State v. Milhouse, No. 29515-6-II (WA 8/3/2004)
| Decision Date | 03 August 2004 |
| Docket Number | No. 29515-6-II,29515-6-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. GERARD L. MILHOUSE, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 02-1-02976-2. Judgment or order under review. Date filed: 10/18/2002. Judge signing: Hon. Terry Sebring.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
A jury convicted Gerard L. Milhouse of one count of unlawful delivery of cocaine with a school bus route enhancement. On appeal, Milhouse claims that a police officer's opinion testimony, prosecutorial misconduct, and the ineffective assistance of his counsel require reversal of his conviction. Milhouse also filed a Statement of Additional Grounds (SAG)1 in which he challenges pro se the sufficiency of the evidence, the adequacy of the charging document, the timeliness of his trial, the effectiveness of his counsel, and the propriety of his 48-month sentence. We affirm.
James Josey was a paid informant in the `Hard Rock Five.' Hard Rock Five was the name the Special Investigation Division (SID) of the Tacoma Police Department gave to an undercover operation designed to curtail, if not eliminate, rampant drug dealing in the mid-downtown and Hilltop region of Tacoma. Josey testified at trial that while working as a paid informant on May 23, 2002, he bought crack cocaine from Chris Fowler and Milhouse. The events were video- and audiotaped separately and Josey was under surveillance by several Tacoma police officers, including SID Officer Bart Hayes. Hayes regularly selected and `managed' informants and was managing Josey during the Hard Rock Five operation.
At trial, Josey testified that he saw two men, Fowler and Milhouse, walking down Tacoma Avenue South at Fifteenth Street. He made eye contact with Fowler, and Fowler approached Josey's car and asked what he wanted. When Josey requested `{a} twenty,' Fowler left the car and returned to Milhouse, who was standing on the sidewalk some feet away. II Report of Proceedings (RP) at 130. Josey testified that he saw Milhouse place something in Fowler's left hand. Fowler then returned to Josey's car, got in, and sold Josey a rock of cocaine for $20. Josey gave audio and visual signals2 to police officers indicating that he had completed the buy, and he left to meet with police officers at a prearranged `staging area' to give them the cocaine. II RP at 130.
Tacoma Police Officers Jason Brooks and Brian Garrison were in a marked police car nearby. After Josey signaled that he had completed a buy, Brooks and Garrison were directed to approach and identify Milhouse and Fowler for a future arrest.3 Fowler and Milhouse were walking down the sidewalk. Fowler was carrying a paper bag with an open bottle of beer inside and the officers decided to use the prohibition on the public consumption of alcohol4 to stop and identify the men. The officers asked the two to stop; Fowler stopped, but Milhouse continued walking away. Officers identified and released Fowler and then followed Milhouse. As the officers pulled their car up to Milhouse, he sprinted away and jumped a six-foot fence. Brooks chased Milhouse on foot into a walkway in an apartment complex, where he subdued Milhouse at gunpoint. Garrison advised Milhouse of his right to remain silent.
Milhouse did not speak or identify himself until he was taken to the police station and was booked on a charge of obstructing.5 He then identified himself.
The State charged Milhouse with unlawful delivery of cocaine within 1,000 feet of a school bus stop. A jury convicted Milhouse as charged, and the judge sentenced him to a standard range sentence of 48 months confinement.
On appeal, Milhouse alleges that his conviction must be reversed because Hayes improperly commented on the veracity of the paid informant and the prosecutor committed misconduct when questioning witnesses and making closing argument. But at trial, Milhouse did not object to Hayes's testimony or the State's alleged misconduct. Essentially, Milhouse argues that we must review these claims either because they are (a) manifest errors of constitutional magnitude or (b) because his trial counsel was ineffective for failing to object to the errors at trial. We disagree.
Neither Hayes's testimony regarding the informant selection process nor the prosecutor's questions and argument rise to the level of a manifest error of constitutional magnitude. More importantly, the belatedly challenged testimony is not manifestly erroneous and we are not convinced that a reasonably competent defense counsel would have objected. In addition, we are not convinced on this record that Milhouse was prejudiced by his trial counsel's tactical decision to focus his defense on Milhouse's innocent bystander testimony and to suggest that the police were merely mistaken in thinking he was associated with Fowler.
