State v. Stone
| Decision Date | 26 March 2019 |
| Docket Number | 49724-7-II |
| Citation | 8 Wn.App.2d 1014 |
| Parties | STATE OF WASHINGTON, Respondent, v. JUSTIN STONE, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
A jury convicted Justin Stone of three counts of possession of a controlled substance with intent to distribute for methamphetamine, hydrocodone, and oxycodone respectively, all with firearm and school bus route stop enhancements. It also convicted him of unlawful possession of a firearm and possession of a controlled substance for alprazolam. Stone appeals his convictions, arguing that the State elicited improper opinion testimony as to his guilt and that the resulting error was not harmless. He also contends he received ineffective assistance of counsel when his attorney did not object to several irrelevant pieces of evidence, his convictions violated his double jeopardy rights, and the trial court erred in assessing legal financial obligations (LFOs) and failing to recognize its discretion in sentencing him. Stone makes additional arguments in a statement of additional grounds (SAG).
We affirm Stone's convictions but remand for the trial court to review the assessment of LFOs in light of legislative changes.
On December 4, 2015, Lakewood police executed a search warrant at Stone's Tacoma residence. A Lakewood Municipal Court judge issued the warrant. Police removed Stone from his home and placed him in custody before searching. After Stone waived his Miranda[1] rights, Detective Sean Conlon asked Stone if he had methamphetamine in the residence. Stone said the police would find approximately ten ounces of methamphetamine and a gun in a safe in his bedroom. He told Conlon how to open it. Stone said his methamphetamine supplier had given him the gun. Stone admitted he had started selling methamphetamine to get out from under a debt to his supplier. Police found $400 and the keys to the safe on Stone's person.
Consistent with Stone's statements, police found a safe in Stone's bedroom. Inside, officers discovered methamphetamine, money, a loaded handgun, a BB gun, and documents showing that the safe belonged to Stone. Officers also found four prescription bottles containing pills in the safe. Two bottles had the labels removed and another had the name scratched off. The bottles contained 49 hydrocodone tablets and more than 200 oxycodone tablets.
In Stone's bedroom, police found a ledger containing documented drug transactions, two digital scales, at least of one which had methamphetamine residue, packaging material and surveillance equipment. The ledger contained records of transactions and a list of merchandise. A detective testified that such lists are consistent with a common practice where drug traffickers request specific items of merchandise so that drug users without a source of income may shoplift the requested items and exchange them for drugs.
Also in the bedroom, police found a wallet containing Stone's identification, a pill bottle with 13 grams of methamphetamine, ten alprazolam pills, and two OxyContin pills.
In total, police found 307-349 grams of methamphetamine, 10 alprazolam pills, 49 hydrocodone pills, and 230-250 oxycodone pills.
Stone's home was located within 1, 000 feet of multiple school bus stops.
The State charged Stone with four counts of possession of a controlled substance with intent to deliver, one each for methamphetamine, oxycodone, hydrocodone, and alprazolam, each with firearm[2] and school bus route stop[3] enhancements, and one count of unlawful possession of a firearm in the first degree.
Stone consulted with attorney Michael Schwartz but did not retain him. Schwartz then became a judge for the Pierce County Superior Court and presided over Stone's case for several pretrial and motion hearings. Schwartz denied Stone's motion to suppress physical evidence seized from his residence and his motion for a new attorney.
Stone's attorney raised this potential conflict issue regarding Schwartz at a motion hearing, and Schwartz asked whether he wanted another judge to hear the motion. Stone's attorney declined this offer.
Before the start of trial, the State raised the issue of Stone's consultation with Schwartz and requested that another judge review each motion on which Schwartz had ruled. Another judge had already reviewed and denied Stone's counsel's motion to withdraw and denied a motion to suppress Stone's statements to police. The court heard arguments on the motion for a new attorney and the motion to suppress physical evidence and denied them both.
At trial, the State called numerous detectives from the Lakewood Police Department who executed the warrant at Stone's residence. Several officers testified as to their extensive training and experience in drug investigations and listed many items that drug dealers would be likely to possess and use, including many items that they found at Stone's residence.
