defendants'
privacy rights.11
This case is analogous to Archie and Hag. Licona-Rivera was a detainee
at the King County jail. Before he placed a call, a recorded message informed
him that the call was "subject to monitoring and recording." Licona-Rivera had to
"press one to accept this policy or press two to refuse and hang up." When the
recipient answered the phone, a recorded message stated,
Hello. This is a prepaid debit call from: Neldin. An inmate at the
King County Detention Facility. To accept this call press zero. To
refuse this call hang up or press one. To prevent calls from this
facility press nine. . .. This call is from a correctional facility and is
subject to monitoring and recording. After the beep, press one to
accept this policy or press two to refuse and hang up.
Consequently, admitting the telephone recordings into evidence did not violate
Licona-Rivera's privacy right.
Licona-Rivera also challenges the court's jury instruction defining the
State's burden of proof:
8 Hag, 166 Wash. App. at 258.
9 Archie. 148 Wash. App. at 201; Hag, 166 Wash. App. at 258.
10 Archie. 148 Wash. App. at 201; Hag, 166 Wash. App. at 258.
11 Archie. 148 Wash. App. at 201; Hag, 166 Wash. App. at 258.
No. 69509-6-1 / 5
A reasonable doubt is one for which a reason exists and
may arise from the evidence or lack of evidence. It is such a doubt
as would exist in the mind of a reasonable person after fully, fairly,
and carefully considering all of the evidence or lack of evidence. If,
from such consideration, you have an abiding belief in the truth of
the charge, you are satisfied beyond a reasonable doubt.
We review a challenged jury instruction de novo, examining it in the context of
the instructions as a whole.12 Jury instructions must inform the jury that the State
bears the burden of proving every essential element of the offense beyond a
reasonable doubt.13 A court commits reversible error if its instructions relieve the
State of this burden.14 Instructions must also properly inform the jury about the
applicable law and must not mislead the jury.15
Licona-Rivera claims, "Equating proof beyond a reasonable doubt with
'belief in the truth' of the charge confuses the critical role of the jury." We
disagree.
In State v. Pirtle.16 our Supreme Court approved a similar instruction,
concluding,
Without the last sentence, the jury instruction here follows
WPIC 4.01 [11 Washington Practice: Washington Pattern Jury
Instructions: Criminal 4.01, at 65 (2d ed. 1994)], which previously
12 State v. Castillo. 150 Wash. App. 466, 469, 208 P.3d 1201 (2009) (citing
State v. Bennett. 161 Wash. 2d 303, 307, 165 P.3d 1241 (2007)).
13 Bennett, 161 Wash. 2d at 307 (citing Victor v. Nebraska. 511 U.S. 1, 5-6,
114 S. Ct. 1239, 127 L Ed. 2d 583 (1994)).
14 State v. Pirtle. 127 Wash. 2d 628, 656, 904 P.2d 245 (1995) (citing State v.
Allen. 101 Wash. 2d 355, 358, 678 P.2d 798 (1984); State v. Roberts. 88 Wash. 2d
337, 340, 562 P.2d 1259 (1977)).
15 Bennett. 161 Wash. 2d at 307 (citing State v. LeFaber. 128 Wash. 2d 896,
903, 913 P.2d 369 (1996)).
16 127 Wash. 2d 628, 658, 904 P.2d 245 (1995). The court in Pirtle approved
an instruction based upon a prior edition of the Washington Pattern Jury
Instructions, but the relevant language is unchanged.
No. 69509-6-1 / 6
has passed constitutional muster. The addition of the last sentence
does not diminish the definition of reasonable doubt given in the
first two sentences, but neither does it add anything of substance to
WPIC 4.01. WPIC 4.01 adequately defines reasonable doubt.
Addition of the last sentence was unnecessary but was not an
error.
Notably, although the court in Pirtle questioned the usefulness of the
"abiding belief language, it found that this language did not diminish the State's
burden of proof.17
Licona-Rivera relies upon State v. Emery,18 where the prosecutor told the
jury to "speak the truth by holding these men accountable for what they did." The
court found this remark improper, explaining, "The jury's job is not to determine
the truth of what happened; a jury therefore does not 'speak the truth' or 'declare
the truth.' Rather, a jury's job is to determine whether the State has proved the
charged offenses beyond a reasonable doubt."19 Licona-Rivera also relies upon
State v. Berube.20 in which the prosecutor asked the jury to "search for the truth,
not a [sic] search for reasonable doubt." The court found this comment improper,
reasoning that "truth is not the jury's job."21
We distinguish the "abiding belief" language in the jury instruction here
from the prosecutors' comments in Emery and Berube. In those cases, the
prosecutor told the jury to speak or search for the truth, which mischaracterized
the jury's role and the State's burden of proof. Here, the challenged instruction
17
Pirtle, 127Wn.2dat658.
18 174 Wash. 2d 741, 751, 278 P.3d 653 (2012).
19 Emery. 174 Wash. 2d at 760 (citation omitted).
20 171 Wash. App. 103, 120, 286 P.3d 402 (2012), review denied, 178
Wash. 2d 1002 (2013).
21 Berube. 171 Wash. App. at 120.
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No. 69509-6-1 / 7
did not direct jurors to find the truth; it merely elaborated on the meaning of
"satisfied beyond a reasonable doubt." Licona-Rivera fails to show that the
court's instruction was improper.
Conclusion
Because Licona-Rivera does not demonstrate a manifest error affecting a
constitutional right, he cannot challenge on appeal the admission of the jail
telephone conversations. Licona-Rivera fails to show that the court's burden of
proof instruction was improper. We affirm.
WE CONCUR:
4mT/