State v. Harris

• Citation: 272 P.3d 299
• Decision Date: 20 March 2012
• Docket Number: No. 40006–5–II.,40006–5–II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Damien Darnell HARRIS, Appellant.

272 P.3d 299

STATE of Washington, Respondent,

v.Damien Darnell HARRIS, Appellant.

No. 40006–5–II.

Court of Appeals of Washington, Division 2.

March 20, 2012.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Appellant.

Damien Darnell Harris, Clallam Bay, WA, pro se.

Scott M. Jackson, Thurston County Pros. Ofc., Olympia, WA, for Respondent.

PUBLISHED IN PART OPINION

JOHANSON, J.

¶ 1 After a bench trial, the trial court found Damien Harris guilty of leading organized crime, two counts of unlawful delivery of cocaine, unlawful possession of cocaine with intent to deliver, two counts of money laundering, solicitation to commit first degree murder, and maintaining a building or dwelling for drug purposes. The trial court imposed an exceptional 609–month sentence. Harris's appeal raises numerous challenges to evidentiary rulings, his convictions, and his sentence. In the published portion of our opinion, we address the double jeopardy issue. In the unpublished portion, we address the veracity of an affidavit and the probable cause finding for a search warrant and the numerous errors asserted in Harris's statement of additional grounds for review (SAG) and supplemental SAG.¹ We affirm the trial court's order denying the suppression of evidence and affirm Harris's convictions and sentence.

FACTS

Background²

¶ 2 In March 2008, the Thurston County Narcotics Task Force (Task Force) began investigating Damien Harris. Detectives Ken Lundquist and Randy Hedin–Baughn coordinated with confidential informant Dale “Cyrus/Syrus” Shipman to schedule a series of controlled buys of cocaine from Harris. Before an April 16 buy, Detective Lundquist searched Shipman for drugs or personal money and then provided him with $40 of prerecorded traceable funds. Detective John Hess drove Shipman to the buy location. Upon arriving at the buy location, Shipman exited the vehicle, entered Harris's vehicle, and exchanged the $40 in traceable funds for crack cocaine. Harris was his vehicle's only other occupant during the drug transaction with Shipman. After the buy, Shipman turned over the drugs to Detective Hess, and Detective Lundquist searched him again at the designated meet location.

¶ 3 On April 18, Shipman scheduled a second controlled buy of cocaine from Harris. Before the buy, Detective Lundquist searched Shipman and provided him with $40 of prerecorded traceable funds. Detective Hess, who was still undercover, drove Shipman to the buy location. Harris arrived at the location in a car with Michael Boyer. Shipman entered Harris's vehicle; simultaneously, Steven Parra arrived and also entered Harris's vehicle. Parra purchased crack cocaine from Harris, and then Shipman purchased $40 of crack cocaine from Harris using the prerecorded funds. Shipman then returned to Detective Hess's vehicle and turned over the drugs to him; then, at the designated meet location Detective Lundquist searched him again.

¶ 4 Shortly thereafter police arrested Harris and Boyer. During jail booking, Boyer told officers he had hidden contraband “in his rectum.” Clerk's Papers (CP) at 133. Detective Matt Renschler recovered from Boyer a plastic bag containing money, crack cocaine, and marijuana. The recovered money included the prerecorded $40 that Shipman had used during the second controlled buy. When asked if the recovered drugs belonged to Harris, Boyer responded that “he did not want to die and he was concerned for his life.” CP at 133. At trial, Boyer ultimately testified that most of the recovered drugs belonged to Harris. ³

¶ 5 Following Harris's arrest, police investigation efforts turned to an apartment where Harris stayed periodically. Landlord Kathy Kruse initially told Detective Lundquist that Harris stayed at the apartment “occasionally” and denied the police permission to enter it. CP at 134. Detective Lundquist returned three days later with a search warrant but did not find anything of evidentiary value. This time, though, Kruse explained that she rented Harris the same room for $20 a day, and eventually the rental agreement became “$20.00 worth of crack cocaine a day.” CP at 135.

¶ 6 Kruse also told police about a three-person phone conversation Harris initiated from jail after his arrest between Kruse, Harris, and Rob Bennett. During that phone conversation, Harris instructed Kruse to enter his apartment and retrieve drugs and money from a jacket in the closet. Kruse found the drugs and approximately $2,600 in the jacket pocket. Harris instructed Kruse to smoke or flush the “golf ball sized pieces of rock cocaine” down the toilet and to deliver the money to “one of his associates.” CP at 135. Kruse testified at trial that Adrian Morris came to her apartment to retrieve the money and to secure Harris's other belongings. Eventually, as Harris further instructed, Kruse gave the money to Harris's girlfriend, Temica Tamez. During a recorded jail phone conversation, Tamez told Harris that she “ told [Kruse that Tamez] was going to beat the shit out of her” for retrieving the $2,600. CP at 135.

