                                                                            FILED
                                                                         JULY 10, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35082-7-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )         UNPUBLISHED OPINION
PEDRO M. HILLIARD,                            )
                                              )
                     Appellant.               )

       FEARING, J. — Pedro Hilliard appeals his convictions for delivery of controlled

substance by complaining about testimony of law enforcement officers and argument by

the prosecution. We find no error and affirm.

                                          FACTS

       This prosecution arises from the sale of oxycodone by Pedro Hilliard to a

confidential informant. Spokane Police Department detectives opened an investigation

into the drug marketing activities of Hilliard after an informant notified the detectives

that he could buy oxycodone pills from Hilliard.

       On June 12, August 20, and September 25, 2014, detectives, with the assistance of

the informant, conducted three controlled buys of oxycodone from Hilliard. On each
No. 35082-7-III
State v. Hilliard


occasion, detectives met with the confidential informant in advance and conducted a strip

search to confirm that the informant possessed no contraband on his person. The

detectives handed the informant marked money, with which to purchase the drug. The

informant next called Pedro Hilliard to schedule a meeting in the parking lot of the Fred

Meyer store on 5th Avenue and Thor Street, in Spokane.

       On June 12, 2014, the confidential informant exited the police vehicle and walked

to the west side of the Fred Meyer building. The informant entered the inside of a red

vehicle and headed north with the vehicle’s occupants. The car conveyed the informant

from and to the Fred Meyer parking lot and a north Spokane apartment complex. When

the informant returned to the police vehicle, he surrendered six blue pills. Detectives

then strip searched the informant again. On July 9, 2014, the confidential informant

identified, from a photo montage, Pedro Hilliard as the merchant of the oxycodone.

       On August 20, 2014, Spokane Police Department detectives espied Pedro Hilliard

exit a blue mustang in the Fred Meyer parking lot. Detectives viewed the confidential

informant walk with Hilliard to the west side of the store building where an exchange

occurred. The informant returned to the police vehicle and yielded a plastic bag

containing ten blue pills.

       On September 25, 2014, the Spokane Police Department confidential informant

entered the Fred Meyer store and waited inside. Pedro Hilliard arrived in the blue

mustang and also wandered inside the store. Both Hilliard and the informant, as observed

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No. 35082-7-III
State v. Hilliard


by detectives, exited the store together. The informant, through audio surveillance,

alerted detectives that the pair intended to walk to the intersection of 5th Avenue and

Friske Street.

       Undercover detectives drove to 5th Avenue and Friske Street and observed Pedro

Hilliard and the confidential informant on a porch on South Friske Street. During the

rendezvous and purchase on the porch, Hilliard requested that the informant procure for

Hilliard a cigar from a nearby gas station. The informant utilized the restroom while at

the station and then delivered the cigar to Hilliard. The informant returned to the

detective vehicle absent the eight pills he bought from Hilliard. The informant returned

to the gas station and grabbed the pills from the bathroom counter. The informant could

not explain how he mislayed the pills in the bathroom. The Washington State Patrol

Crime Laboratory confirmed that all pills procured from the three controlled buys

contained oxycodone.

       On some unknown date after September 25, 2014, the Spokane Police Department

terminated the services of the confidential informant because of his bad behavior. The

informant misappropriated and concealed money handed him for a controlled buy. He

stole money from his family. He ingested drugs and committed other crimes while

working for law enforcement.




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No. 35082-7-III
State v. Hilliard


                                      PROCEDURE

       The State of Washington charged Pedro Hilliard with three counts of delivering a

controlled substance. Prior to trial, the court granted the State leave to amend the

information to add an enhancement to one count by alleging delivering of the substance

in a public park and within 1,000 feet of a school bus stop.

       Before the start of trial, both sides submitted and argued a number of motions in

limine. Pedro Hilliard forwarded no motion to prohibit law enforcement officers from

uttering the term “controlled buy” during testimony. At trial, the State elicited testimony

from the Spokane Police Department’s lead detective about the process of conducting a

controlled buy with a confidential informant. Throughout law enforcement officer

testimony, detectives repeatedly referred to the transactions between the confidential

informant and Pedro Hilliard as “controlled buys.” Defense counsel also referred to the

interactions as controlled buys.