Milhouse argues that he was denied a fair trial when Hayes gave the following opinion testimony without objection:
{State:} How are confidential informants picked?
{Hayes:} Well, I can tell you how I pick them. I look at their background. I don't want anybody who assaults the police. I don't want anyone who's a dangerous, violent felon. I don't want anyone who is genuinely dishonest. I want someone who knows the drug culture, who is honest, and someone who I can rely on.
{State:} Are all confidential informants who go through the process . . . to become confidential informants accepted?
{Hayes:} No.
{State:} Why not?
{Hayes:} . . . I want someone who's credible because I look at every case I do with an informant as ending up right here in court and I want a guy who can testify honestly, whose background is pretty good, where it can't be torn apart.
A party may assign evidentiary error on appeal only on the specific ground made at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) cert. denied, 475 U.S. 1020 (1986). The important purpose served by this rule is to give the trial court an opportunity to prevent or cure error. See State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976). By failing to object to or moving to strike the allegedly erroneous evidence, Milhouse did not give the trial court an opportunity to remedy the defect and thus did not preserve the issue for our review.
On appeal, Milhouse seeks to avoid issue preservation requirements merely by asserting a constitutional basis for the alleged error: `{T}his issue is properly before the Court, because the issue is one of constitutional magnitude.' Br. of Appellant at 13. An unpreserved manifest constitutional error is reviewable on appeal. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). But RAP 2.5(a)(3) does not provide that all asserted constitutional claims may be raised for the first time on appeal, especially considering that criminal law is so largely `constitutionalized' that most claimed errors can be phrased in constitutional terms. State v. Lynn, 67 Wn. App. 339, 342, 835 P.2d 251 (1992).
In order to reach an issue as a manifest constitutional error, we must first undertake a four-step analysis: We must (1) determine whether the error raises a constitutional issue and (2) determine whether the error is manifest.6 If the error is manifest, we will (3) address the merits of the issue. Finally, if we determine that error was committed, we (4) apply a harmless error analysis. Lynn, 67 Wn. App. at 345; State v. Jones, 71 Wn. App. 798, 809-10, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018 (1994). Thus, the exception to the preservation requirement is actually a narrow one, affording review only of certain constitutional questions. Scott, 110 Wn.2d at 687 (quoting Comment (a), RAP 2.5, 86 Wn.2d 1152 (1976)). See also City of Seattle v. Heatley, 70 Wn. App. 573, 584, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994).
In Heatley, the defendant, citing State v. Carlin, 40 Wn. App. 698, 700 P.2d 323 (1985), contended that the admission of an opinion on a criminal defendant's guilt is a `manifest error affecting a constitutional right' under RAP 2.5(a)(3) that may be raised for the first time on appeal. 70 Wn. App. at 583. Although the Heatley court had already determined that the challenged testimony was not an opinion on guilt, the court explicitly rejected its prior holding in Carlin that the admission of testimony that was allegedly an opinion on guilt was an error of constitutional magnitude that could automatically be raised for the first time on appeal. In overruling its prior reasoning, Division One stated:
In Carlin, a police officer testified without objection that a police dog had located the defendant by following a `fresh guilt scent'. 40 Wn. App. at 700. On appeal, this court held that the `expression of an opinion as to a criminal defendant's guilt violates his constitutional right to a jury trial' by `invading the province of the impartial fact finder.' 40 Wn. App. at 701-02 However, Carlin provides no analysis and cites no relevant authority for the proposition that this is the type of `manifest error' contemplated by RAP 2.5(a)(3).
Moreover, the court in Carlin did not expressly decide that the `fresh guilt scent' testimony actually constituted an opinion on the defendant's guilt. See Carlin, 40 Wn. App. at 703 (). Instead, the court held that even if the testimony was error, it was harmless beyond a reasonable doubt. Carlin, 40 Wn. App. at 705. This approach, which eschews analysis of whether the claimed error is `truly of constitutional magnitude,' has been superseded by decisions . . . attempting to give meaning to the concept of a `manifest'...
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