Opinion
41934-3-II
01-29-2013
STATE OF WASHINGTON, Respondent, v. DONOVAN RICHARD HERTWIG, Appellant.
UNPUBLISHED OPINION
Johanson, A.C.J.
Donovan Richard Hertwig appeals six convictions relating to illegal controlled substances. We reverse and remand for a new trial because the trial court abused its discretion by improperly admitting Hertwig's prior drug convictions, denying him a fair trial.
FACTS
In June 2010, Tenino Police Officer Adam P. Haggerty, with the help of Yelm Police Officer Robert Malloy and others, led a narcotics investigation using a confidential informant, CI 311. CI 311 told Officer Haggerty that "Janice Carr" and "Donovan" might be potential investigation targets. 1 Verbatim Report of Proceedings (VRP) at 52. Officer Haggerty eventually identified "Donovan" as Donovan Hertwig. CI 311 arranged to purchase methamphetamine from Carr at the Grand Mound Park and Ride on June 1, 2010, and Officer Haggerty gave CI 311 $245 in prerecorded money to buy the drugs.
We refer to CI 311 rather than his/her name to protect confidentiality.
Officers stationed themselves in sight of the entrance and exit but not in direct sight of the park and ride. They knew that Carr would be driving a white Ford Explorer. At 8:29 p.m., officers followed a white Ford Explorer into the park and ride and watched it pull alongside CI 311. After Carr parked next to CI 311, Officers Haggerty and Malloy left the park and ride to station themselves near Hertwig's residence because they understood that Carr would go to Hertwig's house to purchase the drugs. Other officers remained near the park and ride. Officer Haggerty was in constant communication with CI 311.
CI 311 gave Carr the prerecorded buy money to purchase the drugs from Hertwig. Carr and CI 311 waited at the park and ride for about an hour and a half. Carr testified that she was in telephone communication with Hertwig during this time and was waiting for him to tell her she could go to his house. The officers did not witness her using a telephone.
Carr eventually drove to Hertwig's residence, and at 10:05 p.m. Officers Haggerty and Malloy watched Carr's vehicle arrive just as a sport utility vehicle (SUV) with a trailer attached, known to be Hertwig's, also arrived. The officers could not see who drove either vehicle. Officer Malloy testified that he was watching specifically for the SUV because the officers believed Hertwig would be driving it. The officers did not testify to seeing anything else until they saw Carr's vehicle leave Hertwig's at 10:30. Six minutes after Carr left Hertwig's house, a truck arrived and left at 10:38, two minutes after arriving.
When Carr's vehicle left Hertwig's residence, Officer Haggerty followed it back to the park and ride. When CI 311 alerted Officer Haggerty that he and Carr had completed their drug exchange, Officer Haggerty ordered the officers at the park and ride to arrest Carr, and they handcuffed both Carr and CI 311. In CI 311's pocket, Officer Haggerty found a baggie with red lips on it filled with methamphetamine.
After Carr left Hertwig's house, Officer Malloy remained stationed there for observation. He notified Officer Haggerty when the truck left the property at 10:38 p.m. Officer Haggerty followed the truck and he learned that the truck was registered to Hertwig. He stopped the truck and confirmed that Hertwig was the driver. Officer Haggerty handcuffed Hertwig, informed him that officers suspected him of delivery of a controlled substance, and brought him to the park and ride. After Carr identified Hertwig, Officer Haggerty read Hertwig his rights and arrested him for delivery of a controlled substance.
At the park and ride, Officer Haggerty left Hertwig in the patrol car and continued his discussion with Carr. Officers informed Carr of her rights. Officer Haggerty told Carr that if she cooperated, "maybe things would go a little bit easier, " though he did not explain exactly how things may get easier. 1 VRP at 116. Carr gave Officer Haggerty methamphetamine and $15 in prerecorded money she had kept from the transaction. She also turned over marijuana that she said did not come from Hertwig's house. Officer Haggerty then released her.
