State of Washington v. Donald Glenn Smith ( 2016 )

FILED
AUGUST 23, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33099-1-111
Respondent, )
)
V. )
)
DONALD GLENN SMITH, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, C.J. -After being arrested for theft, appellant Donald Smith uttered
incriminating statements to two law enforcement officers. Upon Smith's talking to the
first officer, the officer gave Smith the Miranda warnings. Smith spoke to the second
officer without renewed warnings. The trial court conducted a CrR 3 .5 hearing to
determine the admissibility of Smith's comments to the first officer and ruled the
statements admissible. The court did not address the admissibility of the comments to the
second officer. Both officers testified at trial to the remarks made by Donald Smith.
Without having objected at trial to the testimony of the second officer, Smith assigns
error on appeal to the trial court's failure to conduct a CrR 3.5 hearing before allowing
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the second officer to testify to comments Smith uttered. We discern no manifest
constitutional error and affirm Smith's convictions for burglary and theft.
I FACTS
This statement of facts derives from both trial testimony and testimony during a
I CrR 3.5 motion by the State to introduce statements uttered by defendant Donald Smith
I to arresting officers. We begin with trial testimony.
l On March 28, 2014, Derik Sterling went to his grandfather's home, at 6670 Mae
Valley Road N.E., Moses Lake, to move insulation into the home's garage because of
I rain. The home lies in a rural area. When he arrived, Sterling spotted an unfamiliar car,
with a woman therein, parked between the house and garage. He approached the vehicle
I and asked the woman about her presence. He then saw a male in front of the garage. The
male was defendant Donald Smith and the woman in the car was Marian Benavidez.
Sterling did not know either Smith or Benavidez and had not given them permission to
enter the garage.
Derik Sterling called the police. While he was on the phone, Donald Smith
walked past him and left the property. Smith proceeded to walk or run down Mae Valley
Road.
Grant County Sheriff Deputy Jacob Fisher arrived at the Mae Valley Road home.
i
t As he neared the home, Deputy Fisher espied Donald Smith running across a field to the
t south of the residence. Smith attempted to hide behind a wood pile. Fisher walked to
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Smith's location and arrested him.
We move to testimony elicited during the CrR 3.5 hearing. As Deputy Jacob
Fisher and Donald Smith walked to the house, Smith volunteered information. Deputy
Fisher momentarily hushed Smith and read Smith the Miranda warnings. Thereafter
Smith admitted entering the garage and taking property. He told Fisher that Derik
Sterling granted him permission to enter the garage.
We return to trial testimony. Grant County Sheriff Deputy Patrick Pitt also
responded to Derik Sterling's call for assistance. Donald Smith told Deputy Pitt that he
did not know Sterling, that a woman named Celeste granted him permission to enter the
garage, and that he moved items from the garage. Smith, however, was unable to identify
an address or phone number for Celeste. Smith also told Pitt that he ran from the
residence because he did not like police. The record does not show that Pitt also read
Smith Miranda warnings.
After the arrest of Donald Smith, Derek Sterling surveyed the car that Smith
abandoned. The car contained a DVD player, skill saw, power drill, sawzall, and
building materials previously stored in the property's garage and owned by Sterling.
Sterling also discovered that someone shattered the doorknob to open the garage door.
PROCEDURE
The State of Washington charged Donald Smith with second degree burglary and
third degree theft. Before trial, the trial court conducted a CrR 3.5 hearing to determine
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State v. Smith
the admissibility of Donald Smith's comments to Deputy Jacob Fisher. The court ruled
the statements admissible. The trial court did not address the admissibility of Smith's
statements to Deputy Patrick Pitt.
A State's original list of witnesses identified Deputy Jacob Fisher as a law
enforcement officer to whom Donald Smith uttered statements. One month later, the
State amended its witness list to include Deputy Patrick Pitt as a witness and to declare
that Pitt would testify to statements from Donald Smith. Trial proceeded more than three
months after the State filed its amended witness list.
During trial, Donald Smith registered no objection to Deputy Patrick Pitt testifying
to remarks Smith uttered to Pitt. Smith testified at trial that he never told Deputy Pitt that
Celeste granted him permission to enter the garage or that he entered the garage. Smith
instead testified that Peggy Sangster gave him permission on behalf of Cecily McFarland
and Derik Sterling to enter the property in order to help Peggy move some of her
possessions from the property. The jury convicted Donald Smith of both charges.
Donald Smith filed a motion for a new trial, by which motion he first objected to
the admissibility of his remarks made to Deputy Patrick Pitt. During argument on the
motion, the State asserted the trial court could peruse the record to determine if the
statements to Pitt were voluntary, and, if the record did not suffice, the trial court could
conduct a post-trial CrR 3 .5 hearing. The trial court agreed and offered to hold a CrR 3 .5
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hearing to assess the voluntary nature of Smith's comments to Deputy Pitt. Smith
declined the hearing, and the trial court denied the motion for a new trial.
