                                                                        FILED
                                                                     AUGUST 23, 2016
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                          )
                                              )         No. 33099-1-111
                     Respondent,              )
                                              )
       V.                                     )
                                              )
DONALD GLENN SMITH,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. -After being arrested for theft, appellant Donald Smith uttered

incriminating statements to two law enforcement officers. Upon Smith's talking to the

first officer, the officer gave Smith the Miranda warnings. Smith spoke to the second

officer without renewed warnings. The trial court conducted a CrR 3 .5 hearing to

determine the admissibility of Smith's comments to the first officer and ruled the

statements admissible. The court did not address the admissibility of the comments to the

second officer. Both officers testified at trial to the remarks made by Donald Smith.

Without having objected at trial to the testimony of the second officer, Smith assigns

error on appeal to the trial court's failure to conduct a CrR 3.5 hearing before allowing
    i


    I   No. 33099-1-III
        State v. Smith

    I
        the second officer to testify to comments Smith uttered. We discern no manifest

        constitutional error and affirm Smith's convictions for burglary and theft.
    I                                             FACTS

                This statement of facts derives from both trial testimony and testimony during a

I       CrR 3.5 motion by the State to introduce statements uttered by defendant Donald Smith

I       to arresting officers. We begin with trial testimony.
l               On March 28, 2014, Derik Sterling went to his grandfather's home, at 6670 Mae

        Valley Road N.E., Moses Lake, to move insulation into the home's garage because of

I       rain. The home lies in a rural area. When he arrived, Sterling spotted an unfamiliar car,

        with a woman therein, parked between the house and garage. He approached the vehicle
I       and asked the woman about her presence. He then saw a male in front of the garage. The

        male was defendant Donald Smith and the woman in the car was Marian Benavidez.

        Sterling did not know either Smith or Benavidez and had not given them permission to

        enter the garage.

                Derik Sterling called the police. While he was on the phone, Donald Smith

        walked past him and left the property. Smith proceeded to walk or run down Mae Valley

        Road.

                Grant County Sheriff Deputy Jacob Fisher arrived at the Mae Valley Road home.
i

t       As he neared the home, Deputy Fisher espied Donald Smith running across a field to the

t       south of the residence. Smith attempted to hide behind a wood pile. Fisher walked to

l
;                                                    2


1
No. 33099-1-111
State v. Smith


Smith's location and arrested him.

       We move to testimony elicited during the CrR 3.5 hearing. As Deputy Jacob

Fisher and Donald Smith walked to the house, Smith volunteered information. Deputy

Fisher momentarily hushed Smith and read Smith the Miranda warnings. Thereafter

Smith admitted entering the garage and taking property. He told Fisher that Derik

Sterling granted him permission to enter the garage.

       We return to trial testimony. Grant County Sheriff Deputy Patrick Pitt also

responded to Derik Sterling's call for assistance. Donald Smith told Deputy Pitt that he

did not know Sterling, that a woman named Celeste granted him permission to enter the

garage, and that he moved items from the garage. Smith, however, was unable to identify

an address or phone number for Celeste. Smith also told Pitt that he ran from the

residence because he did not like police. The record does not show that Pitt also read

Smith Miranda warnings.

       After the arrest of Donald Smith, Derek Sterling surveyed the car that Smith

abandoned. The car contained a DVD player, skill saw, power drill, sawzall, and

building materials previously stored in the property's garage and owned by Sterling.

Sterling also discovered that someone shattered the doorknob to open the garage door.

                                      PROCEDURE

       The State of Washington charged Donald Smith with second degree burglary and

third degree theft. Before trial, the trial court conducted a CrR 3.5 hearing to determine

                                             3
No. 33099-1-III
State v. Smith


the admissibility of Donald Smith's comments to Deputy Jacob Fisher. The court ruled

the statements admissible. The trial court did not address the admissibility of Smith's

statements to Deputy Patrick Pitt.

       A State's original list of witnesses identified Deputy Jacob Fisher as a law

enforcement officer to whom Donald Smith uttered statements. One month later, the

State amended its witness list to include Deputy Patrick Pitt as a witness and to declare

that Pitt would testify to statements from Donald Smith. Trial proceeded more than three

months after the State filed its amended witness list.