Officer Haggerty interviewed Hertwig privately and asked him about the marijuana and methamphetamine; and, Hertwig told him that he sold Carr marijuana and that he had marijuana in the freezer in his home shop and methamphetamine on his workbench in his shop. Officer Haggerty searched Hertwig and found $230 in prerecorded buy money in his pocket. Officer Haggerty then obtained a telephonic warrant to search Hertwig's residence and adjacent shop.
Officers searched Hertwig's residence and in a bedroom dresser found $250, pills in a baggie, and marijuana in a baggie with red lips on it. The officers also found pipes in the bedroom. In the shop, they found "white crystal-like powder" and a smoking device, as well as marijuana in the shop's freezer. 2 VRP at 222. Caroline Breaux—Hertwig's girlfriend–was present with her two sons during the search, but officers did not ask them any questions.
Before trial, Hertwig moved to suppress evidence obtained from the search. The trial court denied the motion.
At trial, Carr testified that she had called Hertwig and he told her that he was home. She did not know who drove the SUV to Hertwig's house but explained that Hertwig was in his shop when she arrived. Carr was at Hertwig's house for 15 to 20 minutes and did not see anyone else there. In the shop, she gave about $240 to Hertwig for methamphetamine. The officers could not see any of Carr's alleged interactions with Hertwig.
Hertwig testified that he and Carr were friends for a year, that he had loaned her about $500 to help her with expenses, and that she was paying him back slowly. On June 1, he arrived home around 10:30 p.m., and he found money on the kitchen counter that Breaux told him Carr left for him. Hertwig took the money and left to buy cigarettes. Officer Haggerty then detained him and took him to the park and ride for investigation. This was the first time that night that Hertwig saw Carr. Hertwig told officers that he stored marijuana in his shop freezer for his neighbor who had a medical marijuana card. He said that he was not driving the SUV that arrived at his house at the same time as Carr and that he only drove his truck that night. He claimed that Breaux sometimes drove the SUV with the trailer. Finally, Hertwig explained that when he said he sold Carr marijuana, he did not intend a statement but rather meant to phrase it as a question.
Throughout the testimony, witnesses refer to the truck as dark colored, red, black, and purple. We refer to it as "truck" to distinguish it from Carr's white Ford Explorer and Hertwig's SUV.
On cross-examination, Hertwig testified that he no longer took drugs. The State then moved to admit evidence of his three prior drug-related convictions. Defense counsel objected, but the trial court found that the prior convictions were probative for credibility purposes. A jury convicted Hertwig of unlawful delivery of methamphetamine, unlawful possession of marijuana over 40 grams, unlawful possession of oxycodone, unlawful possession of methamphetamine with intent to deliver, using a building for drug purposes, and unlawful use of drug paraphernalia. The jury answered "yes" on the school-zone enhancements. 4 VRP at 625. Hertwig timely filed an appeal.
At trial, Hertwig moved to amend count 3 to remove intent to deliver and to amend count 4 to eliminate possession with intent to deliver. The court granted the motion to amend count 3 to become possession of oxycodone (eliminating intent to deliver and school enhancement) but denied the motion on count 4.
ANALYSIS
I. Prior Convictions as Impeachment
Hertwig argues that the trial court committed reversible error when it failed to balance probative value against prejudicial effect before admitting evidence of Hertwig's prior drug convictions. Because evidence of the prior drug convictions was more prejudicial than probative, the trial court erred and compromised Hertwig's right to a fair trial.
We review evidentiary matters for abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). ER 609 allows admission of evidence of prior convictions to impeach a witness's credibility. A trial court may only admit this evidence if the prior crime was a crime of dishonesty, or punishable by more than a year and "the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered." ER 609(a)(1)-(2).
Hertwig had three prior convictions from January 2003—two for manufacture of methamphetamine, and another for possessing methamphetamine. Defense counsel objected to the admission of the prior convictions, arguing that the evidence was highly prejudicial because it was similar to the crime for which he was on trial. The trial court found that the prior convictions "go[] to the very weight of [Hertwig's] credibility" because Hertwig testified that he did not even see Carr that night. 3 VRP at 460. Drug convictions, however, are not crimes of truth or honesty, so they lack probative value in addressing one's credibility, and speak instead to one's behavior. See State v. Calegar, 133 Wn.2d 718, 723, 727, 947 P.2d 235 (1997) ("[p]rior convictions admitted under ER 609 must therefore have some relevance to the defendant's ability to tell the truth" and "'few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity.'") (quoting State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984)).
