No. 47594-1-I.The Court of Appeals of Washington, Division One.
Filed: October 15, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 001046428, Hon. Carol Schapira, September 27, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Melinda J. Young, King Co Prosecutors Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
PER CURIAM.
Celso Lapuz was convicted of possession of cocaine after police found trace amounts of cocaine in several places in a house and on his person. On appeal, he asserts that the trial court erred in allowing a detective to testify that the two other men who were in the house said that they did not live there but were just visiting. Because the statements were admitted for their truth, they were hearsay and should have been suppressed. But because the other, untainted evidence overwhelmingly supports the verdict of guilt, the error was harmless, and we affirm.
FACTS
At about 8:30 p.m. on May 3, 2000, a SWAT team and several detectives served a search warrant at a house in Seattle. The officers found Celso Lapuz and two other men inside. While other detectives searched the house, Detective Darren Chinn questioned the men. The two men with Lapuz said that they did not live in the house but were just visiting.
Detectives found plates containing traces of powder cocaine in the living room and in a bedroom on a nightstand. They also found a glass pipe and a Discover card bill on the same nightstand. The bill was addressed to Lapuz at that address. A detective discovered a small glass vial containing traces of powder cocaine in Lapuz’ pants pocket.
Lapuz made a pretrial motion to suppress the statements by the two other men. He argued that the statements were hearsay because they were offered to show that the men did not in fact live at the house. The trial court found that the statements were not hearsay because they were offered to show dominion and control and not for their truth. At trial, Detective Chinn stated that he found Lapuz and two `house guests’ in the house. He testified that the two men said they did not live at the house but were just visiting. This testimony was allowed over defense objections. The jury found Lapuz guilty of possession of cocaine.
DECISION 1. Hearsay
Lapuz argues that the trial court erred in allowing the testimony regarding the statements of the other two men because they were inadmissible hearsay. Hearsay is defined as a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted.[1] The rule is founded on the belief that out-of-court statements are subject to hazards such as lying, faulty memory, or misperception of events by the declarant, or misunderstanding of the declarant’s words by the listener.[2] The theory of the rule is that cross-examination of a declarant is the best way to reveal any such untrustworthiness.[3] Out-of-court statements by an unavailable witness are not admissible at trial unless they fit within one of the specific exceptions set out in the rules of evidence.[4]
Prior to trial, Lapuz moved to exclude as hearsay testimony by Detective Chinn that the two other men said they did not live in the house.
The trial court denied the motion. The court opined that this testimony was not hearsay because it was not offered to show that the men truly did not live in the house, but to establish dominion and control of the premises, and that these were different things. We disagree. The two men’s assertions that they did not live at the house were relevant to the question of Lapuz’s dominion and control only if they were true. The evidence was offered to establish that the two men did not have dominion and control because they did not live at the house, and, by implication, that Lapuz did have dominion and control.[5] Because the testimony was offered to prove the truth of the statements, it was inadmissible hearsay.
2. Confrontation
Lapuz also argues that the trial court’s error in admitting the statements violated his right to confront witnesses. The sixth amendment to our federal constitution and article 1, section 21 of our state constitution grant defendants the right to confront adverse witnesses at trial. By its action, this confrontation clause allows hearsay only where a declarant is unavailable to testify and the statement contains indicia of reliability or particular guaranties of trustworthiness.[6] The inquiry into a statement’s trustworthiness helps to ensure that it reliably expresses the declarant’s perception, memory, and credibility, functions usually performed by cross-examination.[7]
In this case, there was no evidence that the declarants were unavailable. Nor was there any indication that their statements were particularly reliable. The men made the statements after a SWAT team had entered the house and in response to questioning by a detective. From these circumstances, there is every reason to believe that they thought that implicating Lapuz would decrease their own exposure to criminal liability.[8] Because they did not testify, the jury could not determine their credibility through observing their demeanor and hearing cross-examination. The trial court’s error in admitting the statements violated Lapuz’s right to confrontation.
3. Harmless Error
A constitutional error is harmless only if the court on appeal can find beyond a reasonable doubt that a jury would reach the same result absent the error, and if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt.[9] Where a court erroneously admits evidence, the error is harmless if it is of minor significance when viewed in light of the evidence as a whole.[10]
In this case, a detective found a glass vial containing traces of powder cocaine in Lapuz’s pants pocket. A search of the house revealed plates containing traces of powder cocaine in the living room and on a nightstand in a bedroom. Detectives also found a glass pipe and a Discover card statement addressed to Lapuz at the address of the house on the same nightstand. This evidence, which is unrelated to the hearsay statements, overwhelmingly leads to a determination that Lapuz was guilty of possession of cocaine, and we conclude that a reasonable jury would have reached the same verdict had the statements not been admitted.
Affirmed.
(1997).