       During cross-examination and Pedro Hilliard’s evidence, Hilliard’s defense

emphasized that the State’s case hinged on the confidential informant’s credibility. The

defense highlighted lack of honesty based on the informant’s termination of services after

he misappropriated law enforcement funds, his conviction for a crime of dishonesty, his

embezzling family money, and his use of drugs while assisting the Spokane Police

Department.



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No. 35082-7-III
State v. Hilliard


       During closing argument, Pedro Hilliard’s counsel reprised the theme of the

confidential informant’s treachery and unreliability. Counsel insisted to the jury that the

State did not prove the charges beyond a reasonable doubt because all charges relied on

the testimony of an untruthful witness. Defense counsel began his summation:

               [The confidential informant] was a horrible drug addict. Her [the
       prosecution’s] words, not mine. You know, if you think it’s possible that
       [the informant] lied in this case, that’s reasonable doubt. You know, the
       State’s entire case rests on you believing that [the informant] offered you
       truthful testimony. And that’s not [the informant’s] fault. That’s the
       State’s fault. That’s because we have nothing else to rely on.

Report of Proceedings (RP) at 310-11. Counsel added:

               You know, the fact is anything is possible when you’re dealing with
       somebody who, by his own testimony, has said that he has lied; that he is a
       drug addict; that he has stolen; that he is out stealing from the community.
               ....
               The fact is, you know, they don’t care. The State doesn’t care that
       [the confidential informant] is a drug addict. They don’t care that he’s a
       thief. They don’t care that he lies to his family and uses the money that he
       gets from the police to go out and buy more drugs and continue to get high.
       They don’t care. But we do, because we expect more. We expect that
       before we’re going to take somebody’s liberty and we’re going to put him
       in jail or do anything else with him, that we are convinced beyond a
       reasonable doubt that it happened. And you know, they just don’t. And
       that’s something that we should expect more of from our law enforcement
       officers. We should expect better work. We should expect a confidential
       informant—I mean, Detective Bowman said some people get involved in
       this and they do it because they want to better the community. You know,
       go use somebody like that, you know. Don’t go use somebody that you
       don’t even care that or are aware of that they have prior convictions for
       theft and that they are out committing additional thefts in our community at
       the same time that you’re using them or attempting to use them as a
       confidential informant.
               The fact is, because we don’t have better evidence, more evidence,

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No. 35082-7-III
State v. Hilliard


       or any evidence other than the word of [the confidential informant], you
       know, the maps, the bus stops, the park, all the witnesses that testified to
       that, the drugs that were tested, none of that evidence means anything.
       None of that testimony means anything unless you first believe [the
       informant] that these drug transactions take place. And based on his
       history, what we know, what he admitted to on the stand, that’s just not
       possible. And for that reason, I am asking you to find Mr. Hilliard not
       guilty of all three counts in this case.

RP at 312-13, 316-17.

       During rebuttal summation, the prosecution began:

                 This is not about [the confidential informant]. This is about holding
       Mr. Hilliard accountable.
                 ....
                 That is what we are doing here. He is holding him accountable for
       it. . . .
                 ....
                 How do we hold him accountable? How do we even get to that
       point if we don’t have anybody to even work with to buy, to catch him
       doing it? It’s not [the confidential informant]’s accountability here. It’s
       his. That’s who we are holding accountable here right now. The only
       person today who is on trial, the only person that we have to worry about is
       Mr. Hilliard and what he did that day.

RP at 317-18. Hilliard did not object to the rebuttal argument.

       The jury returned a guilty verdict on all three charges as well as the sentencing

enhancement.

                                 LAW AND ANALYSIS

                            Characterization of Controlled Buy

       On appeal, Pedro Hilliard complains about State witnesses’ recurrent employment

of the term “controlled buy” during testimony and the prosecutor’s utilization of the

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No. 35082-7-III
State v. Hilliard


phrase during questioning and argument. Hilliard argues that the law enforcement

terminology violated his constitutional right to a fair trial by offering an opinion as to his

guilt. Because Hilliard’s defense centered on attacking the credibility of the confidential

informant, Hilliard emphasizes prejudice resulting from uttering the term “controlled

buy” because the expression implies a transaction transpired. Hilliard underlines that no

detective directly observed a sale by Hilliard to the informant.

