Opinion
No. 62462-8-I.
September 14, 2009.
Appeal from the Superior Court, King County, No. 08-1-03477-8, Christopher A. Washington, J., entered October 13, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Lau and Leach, JJ.
Devin Hill, convicted of delivering cocaine to an undercover officer, contends the trial court committed reversible error by admitting hearsay. The record shows, however, that the trial court excluded the hearsay statement Hill specifically objected to. Hill failed to preserve an objection to the remaining testimony he now contests. On appeal he fails to demonstrate that it contained prejudicial hearsay offered for the truth of the matter asserted. We affirm.
On March 27, 2008, Seattle police conducted an undercover operation that resulted in Hill's arrest. The State charged Hill with delivery of cocaine. Juan Tovar, the undercover officer to whom Hill allegedly delivered the cocaine, was prepared to testify that he approached another individual, Robert Grant, to inquire whether Grant had narcotics to sell. He received an affirmative answer. Grant then led Tovar to Hill and asked if Hill knew Tovar. Hill led Tovar up the street, with Grant following. Hill expressed suspicion about Tovar possibly being a police officer, but eventually, after Tovar gave Grant some money, Hill pointed out some pieces of crack cocaine in a planter box next to a building. Tovar picked up several pieces and gave the "good buy" sign to the watching surveillance team.
Before trial, the State moved to admit Tovar's testimony about what Grant said to him. The basis of the motion was ER 801(d)(2), which allows statements of a co-conspirator offered against a party as an exception to the rule barring admission of hearsay evidence. Counsel for Hill objected that the State had not made the necessary foundational showing of a conspiracy between Grant and Hill. Counsel was primarily concerned to exclude the testimony that Grant said he had narcotics to sell. The prosecutor asserted that the State would not be offering the statements of Grant to prove that he was dealing drugs, but only to show why the officer behaved as he did. The court observed that the statements made "prior to Mr. Hill being present" were of concern, but at the same time it was "only fair" to let the officer explain how it was that he came to encounter Hill. The court asked counsel to try to reach an agreement on a format for Tovar's testimony that would accommodate both concerns. "There's a point at which the possible prejudicial effect overweighs the substantive value, and that's my concern and that's why I'm asking the two of you to talk."
Shortly thereafter, the prosecutor reported that Officer Tovar would simply testify that he was inquiring with Grant about purchasing narcotics, and that Grant led him to Hill after that conversation. The court approved of this proposal. Defense counsel objected that "anything that occurred prior to my client's presence should not be heard at all by the jury."
At trial, Grant did not testify and neither did Hill. Officer Tovar conformed his testimony to the court's ruling:
Q. [Prosecutor]: And on that night did you come in contact with an individual named Grant?
A. [Tovar]: Yes.
Q. Did you inquire of this individual about purchasing narcotics?
A. Yes.
Q. And did this individual bring you into contact with any person in the courtroom here today?
A. Yes.
[Defense counsel]: Objection, Your Honor, foundation as to Grant.
[Prosecutor]: I can rephrase the question, Your Honor.
The Court: Do you wish to have more foundation?
[Defense counsel]: I do, Yes.
The Court: I'll sustain the objection and you can go into further detail if you wish.
[Prosecutor]: Okay.
Q. [Prosecutor]: So what was your conversation with Grant about?
[Defense counsel]: Objection. Your Honor, may I be heard? The issue is not a conversation, but rather identity.
The Court: Well, I'll overrule your objection and I'll leave that for cross-examination. So continue on the same line of questioning that you began with counsel.
Q. [Prosecutor]: Thank you. Did Grant — when you first encountered Grant, was he able to give you narcotics right away?
A. No.
Q. What did he do?
A. He took me to somebody else.
Q. And who did he take you to?
A. To Mr. Hill.
. . . [Witness makes in court identification of defendant] Q. [Prosecutor]: So he took you to the defendant? A. Correct.
Q. And then what happened?
A. He asked — he asked Mr. Hill if he knew me.
Q. So Grant asked Mr. Hill if he knew you?
A. Yes.
On September 30, 2008, a jury found Hill guilty as charged. Hill appeals. He assigns error to the trial court's ruling, claiming that out-of-court statements by Robert Grant were improperly admitted. He contends that the statements were hearsay, that the co-conspirator exception to the hearsay rule did not apply and that the State impermissibly offered the statements for the truth of the matter asserted. According to Hill's argument on appeal, Grant's hearsay statements established that Grant himself did not have narcotics for sale, and that Grant knew Hill to be someone who did have narcotics for sale. He argues that without such proof, the State's case against him would be weak because he had no money or drugs when arrested.
A threshold problem with Hill's argument is his failure to identify the statements by Grant that he contends should have been excluded. Below, Hill specifically objected to letting Officer Tovar testify to Grant's statement that he was selling narcotics. He argued that "the only reason why the State wants to bring that out is to demonstrate that Grant is selling drugs." The court did not allow the State to elicit this statement from Officer Tovar at trial. Officer Tovar testified that he asked Grant about purchasing narcotics and that Grant led him to Hill. On appeal Hill does not identify what part of this testimony is hearsay. Also, Officer Tovar's testimony that Grant led him to Hill did not unequivocally assert that Hill was his partner holding the cocaine. Officer Tovar testified that Grant took him to Hill and asked if Hill knew Tovar. Grant's behavior just as logically could be interpreted as showing that he wanted someone to vouch for Officer Tovar before selling him cocaine.
We also agree with the State that the alleged error was not properly preserved by a timely objection in the trial court. Although Hill's initial objection was on hearsay grounds, the court decided to exclude the testimony to which he specifically objected. If Hill believed the remaining testimony included hearsay, he was obliged to make a further hearsay objection. ER 103(a)(1). In the context of the discussion with the court, Hill's general objection that "anything that occurred prior to my client's presence should not be heard at all by the jury" was insufficient to make the ground of his objection apparent to the court. See State v. Pittman, 54 Wn. App. 58, 66, 772 P.2d 516 (1989).
Even assuming it was apparent to the trial court that Hill was maintaining a standing hearsay objection to letting the jury hear that Grant led Officer Tovar to Hill, and further assuming that such conduct was a "statement" for purposes of the hearsay rule (an issue not briefed by Hill), we cannot conclude that the court's ruling was an abuse of discretion. Statements that would otherwise be excludable as hearsay may be admitted when they are not offered for the truth of their contents but for another relevant purpose. State v. Aaron, 57 Wn. App. 277, 280, 787 P.2d 949 (1990). In Aaron, the State tried to justify a hearsay statement about the defendant having a blue jacket on the basis that it was offered "to show the officer's state of mind in explaining why he acted as he did." Aaron, 57 Wn. App. at 280-81. The court rejected this argument, holding that the testimony was irrelevant and served only to prejudice the defendant. Here, evidence that it was Grant who led Officer Tovar to Hill was relevant to show the context of the conversation and drug transaction that ensued between Officer Tovar and Hill. Grant's behavior did not directly assert that Hill was involved in drug dealing. Grant remained present for the entire transaction and showed by his conduct that he was an active participant. We conclude the trial court appropriately limited Officer Tovar's testimony.
Affirmed.
WE CONCUR: