State v. Williams

• Decision Date: 22 April 1999
• Docket Number: No. 67009-9,67009-9
• Citation: 975 P.2d 963,137 Wn.2d 746
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Douglas B. WILLIAMS, Respondent.

Page 746

137 Wn.2d 746

975 P.2d 963

STATE of Washington, Petitioner, v. Douglas B. WILLIAMS, Respondent.

No. 67009-9.

Supreme Court of Washington En Banc.

Argued Feb. 24, 1999.

Decided April 22, 1999.

Steven Tucker, Spokane County Prosecutor, Janet Gemberling, Deputy, Spokane, for Petitioner.

Paul J. Wasson, II, Spokane, for Respondent.

ALEXANDER, J.

The State of Washington charged Douglas B. Williams, in Spokane County Superior Court, with one count of delivery of cocaine. Before trial a hearing was held pursuant to Rule 3.5 of the Superior Court Criminal Rules (hereinafter CrR 3.5) to determine the admissibility of custodial statements that Williams had given to a Spokane police officer. The statements were held to be

admissible. At trial the statements were admitted and Williams was convicted. Williams appealed to the Court of Appeals, arguing that the trial court's failure to advise him of certain rights during the CrR 3.5 hearing was reversible error. That court reversed the trial court and remanded for a new trial. The State petitioned this court for discretionary review. We granted review and now reverse the Court of Appeals, concluding that Williams may not raise the issue that the CrR 3.5 procedure was not complied with because he did not raise it at trial.

FACTS

In 1995 Williams allegedly sold a police informant .4 grams of cocaine base, more commonly known as "crack." Three weeks later, Detective Mark Burbridge of the Spokane Police Department arrested Williams after obtaining a search warrant authorizing the search of Williams's residence. After being advised of his Miranda ¹ rights by Burbridge, Williams waived his right to remain silent and gave Burbridge a statement in which he "denied ever having sold crack cocaine or knowing anything about the drug business." Verbatim Report of Proceedings (VRP) at 54.

Williams and three other persons were each charged with one count of delivering a controlled substance (cocaine). Williams was tried separately. Prior to his trial, a CrR 3.5 hearing was held to determine whether Williams's custodial statements could be admitted at trial. Burbridge was the sole witness to testify at the hearing. Following Burbridge's testimony, the trial judge asked whether there was "[a]ny other testimony?" VRP at 23. In response, Williams's counsel responded, "I don't have any testimony, Your Honor." VRP at 23. It is undisputed that the trial judge did not expressly advise Williams of his testimonial rights during the CrR 3.5 proceeding. At the end of the hearing the trial judge ruled that Williams's statements were admissible. A

                jury trial was subsequently held at which Williams's statements were admitted.  Williams testified, and was convicted of the charge.  Williams appealed to Division Three of the Court of Appeals, assigning error to the trial court's failure to advise Williams, under CrR 3.5(b), of his testimonial rights.  That court in a 2-1 decision, reversed the conviction and remanded for a new trial.  State v. Williams, 91 Wash.App. 344, 955 P.2d 865, review granted, 136 Wash.2d 1030, 972 P.2d 467 (1998).   We granted the State's petition for review
                

ANALYSIS

The State asserts that the Court of Appeals erred in considering the issue raised in Williams's appeal because Williams did not raise it at trial. The State correctly observes that under Rule 2.5(a) of the Rules of Appellate Procedure (RAP), appellate courts will generally not consider issues raised for the first time on appeal. Williams responds that the Court of Appeals correctly considered the issue on the basis that "a claim of error may be raised for the first time on appeal if it is a 'manifest error affecting a constitutional right.' " State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3); citing State v. Scott, 110 Wash.2d 682, 686-87, 757 P.2d 492 (1988); State v. Lynn, 67 Wash.App. 339, 342, 835 P.2d 251 (1992)). The burden, however, is upon the defendant to make the required showing. "The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected the defendant's rights; it is this showing of actual prejudice that makes the error 'manifest,' allowing appellate review." McFarland, 127 Wash.2d at 333, 899 P.2d 1251 (emphasis added) (citing Scott, 110 Wash.2d at 688, 757 P.2d 492; Lynn, 67 Wash.App. at 346, 835 P.2d 251). The fundamental issue in this case, therefore, is whether the trial court's failure to comply with its duty under CrR 3.5(b) to explain Williams's testimonial rights is a manifest error affecting a constitutional right.

