State v. Woods

• Decision Date: 19 July 1971
• Docket Number: No. 627--I,627--I
• Citation: 5 Wn.App. 399,487 P.2d 624
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Chester Raymond WOODS, Appellant.

Page 399

5 Wn.App. 399

487 P.2d 624

STATE of Washington, Respondent, v. Chester Raymond WOODS, Appellant.

No. 627--I.

Court of Appeals of Washington, Division 1, Panel One.

July 19, 1971.

Barokas, Martin, Richey & Schaefer, Larry L. Barokas, Seattle, court-appointed for appellant.

Christopher T. Bayley, King County Pros. Atty., Charles E. Yates, Deputy Pros. Atty., Seattle, for respondent.

UTTER, Judge.

Chester Woods was convicted of unlawful possession of heroin. He assigns error to the court's failure to advise him of his rights pursuant to CrR 101.20W; failure to allow him a continuance to obtain a witness; failure to observe the provisions of the 'no knock' rule; insufficiency of the evidence to establish constructive possession; and, the court's failure to order disclosure of the identity of the informant. We hold the assignments of error are not well taken and affirm the conviction.

There is evidence which establishes that a few days before his arrest, Woods had a room in the home where the arrest took place. A search warrant for the premises was obtained by the Seattle Police Department. When the officers knocked on the door of the residence, the conversation inside suddenly ceased, and there was silence for about 30 seconds. The officers, believing drugs were being destroyed, then broke down the door and entered. They proceeded to search the premises and found narcotics paraphernalia and heroin. The heroin was found in a room in which Woods said he kept his coat. Woods' shaving kit and a prescription with his name on it were found in the same bookcase where the heroin was found.

The court did not err in failing to read Woods his rights pursuant to CrR 101.20W. At the time the hearing on the voluntariness of the statements was held, the following exchange took place between the court, the deputy prosecutor, and counsel for Woods:

MR. HOTCHKIN: Nothing further. The State has nothing further on the 101.20W, your Honor.

MR. TANNER: We have nothing further, your Honor.

THE COURT: I take it that the defendant is not going to take the stand?

MR. TANNER: Not at this time.

MR. HOTCHKIN: Has the defendant been advised that he is--

MR. TANNER: He's been advised that he has the right to.

THE COURT: It won't be necessary for me to read that portion of our Rule 101, I take it?

MR. TANNER: That's correct. He knows that he has the right to take the stand.

Counsel may waive a right of his client. State v. Turner, 3 Wash.App. 948, 478 P.2d 747 (1970); People v. Hill, 67 Cal.2d 105, 60 Cal.Rptr. 234, 429 P.2d 586 (1967), cert. denied, 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 607 (1967). We find a valid waiver by counsel's attorney took place in this instance.

Woods requested a continuance at the start of the trial to obtain a witness for his defense. He stated to the court, 'I can't go to trial like that. I'm entitled to a defense. He is going to prosecute me without a defense. I got a witness I can get.' Woods was in contact with his attorney from December 12, 1969, until the trial on February 2, 1970. There is no showing a subpoena was issued for any witness during this time. The granting or denial of a motion for continuance is within the discretion of the trial court. State v. Smith, 56 Wash.2d 368, 353 P.2d 155 (1960); State v. Sutherland, 3 Wash.App. 20, 472 P.2d 584 (1970). No abuse of discretion is shown here.

Woods contends the heroin was obtained as a result of an unreasonable search and seizure when the arresting officers allegedly violated the provisions of RCW 10.31.040, commonly referred to as the 'no knock' rule. He raises this issue for the first time on this appeal. The rule consistently applied in this state is that to preserve an alleged trial error for appellate review, a defendant must timely object to the introduction of the evidence or move to suppress it prior to or during the trial. State v. Silvers, 70 Wash.2d 430, 423 P.2d 539 (1967); State v. Baxter, 68 Wash.2d 416, 413 P.2d 638 (1966); State v. Jackovick, 56 Wash.2d 915, 355 P.2d 976 (1966); State v. Robbins, 37 Wash.2d 431, 224 P.2d 345 (1950).

Woods' failure to properly object to the admission of the evidence at the trial makes it impossible for us to determine whether or not the officers' entry was legal. There is nothing conclusive in the evidence establishing the legality or the illegality of the officers' conduct. We are not apprised of the particular circumstances surrounding the entry of the officers into the home, other than the silence following the police knock on the door. There is no showing as to whether or not the home had windows through which the officers could have looked and observed what activity was actually attendant to the resulting silence. State v. Hatcher, 3 Wash.App. 441, 475 P.2d 802 (1970). Nor is there any showing as to what circumstances, if any, contributed to the police officers' belief that the nature of the situation was 'exigent and necessitous,' thereby authorizing their unannounced and forceful entry. State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969). The reason none of this appears in the record is because Woods failed to challenge the admissibility of the evidence by filing a motion to suppress or by making a proper objection.

Proper objection to the evidence would have challenged the state to introduce evidence in justification or explanation of the conduct of the officers, thereby creating a clear and complete record of the issue from which we might have found error. State v. Robbins, Supra. Woods' failure to object rendered the introduction of this type of evidence unnecessary. The burden is on the defendant to clearly establish on the record the commission of error by the trial court. State v. Baxter, Supra.

The requirements that error be clearly established by the record is similar to the rule that federal courts may notice only unassigned plain errors on appeal. 18 U.S.C.A. Rule 52(b) (Fed.Rules of Crim.Proc.1961). Sykes v. United States, 373 F.2d 607 (5th Cir. 1966), the defendants objection on their appeal that real evidence taken from their clothing was inadmissible because their arrest was illegal. No pretrial motion to suppress the evidence was made, nor was objection taken when the clothing was offered during the trial. The court held:

Imagination in re-living the trial is here not sufficient, but must be accompanied by speculation as to what would have appeared had the claim of error been considered. Speculation wastes time and bears ephemeral fruit. For this...