¶ 7 After talking with Kruse, Detective Lundquist began monitoring Harris's jail phone conversations. Through call monitoring, Detective Lundquist learned that Harris had reported Tamez's Olympia home as his residence to his Department of Corrections officer. Detective Lundquist obtained and executed a search warrant on Tamez's Olympia house, took pictures of clothing in a closet that suggested Harris lived there, and located a handgun in the same closet. ⁴

¶ 8 On April 28, based on other recent jail phone conversations, Detective Lundquist filed an affidavit and application for a warrant to search Harris's safe deposit box. The affidavit outlined the two controlled buys, the subsequent searches at Kruse's building and Tamez's Olympia residence, and several jail phone calls between Harris and Tamez. Detective Lundquist included the following description of Harris's and Tamez's jail phone conversations in the probable cause statement:

Of the phone calls I have listened to, Harris instructs Tamez to go to his bank and contact “Josh” and only “Josh” to gain access to a safe deposit box and conceal items in it before law enforcement can find them.

I listened to the phone calls from April 25, 2008, at approximately 0901 hours. At this time, Harris called Tamez as Tamez was in the bank speaking with “Josh.” The phone was handed to “Josh” and Damien Harris verbally authorized “Josh” to add Temica Tamez to his account and to his safe deposit box.

Harris made another phone call to Tamez at 0944 hours. During that phone call, Tamez told Harris that she had been given access to his banking accounts and the safe deposit box. It is my belief that the evidence, Task Force buy money, that was taken from Kathy Kruse's apartment on April 19, 2008, was placed in that safe deposit box to prevent law enforcement from gaining access to the buy money.

CP at 59–60.

¶ 9 The trial court approved a warrant to search the safe deposit box, and police executed it that same day. Police confirmed that Tamez was a signer on the safe deposit box and found $25,000 in cash in it, but the police did not find the first controlled buy funds.

¶ 10 After searching the safe deposit box, police continued to monitor Harris's jail calls. Based on information learned through these calls, detectives served a search warrant on Tamez's Lacey residence, and detectives recovered letters from Harris directing Tamez to claim the $25,000 in the safe deposit box as her own. Harris's letters instructed people to falsify documents and hide evidence of various crimes and sources of drug sale proceeds.

¶ 11 In September 2008, simultaneous to its ongoing investigation of Harris, the Task Force investigated Boyer and another Harris associate, Adrian Morris. After his release from jail, Boyer contacted Shipman to sell him more drugs and firearms. As police watched Boyer's residence in anticipation of the drug buy, they observed Morris arrive at Boyer's residence. Officers followed Morris when he left Boyer's home and observed him make additional drug transactions. Officers executed search warrants of Morris's car and home, and Boyer's home, and they found more cocaine. Police arrested Morris and Boyer.

¶ 12 After his September 2008 arrest, Boyer agreed to tell the Task Force about his knowledge and involvement in a drug trafficking organization. He identified Morris and Harris as the organization's other primary participants. Boyer also revealed that Harris had asked him to kill Shipman for his role as a confidential informant. Boyer ultimately entered a plea agreement with the State to testify against Harris.

Trial Procedure

¶ 13 The State filed an amended information in Thurston County Superior Court charging Harris with leading organized crime⁵ (count I); first degree unlawful possession of a firearm⁶(count II); two counts of unlawful delivery of a controlled substance (cocaine) ⁷ (counts III, IV); unlawful possession of a controlled substance (cocaine) with intent to deliver ⁸ (count V); two counts of money laundering⁹ (counts VI, VII); tampering with a witness¹⁰ (count VIII); solicitation to commit first degree murder¹¹ (count IX); and maintaining a building or dwelling for drug purposes¹² (count X).

¶ 14 Before trial, Harris filed a pro se motion to suppress the $25,000 officers found in his safe deposit box. Harris's attorney subsequently filed two suppression motions and the trial court held two separate hearings to consider Harris's arguments.

¶ 15 At the first hearing, the trial court considered whether to authorize a full Franks¹³ hearing; that is, the trial court considered whether Detective Lundquist had made material misrepresentations or omissions in the affidavit for the safe deposit box search warrant that merited a full evidentiary hearing on the content of the affidavit. Harris argued that Detective Lundquist misrepresented that Tamez had “access” to the safe deposit box...