Under CrR 3.5(a), "[w]hen a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible." The trial judge is required to inform the defendant at that hearing

that: (1) he may, but need not, testify at the hearing on the circumstances surrounding the statement; (2) if he does testify at the hearing, he will be subject to cross examination with respect to the circumstances surrounding the statement and with respect to his credibility; (3) if he does testify at the hearing, he does not by so testifying waive his right to remain silent during the trial; and (4) if he does testify at the hearing, neither this fact nor his testimony at the hearing shall be mentioned to the jury unless he testifies concerning the statement at trial.

CrR 3.5(b). Although the trial judge did not provide this information to Williams, Williams did not complain of his failure to do so until his appeal.

Williams has not even met his threshold requirement of identifying a constitutional error. See McFarland, 127 Wash.2d at 333, 899 P.2d 1251. We consider his claim in light of the purpose of CrR 3.5 as a whole. CrR 3.5 was formerly CrR 101.20W:

Criminal rule 101.20W (CrR 3.5) is Washington's confession procedure rule. Its basic purpose is to provide a uniform procedure for the admission of voluntary confessions (as well as other [incriminating] custodial statements, see State v. Jones, 65 Wash.2d 449, 455, 397 P.2d 815 (1964)) in a fashion that will prevent the jury from hearing an involuntary confession. The rule's significant impact is that the trial judge resolves the issue of voluntariness in the absence of the jury and thus obviates the due process problems that would arise where the jury hears an involuntary confession.

State v. Myers, 86 Wash.2d 419, 425, 545 P.2d 538 (1976) (citing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964); State v. Lopez, 67 Wash.2d 185, 188, 406 P.2d 941 (1965); State v. Taplin, 66 Wash.2d 687, 690, 404 P.2d 469 (1965)). CrR 101.20W, which

became effective in 1967, was designed to enforce constitutional rights found by the United States Supreme Court. See State v. Woods, 3 Wash.App. 691, 695, 477 P.2d 182 (1970) (citing Jackson, 378 U.S. 368, 84 S.Ct. 1774; Miranda, 384 U.S. 436, 86 S.Ct. 1602). The Court has held that under the Fourteenth Amendment, "[a] defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined." Jackson, 378 U.S. at 380, 84 S.Ct. 1774. This hearing should occur "at some stage in the proceedings," Jackson, 378 U.S. at 376, 84 S.Ct. 1774, and the Court wrote that "[i]t is both practical and desirable that ... a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence." Jackson, 378 U.S. at 395, 84 S.Ct. 1774.

Even though CrR 3.5, after changes effective in 1973, now more generically governs the admission of any "statement of the accused," CrR 3.5(a), the constitutional command that is its foundation has not expanded. Indeed, the rule itself is still entitled "Rule 3.5. Confession procedure." CrR 3.5 (emphasis added); see also State v. Wolfer, 39 Wash.App. 287, 291, 693 P.2d 154 (1984) ("CrR 3.5 provides a mechanism which allows a defendant to have the voluntariness of an incriminating statement determined in a preliminary hearing.") (emphasis added) (footnote omitted), review denied, 103 Wash.2d 1028 (1985). The rule, as a whole, is still intended to ward against the admission of involuntary, incriminating statements. Even under a former version of CrR 3.5, where a confession was admitted into evidence without the required pretrial hearing, we held that remand for such a hearing was unnecessary where there was no question of the confession's voluntariness. See Lopez, 67 Wash.2d at 189-90, 406 P.2d 941. Under such circumstances, after all, "it is difficult to conceive of a more idle and useless procedure." Lopez, 67 Wash.2d at 190, 406 P.2d 941 (footnote omitted).

In its opinion, the majority in Williams cited a Division Two opinion for the proposition "that the failure to comply with CrR 3.5(b) was error of constitutional magnitude which could be raised for the first time on appeal." Williams, 91 Wash.App. at 346, 955 P.2d 865 (citing State v. Alexander, 55 Wash.App. 102, 105, 776 P.2d 984, review denied, 110 Wash.2d 1039 (1988)). The facts of Alexander are very different than the facts here and, consequently, the case does not avail Williams. In Alexander noCrR 3.5 hearing was held despite the defendant's objection, "on constitutional grounds," to the introduction of his incriminating custodial statement through a police officer's testimony. Alexander, 55 Wash.App. at 103, 776 P.2d 984. Therefore, "the court made its decision to admit this statement based only on the officer's version of the facts, without permitting the defendant the opportunity to testify or present other evidence, if any." Alexander, 55 Wash.App. at 105, 776 P.2d 984. Obviously Alexander is distinguishable on a factual...