Opinion
Nos. 58201-1-I; 58202-0-I.
August 13, 2007.
Appeals from judgments of the Superior Court for Snohomish County, Nos. 05-1-01973-0 and 05-1-01245-1, Thomas J. Wynne, J., entered May 2, 2006.
Affirmed by unpublished per curiam opinion.
Angey McKinney appeals her conviction for possession of cocaine and methamphetamine with intent to deliver and her conviction for possession of heroin. Relying on Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), McKinney contends her federal and state constitutional right to confrontation was violated when the trial court admitted (1) the motel manager's out-of-court statement to Officer Williams, (2) Crystal Donovan's out-of-court statements to Officer Marrs, and (3) police officers' testimony in rebuttal about McKinney's former boyfriend, Willie Durant, and her then-current boyfriend, Todd "Too Tall" Turcott. McKinney also contends her constitutional right to privacy was violated by the requirement that she submit a biological sample for DNA identification. Because the challenged statements were not hearsay, McKinney's constitutional right to confrontation was not violated. And because the untainted evidence overwhelmingly established guilt, we conclude any error in admitting the challenged statements was harmless. We also conclude the submission of a DNA sample does not violate McKinney's constitutional right to privacy and affirm.
FACTS
Possession of Cocaine and Methamphetamine with Intent to Deliver
On April 5, 2005, while on patrol in a high crime area in Everett, Anti-Crime Unit Officer Dan Rabelos and Officer Timothy O'Hara saw a woman in the parking lot of the Sunrise Motel who appeared to be under the influence of crack cocaine. According to Officer Rabelos, "her body was jerking uncontrollably, with her head moving to the side, [and] a lot of hand movements that she was not able to control." When Officer Rabelos tried to talk to her, the woman constantly fidgeted with the Ace bandage on her arm. As she was doing so, Officer Rabelos saw rock cocaine hidden in the bandage. Officer Rabelos placed the woman under arrest for possession of cocaine.
Based on information the woman had provided, the officers decided to go to Room 224 of the Sunrise Motel. But before going to the motel room, they called for additional police assistance. When Officer Michael Braley and Officer Randall Marrs arrived, they went to room 224, and Officer Rabelos knocked on the door. A man, who Officer Rabelos recognized as Willie Durant, opened the door. Before Durant slammed the door shut, Officer Rabelos saw rock cocaine piled on a table inside the room. When Officer Rabelos knocked again, and demanded entry, the officers heard "scrambling around like stuff [was] being hidden and slammed around" inside the room. A few minutes later, Durant opened the door.
After Officer Rabelos arrested Durant, a woman came out of the bathroom. The woman identified herself as Angey McKinney. Officer Rabelos escorted McKinney outside to talk to her. When the officers searched the bathroom, they found cash, drug paraphernalia, cocaine, and methamphetamine.
While Officer Rabelos was trying to talk to McKinney, her cell phone was ringing constantly. Because Officer Rabelos suspected the calls were related to drug activity, he began answering the cell phone. Officer Rabelos testified he answered about 35 calls. He said that a majority of the callers wanted to buy precise amounts of either methamphetamine, cocaine, or heroin. Officer Rabelos said that about half the callers asked for "Angey" and the other half asked for "Too Tall."
Officer Rabelos testified in detail about two cell phone calls. One call was from a woman saying McKinney's boyfriend, Turcott, was angry because "Angey had his stuff and was now selling [it]." Another caller, Crystal Donovan, called twice from the Denny's parking lot just outside the Sunrise Motel saying "she had been waiting for over 20 minutes for her shit from Angey." When Officer Rabelos offered to bring the drugs to Donovan, she described herself and her clothing and told him she would wait for him in the parking lot next to Denny's.
Officer Rabelos then asked Officer Marrs to go to the parking lot to meet Donovan. When Officer Marrs, who was in uniform, approached Donovan, she said, "'[h]i officer, I'm just meeting my friend, Angey.'" Officer Marrs asked her to accompany him to speak with Officer Rabelos. Donovan protested that she was waiting to meet a man whom she had just spoken with on the cell phone. Officer Marrs escorted Donovan to Officer Rabelos, who confirmed Donovan's voice matched the voice of the woman he spoke with on the cell phone.
On September 20, 2005, the State charged McKinney with possession of cocaine and methamphetamine with intent to deliver, in violation of RCW 69.50.401(1); Snohomish County Cause No. 05-1-02345-1.
Possession of Heroin
On August 1, 2005, while on patrol in a high-crime area in Everett, Officer Brad Williams stopped to talk to the manager of the Welcome Motor Inn. The motel manager asked Williams to check on some "suspicious activity" related to Angey McKinney. Before Officer Williams went to McKinney's motel room to investigate, he verified that McKinney had an outstanding felony warrant. Officer Williams then requested additional police assistance to execute the warrant.