Admitting evidence of the prior convictions improperly allowed the jury to infer that because Hertwig committed drug crimes in the past, he would commit drug crimes again. Because prior drug convictions are not probative of a defendant's veracity, and the prejudicial effect is high, the trial court abused its discretion by admitting them.
Next, we must decide whether this is reversible error. The applicable standard is nonconstitutional harmless error. State v. Rivers, 129 Wn.2d 697, 706, 921 P.2d 495 (1996). Under this standard, improperly admitted evidence does not prejudice a defendant and warrant reversal if, within reasonable probabilities, the error did not materially affect the trial outcome. Bourgeois, 133 Wn.2d at 403. The evidence of the convictions improperly allowed the jury to infer that if Hertwig committed drug crimes before, he would commit drug crimes again. As noted above, the prejudicial effect is high, particularly in a trial about delivery of drugs.
Hertwig's defense theory was simple denial. He claimed he did not see Carr that night until Officer Haggerty brought him to the park and ride because he did not get home from work until 10:30 p.m. When he arrived home, he found money on the counter and Breaux explained that Carr had dropped it off for him. He testified that Carr owed him money on a loan. He then took the money and left the house to buy cigarettes.
The evidence shows that at 10:05 p.m., Carr arrived at Hertwig's home at the same time as a SUV. Witnesses never identified the SUV's driver, and Hertwig testified that he did not drive it. Carr left Hertwig's house at 10:30, and the SUV remained. At 10:36, six minutes after Carr left, an unknown driver of a truck arrived at Hertwig's residence. Two minutes later, Hertwig left his house in the truck, then Officer Haggerty stopped him. Hertwig testified that the drug paraphernalia at the house was not his and that when he said he sold Carr marijuana, he meant to phrase that statement as a question.
No officer testified to seeing Hertwig sell drugs to Carr. Though officers saw Carr go to Hertwig's house and found the same baggies at Hertwig's house and on Carr, they never saw Hertwig with Carr. It is just as likely that another person in the house, like Breaux, sold Carr the drugs. Thus, this case was a credibility contest between Hertwig and Carr. Hertwig offered a plausible defense theory. Because the improper admission of Hertwig's prior drug convictions allowed the jury to consider that he was guilty of prior drug crimes, we cannot conclude that within reasonable probabilities, the error did not materially affect the trial outcome.
II. Search Warrant
Hertwig argues that the search warrant lacked probable cause because the affidavit failed to demonstrate Carr's veracity or provide the basis of her knowledge as required under Aguilar-Spinelli. He additionally argues that Carr's statements lack sufficient independent corroboration to establish probable cause and that Officer Haggerty intentionally and recklessly omitted material information from his probable cause affidavit. The trial court did not err when it found that probable cause supported the search warrant.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
A. Standard of Review and Rules of Law
The Fourth Amendment of the U.S. Constitution and article 1, § 7 of the Washington Constitution both protect people from unreasonable searches and seizures. State v. Meneese, 174 Wn.2d 937, 942, 282 P.3d 83 (2012). Article 1, § 7 of the Washington Constitution states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Our state constitution focuses on "'those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.'" State v. Jackson, 150 Wn.2d 251, 259-60, 76 P.3d 217 (2003) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)).
We review for an abuse of discretion a magistrate's finding of probable cause based on an affidavit for a search warrant. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). We defer to the issuing magistrate's determination that the warrant should issue. State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995). Under our federal and state constitutions, a law enforcement officer must obtain a search warrant to conduct a home search. Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994).
