The State of Washington, Respondent, v. Tyler S. King, Petitioner, 167 Wash. 2d 324

Sanders, J. ¶1 We must decide whether a police officer had the authority to arrest a motorcyclist for reckless driving outside the officer’s jurisdiction and whether the officer later offered improper opinion testimony at trial. Tyler Sherwood King was riding his motorcycle southbound on Interstate 5 (1-5), north of the Vancouver, Washington, city limits, when Vancouver police officer Jeff Starks spotted him. Starks was on his way to work, driving an unmarked police car outside his department’s jurisdiction.

According to the officer, King stood on his motorcycle’s foot pegs for three to four seconds while driving at about 70 m.p.h., looked at a nearby car, changed lanes, and then accelerated away at a high rate of speed. Starks pulled King over and issued him a criminal citation for reckless driving under RCW 46.61.500. King moved to dismiss, arguing Starks arrested him outside his department’s boundaries without a valid interlocal agreement allowing him to do so.

But the district court upheld the arrest, ruling Starks had the authority to cite King under the emergency exception contained in RCW 10.93.070(2), involving “an immediate threat to human life or property.” The jury convicted Kang, and the superior court affirmed on appeal. We granted review of a Court of Appeals order denying review of the superior court decision. We now reverse King’s conviction for reckless driving because the police officer lacked jurisdiction to make the arrest since King’s actions did not fall within the emergency exception of RCW 10.93.070(2).

FACTS AND PROCEDURAL HISTORY ¶2 On April 5, 2006, Tyler King rode from Vancouver to a Longview shop where a friend worked to see if he could get his motorcycle repaired. King said the repairs, which included fixing the speedometer and odometer, were too expensive, so he rode the bike home. King was riding southbound on 1-5 in the middle lane and saw a Dodge Durango truck on his left, in the fast lane. King said he stood on his motorcycle’s pegs for three to five seconds to stretch out and also to allow the driver of the large truck to see him.

King testified that on other occasions drivers had abruptly pulled over into his lane without seeing him on his motorcycle, and he was worried about getting run over. Because he was wearing a full-face helmet, King turned his head to the left to see the truck, and thinking he was in the driver’s blind spot, he sped up to pass the Durango. King testified that after he passed the truck, he slowed down to the speed of the traffic around him.

He said he told Officer Starks that he stood up on the bike’s pegs to relieve his numb buttocks and that he thought it was safer to get away from the large truck. ¶3 Meanwhile, Officer Starks of the Vancouver Police Department had entered 1-5 at the La Center Road on-ramp at milepost 16. Starks testified he was driving his assigned patrol car, a black, unmarked Ford Crown Victoria, southbound to report to work. He said he saw King stand on his motorcycle for three to four seconds while he was going about 70 m.p.h. The speed limit on that stretch of 1-5 is 70 m.p.h. Verbatim Report of Proceedings (RP) at 167.

The officer saw King look to his left at the blue Dodge Durango and “thought [King] was taunting the vehicle ... the driver of the vehicle.” Id. at 165 (second alteration in original). Starks said King then sat down on his motorcycle, changed lanes, and accelerated away at a high rate of speed, which Starks estimated at 100 m.p.h. ¶4 Starks said he didn’t use his radar to check King’s speed, and “it may not even have been on at the time.” Id. at 166.

On cross-examination, Starks said radar and laser were routinely used to confirm visual estimates of a driver’s speed but could not recall if his department required officers to verify their estimates with those devices before writing a ticket. Starks said he accelerated to catch up with King and signaled for him to pull over. King pulled over without delay. Starks’ patrol car was equipped with a video camera, and the officer had activated it.

But by the time the camera started recording, the video shows only Starks driving quickly past King, who had pulled over, and the officer then backing up on the shoulder to reach the motorcyclist. Starks cited King for reckless driving on 1-5, near milepost 14, north of Vancouver’s city limits. On cross-examination, the officer agreed he had written on the citation that King was standing on the seat of his motorcycle, not its pegs.

However, he said he could not testify as to whether King had stood on the seat or not. ¶5 According to the State, defense counsel attacked the officer’s credibility regarding what part of the bike King stood on; what Starks wrote on the ticket; that he did not have video, radar, or laser readings to verify King’s speed; and Starks’ inexperience with motorcycles, among other issues. The State raises this line of questioning in connection with Officer Starks’ offering opinion testimony.

Before that cross-examination, however, the prosecutor had asked Starks his opinion about King’s driving, and Starks replied, “I felt that the entire act of what he had done was reckless in my viewpoint.” Id. at 171. The prosecutor asked Starks whether he had been trained on the elements of reckless driving, and Starks replied he had. The prosecutor then asked whether the officer felt King’s driving was within those elements, and Starks replied, “I did.” Id. King’s lawyer did not object.

In closing argument the prosecutor reiterated, “Officer Starks said here today[, ‘]I thought it was dangerous and I felt it was reckless to me.[’] Therefore, I would just ask that you convict the Defendant of reckless driving.” Id. at 273. ¶6 On November 21, 2006, the jury unanimously convicted King of reckless driving. The judge sentenced Ring to two days of community service and two years of probation, and ordered him to pay $446 in fines and take a defensive driving course. The Clark County Superior Court affirmed the conviction on appeal.

The court agreed that an arrest for reckless driving was justified under the emergency exception of RCW 10.93.070(2), allowing officers to arrest across jurisdictional boundaries. The court also ruled that Starks’ opinion testimony had not denied King a fair trial and that his counsel was not ineffective for failing to object to that testimony. ¶7 King sought discretionary review in the Court of Appeals, renewing his arguments that the officer cited him without authority and improperly commented on his guilt.

But the commissioner denied review, reasoning that since King had not objected to the opinion testimony at trial, he was foreclosed from raising it on appeal since he could not show any court ruling that conflicted with appellate court decisions. Ruling Den. Review, State v. King, No. 36606-1-II at 3 (Wash. Ct. Appeals Sept. 25, 2007). As to the second issue, the commissioner concluded King failed to show the

interpretation of the emergency exception in RCW 10.93-.070(2) was an issue of public interest warranting review. Id. at 4. The commissioner also said King’s actions were similar to the erratic driving that previously justified an extraterritorial arrest in another Court of Appeals case, City of Tacoma v. Durham, 95 Wn. App. 876, 881-82, 978 P.2d 514 (1999). Id. King’s motion to modify the commissioner’s ruling was denied, with one judge dissenting. ¶8 We granted review to consider the following issues:

(1) Did Officer Starks’ opinion testimony improperly invade the province of the jury and constitute manifest constitutional error that was not harmless?

(2) Was King’s arrest by an officer outside his territorial jurisdiction valid under the emergency exception of RCW 10.93.070(2)? STANDARD OF REVIEW ¶9 In general, appellate courts will not consider issues raised for the first time on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). RAP 2.5(a). But a party can raise an error for the first time on appeal if it is a manifest error affecting a constitutional right. Kirkman, 159 Wn.2d at 926; RAP 2.5(a)(3).

The defendant must show the constitutional error actually affected her rights at trial, thereby demonstrating the actual prejudice that makes an error “ ‘manifest’ ” and allows review. Kirkman, 159 Wn.2d at 926-27. “If a court determines the claim raises a manifest constitutional error, it may still be subject to harmless error analysis.” Id. at 927. Opinion testimony regarding a defendant’s guilt is reversible error if the testimony violates the defendant’s constitutional right to a jury trial, which includes the independent determination of the facts by the jury.

Id. ¶10 The meaning of the emergency exception in RCW 10.93.070(2) is a question of law we review de novo. State v. Plaggemeier, 93 Wn. App. 472, 477, 969 P.2d 519 (1999). The

chapter “ ‘shall be liberally construed to ... modify current restrictions upon the limited territorial and enforcement authority of general authority peace officers and to effectuate mutual aid among agencies.’ ” Id. at 477 n.4 (quoting RCW 10.93.001(3)). ANALYSIS I. Officer Starks’ Opinion Testimony ¶11 King argues that Starks opined he was guilty of reckless driving, and the Court of Appeals erred by ruling that such an opinion on guilt cannot be raised for the first time on appeal.

The relevant portion of the officer’s testimony is as follows: [Prosecutor]: So based on your training, experience and observations of the Defendant’s driving, did you form an opinion regarding his driving? [Officer Starks]: Yes, I did. [Prosecutor]: And what is that opinion? [Officer Starks]: I felt that the entire act of what he had done was reckless in my viewpoint. [Prosecutor]: Okay.

And what . . . have you been trained on reckless driving . . . the elements of reckless driving? [Officer Starks]: Yes. [Prosecutor]: Okay So you felt this was within those elements? [Officer Starks]: I did. [Prosecutor]: And did you issue him a criminal citation? [Officer Starks]: I did. [Prosecutor]: For reckless driving? [Officer Starks]: Yes I did. RP at 170-71. ¶12 Having presented no other evidence besides the officer’s testimony, the prosecutor said in closing: [Describing King’s driving:] All of these things are reckless. Just one of these things could be considered reckless.

