State v. Lynn

• Decision Date: 31 August 1992
• Docket Number: No. 26462-1-I,26462-1-I
• Citation: 835 P.2d 251,67 Wn.App. 339
• Parties: STATE of Washington, Respondent, v. Christopher LYNN, Appellant.
• Court: Washington Court of Appeals

Page 339

67 Wn.App. 339

835 P.2d 251

STATE of Washington, Respondent, v. Christopher LYNN, Appellant.

No. 26462-1-I.

Court of Appeals of Washington Division 1.

Aug. 31, 1992.

Washington Appellate Defender Suzanne Lee Elliott, Seattle, for appellant.

Seth R. Dawson, Pros. Atty., and David Thiele, Deputy Pros. Atty., Everett, for respondent.

FORREST, Judge.

Lynn appeals his conviction for delivery of a controlled substance and attempted possession of a controlled substance, asserting that certain hearsay evidence was improperly admitted, that admission of that evidence violated his confrontation rights, and that there is not sufficient evidence to support the conviction. We affirm.

On December 14, 1989, two police officers encountered Clarence Mosby while engaged in an undercover narcotics operation. While giving Mosby a ride in their van the officers told Mosby they were interested in buying cocaine. Mosby informed them that he had a friend who would sell them cocaine and asked to use the cellular phone. Mosby made a call to what was later identified as Christopher Lynn's apartment in the Stonegate apartment complex. The officers overheard Mosby tell the person on the phone that "he wanted to get some stuff." Mosby then informed the officers that he could procure some cocaine. Mosby directed the officers to Stonegate apartments, where they waited in the van as he entered the complex. Mosby returned with six rocks of cocaine.

Mosby agreed to meet with the officers again the next day. On December 15, 1989, the officers picked Mosby up at his apartment, which was not in the Stonegate complex, and Mosby again directed them to Stonegate. While the officers waited in the van Mosby entered the complex and returned with more cocaine.

During these transactions the officers told Mosby they would soon be interested in selling some cocaine that they were expecting. On January 3, 1990, one of the officers contacted Mosby telling him he wished to sell some cocaine. Mosby set up a meeting between the officer and "BB", from whom Mosby said the earlier cocaine had been obtained. The officer was to meet "BB", who would be driving a green Chrysler Newport, at a Burger King.

At the Burger King the officer saw an individual matching "BB" 's description arrive in the described car. The officer made eye contact with the person and pointed to the van. The person, Lynn, nodded and got in the van.

At this point, according to the officer's testimony, Lynn identified himself as "BB", admitted that he was the person from whom Mosby had obtained the other cocaine, and stated that he had lots of customers and could sell almost any amount of cocaine. The officer sold Lynn a package of aspartic acid, which resembles cocaine. Lynn was then arrested.

Lynn contends that Mosby, who he had been friends with for 2 years, told him to meet "Randy" at the Burger King about a job. At the Burger King he was informed by "Randy" that Mosby had said that Lynn could sell some cocaine. Lynn informed the officer that Mosby had lied. According to Lynn, the officer showed him a stack of money to which Lynn replied, "Look, I thought this was about a job and I see that it's not and I'm out of here." Lynn denied giving the officer any money.

Lynn was charged with two counts of delivery of a controlled substance and one count of attempted possession of a controlled substance with intent to deliver. Mosby was also charged and was being held pending trial at the time of Lynn's trial. Mosby was subsequently tried and convicted.

At Lynn's trial, the State made a pretrial motion to have Mosby's statements to the officers ruled admissible under ER 804(b)(3), statements against interest. The defense at no time argued that the State had failed to establish Mosby's unavailability. In fact, statements by defense counsel indicate that Mosby's unavailability was taken for granted. The defense argued that the State had not established Mosby's statements' reliability. The trial court ruled that there were adequate indicia of the reliability and admitted the statements.

The jury found Lynn guilty of all three charges. At the sentencing proceeding Lynn personally protested the fact that Mosby was not called as a witness, asserting that Mosby wanted to testify for him. No affidavit as to that fact has been presented.