Washington applies the Aguilar-Spinelli test to assess the validity of an informant's tip used to establish probable cause. State v. Jackson, 102 Wn.2d 432, 435-38, 688 P.2d 136 (1984). Under this test, an affidavit should demonstrate an informant's (1) basis of knowledge and (2) credibility. Jackson, 102 Wn.2d at 437. If an affidavit does not meet these two parts, the affidavit can still show probable cause if police investigation sufficiently corroborates the informant's statements. Jackson, 102 Wn.2d at 438.
In State v. O'Connor, Division One of this court did not directly apply the Aguilar-Spinelli test because O'Connor involved a named informant who made statements against its own penal interest. 39 Wn.App. 113, 120, 692 P.2d 208 (1984), review denied, 103 Wn.2d 1022 (1985). The court determined that police corroboration is not a necessary factor when the named informant makes statements against its penal interest. O'Connor, 39 Wn.App. at 120. Division One identified four factors to determine an informant's veracity: whether the informant (1) is named, (2) provides a statement against interest, (3) provides statements while under arrest, and (4) the amount and kind of detail provided in the informant's statements. O'Connor, 39 Wn.App. at 120-22.
In State v. Chenoweth, our Supreme Court considered the standard for challenges to the veracity of a facially-valid warrant. 160 Wn.2d 454, 462, 158 P.3d 595 (2007). It held that a warrant is invalid if "the warrant affiant recklessly or intentionally makes material misstatements or omissions." Chenoweth, 160 Wn.2d at 479. Material omissions are those "necessary to the finding of probable cause." State v. Copeland, 130 Wn.2d 244, 277, 922 P.2d 1304 (1996).
And under Franks v. Delaware, a defendant may request a hearing on the validity of a warrant if the
defendant makes a substantial preliminary showing that a false statement, knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
B. Analysis
Under O'Connor, the Aguilar-Spinelli test does not directly apply to named informants. 39 Wn.App. at 120 ("the Aguilar/Spinelli strictures were aimed primarily at unnamed police informers"). Here, the trial court determined that Carr was a criminal actor rather than a criminal informant. Because Carr was a named informant, the Aguilar-Spinelli test does not apply.
Because both parties used the Aguilar Spinelli test, we briefly address it. First, the probable cause affidavit sufficiently details the knowledge prong of Aguilar-Spinelli. The basis of the informant's (Carr) knowledge was that she personally purchased drugs from Hertwig at his house then delivered them to CI 311. Because Carr's knowledge came from personally purchasing the drugs, the affidavit sufficiently satisfies the "basis of knowledge" prong of Aguilar Spinelli. Second, we examine the credibility prong. In Jackson, the trial court found an informant credible because information he provided police in the past had proven reliable and accurate, so the court could infer that because the informant had been truthful in the past, he would likely be truthful again. Jackson, 102 Wn.2d at 443-44. Unlike Jackson, though, Carr never provided information to police, so they did not know whether she was credible. But Carr's information proved relatively reliable in that police corroborated much of her information.
Hertwig argues that Carr was a "criminal informant" and claims that courts presume that criminal informants are unreliable. Br. of Appellant at 38. He cites State v. Northness, which refers to unidentified professional informants, such as CI 311 here. 20 Wn.App. 551, 557, 582 P.2d 546 (1978). Here, police disclosed Carr's name, so Northness is not on point.
Instead, per O'Connor we apply a four-factor test to evaluate an informant's credibility: whether the informant (1) is named, (2) provides a statement against interest, (3) provides statements while under arrest, and (4) the amount and kind of detail provided in the statements. 39 Wn.App. 120-22. In evaluating Carr's credibility under O'Connor, the first three factors establish her credibility. First, the affidavit listed Carr's name, supporting her credibility because an informant is less likely to lie when the affidavit connects her name to her statements. O'Connor, 39 Wn.App. at 121. Second, Carr made a statement against her interest by saying that she had purchased methamphetamine. O'Connor, 39 Wn.App. at 120-21. Third, Carr made these statements while under arrest. O'Connor, 39 Wn.App. at 121 (holding that arrested informants are reliable especially if they believe telling the truth will be in their interest) (citing State v. Bean, 89 Wn.2d 467, 469, 471, 572 P.2d 1102 (1978)). The last factor is the amount and kind of detail the informant provides. O'Connor, 39 Wn.App. at 122. Here, Carr did not provide much detail but did tell the officers where she obtained the drugs and from whom she purchased them.