After Officer Jaime French arrived, they went to McKinney's motel room, knocked, and identified themselves as police. McKinney opened the door and stepped outside. Williams arrested McKinney on the outstanding warrant. In a search incident to arrest, Officer French discovered a vial of heroin in McKinney's coat pocket. McKinney said she had found the heroin on the bathroom floor and that it was not hers. Three other people were in the motel room, including McKinney's then-boyfriend, Turcott. When the officers searched the room, they discovered drug paraphernalia, including needles and plastic tubing.
On August 4, the State charged McKinney with possession of heroin, in violation of RCW 69.50.401(3); Snohomish County Cause No. 05-1-01973-0.
At McKinney's request, the charges against her for possession with intent to deliver cocaine and methamphetamine on April 5 and possession of heroin on August 1 were joined for trial. Prior to trial, the State filed a motion to admit Officer Rabelos's testimony about the content of the April 5 cell phone calls. The defense stipulated to the admission of Officer Rabelos's testimony about the content of the cell phone calls. At trial, the officers also testified about the circumstances related to McKinney's arrests on April 5 and August 1.
McKinney testified in her defense. McKinney admitted that she unlawfully possessed heroin on August 1. As to the possession with intent to deliver charge, McKinney admitted that she was addicted to crack cocaine but denied selling drugs. McKinney claimed her ex-boyfriend Durant and then-current boyfriend Turcott were the drug dealers and that they were pimps who supplied her with crack cocaine in exchange for sex or money. She also testified that Turcott sometimes physically abused her and forced her to engage in prostitution to obtain money for drugs.
After McKinney testified, the prosecution indicated that the State intended to call Officer Rabelos and Officer French to testify in rebuttal about their personal knowledge of Durant and Turcott. To the extent that the State intended to elicit reputation testimony from the officers, the trial court ruled, "[t]he Rules of Evidence simply don't allow you to do that," but stated that the defense counsel "will object and the Court will rule on the objections."
Without objection, Officer Rabelos testified that Durant had never been arrested or convicted of drug dealing, a violent crime, or any prostitution-related activities. In addition, Officer Rabelos testified that he believed Durant was a drug user but not a drug dealer. Officer French also testified that Turcott had never been arrested or convicted of drug dealing, a violent crime, or any prostitution-related activities. During direct, Officer French did not testify about whether Turcott was a drug user or drug dealer. But in cross examination, the defense counsel asked whether Officer French knew of Turcott being a drug dealer, and Officer French replied, "[j]ust what I hear, and I haven't heard that."
The jury convicted McKinney as charged. At sentencing, the court imposed a standard range sentence and ordered McKinney to submit a biological sample for DNA identification. McKinney appeals.
ANALYSIS
Confrontation Clause
McKinney contends that the trial court's admission of (1) Officer Williams's testimony about the motel manager's out-of-court statement, (2) Officer Marr's testimony about Crystal Donovan's out-of-court statements, and (3) the police officers' rebuttal testimony about Durant and Turcott violated her constitutional right to confrontation.
The State claims McKinney waived her right to appeal by failing to object to these statements at trial. However, a criminal defendant's right to confrontation is an issue of constitutional magnitude that a court may consider for the first time on appeal. RAP 2.5(a). State v. Connie, 86 Wn. App. 453, 937 P.2d 1116 (1997).
We review de novo alleged confrontation clause violations. State v. Larry, 108 Wn. App. 894, 901, 34 P.3d 241 (2001). Under the Confrontation Clause of the Sixth Amendment, the defendant has the right to confront and cross examine witnesses. U.S. Const. Amend. VI. ("[T]he accused shall enjoy the right to . . . be confronted with the witnesses against him.") Under article I, section 22 of the Washington Constitution, the accused also has "the right to . . . meet the witnesses against him face to face." Wash. Const. art. I, § 22. In Crawford, the Court held that without prior opportunity for cross-examination, the admission of out-of-court testimonial statements violates the defendant's right to confrontation. Crawford, 541 U.S. 36. But not all out-of-court testimonial statements implicate the Confrontation Clause. The Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford, 541 U.S. at 59, n. 9. Consistent with Crawford, in In re Pers. Restraint of Theders, 130 Wn. App. 422, 495, 123 P.3d 489 (2005), rev. denied, 156 Wn.2d 1031, 137 P.3d 864 (2006), this court held that "when out-of-court assertions are not introduced to prove the truth of the matter asserted, they are not hearsay and no Confrontation Clause concerns arise." In Theders, the defendant's right to confrontation was not violated, because the out-of-court statements of the co-defendant were not hearsay. See also State v. Moses, 129 Wn. App. 718, 725, 119 P.3d 906 (2005), rev. denied, 157 Wn.2d 1006, 136 P.3d 759 (2006) (because a child's out-of-court testimonial statements to a social worker about witnessing domestic violence were not introduced to prove the truth of the matter asserted, admission of the statements did not violate the Confrontation Clause).
The Sixth Amendment was interpreted and made applicable to the states through the due process clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 106513 L. Ed. 2d 923, (1965).