LAW AND ANALYSIS
Donald Smith seeks a new trial because the State introduced his incriminating
comments spoken to Deputy Patrick Pitt without holding a CrR 3.5 hearing to determine
if the statements were voluntary. The State does not dispute that the trial court should
have determined the voluntariness of the statements at a CrR 3.5 hearing. Instead, the
State argues that Smith waived the assignment of error, invited the error, the error is not
reviewable, and the error was harmless because the statements were demonstrably
voluntary.
Donald Smith did not object to Deputy Patrick Pitt's testimony until he submitted
a motion for a new trial weeks after the trial concluded. Therefore, we must determine
whether to review the failure to hold a CrR 3 .5 hearing when the defendant did not insist
on a pretrial hearing and did not object to the testimony at trial.
RAP 2.5(a) formalizes a fundamental principle of appellate review. The first
sentence of the rule reads:
(a) Errors Raised for First Time on Review. The appellate court
may refuse to review any claim of error which was not raised in the trial
court.
No procedural principle is more familiar than that a constitutional right, or a right of any
other sort, may be forfeited in criminal cases by the failure to make timely assertion of
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the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507
U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321
U.S. 414,444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).
Donald Smith raised the failure of a CrR 3.5 hearing with respect to statements
voiced to Patrick Pitts in a motion for new trial, rather than for the first time on appeal.
Nevertheless, raising an error for the first time in a motion for new trial is tantamount to
asserting the error for the first time on appeal. We do not consider arguments made on
the first occasion in a motion for new trial, motion for reconsideration, or on appeal.
Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 340, 878 P.2d 1208 (1994); Lee &
Eastes, Inc. v. Continental Carriers, LTD, 44 Wn.2d 28, 35, 265 P.2d 257 (1953); Micro
Enhancement Int'!, Inc. v. Coopers & Lybrand, LLP, 110 Wn. App. 412,427, 40 P.3d
1206 (2002). A new claim of error brought forward for the purpose of reversing a
judgment is too late if made for the first time on the motion for new trial. Puget Sound
Marina, Inc. v. Jorgensen, 3 Wn. App. 476,480,475 P.2d 919 (1970). The same
considerations support denying review of issues raised for the first time on appeal as with
issues asserted for the first time after completion of trial.
Good sense lies behind the requirement that arguments be first asserted at trial.
The prerequisite affords the trial court an opportunity to rule correctly on a matter before
it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177(2013). There is great potential for abuse when a party does not raise an issue below
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because a party so situated could simply lie back, not allowing the trial court to avoid the
potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.
Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,
762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses
several other concerns. The rule serves the goal of judicial economy by enabling trial
courts to correct mistakes and thereby obviate the needless expense of appellate review
and further trials, facilitates appellate review by ensuring that a complete record of the
issues will be available, and prevents adversarial unfairness by ensuring that the
prevailing party is not deprived of victory by claimed errors that he had no opportunity to
address. State v. Strine, 176 Wn.2d at 749-50 (2013); State v. Scott, 110 Wn.2d 682, 685-
88, 757 P.2d 492 (1998).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)
allows an appellant to raise for the first time "manifest error affecting a constitutional
right," an exception on which a criminal appellant commonly relies. Constitutional errors
are treated specially under RAP 2.5(a) because they often result in serious injustice to the
accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional
errors from being raised for the first time on appeal would result in unjust imprisonment.
2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.5 author's cmt.
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6, at 218 (8th ed. 2014). On the other hand, "permitting every possible constitutional
error to be raised for the first time on appeal undermines the trial process, generates
unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources
of prosecutors, public defenders and courts." State v. Lynn, 67 Wn. App. 339, 344, 835
P.2d25I (1992).
Washington decisions and even decisions internally have announced differing
formulations for "manifest error." First, a manifest error is one "truly of constitutional
magnitude." State v. Scott, 110 Wn.2d at 688. Second, perhaps perverting the term
"manifest," some decisions emphasize prejudice, not obviousness. The defendant must
identify a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant's rights. It is this showing of actual prejudice that makes
the error "manifest," allowing appellate review. State v. 0 'Hara, 167 Wn.2d 91, 99, 217
P.3d 756 (2010); State v. Scott, 110 Wn.2d at 688; State v. Lynn, 67 Wn. App. at 346. A
third and important formulation for purposes of this appeal is the facts necessary to
adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127
Wn.2d 322,333,899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31,846 P.2d 1365(1993).
We employ the first definition of manifest constitutional error and decline to
review Donald Smith's assignment of error for three reasons. First, Smith presents no
case that holds one has a constitutional right to a CrR 3.5 hearing before trial. Second,
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No. 33099-1-III
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facts support a conclusion that Smith waived any right to a hearing. Third, under the
peculiar facts of the case, the State has a reasonable argument that the Miranda warnings
given by Deputy Jacob Fisher sufficed for any incriminating statements later given to
Deputy Patrick Pitts.
CrR 3.5 addresses "confession procedures" and reads in relevant part:
(a) Requirement for and Time of Hearing. When a statement of
the accused is to be offered in evidence, the judge at the time of the
omnibus hearing shall hold or set the time for a hearing, if not previously
held, for the purpose of determining whether the statement is admissible. A
court reporter or a court approved electronic recording device shall record
the evidence adduced at this hearing.