Additionally, officers corroborated many of Carr's statements. They observed Carr drive to Hertwig's house with prerecorded money and return with the drugs and substantially less prerecorded money. Moreover, officers found the rest of the prerecorded money on Hertwig approximately 10 minutes later. Accordingly, the trial court did not abuse its discretion when it denied Hertwig's suppression motion because probable cause supported the warrant.
Next, Hertwig argues that in the probable cause affidavit, Officer Haggerty "recklessly or intentionally omitted Ms. Carr's personal interest in the case, minimized or obscured her status as an arrestee, and omitted any mention that Ms. Carr cooperated with police in order to receive favorable treatment." Br. of Appellant at 37. Any omitted facts, however, were not material to a probable cause finding.
First, Hertwig alleges that Officer Haggerty intentionally omitted that Carr made her statements while under arrest. Although Officer Haggerty did not expressly say that Carr was under arrest, he informed the issuing magistrate that Carr was "taken down" and advised of her rights. The issuing magistrate may reasonably infer that Carr was a criminal actor and under arrest when making these statements. Officer Haggerty did not intentionally omit information.
Second, Hertwig alleges that Officer Haggerty intentionally omitted that Carr was cooperating with police to reduce her charges. While Officer Haggerty did mention to Carr that he may be able to help her, they had no formal leniency agreement. O'Connor considered omitted information from an affidavit and held that because the officer "genuinely believed that the omitted statement was irrelevant, even if that belief was mistaken, the omission was not reckless or deliberate." 39 Wn.App. at 118. Here, where there was no formal leniency agreement, one may reasonably infer that Officer Haggerty did not think it would be relevant to include that information in the affidavit.
Even if Officer Haggerty erroneously omitted information, that information was immaterial. Our courts have held that statements a person makes while under arrest are inherently more reliable because arrestees do not want to take police down the wrong path. See Bean, 89 Wn.2d at 469, 471; O'Connor, 39 Wn.App. at 121. The same can be true for statements made under a leniency agreement. See Bean, 89 Wn.2d at 469, 471 (holding that informant was truthful because the State would offer a favorable sentencing recommendation in return for information). Therefore, even had the statements been included in the affidavit, they would be immaterial because they favor the affidavit's strength.
III. Written Findings of Fact after Suppression hearing
Next, Hertwig argues that the trial court unfairly prejudiced him when it failed to enter written findings after the evidentiary hearing. Any error was harmless.
CrR. 3.6 mandates that the trial court "shall enter written findings of fact and conclusions of law" after an evidentiary hearing. If failure to do so did not prejudice the defendant, then there is no error. State v. Glenn, 140 Wn.App. 627, 639-40, 166 P.3d 1235 (2007).
Here, the trial court made oral findings from the suppression hearing on the record, but it did not issue written findings. The trial court expressly outlined its rulings on whether Officer Haggerty pretextually stopped Hertwig and whether the warrant was valid, as well as the facts it considered to reach its findings of fact and conclusions of law. These oral findings allowed Hertwig to raise and argue his appeal. Therefore, any error in failing to issue written findings of fact was harmless. See State v. Johnson, 75 Wn.App. 692, 698 n.3, 879 P.2d 984 (1994), review denied, 126 Wn.2d 1004 (1995).
IV. Pretext or Investigative Stop
Hertwig next argues that Officer Haggerty violated Hertwig's privacy rights when he performed a pretextual stop. We disagree.
A pretextual stop is one made to "accomplish an impermissible ulterior motive." State v. Ladson, 138 Wn.2d 343, 354, 979 P.2d 833 (1999). Washington courts have consistently held that police cannot conduct pretext stops. Ladson, 138 Wn.2d at 355-56. An officer can, however, conduct an investigative stop "if the arresting officer can attest to specific and objective facts that provide a reasonable suspicion that the person stopped has committed or is about to commit a crime." State v. Hopkins, 128 Wn.App. 855, 862, 117 P.3d 377 (2005). We apply a totality of the circumstances test, based on what the officer knew at the start of the stop. State v. Lee, 147 Wn.App. 912, 917, 199 P.3d 445 (2008), review denied, 166 Wn.2d 1016 (2009). We review the trial court's conclusions de novo. Lee, 147 Wn.App. at 916.
Officer Haggerty performed an investigative stop as he did not stop Hertwig for a traffic infraction but rather because he wanted to investigate an illegal drug sale. The trial court did not abuse its discretion in finding that this was an investigative Terry stop, not a pretextual stop.
We note that our Supreme Court's recent decision in State v. Arreola, No. 86610-4 (Wash. Dec. 20, 2012), does not apply here because this matter did not involve a mixed-motive traffic stop.
V. Prior Statements by Confidential Informant/Confrontation Clause
Hertwig argues that the trial court improperly admitted, through Officer Haggerty's testimony, CI 311's statements that Hertwig and Carr may be possible targets for Officer Haggerty's improper controlled substance investigation, thus violating Hertwig's right to confront CI 311. Again, we disagree.
The standard of review is de novo. State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009). Whether the admitted statement is hearsay is not the main focus for confrontation analysis. State v. Mason, 160 Wn.2d 910, 918, 921-22, 162 P.3d 396 (2007), cert. denied, 553 U.S. 1035 (2008). "To survive a hearsay challenge is not, per se, to survive a confrontation clause challenge." Mason, 160 Wn.2d at 922. In this case, the statement survives a hearsay challenge, but we must next determine whether the statement was testimonial.
Under Mason, trial courts can only admit "testimonial" statements if they are subject to confrontation. 160 Wn.2d at 918 (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). A statement can be testimonial if it was "intended to establish a fact and . . . it was reasonable to expect it would be used in a prosecution or investigation." Mason, 160 Wn.2d at 922. Here, CI 311's statements were the beginning of an investigation that led to a future prosecution. An objective person may infer that officers elicited the statements in the interest of an investigation and future prosecution.
Testimonial statements are only admissible under the confrontation clause if the declarant is (1) unavailable and (2) the defendant was able to cross-examine the declarant before trial. Koslowski, 166 Wn.2d at 417. The State must demonstrate that it put forth effort to obtain the witness before the court will find the declarant unable to testify. State v. Sanchez, 42 Wn.App. 225, 230, 711 P.2d 1029 (1985), review denied, 105 Wn.2d 1008 (1986). There is nothing in the record to demonstrate that CI 311 was unavailable, nor does the record show that Hertwig had an opportunity to confront CI 311. We caution the State that without additional foundation, the admission of CI 311's statements through the testimony of Deputy Haggerty is likely error. But even assuming that Officer Haggerty offered CI 311's statements in violation of Hertwig's confrontation rights, any error was harmless because Carr properly offered similar and more damaging evidence. Whereas CI 311 suggested Hertwig was a potential target for Haggerty's drug investigation, Carr testified that she, in fact, purchased methamphetamine from Hertwig. Therefore, any error was harmless.
VI. Jurisdiction of Police Officers
Hertwig argues in his Statement of Additional Grounds that police acted outside the scope of their jurisdiction. Officer Haggerty is a Tenino officer, and Officer Malloy is a Yelm officer. The arranged drug deal was supposed to take place in Tenino, however, Carr changed the location to the Grand Mound Park and Ride.
RAP 10.10.
RCW 10.93.070 lists six exceptions in which an officer can work outside his or her jurisdiction: (1) with written consent from the sheriff, (2) responding to an emergency, (3) an officer in the other jurisdiction requests assistance, (4) transporting a prisoner, (5) executing a warrant, and (6) if the officer is in fresh pursuit. Because Hertwig did not address this issue at trial, the record does not inform us if an exception applies. We decline to address this issue because we cannot consider matters outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). RAP 2.5(a).
We reverse and remand for a new trial due to improper admission of prior convictions.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: Penoyar, J. Bridgewater, J.