State v. Sanders
| Decision Date | 13 July 1992 |
| Docket Number | No. 27712-0-I,27712-0-I |
| Citation | 832 P.2d 1326,66 Wn.App. 380 |
| Parties | STATE of Washington, Respondent, v. Betty SANDERS, Appellant. |
| Court | Washington Court of Appeals |
Rita Griffith, Appellate Defenders, Seattle, for appellant.
Catherine Shaffer, King County Deputy Pros. Atty., Seattle, for respondent.
Betty Sanders appeals her conviction for possession of cocaine with intent to deliver. We accelerate review and affirm.
Based on information from a confidential informant, members of the South Precinct Anti-Crime Team began watching the Rainier Vista housing project in Seattle for street narcotics transactions in March 1990. Among the units apparently linked to this activity was Sanders' residence, 4432 Chestnut Court S. # 157. The police obtained a search warrant based in part on the drug sales activity they had observed during their surveillance, which included apparent sales from Sanders' apartment.
The search warrant for Sanders' residence was served on March 2, 1990 at about 8:40 p.m. The individuals found inside the residence, including Sanders, were brought into the living room area. Meanwhile, Officer Dallas Murry made an initial sweep of the residence to determine if anyone else was inside. In the course of this sweep, he entered the northwest bedroom. He saw a glass dinner plate containing numerous pieces of suspected rock cocaine sitting on a large pile of clothing on a bed in that room. Officer Murry immediately returned to the living room, waited for Miranda 1 warnings to be given and acknowledged, and then asked who lived in the northwest bedroom. Sanders said she did.
The glass plate held 10.5 grams of crack cocaine. There were two large balls of cocaine which appeared to bear straight-edged cut marks and a number of smaller pieces that would commonly sell on the street for about $20 apiece. There was also a straight-edged razor on the plate. The glass plate was later processed for fingerprints by a latent fingerprint examiner. The examiner found two prints of a right thumb which matched Sanders' fingerprints.
Officer Murry also found a piece of paper containing three chunks of off-white material with a net weight of 0.2 grams under an end table beside the bed in Sanders' bedroom. Two of the chunks were cocaine. The officer also found numerous plastic sandwich baggies, corners of baggies and a vial containing white powder residue. 2 The officers found no other drugs or implements for making crack cocaine in the residence. Officer Murry testified at trial that the amount of drugs recovered was equivalent to a 2 or 3-week supply for a moderate cocaine user.
In Sanders' bedroom closet, Officer Murry found a "very clean" rock cocaine smoking pipe. He also found two jars containing a white crystalline substance that did not test positive for controlled substances and appeared to be a cutting agent. On Sanders' bedroom closet shelf, Officer Murry found .22 caliber ammunition, some of which was inside a box labelled as containing a hair treatment, and a .30 caliber rifle lying against the back wall of the closet behind some clothing. He uncovered two "rather sophisticated" walkie-talkies located in the same area as the plate of suspected cocaine. Neither of the walkie-talkies was packaged or wrapped in any way, and Officer Murry did not see any store packaging for them. During a search incident to arrest, cash in the sum of $118 was recovered from Sanders' sock. Sanders was subsequently charged with possession of cocaine with intent to deliver.
At trial, Officer Murry testified that he began his career by working as a police officer for the City of Pasco for 8 years. During his last 3 1/2 years in Pasco, he was the sergeant in charge of the major crimes unit. He was also a board member of a drug enforcement unit responsible for investigating heroin and cocaine trafficking. In 1985, he became an officer with the City of Mercer Island Police. In 1988, he joined the Seattle Police Department where, since 1989, he has been a member of the Seattle Police Department South Precinct Anti-Crime Team. Officer Murry testified that the primary focus of his unit was investigation of street-level narcotics trafficking. He explained that over 5 years of his police career had been related to narcotics investigations, that he had assisted in serving 300-400 narcotics search warrants and had been involved in over 1000 narcotics investigations. Officer Murry's formal training in the area of narcotics investigations included courses at the police academy, at least four Washington State Criminal Justice classes, attendance at a Drug Enforcement Administration (DEA) training session, a 1-week DEA refresher course, training on the Anti-Crime Team, and attendance at a 4-day New Jersey State Highway Patrol drug addiction class.
Officer Murry testified about the significance of much of the evidence he seized including how crack cocaine is normally smoked, how a glass crack pipe is used, and why it is unusual to find a clean crack cocaine pipe. When Officer Murry was asked about the absence of crack smoking devices in the Sanders residence, the following colloquy occurred:
Q. Based on your training and experience, is there any significance in the absence of implements used to smoke crack cocaine.
A. Yes, I believe so.
Q. What is that significance?
Q. What is the significance of absence of implements used to smoke crack cocaine?
Defense counsel objected numerous times during other portions of Officer Murry's testimony as to his opinions about the use, manufacture and sale of drugs on grounds of foundation, lack of expertise, and relevance.
In response to questioning about where drug users keep drugs in their homes, Officer Murry stated that in
The jury was instructed on both possession with intent to deliver and the lesser included crime of possession. The jury convicted Sanders of the greater crime. This appeal followed.
Sanders contends that the trial court erred in allowing Officer Murry to testify that, based on his experience, the lack of drug user paraphernalia in Sanders' residence "indicates that [her] house is not used for that purpose and the persons within do not do so frequently at all." Sanders argues that the officer's testimony did not satisfy the foundation requirements for expert opinion testimony, 3 and that his testimony amounted to an improper opinion as to her guilt on the charge of possession with intent to deliver.
Sanders contends the officer's opinion lacked adequate foundation because it was not based on a scientific principle or theory. In conjunction with this portion of his testimony, defense counsel did not object to the officer's expert qualifications or to the foundation for his testimony. Her objection was on the ground that the officer's opinion would invade the province of the jury. Since the issue regarding the foundation for this expert testimony is raised for the first time on appeal and is not of constitutional magnitude, it need not be addressed here. State v. Mak, 105 Wash.2d 692, 719, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).
However, because this is an issue that recurs frequently in drug cases, we will exercise our discretion to review it here. Bennett v. Hardy, 113 Wash.2d 912, 918, 784 P.2d 1258 (1990). Initially, we observe that it is not surprising that defense counsel did not object to lack of foundation because there is no basis for such an objection here. Although expert opinion evidence is usually not admissible under ER 702 unless it is based on an explanatory theory generally accepted in the scientific community, State v. Lord, 117 Wash.2d 829, 850, 822 P.2d 177 (1991), where expert testimony does not concern sophisticated or technical matters it need not meet the rigors of a scientific theory. State v. Ortiz, 119 Wash.2d 294, 310-11, 831 P.2d 1060 (1992). The expert testimony in this case regarding the significance of the absence of drug user paraphernalia in Sanders' residence does not concern sophisticated or technical matters. Therefore, the testimony did not have to be supported by any scientific theory or principle. Indeed, it is hard to imagine what scientific theory or test could be applied to expert testimony of this kind, which is based on the witness' training, experience and observations on the job. State v. Ortiz, supra; State v. Smith, 88 Wash.2d 639, 647, 564 P.2d 1154 (1977), overruled on other grounds, State v. Jones, 99 Wash.2d 735, 664 P.2d 1216 (1983).
Sanders' argument that ...
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