Personal Restraint Petition Of Christopher Lee Cobb ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
May 27, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of No. 54340-1-II
the Personal Restraint of
CHRISTOPHER LEE COBB, UNPUBLISHED OPINION
Petitioner.
MAXA, J.—Christopher Cobb seeks relief from personal restraint imposed as a
result of his 2016 conviction for two counts of unlawful possession of a controlled
substance with intent to deliver and one count of first degree unlawful possession of a
firearm.1 We deny Cobb’s petition.
First, Cobb argues that the affidavit in support of the search warrant for a Dodge
Charger relating to his convictions did not meet the Aguilar-Spinelli2 test of establishing
both the credibility of a confidential informant (C/I) and the C/I’s basis of knowledge.
State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984). He asserts that the only
1
We issued the mandate of Cobb’s direct appeal on November 27, 2018, making his
November 20, 2019 petition timely filed. RCW 10.73.090(1) and (3)(b).
2
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v.
United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
54340-1-II
statement by the affiant, Deputy Kory Shaffer, in support of the warrant for the Charger
was: “A confidential reliable informant agreed to work with the Pierce County Sheriff’s
Department. In order to establish his/her credibility, the C/I made a ‘reliability’ buy of
narcotics.” Petition, Exhibit B at 4.
But Cobb fails to mention that the affiant provided detailed information regarding
the “reliability buy” and regarding the use of the same C/I for a prior search warrant for
Cobb’s Impala:
After becoming a reliable confidential informant, the C/I has provided
information that has led to several Superior Court search warrants. These
warrants have resulted in numerous arrests, the recovery of narcotics and
firearms. These cases were filed and charged resulting in convictions.
....
Over the course of this investigation, with the C/I under the control of the
Pierce County Sheriff’s Department Special Investigations Unit, we have
made numerous controlled buys of methamphetamine from Christopher
Cobb. The C/I had been searched before and after the buys. No money or
narcotics were located. These controlled buys involved Christopher Cobb
driving a 2016 Chevy Impala, bearing Washington license AXD-7310,
registered to EAN Holdings LLC. The C/I told me Christopher Cobb
carries his narcotics in a brown back pack.
....
Within a few minutes of the C/I arriving I observed a black Chevy Impala,
bearing Washington license AXD-7310, arrive and park. The vehicle was
occupied by one black male and I was able to see it was Christopher Cobb.
Within a few minutes the C/I got out of the vehicle. The Chevy Impala
then left the parking lot.
While under constant surveillance I contacted the C/I. The C/I turned over
the suspected methamphetamine. The C/I was searched. No money or
narcotics were located. The C/I told me he/she handed Christopher the
money and Christopher retrieved the methamphetamine from the brown
back pack and then handed him/her the methamphetamine.
Petition, Exhibit B at 4-7.
2
54340-1-II
This evidence is sufficient to establish both the confidential informant’s reliability
and his basis for knowledge.
Second, Cobb argues that the trial court violated his right to confrontation by
allowing Deputy Shaffer to testify about the C/I’s statements without the court revealing
the identity of the C/I, so he could cross-examine the informant. But Deputy Shaffer did
not testify about any statements the C/I made to her before or after the controlled buy. At
most, Deputy Shaffer testified that in controlled buys by confidential informants, the
confidential informant has made contact with a suspect who agreed to sell narcotics to the
informant. While that testimony could imply that the C/I here stated to Deputy Shaffer
that he/she had arranged the transaction with Cobb, it is not an out-of-court testimonial
statement that would trigger Cobb’s right of confrontation.
And even if the statement did violate Cobb’s right of confrontation, he did not
object to the statement at trial. The unchallenged admission of the statement is not
manifest constitutional error that can be raised for the first time on appeal. See State v.
Grott, 195 Wn.2d 256, 269, 458 P.3d 750 (2020).
Cobb’s reliance on State v. Kinzle, 181 Wn. App. 774, 326 P.3d 870 (2014) is
misplaced. In that case, the State avoided asking a witness about alleged molestation, or
about prior statements the witness had made, thereby leaving the defendant no testimony
to confront, and so violated the defendant’s right of confrontation. Id. at 780-84. Here,
the State did not avoid asking Deputy Shaffer about the C/I’s statements about the
controlled buy. Cobb seems to suggest that the State was required to identify the C/I and
make him/her available for cross-examination. But he does not demonstrate any such
requirement to preserve his right of confrontation.
3
54340-1-II
Cobb does not show any grounds for relief from personal restraint. We therefore
deny his petition and his request for appointment of counsel.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
SUTTON, A.C.J.
GLASGOW, J.
4