       During trial, Donald Smith registered no objection to Deputy Patrick Pitt testifying

to remarks Smith uttered to Pitt. Smith testified at trial that he never told Deputy Pitt that

Celeste granted him permission to enter the garage or that he entered the garage. Smith

instead testified that Peggy Sangster gave him permission on behalf of Cecily McFarland

and Derik Sterling to enter the property in order to help Peggy move some of her

possessions from the property. The jury convicted Donald Smith of both charges.

       Donald Smith filed a motion for a new trial, by which motion he first objected to

the admissibility of his remarks made to Deputy Patrick Pitt. During argument on the

motion, the State asserted the trial court could peruse the record to determine if the

statements to Pitt were voluntary, and, if the record did not suffice, the trial court could

conduct a post-trial CrR 3 .5 hearing. The trial court agreed and offered to hold a CrR 3 .5




                                              4
No. 33099-1-III
State v. Smith


hearing to assess the voluntary nature of Smith's comments to Deputy Pitt. Smith

declined the hearing, and the trial court denied the motion for a new trial.

                                  LAW AND ANALYSIS

       Donald Smith seeks a new trial because the State introduced his incriminating

comments spoken to Deputy Patrick Pitt without holding a CrR 3.5 hearing to determine

if the statements were voluntary. The State does not dispute that the trial court should

have determined the voluntariness of the statements at a CrR 3.5 hearing. Instead, the

State argues that Smith waived the assignment of error, invited the error, the error is not

reviewable, and the error was harmless because the statements were demonstrably

voluntary.

       Donald Smith did not object to Deputy Patrick Pitt's testimony until he submitted

a motion for a new trial weeks after the trial concluded. Therefore, we must determine

whether to review the failure to hold a CrR 3 .5 hearing when the defendant did not insist

on a pretrial hearing and did not object to the testimony at trial.

       RAP 2.5(a) formalizes a fundamental principle of appellate review. The first

sentence of the rule reads:

               (a) Errors Raised for First Time on Review. The appellate court
       may refuse to review any claim of error which was not raised in the trial
       court.

No procedural principle is more familiar than that a constitutional right, or a right of any

other sort, may be forfeited in criminal cases by the failure to make timely assertion of


                                              5
No. 33099-1-111
State v. Smith


the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507

U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321

U.S. 414,444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).

       Donald Smith raised the failure of a CrR 3.5 hearing with respect to statements

voiced to Patrick Pitts in a motion for new trial, rather than for the first time on appeal.

Nevertheless, raising an error for the first time in a motion for new trial is tantamount to

asserting the error for the first time on appeal. We do not consider arguments made on

the first occasion in a motion for new trial, motion for reconsideration, or on appeal.

Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 340, 878 P.2d 1208 (1994); Lee &

Eastes, Inc. v. Continental Carriers, LTD, 44 Wn.2d 28, 35, 265 P.2d 257 (1953); Micro

Enhancement Int'!, Inc. v. Coopers & Lybrand, LLP, 110 Wn. App. 412,427, 40 P.3d

1206 (2002). A new claim of error brought forward for the purpose of reversing a

judgment is too late if made for the first time on the motion for new trial. Puget Sound

Marina, Inc. v. Jorgensen, 3 Wn. App. 476,480,475 P.2d 919 (1970). The same

considerations support denying review of issues raised for the first time on appeal as with

issues asserted for the first time after completion of trial.

       Good sense lies behind the requirement that arguments be first asserted at trial.

The prerequisite affords the trial court an opportunity to rule correctly on a matter before

it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177

(2013). There is great potential for abuse when a party does not raise an issue below

                                               6
No. 33099-1-111
State v. Smith


because a party so situated could simply lie back, not allowing the trial court to avoid the

potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.

Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wn.2d 741,

762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses

several other concerns. The rule serves the goal of judicial economy by enabling trial

courts to correct mistakes and thereby obviate the needless expense of appellate review

and further trials, facilitates appellate review by ensuring that a complete record of the

issues will be available, and prevents adversarial unfairness by ensuring that the

prevailing party is not deprived of victory by claimed errors that he had no opportunity to

address. State v. Strine, 176 Wn.2d at 749-50 (2013); State v. Scott, 110 Wn.2d 682, 685-

88, 757 P.2d 492 (1998).

       Countervailing policies support allowing an argument to be raised for the first time

on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)

allows an appellant to raise for the first time "manifest error affecting a constitutional

right," an exception on which a criminal appellant commonly relies. Constitutional errors

are treated specially under RAP 2.5(a) because they often result in serious injustice to the

accused and may adversely affect public perceptions of the fairness and integrity of

judicial proceedings. State v. Scott, 110 Wn.2d at 686-87. Prohibiting all constitutional

errors from being raised for the first time on appeal would result in unjust imprisonment.

2A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 2.5 author's cmt.

                                              7
No. 33099-1-III
State v. Smith


6, at 218 (8th ed. 2014). On the other hand, "permitting every possible constitutional

error to be raised for the first time on appeal undermines the trial process, generates

unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources

of prosecutors, public defenders and courts." State v. Lynn, 67 Wn. App. 339, 344, 835

P.2d25I (1992).

       Washington decisions and even decisions internally have announced differing

formulations for "manifest error." First, a manifest error is one "truly of constitutional

magnitude." State v. Scott, 110 Wn.2d at 688. 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. It is this showing of actual prejudice that makes

the error "manifest," allowing appellate review. State v. 0 'Hara, 167 Wn.2d 91, 99, 217

P.3d 756 (2010); State v. Scott, 110 Wn.2d at 688; State v. Lynn, 67 Wn. App. at 346. A

third and important formulation for purposes of this appeal is the facts necessary to

adjudicate the claimed error must be in the record on appeal. State v. McFarland, 127

Wn.2d 322,333,899 P.2d 1251 (1995); State v. Riley, 121 Wn.2d 22, 31,846 P.2d 1365

(1993).

       We employ the first definition of manifest constitutional error and decline to

review Donald Smith's assignment of error for three reasons. First, Smith presents no

case that holds one has a constitutional right to a CrR 3.5 hearing before trial. Second,

                                              8
No. 33099-1-III
State v. Smith


facts support a conclusion that Smith waived any right to a hearing. Third, under the

peculiar facts of the case, the State has a reasonable argument that the Miranda warnings

given by Deputy Jacob Fisher sufficed for any incriminating statements later given to

Deputy Patrick Pitts.

       CrR 3.5 addresses "confession procedures" and reads in relevant part:

               (a) Requirement for and Time of Hearing. When a statement of
       the accused is to be offered in evidence, the judge at the time of the
       omnibus hearing shall hold or set the time for a hearing, if not previously
       held, for the purpose of determining whether the statement is admissible. A
       court reporter or a court approved electronic recording device shall record
       the evidence adduced at this hearing.

               (c) Duty of Court to Make a Record. After the hearing, the court
       shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3)
       conclusions as to the disputed facts; and (4) conclusion as to whether the
       statement is admissible and the reasons therefor.

       Criminal Rule 3.5 is Washington's confession procedure rule. The rule provides a

uniform procedure for the admission of voluntary confessions, as well as other custodial

statements, in a fashion that will prevent the jury from hearing an involuntary confession.

State v. Myers, 86 Wn.2d 419,425, 545 P.2d 538 (1976). The rule's significant impact is

that the trial judge resolves the issue of voluntariness in the absence of the jury and thus

obviates the due process problems that would arise where the jury hears an involuntary

confession. State v. Lopez, 67 Wn.2d 185, 188,406 P.2d 941 (1965).

       Although CrR 3. 5 imposes, by rule, the requirement of a pretrial hearing to

determine the voluntariness of incriminating statements, Donald Smith forwards no

                                              9
No. 33099-1-III
State v. Smith


decision that determines compliance with the rule is constitutionally mandated. A court

rule does not necessarily create a constitutional right. Washington courts have

recognized that CrR 3.5 is not of constitutional magnitude. State v. Wolfer, 39 Wn. App.