McKinney argues her right to confrontation was violated when the court admitted Officer Williams's testimony that the Welcome Motor Inn manager asked him to investigate McKinney's "suspicious activity." We disagree. A statement "offered to show why an officer conducted an investigation is not hearsay" and does not violate the right to confrontation. State v. Iverson, 126 Wn. App. 329, 337, 108 P.3d 799 (2005). As in Iverson, admission of the motel manager's out-of-court statement is not hearsay and does not violate the Confrontation Clause because it explains why Officer Williams went to McKinney's motel room.
Relying on Davis v. Washington, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), United States v. Saget, 377 F.3d 223 (2nd Cir. 2004), and United States v. Silva, 380 F.3d 1018 (7th Cir. 2004), McKinney also claims that her right to confrontation was violated when the court admitted Officer Marr's testimony about Crystal Donovan's statements. But unlike Davis, Saget, and Silva, here, the testimonial statements were not offered for the truth of the matter asserted. Officer Marrs testified that when Donovan saw him in the parking lot, she said, "[h]i Officer, I'm just meeting my friend, Angey." When Officer Marrs asked why she was meeting Angey, Donovan stated that she wanted to "give her a ride," but later said she just wanted to "hang out" with McKinney. Donovan's out-of-court statements to Officer Marrs were offered to show that Donovan knew McKinney and that McKinney was nearby at the Sunrise Motel. Because Donovan's statements were not offered for the truth of the matter asserted, they were not hearsay and do not implicate McKinney's right to confrontation.
McKinney also argues that the rebuttal testimony of Officer Rabelos and Officer French about Durant and Turcott violated her right to confrontation. In support of her argument, McKinney relies on People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727 (2005), cert. denied, 126 S.Ct. 2293 (2006). In Goldstein, the court held that the defendant's right to confrontation was violated when a psychiatrist testifying on behalf of the State repeated out-of-court statements made by several of the defendant's acquaintances. Goldstein, 6 N.Y.3d at 126. But here, unlike Goldstein, neither Officer Rabelos nor Officer French repeated any out-of-court statements of others. Because Officer Rabelos's and Officer French's testimony was based on personal knowledge of Durant's and Turcott's criminal history, the testimony was not hearsay and did not violate McKinney's right to confrontation. And although Officer Rabelos's testimony about Durant's reputation for not being a drug dealer was improper under the evidence rules, no objection was made. On this record, we conclude the admission of the police officers' testimony in rebuttal did not violate McKinney's right to confrontation.
On appeal, McKinney does not raise the issue that Officer Rabelos's testimony about Durant's reputation was inadmissible under the evidence rules. In State v. Callahan, 87 Wn. App. 925, 943 P.2d 676 (1997), the court held that police officer testimony about a defendant's reputation based on past encounters with the criminal justice system was inadmissible. Callahan, 87 Wn. App. at 935. Because the defense did not object to Officer Rabelos's testimony, this issue was not preserved for appeal and, in any event, we conclude it was harmless error.
Even if any of the statements were testimonial hearsay, we conclude admission of the statements was harmless error. State v. Walker, 129 Wn. App. 258, 118 P.3d 935 (2005). A violation of the Confrontation Clause is harmless error if the untainted evidence overwhelmingly establishes guilt. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005), aff'd by Davis, 126 S. Ct. 2266 (2006). We ask whether, assuming the damaging potential of the testimony was fully realized, a reviewing court would nevertheless conclude that the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684. Factors bearing on this inquiry include "the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case." Van Arsdall, 475 U.S. at 684.
In this case, the untainted evidence overwhelmingly establishes McKinney's guilt of possession of heroin and possession of cocaine and methamphetamine with intent to deliver beyond a reasonable doubt. McKinney admitted she possessed heroin. As to possession of cocaine and methamphetamine with intent to deliver, according to Officer Rabelos's undisputed testimony, many of the 35 people who called on McKinney's cell phone asked to buy specific amounts of cocaine and methamphetamine from "Angey." One caller told Officer Rabelos that McKinney had taken her boyfriend's "stuff" and "was now selling [it]." When Donovan called, she said she "had already made the order with Angey" and that she "had been waiting for over 20 minutes for her shit from Angey." As the officers were arresting Durant at the Sunrise Motel, McKinney came out of the bathroom. When the officers searched the bathroom, they found several Ziploc baggies, rock cocaine, methamphetamine, a digital scale, and $198 in cash in the toilet tank. On the counter just outside the bathroom, they also discovered a glass crack pipe, a smoking pipe, plastic tubing, and several small plastic baggies containing crack cocaine in a black nylon bag. Any error in admitting the out-of-court statements of Crystal Donovan and the motel manager, or the rebuttal testimony about Durant and Turcott, was harmless beyond a reasonable doubt.
DNA Sample and Right to Privacy
McKinney's constitutional challenge to the sentence requirement to provide a DNA sample is controlled by the Washington Supreme Court's recent decision in State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007). In Surge, the Court held that the collection of biological samples for DNA identification from those convicted of certain crimes does not violate constitutional privacy rights. Surge, 160 U.S. at 77.
We affirm.
FOR THE COURT: