State v. Smith
| Decision Date | 23 August 2016 |
| Docket Number | No. 33099-1-III,33099-1-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DONALD GLENN SMITH, 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 the second officer to testify to comments Smith uttered. We discern no manifest constitutional error and affirm Smith's convictions for burglary and theft.
This statement of facts derives from both trial testimony and testimony during a CrR 3.5 motion by the State to introduce statements uttered by defendant Donald Smith to arresting officers. We begin with trial testimony.
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 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 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. As he neared the home, Deputy Fisher espied Donald Smith running across a field to the south of the residence. Smith attempted to hide behind a wood pile. Fisher walked toSmith'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.
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 determinethe 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 3.5hearing 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.
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 ofthe 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'l, 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 belowbecause 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...
To continue reading
Request your trial