All of these things, taken together, constitute reckless driving. Officer Starks wrote him a ticket. Officer Starks said here today[, “]I thought it was dangerous and I felt it was reckless to me.[”] Therefore, I would just ask that you convict the defendant of reckless driving. Id. at 273. ¶13 “Generally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant; such testimony is unfairly prejudicial to the defendant because it “invad[es] the exclusive province of the [jury].” ’ ’’State v.

Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (alterations in original) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987))); see also ER 608 cmt. (noting, “drafters of the Washington rule felt that impeachment by use of opinion is too prejudicial and on a practical level is not easily subject to testing by cross examination or contradiction”). Thus, neither a lay nor an expert witness “may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.” Black, 109 Wn.2d at 348.

A law enforcement officer’s opinion testimony may be especially prejudicial because the “officer’s testimony often carries a special aura of reliability.” Kirkman, 159 Wn.2d at 928. ¶14 The State conceded Officer Starks’ opinion testimony was improper. “As in Montgomery Officer Starks’ testimony would be considered improper under current case law because it is an expression by a police officer that goes to the guilt of Defendant.” Br. of Resp’t at 12; see State v.

Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008) (holding State’s opinion testimony was improper but finding that error harmless and concluding on other grounds that defendant had been prejudiced). But, the State argues, because the officer’s testimony did not result in actual prejudice, it cannot be raised for the first time on appeal under RAP 2.5(a). Br. of Resp’t at 12. ¶15 The commissioner’s ruling did not reach the issue of whether the officer’s testimony invaded the province of the jury and resulted in actual prejudice.

That decision erred by foreclosing review simply because King’s attorney did not object at trial and failing to mention, let alone engage in, a manifest constitutional error analysis. “[A]s Heatley makes clear, a claim of improper opinion testimony cannot be raised for the first time on appeal.” Ruling Den. Review, supra, at 3 (citing Heatley, 70 Wn. App. at 583-86). The commissioner’s reliance on Heatley was misplaced. First, Heatley rejected only the notion that improper opinion testimony necessarily constitutes manifest constitutional error that will be considered for the first time on appeal. 70 Wn.

App. at 586. The case does not stand for the broad assertion that such opinion testimony on guilt can never be raised on appeal if there was no objection at trial. ¶16 Second, this court recently clarified the issue in Kirkman, providing an outline of the scope of RAP 2.5(a)(3) as applied to improper opinion evidence. Kirkman, 159 Wn.2d at 936. “Admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a ‘manifest’ constitutional error.” Id. (emphasis added).

But, “an explicit or almost explicit” opinion on the defendant’s guilt or a victim’s credibility can constitute manifest error.

Id. (noting, “[Requiring an explicit or almost explicit witness statement on an ultimate issue of fact is consistent with our precedent holding the manifest error exception is narrow”). ¶17 To determine whether statements are impermissible opinion testimony, a court will consider the circumstances of a case, including “ ‘(1) “the type of witness involved,” (2) “the specific nature of the testimony,” (3) “the nature of the charges,” (4) “the type of defense,” and (5) “the other evidence before the trier of fact.” ’ ” Id. at 928 (quoting Demery, 144 Wn.2d at 759 (quoting Heatley, 70 Wn. App. at 579)).

Here, the Court of Appeals failed to review King’s claim of improper opinion testimony and engage in a manifest constitutional error analysis. The court allowed the commissioner’s ruling to stand, and that ruling relied on an overly broad reading of Heatley and did not take into account our analysis in Kirkman. ¶18 Nonetheless, we conclude that we can resolve this case solely on the issue of whether Officer Starks had jurisdiction to arrest King in the first place.

Thus, we need not rule on whether the officer’s opinion testimony — which the State concedes was improper — constituted a manifest error and was not harmless. II. Emergency Exception to Territorial Jurisdiction ¶19 King contends that Starks could not arrest him for reckless driving because the officer had no authority under a valid interlocal agreement, and the emergency exception to territorial jurisdiction did not apply.

The district court found the State had not established there was such an agreement authorizing the arrest under RCW 10.93.070(1) (allowing Washington police to enforce traffic and criminal laws across boundaries “[u]pon the prior written consent of the sheriff or chief of police” in the area where the offense occurs). But an officer can also make an arrest in other circumstances enumerated in the statute, including, “[i]n response to an emergency involving an immediate threat to human life or property.” RCW 10.93.070(2).

The district court read this exception broadly and concluded it necessarily covers reckless driving, defined as “willful or wanton disregard for the safety of persons or property.” RCW 46.61.500(1); see RP at 71 (RCW 10.93.070(2) is “broad enough to include reckless driving”). The Clark County Superior Court and the Court of Appeals agreed. ¶20 To date, no decision has turned on the application of this exception, but a plain reading indicates King’s driving does not qualify as an emergency involving an immediate threat to life or property. Durham is illustrative. 95 Wn. App. 876.

