FILED
JUNE 13, 2019
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. 33990-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JEROME CURRY JR., )
)
Appellant. )
PENNELL, J. — Following a jury trial, Jerome Curry Jr. was convicted of two
counts of possession of a controlled substance. His case returns to this court on remand
from the Washington Supreme Court following the State’s successful appeal of this
court’s prior decision. State v. Curry, 191 Wn.2d 475, 423 P.3d 179 (2018). Addressing
the remaining claims on appeal, we now affirm Mr. Curry’s judgment of conviction.
FACTS
Mr. Curry was stopped by police based upon an officer’s belief that Mr. Curry
matched the description of a robbery suspect: a black male wearing blue jeans and a dark
jacket. During the stop, it was determined that Mr. Curry was not the suspect. But
because Mr. Curry had outstanding warrants, he was arrested and searched. The search
turned up heroin and methamphetamine.
No. 33990-4-III
State v. Curry
The State charged Mr. Curry with two counts of possessing controlled substances.
Mr. Curry was granted leave to represent himself pro se. Like many pro se defendants,
Mr. Curry’s choice to represent himself was accompanied by some procedural stumbles. 1
Prior to trial, Mr. Curry unsuccessfully sought an evidentiary hearing in support of his
motion to suppress the State’s drug evidence. At trial, Mr. Curry unsuccessfully
attempted to introduce a copy of the computer aided dispatch (CAD) over the State’s
hearsay and foundation objections. Mr. Curry was convicted as charged.
ANALYSIS
CrR 3.6 evidentiary hearing
Mr. Curry argues the trial court erred in denying his motion for an evidentiary
hearing under CrR 3.6. Mr. Curry moved to suppress the State’s drug evidence, arguing it
was discovered when police illegally searched his person. He claimed the police did not
ask for his name (and thus discover the outstanding warrants) until after he was searched.
In its response to the motion to suppress, the State appended a copy of the police report,
which detailed contrary facts. After reading the materials and hearing oral argument, the
court denied Mr. Curry’s motion to suppress, finding as follows:
1
Such stumbles are not, in and of themselves, grounds for relief from conviction.
Pro se defendants are held to the same substantive and procedural rules as lawyers. See
State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987).
2
No. 33990-4-III
State v. Curry
Defendant was stopped near the scene of a reported robbery as a possible
suspect. He was detained and identified. An arrest warrant was discovered
to exist, and controlled substances were discovered on his person pursuant
to arrest. He now asserts that his detention was improper based on racial
profiling and lack of articulable suspicion to detain.
....
While the defendant files a memorandum in which he generally complains
about the circumstances of his arrest, he did not comply with [CrR 3.6].
Although this court may grant some leeway to [a] pro se defendant in these
circumstances, it cannot waive the rule altogether. Even if the court were to
consider his oral arguments in the form of an affidavit, he still does not
make out a case for suppression. The facts on file appear to support a
generalized suspect description, which is not unusual. Defendant’s
detention appears to be brief and only ripened into an arrest when a warrant
was discovered upon routine identification. The fact that he was eventually
eliminated as a robbery suspect does not abrogate those facts. Accordingly
his assertion does not meet the criteria for an evidentiary hearing and his
motion fails.
Clerk’s Papers at 89.
Mr. Curry’s assignment of error is unconvincing. While the trial court may have
had discretion to overlook the requirements of CrR 3.6, it was not required to do so.
See State v. Radka, 120 Wn. App. 43, 47-48, 83 P.3d 1038 (2004). The trial court did not
err in denying Mr. Curry’s request for an evidentiary hearing based on his failure to
adhere to CrR 3.6’s requirements.
CAD report
Mr. Curry contends the court erred in refusing to admit the CAD report at trial. He
claims the report was admissible under the Uniform Business Records as Evidence Act,
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No. 33990-4-III
State v. Curry
chapter 5.45 RCW, and ER 803(a)(7).
The problem with Mr. Curry's evidentiary argument is that he never established a
foundation for admission of the CAD report. While the CAD report may have been a
business record, the rules of evidence still required Mr. Curry to lay a foundation for the
document, establishing it as such. RCW 5 .45 .020 (requiring foundation from the records
custodian or other qualified witness). He did not do so. Instead, Mr. Curry attempted to
introduce the CAD report during his own testimony. The trial court acted within its
discretion in sustaining the State's objection to admission of the record.
CONCLUSION
Mr. Curry's convictions are affirmed. The State shall not be awarded appellate
costs based on Mr. Curry's uncontested request to deny costs.
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.
Pennell, J. -~
WE CONCUR:
Lawrence-Berrey, C.J. Fearing~~
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