       We doubt that the label “controlled buy” constitutes impermissible opinion

testimony or violates any evidentiary rule. Nevertheless, we decline to address the merits

of Pedro Hilliard’s assignment of error because he did not object to the phraseology

before the trial court and he does not argue manifest constitutional error.

       Under a fundamental principle of appellate jurisprudence, a party may not assert

on appeal a claim not first raised at trial. RAP 2.5(a); State v. Strine, 176 Wn.2d 742,

749, 293 P.3d 1177 (2013). Such a rule supports a basic sense of fairness and serves the

goal of judicial economy by enabling trial courts to correctly rule on a matter and thereby

obviate the needless expense of appellate review. State v. Strine, 176 Wn.2d at 749. The

rule also ensures attorneys will act in good faith by discouraging them from riding the

verdict by purposefully refraining from objecting and saving the issue for appeal in the

event of an adverse verdict. State v. Strine, 176 Wn.2d at 750. Lastly, the rule prevents

adversarial unfairness by ensuring the prevailing party is not deprived of victory by

claimed errors that he or she had no opportunity to address.

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No. 35082-7-III
State v. Hilliard


       Under RAP 2.5(a)(3), a party may not raise a claim of error on appeal not first

asserted at trial unless the claim involves a manifest error affecting a constitutional right.

Washington courts and even decisions internally have announced differing formulations

for manifest error. First, the court must determine the patent nature of any truly

constitutional error. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009); State v.

Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988). Second, perhaps perverting the term

“manifest,” some decisions emphasize prejudice, not obviousness. The defendant must

identify a constitutional error and show how, in the context of the trial, the alleged error

actually affected the defendant’s rights. State v. O’Hara, 167 Wn.2d at 99. This showing

of actual prejudice makes the error “manifest,” allowing appellate review. State v.

O’Hara, 167 Wn.2d at 99. A third formulation asks whether this reviewing court may

find the facts in the appellate record necessary to adjudicate the claimed error. State v.

McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995); State v. Stoddard, 192 Wn.

App. 222, 228, 366 P.3d 474 (2016).

       We agree with the State of Washington that Pedro Hilliard fails to demonstrate

manifest constitutional error. Hilliard cites no case law that holds the use of the term

“controlled buy” unacceptable, let alone violative of an accused’s right to a fair trial.

                                Argument of Accountability

       Pedro Hilliard next assigns error to the prosecution’s request to the jury that it hold

him “accountable” for his conduct. We disagree because Hilliard did not object to use of

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No. 35082-7-III
State v. Hilliard


the term during trial and Hilliard fails to show flagrant misconduct and enduring

prejudice.

       We agree with Pedro Hilliard that, in the abstract, the State must not ask a jury to

hold the accused “accountable.” The legal system tasks the jury with deciding whether

the State proved beyond a reasonable doubt that the accused committed the charged

crime or crimes, not to hold an accused accountable for misbehavior. Many individuals

need accountability for misbehavior, but do not deserve imprisonment or the shame of a

conviction because they committed no crime.

       Because a prosecuting attorney represents the people and must act with

impartiality in the pursuit of justice, he must subdue courtroom zeal for the sake of

fairness to the defendant. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011).

The prosecutor must refrain from making “bald appeals to passion and prejudice.” State

v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). The prosecution must not

mischaracterize the jury’s role as something other than determining whether the State has

proved its case beyond a reasonable doubt. State v. Emery, 174 Wn.2d 741, 760, 278

P.3d 653 (2012).

       We note additional principles. To prevail on a claim of prosecutorial misconduct,

a defendant must demonstrate that, in the context of the record and all of the

circumstances of the trial, the prosecutor’s conduct was both improper and prejudicial.

State v. Thorgerson, 172 Wn.2d at 442. Misconduct prejudices an accused if there is a

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No. 35082-7-III
State v. Hilliard


substantial likelihood it affected the verdict. State v. Emery, 174 Wn.2d at 760-61

(2012). Absent a defense objection at trial, like this case, the accused waives the

complaint unless the misconduct is so flagrant and ill-intentioned that it evinces an

enduring and resulting prejudice that could not have been neutralized by an admonition to

the jury. State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006). The appellate court

reviews a prosecutor’s statements in context of the overall argument, the issues in the

case, and the jury instructions. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221

(2006).

       In State v. Emery, 174 Wn.2d 741 (2012), the state high court held that the

prosecution mistakenly argued that the jury’s purpose was to speak the truth.

Nevertheless, the Supreme Court refused to reverse convictions for kidnapping, robbery

and rape. Trial defense counsel failed to object to the prosecution’s argument, and the

defendant did not establish flagrant and ill-intentioned misconduct.

       In light of the entire trial testimony and defense counsel’s argument during closing

statement, we find no flagrant misconduct of the prosecution in Pedro Hilliard’s trial.

Hilliard’s trial counsel forcefully and properly impugned the integrity of the confidential

informant and petitioned the jury not to believe any of the informant’s testimony. The

prosecution uttered its comments in the context of informing the jury that the confidential

informant was not on trial and the jury’s role was not to hold the informant accountable

for his many misdeeds.

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No. 35082-7-III
State v. Hilliard


                                     Cumulative Error

       Pedro Hilliard contends that an accumulation of errors resulted in an unfair trial.

Even if one trial error does not require a reversal, an accumulation of errors may. State v.

Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Since we find no error, we need not

address this argument.

                             Statement of Additional Grounds

       In a statement of additional grounds, Pedro Hilliard assigns seven errors.

Assignments one through four address the weight or credibility of evidence or refer to

facts outside the record on review. Questions of credibility, persuasiveness, and

conflicting testimony must be left to the jury. In re Personal Restraint of Martinez, 171

Wn.2d 354, 364, 256 P.3d 277 (2011). The weight accorded to evidence lies solely

within the province of the jury. State v. Rogers, 44 Wn. App. 510, 517, 722 P.2d 1349

(1986). Only documents that are contained in the record should be referred to in a

statement of additional grounds for review. RAP 10.10(c).

       Pedro Hilliard assigns error to the use of the particular confidential informant in

his investigation. Testimony at trial indicated that the Spokane Police Department does

not employ an informant with criminal convictions for dishonest crimes unless approved

by a special investigating unit. Hilliard observes that no special unit approved of his

informant. Because of the lack of approval, Hilliard argues the trial court should have

excluded all of the informant’s testimony. He cites no legal authority for this argument.

                                             11
No. 35082-7-III
State v. Hilliard


The exclusionary rule only applies when there is an illegal search or seizure in violation

of the constitution. State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999). No law

requires law enforcement to gain approval for use of a confidential informant. Hilliard’s

trial counsel effectively employed the informant’s past when defending Hilliard.

       Pedro Hilliard next complains that his trial counsel performed ineffectively when

failing to move to dismiss charges at the end of the State’s case. Hilliard contends the

trial court should have dismissed the charges because no law enforcement officer

observed the delivery of any drugs by Hilliard to the informant. We reject this argument

because a conviction may stand on testimony of witnesses other than law enforcement

officers. Other testimony amply supported the conviction.

       Finally, Pedro Hilliard assigns error to the trial judge advising the State to ask a

certain question and procure a specific answer from a witness to lay a foundation needed

to admit an exhibit. Hilliard argues the trial court improperly acted as counsel by

dispensing this advice and thereby breached his role to remain impartial. Pedro Hilliard

cites no law to support his contention. Assuming he asserts the appearance of fairness

doctrine, Hilliard’s argument fails because the doctrine is not constitutional in nature and

cannot be raised for the first time on appeal. RAP 2.5(a); State v. Blizzard, 195 Wn. App.

717, 725, 381 P.3d 1241 (2016), review denied, 187 Wn.2d 1012, 388 P.3d 485 (2017).




                                             12
No. 35082-7-III
State v. Hilliard


                                     CONCLUSION

       We affirm the three convictions of Pedro Hilliard for delivery of a controlled

substance. We deny the State costs on appeal because of the continued indigency of

Hilliard.

       A majority of the panel has determined 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.




WE CONCUR:




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