287,291, 693 P.2d 154 (1984), abrogated on other grounds by State v. Heritage, 152

Wn.2d 210, 95 P.3d 345 (2004); State v. Fanger, 34 Wn. App. 635, 637, 663 P.2d 120

(1983).

       Donald Smith contends that State v. Lopez, 67 Wn.2d at 188-89 (1965), and State

v. Myers, 86 Wn.2d at 425-26 ( 1976) stand for the proposition that due process demands

a pretrial hearing. Br. of Appellant at 5-6. Neither case supports this proposition. In

State v. Lopez, the Supreme Court expressly ruled that due process was not violated by

the failure of the trial court to conduct a pretrial hearing as to whether the confession was

voluntarily given. The Supreme Court affirmed the conviction despite the State's use of

a confession without any hearing.

       In State v. Myers, the trial court, sitting without a jury, did not conduct a formal

confession hearing. The question of the voluntariness of defendants' statements arose

during the trial, however, and the trial court advised both defendants of their right to a

hearing. Both then indicated a desire to defer any testimony about the voluntariness of

their custodial statements until the presentation of their cases. The question was never

readdressed and the trial court issued no formal written findings concerning the




                                             10
No. 33099-1-III
State v. Smith


admissibility of the statements. On appeal, the Supreme Court held that the defendants

knowingly, intelligently, and voluntarily waived their right to a voluntariness hearing.

       On a related basis, any error below did not constitute manifest constitutional error

because facts support a waiver of any right to a pretrial hearing. Although Washington

courts declare CrR 3.5 to be mandatory, State v. Myers, 86 Wn.2d at 425 (1976), its

mandatory nature is limited. Under proper circumstances the right to a voluntariness

hearing and the other requirements of the rule, such as the formal entry of written

findings, can be waived. State v. Myers, 86 Wn.2d at 426; State v. Woods, 3 Wn. App.

691,697,477 P.2d 182 (1970). In addition, the trial court may conduct the required

voluntariness hearing in conjunction with the trial itself rather than before

commencement of the trial. State v. Haverty, 3 Wn. App. 495,498, 475 P.2d 887 (1970).

       Donald Smith did not ask for a pretrial hearing to determine the voluntary nature

of his incriminating remarks to Deputy Patrick Pitts. He did not object to Pitts' testimony

during trial. In State v. Myers, already discussed, the Supreme Court held the defendants

waived their right to a pretrial hearing by failing to insist on a hearing until on appeal. In

State v. Fanger, 34 Wn. App. at 638 (1983), this court held that the defendant impliedly

waived his rights under CrR 3.5 by failing at trial to object to the officers' testimony.

       One more reason exists to conclude that facts support a waiver of the right to a

pretrial CrR 3.5 hearing. When Donald Smith moved for a new trial, the trial court

offered Smith the opportunity for a posttrial hearing on the voluntariness of his

                                              11
No. 33099-1-111
State v. Smith


confession. Smith shunned the request. In Jackson v. Denno, 378 U.S. 368, 84 S. Ct.

1774, 12 L. Ed. 2d 908 (1964), the Supreme Court held there to be error for the trial court

to fail to conduct a pretrial hearing. The Court did not reverse the conviction, but

remanded the case to the state court to conduct a post-appeal hearing on the voluntariness

of the statement.

       We note that, before Donald Smith uttered incriminating statements to Deputy

Patrick Pitts, Deputy Jacob Fisher delivered Miranda warnings to Smith and Smith

bespoke incriminating remarks to Fisher. The comments to Pitt were contemporaneous

with the remarks to Fisher. Smith does not forward any case law that would demand Pitt

to also give the Miranda warnings under these circumstances. For this additional reason,

we discern no manifest constitutional error posed by Smith's appeal.

       Donald Smith contends the State engaged in gamesmanship when it omitted

Deputy Patrick Pitts from its first witness list. We detect no gamesmanship when the

State added Pitts to the list of witnesses more than three months before trial.

                                      CONCLUSION

       We affirm Donald Smith's convictions for second degree burglary and third

degree theft.




                                             12
No. 33099-1-111
State v. Smith


      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.



                                            Fearing, C.J.

WE CONCUR:




Lawrence-Berrey, J.
                                   j




                                           13