One detective testified that, in his 15 years in the drug unit, he had never seen a user hold the quantity of methamphetamine found in Stone's home. He stated that the quantity of pills in the pill bottles was consistent with the amount a dealer would have on hand and that the lack of labels on the bottles was indicative of drug dealing. Another detective testified that the quantity and sizes of bags seized from Stone's bedroom, along with their placement near digital scales with methamphetamine residue, were "consistent with low-level narcotics trafficking." 3 Report of Proceedings (RP) at 345.
During Detective Jeff Martin's testimony, the prosecutor asked Martin whether he had "draw[n] a conclusion as to what the defendant was doing." 2 RP at 180. Stone objected and the prosecutor rephrased the question. "Given your numerous years of being involved in the narcotics division and your training and experience, the items you found in this home, based on that, did you draw a conclusion as to what the defendant was doing?" 2 RP at 181. Stone again objected on grounds that that would be "giving an opinion as to the ultimate question for this jury." 2 RP at 181. The court overruled the objection and Martin testified that, "based on the totality of the investigation, the items that [he] located, along with additional items that other officers/investigators located," he "concluded that Mr. Stone was in possession of narcotics with intent to distribute." 2 RP at 181.
Conlon testified immediately after Martin. The prosecutor asked Conlon, "Looking at what you had found inside the home and given what Mr. Stone had indicated to you in his statements, did you form an opinion as to what Mr. Stone was involved in?" 2 RP at 206. Conlon testified that, based on his "training and experience and what [police] had found there and [Stone's] own statements, that [Stone] was, in fact, selling methamphetamine." 2 RP at 206. Conlon also testified that the quantity of drugs found in Stone's home indicated to him that Stone was "a mid-level dealer of methamphetamine." 2 RP at 207. Stone did not object to this testimony.
The jury found Stone guilty of three counts of possession with intent to distribute for methamphetamine, hydrocodone, and oxycodone, each with firearm and school bus route stop enhancements. It also found him guilty of unlawful possession of a firearm in the first degree. The jury found Stone not guilty of possession of alprazolam with intent to distribute, but it found him guilty of the lesser included offense of possession of alprazolam.
The court sentenced Stone to a standard range sentence of 36 months flat time on each firearm enhancement, 24 months on each school bus route stop enhancement, concurrent to one another, and 116 months for unlawful possession of a firearm, totaling 248 months.[4] The parties agreed that the firearm enhancements would run consecutively to one another and consecutively to the rest of the time imposed.
The court imposed a $250 drug investigation fund, a $500 crime victim penalty assessment, a $100 deoxyribonucleic acid (DNA) database fee, and a $200 criminal filing fee, for a total of $1, 050.
Stone appeals. The court signed an order of indigency for Stone's appeal.
Stone contends that Martin and Conlon provided unlawful opinion testimony as to his guilt. The State concedes that Martin's opinion testimony as to Stone's guilt was improper, but contends that the error was harmless. It claims that, because Stone did not object to Conlon's testimony at trial, it is not preserved on appeal because it did not give rise to manifest constitutional error. We agree with the State.
We review decisions to admit evidence under an abuse of discretion standard. State v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). The trial court abuses its discretion on an evidentiary ruling if it is contrary to law. Quaale, 182 Wn.2d at 196.
Stone contends that he preserved his challenge to Conlon's testimony by objecting to Martin's testimony. We disagree.
On appeal, a party may not raise an objection not properly preserved at trial absent manifest constitutional error. State v. Chacon, 192 Wn.2d 545, 547, 431 P.3d 477 (2018); RAP 2.5(a).
We "'are and should be reluctant to conclude that questioning, to which no objection was made at trial, gives rise to manifest constitutional error reviewable for the first time on appeal.'" State v. Warren 134 Wn.App. 44, 56, 138 P.3d 1081 (2006) (quoting State v. Madison, 53 Wn.App. 754, 762, 770 P.2d 662 (1989)). In part, this rule prevents defense counsel from "'deliberately let[ting] error be created in the record, reasoning that while the harm at trial may not be too serious, the error may be very useful on appeal.'" Warre...
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