Opinion
No. 28613-4-III.
March 29, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Chelan County, No. 08-1-00392-3, Ted W. Small, J., entered November 18, 2009.
Affirmed in part and remanded by unpublished opinion per Sweeney, J., concurred in by Korsmo, A.C.J., and Siddoway, J.
A party must generally object to a flawed jury instruction in the trial court to preserve any error for appeal. That is, unless the error is manifest constitutional error. An instruction that requires unanimous agreement to find that a defendant was not armed with a firearm (a prerequisite to impose a firearm sentence enhancement) is erroneous. But the error is not of constitutional dimensions and therefore requires an objection to challenge it on appeal. Here, there was no objection, so we conclude that any assignment of error may not be raised for the first time on appeal. We affirm the defendant's convictions and firearm sentence enhancement but remand for resentencing.
FACTS
Shaun Taylor has been convicted of second degree robbery three times. He then cannot possess a firearm. Police set up a ruse and arrested Mr. Taylor. They found a pistol on him and a shotgun in his home.
The State charged Mr. Taylor with one count of possession of a controlled substance while armed with a firearm and two counts of unlawful possession of a firearm in the first degree. The case proceeded to a jury trial. The court instructed the jury that it had to return a unanimous special verdict on the firearm enhancement:
If you find from the evidence that the State has proved beyond a reasonable doubt that the defendant was armed with a firearm at the time he possessed the controlled substance — methamphetamine, it will be your duty to answer special verdict form C "yes".
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant was armed with a firearm at the time he possessed the controlled substance — methamphetamine, it will be your duty to answer special verdict form C "no".
Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict form to express your decision. The foreperson must sign the verdict form and notify the bailiff. The bailiff will bring you into court to declare your verdict.
Clerk's Papers at 147 (emphasis added). The jury answered "yes" to the firearm special verdict and found Mr. Taylor guilty of one count of possession of a controlled substance while armed with a firearm and two counts of first degree unlawful possession of a firearm. The court sentenced Mr. Taylor to 60 months of confinement, including an 18-month firearm enhancement, and 9-12 months of community custody for the drug offense.
DISCUSSION
Sentence
Mr. Taylor first contends that his sentence exceeds the 60-month statutory maximum for his drug conviction because the court sentenced him to 60 months of confinement plus 9-12 months of community custody. The State agrees, and we will remand for resentencing within the prescribed statutory maximum. Special Verdict — Firearm Enhancement
Mr. Taylor next contends that the court's instruction on the firearm enhancement special verdict violates the rule set out in State v. Bashaw because the instruction can be read as requiring unanimity to return a "no" verdict. 169 Wn.2d 133, 145, 234 P.3d 195 (2010). The State responds that we should not consider this assignment of error because Mr. Taylor did not object to the instruction in the trial court and the assignment of error is not manifest constitutional error. And we have so held. State v. Nunez, No. 28259-7-III, 2011 WL 536431 (Wash. Ct. App. Feb. 15, 2011). Indeed, Mr. Taylor does not claim the error is manifest constitutional error.
Like Mr. Taylor, the defendant in Nunez failed to object to a special verdict instruction that required a unanimous answer. 2011 WL 536431, at *2. He suggested the error violated his rights to a unanimous and impartial jury. Nunez, 2011 WL 536431, at *4. But we concluded that failing to instruct a jury that it can acquit a defendant of an aggravating factor without being unanimous is not an error of constitutional dimension. Nunez, 2011 WL 536431, at *4. We therefore conclude that the error here was not preserved for appeal and we decline to review it.
Statement of Additional Grounds
Pro se, Mr. Taylor contends the trial court erred by concluding that the police did not violate Washington's privacy act (ch. 9.73 RCW) by listening in on a conversation between him and an informant on a cell phone's speakerphone. He argues that the police could not use the intercepted information to establish probable cause. Without the information, Mr. Taylor maintains that the police lacked probable cause to arrest him, that the drugs and weapon found on his person incident to his illegal arrest are inadmissible fruit of the poisonous tree, and that the court should have therefore suppressed the evidence.
His challenge raises a question of law that we will review de novo. State v. Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004).
Washington's privacy act prohibits the state from intercepting a private telephone communication by use of a device designed to record or transmit the communication without consent. RCW 9.73.030(1)(a). It does not, however, prevent a police officer from listening in person to a communication he can hear because the phone is tilted his way, or, as here, comes from a speakerphone. State v. Corliss, 123 Wn.2d 656, 662, 870 P.2d 317 (1994). That activity falls outside the privacy act because it does not involve a device used to record or transmit the communication. Id. Corliss is dispositive here. Detective Keith Kellogg did not use a device to record or transmit the phone conversation between the informant and Mr. Taylor. He listened in person to the communication from the informant's speakerphone. The detective's conduct, then, did not violate the privacy act. He legally obtained the information that led to Mr. Taylor's arrest. And the trial court did not abuse its discretion by denying the motion to suppress the evidence seized during the search incident to that arrest.
We affirm the convictions and the firearm sentence enhancement and remand for resentencing.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J., KORSMO, A.C.J. and SIDDOWAY, J., Concur.