(c) Duty of Court to Make a Record. After the hearing, the court
shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3)
conclusions as to the disputed facts; and (4) conclusion as to whether the
statement is admissible and the reasons therefor.
Criminal Rule 3.5 is Washington's confession procedure rule. The rule provides a
uniform procedure for the admission of voluntary confessions, as well as other custodial
statements, in a fashion that will prevent the jury from hearing an involuntary confession.
State v. Myers, 86 Wn.2d 419,425, 545 P.2d 538 (1976). The rule's significant impact is
that the trial judge resolves the issue of voluntariness in the absence of the jury and thus
obviates the due process problems that would arise where the jury hears an involuntary
confession. State v. Lopez, 67 Wn.2d 185, 188,406 P.2d 941 (1965).
Although CrR 3. 5 imposes, by rule, the requirement of a pretrial hearing to
determine the voluntariness of incriminating statements, Donald Smith forwards no
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decision that determines compliance with the rule is constitutionally mandated. A court
rule does not necessarily create a constitutional right. Washington courts have
recognized that CrR 3.5 is not of constitutional magnitude. State v. Wolfer, 39 Wn. App.
287,291, 693 P.2d 154 (1984), abrogated on other grounds by State v. Heritage, 152
Wn.2d 210, 95 P.3d 345 (2004); State v. Fanger, 34 Wn. App. 635, 637, 663 P.2d 120(1983).
Donald Smith contends that State v. Lopez, 67 Wn.2d at 188-89 (1965), and State
v. Myers, 86 Wn.2d at 425-26 ( 1976) stand for the proposition that due process demands
a pretrial hearing. Br. of Appellant at 5-6. Neither case supports this proposition. In
State v. Lopez, the Supreme Court expressly ruled that due process was not violated by
the failure of the trial court to conduct a pretrial hearing as to whether the confession was
voluntarily given. The Supreme Court affirmed the conviction despite the State's use of
a confession without any hearing.
In State v. Myers, the trial court, sitting without a jury, did not conduct a formal
confession hearing. The question of the voluntariness of defendants' statements arose
during the trial, however, and the trial court advised both defendants of their right to a
hearing. Both then indicated a desire to defer any testimony about the voluntariness of
their custodial statements until the presentation of their cases. The question was never
readdressed and the trial court issued no formal written findings concerning the
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admissibility of the statements. On appeal, the Supreme Court held that the defendants
knowingly, intelligently, and voluntarily waived their right to a voluntariness hearing.
On a related basis, any error below did not constitute manifest constitutional error
because facts support a waiver of any right to a pretrial hearing. Although Washington
courts declare CrR 3.5 to be mandatory, State v. Myers, 86 Wn.2d at 425 (1976), its
mandatory nature is limited. Under proper circumstances the right to a voluntariness
hearing and the other requirements of the rule, such as the formal entry of written
findings, can be waived. State v. Myers, 86 Wn.2d at 426; State v. Woods, 3 Wn. App.
691,697,477 P.2d 182 (1970). In addition, the trial court may conduct the required
voluntariness hearing in conjunction with the trial itself rather than before
commencement of the trial. State v. Haverty, 3 Wn. App. 495,498, 475 P.2d 887 (1970).
Donald Smith did not ask for a pretrial hearing to determine the voluntary nature
of his incriminating remarks to Deputy Patrick Pitts. He did not object to Pitts' testimony
during trial. In State v. Myers, already discussed, the Supreme Court held the defendants
waived their right to a pretrial hearing by failing to insist on a hearing until on appeal. In
State v. Fanger, 34 Wn. App. at 638 (1983), this court held that the defendant impliedly
waived his rights under CrR 3.5 by failing at trial to object to the officers' testimony.
One more reason exists to conclude that facts support a waiver of the right to a
pretrial CrR 3.5 hearing. When Donald Smith moved for a new trial, the trial court
offered Smith the opportunity for a posttrial hearing on the voluntariness of his
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confession. Smith shunned the request. In Jackson v. Denno, 378 U.S. 368, 84 S. Ct.
1774, 12 L. Ed. 2d 908 (1964), the Supreme Court held there to be error for the trial court
to fail to conduct a pretrial hearing. The Court did not reverse the conviction, but
remanded the case to the state court to conduct a post-appeal hearing on the voluntariness
of the statement.
We note that, before Donald Smith uttered incriminating statements to Deputy
Patrick Pitts, Deputy Jacob Fisher delivered Miranda warnings to Smith and Smith
bespoke incriminating remarks to Fisher. The comments to Pitt were contemporaneous
with the remarks to Fisher. Smith does not forward any case law that would demand Pitt
to also give the Miranda warnings under these circumstances. For this additional reason,
we discern no manifest constitutional error posed by Smith's appeal.
Donald Smith contends the State engaged in gamesmanship when it omitted
Deputy Patrick Pitts from its first witness list. We detect no gamesmanship when the
State added Pitts to the list of witnesses more than three months before trial.
CONCLUSION
We affirm Donald Smith's convictions for second degree burglary and third
degree theft.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, C.J.
WE CONCUR:
Lawrence-Berrey, J.
j
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