There a man was spotted driving erratically in south Tacoma, running a red light, nearly hitting a transit supervisor’s car, weaving across the center line, and rolling backward at a stop light. A Tacoma police officer heard about the man’s dangerous driving over radio dispatch, caught up with him in Lakewood, and arrested him on suspicion of driving under the influence. The defendant argued the officer lacked authority for the arrest. The Court of Appeals held the officer was justified in making the extraterritorial arrest under the “fresh pursuit” exception in RCW 10.93.070(6).

See also RCW 10.93.120 (defining “ ‘fresh pursuit’ ”). ¶21 The Durham court also noted that the emergency exception of RCW 10.93.070(2) provided independent justification for the DUI arrest. 95 Wn. App. at 881. “Officer Quinn was responding to a 911 call by Stewart, who observed Durham’s car weaving across the center line after it ran a red light and nearly struck his car.

Clearly, this situation presented an emergency, and Quinn reasonably responded across jurisdictional lines.” Id. ¶22 But here the district court merely took the definition of “reckless driving” and concluded that it automatically fit within the emergency exception. However King’s actions did not reach the level of erratic driving that constitutes “an emergency involving an immediate threat to human life or property.” RCW 10.93.070(2). Unlike Durham, King did not nearly hit another car, or run a light, or weave across traffic lanes.

He did not pop a wheelie, cut off another car, or, for that matter, drive in reverse along the shoulder. At most, King glared at the driver of the large truck, stood on his foot pegs for three to five seconds, and accelerated at high speed past the truck. As aforementioned, Starks could not verify that King accelerated away at what he thought was 100 m.p.h. Even so, the officer testified King slowed down as he approached other traffic and pulled over immediately when Starks signaled him to do so.

King may have exceeded the speed limit by a considerable margin, but his driving was not anywhere near as dangerous as that of the intoxicated defendant in Durham, 95 Wn. App. 876. Moreover, there was no eyewitness account here indicating an immediate threat, unlike Durham where the transit supervisor reported he was almost hit. The record shows King’s actions did not constitute an immediate threat to life or property as required under RCW 10.93.070(2). We choose not to broaden or water down the meaning of this emergency exception to include speeding such as King’s.

Furthermore, we note that police officers are still authorized to effect extraterritorial arrests in circumstances where a valid interlocal agreement between jurisdictions exists or where the fresh pursuit exception applies. CONCLUSION ¶23 We hold that King’s actions did not constitute an immediate threat to life or property that authorized his arrest under the emergency exception of RCW 10.93.070(2). Thus, we reverse King’s conviction for reckless driving under RCW 46.61.500. C. Johnson, Chambers, J.M. Johnson, and Stephens, JJ., concur.

King filed a pretrial motion to dismiss the reckless driving charge because Starks made the arrest outside his jurisdiction and without the authority of a valid interlocal agreement. The district court found the State had not established there was a valid interlocal agreement authorizing the arrest under RCW 10.93.070(1). Clerk’s Papers at 119 (Findings of Fact and Conclusions of Law (Clark County Dist. Ct. No. 63660)).

However the district court upheld the arrest, agreeing with the prosecution that reckless driving, defined as “willful or wanton disregard for the safety of persons or property,” falls under the emergency exception of RCW 10.93.070(2). RCW 46.61.500(1) (defining “reckless driving” and its penalty); see RCW 10.93.070(2) (authorizing a Washington peace officer to enforce traffic or criminal laws across jurisdictions “[i]n response to an emergency involving an immediate threat to human life or property”).

We have previously said an appellate court must approach claims of constitutional error asserted for the first time on appeal by first “satisfy[ing] itself that the error is truly of constitutional magnitude — that is what is meant by ‘manifest’.” State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1998). “If the claim is constitutional, then the court should examine the effect the error had on the defendant’s trial according to the harmless error standard set forth in Chapman v. California." Id.; see Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.

Ed. 2d 705 (1967) (holding that before an error can be held harmless, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction). 70 Wn. App. 573. 159 Wn.2d 918. Kirkman was decided on April 5, 2007, and the Court of Appeals’ ruling denying review was issued more than six months later on September 25, 2007. Here, there was no claim, nor do the facts support, that King’s arrest fell under the “fresh pursuit” exception of RCW 10.93.070(6). Driving under the influence.

Starks’ video recording of the King stop shows the officer driving past the motorcyclist, who had pulled over, and then driving in reverse on the shoulder to reach him.