MANIFEST CONSTITUTIONAL ERROR

For the first time on appeal Lynn claims that the court erred in admitting Mosby's testimony because "unavailability" was not established. The State correctly points out that pursuant to RAP 2.5(a) an evidentiary error cannot be raised for the first time on appeal. ¹ RAP 2.5(a)(3) does provide that a "manifest error affecting a constitutional right" may be raised for the first time on appeal. Lynn asserts that the State's failure to establish Mosby's unavailability violates the confrontation clauses of the United States and Washington Constitutions and therefore may be raised for the first time on appeal.

RAP 2.5(a)(3) does not provide that all asserted constitutional claims may be raised for the first time on appeal. Criminal law is so largely constitutionalized that most claimed errors can be phrased in constitutional terms. Suppression motions involve the Fourth Amendment. Admissions and confessions involve the Fifth and Sixth Amendments. Instructional errors may implicate constitutional due process. Hearsay involves Sixth Amendment confrontation rights. Elementary rules of construction require that the term "manifest" in RAP 2.5(a)(3) be given meaning. As the Washington Supreme Court stated in State v. Scott, 110 Wash.2d 682, 687, 757 P.2d 492 (1988) (quoting Comment (a), RAP 2.5, 86 Wn.2d 1152 (1976)), "[t]he exception actually is a narrow one, affording review only of 'certain constitutional questions.' "

State v. Scott, however, also states that the appellate court should, "satisfy itself that the error is truly of constitutional magnitude that is what is meant by 'manifest' ". Scott, 110 Wash.2d at 688, 757 P.2d 492. This language, standing alone, seems to suggest that any claim of constitutional error may be asserted for the first time on appeal. In view of the phrasing of RAP 2.5(a)(3) and the other quoted language from Scott, we feel this latter statement is more broadly stated than intended and that, indeed, it is only certain errors that may be asserted for the first time on appeal. If Scott means that when a claimed constitutional error is raised for the first time on appeal the court must always examine the error on its merits, it would be more straightforward to eliminate "manifest" from the rule.

Limiting the constitutional claims that may be raised for the first time on appeal places responsibility on trial counsel to properly prepare their cases and will reduce claims that are discovered solely for purposes of appeal. An expansive reading of manifest sends a message to trial counsel not to worry about overlooking constitutional claims, since such claims can always be asserted on appeal. Indeed, sophisticated defense counsel may deliberately avoid raising issues which have little or no significance to the jury verdict but may be a basis for a successful appeal.

The current case presents a paradigm of this scenario. Defense counsel, being aware of the unavailability requirement as a prerequisite for admission of statements against penal interest, knowing that as a practical matter Mosby was unavailable, could very logically argue that reliability was not established but deliberately not argue the unavailability requirement. Thus, he would save an issue for appeal that would be quickly resolved if presented to the trial court. ²

Prohibiting all constitutional errors from being presented for the first time on appeal would denigrate our constitutional protections and result in unjust imprisonment. 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 re-trials and is wasteful of the limited resources of prosecutors, public defenders and courts. A judicious application of the "manifest" standard permits a reasonable method of balancing these competing values. ³ Thus, it is important that "manifest" be a meaningful and operational screening device if we are to preserve the integrity of the trial and reduce unnecessary appeals.

In State v. Hieb, ⁴ the Supreme Court held that an issue as to the admission of hearsay statements as excited utterances and present sense impressions without a showing of unavailability could be raised for the first time on appeal. ⁵ Rather than addressing the issue of whether admission of the statements actually constituted an error, the court engaged in a harmless error analysis and affirmed the conviction. ⁶ A superficial reading of Hieb might suggest that the proper analysis under Scott is a two step process: (1) the defendant need only cite to an alleged error that arguably implicates constitutional rights, and (2) the burden of proof shifts to the State to establish that any reasonable jury would have found guilt beyond a reasonable doubt in absence of the alleged error. However, the Hieb court did not attempt to analyze the meaning of RAP 2.5. In view of the specific language of the rule and the language in Scott that the rule represents a narrow exception, we do not think Hieb should be read so broadly.

In reviewing RAP 2.5 and Scott, we conclude that the proper approach in analyzing alleged constitutional error raised for the first time on appeal involves four steps. 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...