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State v. Lomack

March 24, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JOHN R. LOMACK, APPELLANT.



Appeal from Superior Court of King County. Docket NO: 95-1-06106-7. Date filed: 01/25/96. Judge signing: Hon. Stephen G. Scott.

PER CURIAM. John Lomack appeals his conviction for delivery of cocaine. We decline to resolve whether a sworn statement filed in support of an arrest warrant constituted an adoptive admission that should have been admitted into evidence because, even if the exhibit had been admitted, it is not likely the outcome of the trial would have been different, so refusing to admit it was not reversible error. We, therefore, affirm.

On August 30, 1995, Seattle police officer Scott Leist was working undercover as a buyer in a buy bust operation. At the north end of Occidental Park, John Lomack approached Leist and asked if he was "looking." Leist said he needed "to buy a 40", which is 4/10ths of a gram of cocaine. Lomack told Leist to follow him. When they could not find anyone in the park willing to sell to Lomack, they walked to 2nd Avenue and South Main Street, where they saw Danielle Westwood and Randi Burkhart. As the women passed, Lomack said "40" and Westwood gave an exaggerated nod, directing Lomack and Leist to come toward her.

Westwood asked Lomack if he knew Leist, and Lomack lied and told her he had dealt with Leist before. Then, Westwood and Burkhart stepped off the sidewalk into the street, between two parked cars, where Burkhart leaned down and reached toward her pant leg. A moment later, she came back up with a handful of 15 or 20 pieces of rock cocaine. Westwood picked out a couple of rocks from Burkhart's hand, then walked toward Lomack and Leist. Burkhart walked away in the other direction.

Westwood walked past Lomack and Leist, then turned back and asked for the money. Leist said he wanted to see the cocaine first, so she gave it to him. He told her it looked good to him and offered her the $40 of buy money. She told Leist to give it to Lomack because she did not want to hold it.

Leist gave Lomack the money and he and Westwood began walking away, but Lomack asked Leist to wait. When Lomack returned, he asked for a piece of a rock. Leist gave him a piece, then gave a "good buy" sign to other officers. An arrest team came and arrested Lomack, Westwood, and Burkhart, who Leist positively identified as the participants in the transaction.

Lomack was charged by information with violation of the Uniform Controlled Substances Act (VUCSA). The information was amended to charge that the crime occurred within 1,000 feet of school, contrary to RCW 69.50.401(a)(1)(i).

Lomack apparently had been released before being charged, so the State filed a motion to determine the existence of probable cause, direct issuance of an arrest warrant, and fix bail. Attached to the motion was a certification for determination of probable cause prepared by prosecutor James Leslie. In it, he described how Lomack had led Leist to Burkhart and Westwood, Burkhart brought out 15-20 rocks of cocaine, Westwood picked out two and gave them to Leist, who offered Westwood his money, but when she refused it, gave it to Lomack, who then dropped it at Westwood's feet.

Also attached to the State's motion for an arrest warrant and to fix bail was a document titled "Drug Crime Certificate" prepared by Officer E. Kasner. That document gave a brief summary of the crime and indicated that Lomack had VUCSA and assault convictions within the last five years.

Officer Kasner was not called as a witness at trial, but Lomack moved for the admission of the Drug Crime Certificate. Lomack wanted it admitted because it indicated that Officer Leist gave his buy money to Westwood, not Lomack.

On an SPD buy bust undercover Officer Leist # 5846 contacted Lomack at Occidental Av S/S Washington St. Officer Leist asked Lomack to "score him some dope". Lomack took Officer Leist to 2nd Av S/S Main and contacted a second suspect, a black female. The second suspect contacted a third suspect, a white female. The third suspect opened her hand to the second suspect and showed several pieces of suspected rock cocaine. Second suspect took two rocks and gave them to Officer Leist, who then gave her $40.00 in prerecorded buy money. Field test positive on the rock cocaine.

Lomack claimed that by submitting the certificate with the motion for an arrest warrant, the State had manifested its belief that Kasner's statement was true, so it was an adoptive admission under ER 801(d)(2)(ii).

The prosecutor objected to the certificate's admission based upon hearsay. Officer Kasner was part of a bicycle squad that was assisting the buy bust operation that night, but he had not witnessed the crime and had no personal knowledge of the transaction. He had only listened to Leist and tried to write down what he said. Lomack responded that Kasner had personal knowledge that he prepared the document.

The trial court did not agree that by filing the certificate, the State manifested a belief in its truth:

The purpose for which those documents are generally filed in my view does not indicate that the State has manifested what the State is doing. It seems to me he [the prosecutor] is offering a sworn statement of its agent for purposes ...


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