Opinion
No. 32848-8-II.
September 6, 2006.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 04-1-00887-2, James E. Warme, J., entered February 1, 2005.
Counsel for Appellant(s), John A. Hays, Attorney at Law, Longview, WA.
Counsel for Respondent(s), J. Tobin Krauel, Cowlitz Co Prosecutors Office, Kelso, WA.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Phillip Eugene Fegles appeals his convictions for two counts of methamphetamine delivery and one count of methamphetamine possession. He argues that the trial court: (1) denied his right to confront witnesses by limiting the scope of cross-examination of the State's confidential informant; (2) erred in denying his motion for a new trial based on newly discovered evidence; and (3) admitted improper opinion testimony concerning his guilt. In his Statement of Additional Grounds (SAG), Fegles also argues that the prosecutor's charging decisions with respect to another suspect engaged in controlled purchases with the same informant denied him (Fegles) equal protection of the law. Finding no error, we affirm.
RAP 10.10.
FACTS I. Controlled Substance Delivery and Possession A. Confidential Informant's Agreement with the State
Kelso police arrested drug dealer Tracy Cadena as she attempted to use a stolen credit card at a local mall. Her purse contained assorted illegal drugs, scales, packaging material, stolen identity items, and a stolen credit card. During her arrest, Cadena lied to police officers, twice provided false names, and told police that she would `do anything and tell [them] anything to stay out of jail or prison.' 3 Report of Proceedings (RP) (Aug. 30-Sept. 2, 2004) at 375.
Cadena had also used the stolen credit card to purchase a ring. The record is not clear about whether the ring was on her person at the time of arrest or was later found at her house.
The State charged Cadena with forgery, possession of stolen property, and seven drug-related counts. She faced a possible sentence of 60 to 128 months confinement for the drug charges. She offered to work for the Cowlitz-Wahkiakum County Drug Task Force (Task Force) as a confidential informant, making controlled drug purchases. The State agreed to drop the drug charges, thus reducing her potential sentence for the remaining charges to two to six months of confinement, if she fulfilled the terms of her confidential informant contract.
As part of the contract, Cadena agreed to refrain from illegal activity and the use of illegal drugs. Her task-force handler could require her to submit to urinalysis tests (UAs) upon request and Cowlitz County Offender Services could impose random UAs as a condition of her release from jail on the pending charges. Subsequently, Offender Services told Cadena that she would have to submit to a UA and Cadena immediately admitted to having used methamphetamine the previous day. She served 24 hours in jail for this violation. According to Cadena, she did not use drugs between her release from jail and her testimony at trial.
B. Controlled Purchases
Cadena executed three controlled purchases of methamphetamine from Phillip Fegles. She executed two of the purchases, on May 13 and May 25, 2004, in a very similar fashion. After corrections officers performed a pat-down search of her person and found no drugs or money, Task Force officers gave Cadena recorded currency and drove her to a motel, where she met with Fegles in a motel room. She stayed in the room with Fegles between five and ten minutes and returned to the Task Force officers with a baggie of methamphetamine that she said Fegles had sold to her. Corrections officers then searched Cadena again and found no money or drugs. The motel registry for the second purchase showed that Fegles had rented the room.
The first purchase occurred at the Super 8 motel, and the second purchase occurred at the Motel 6, both in Kelso.
Although the Task Force officers watched the motels and saw Cadena enter and exit, no officer actually observed the drug transactions inside the motel rooms. During the first transaction, however, one officer walked by the motel room and heard a male voice that sounded like Fegles from inside the room.
The third controlled purchase occurred on June 11, 2004. Cadena met with Task Force Officers, one of whom performed a pat-down search of her person and again found no drugs or money. They drove to a grocery store in Longview, where Cadena had arranged to meet Fegles to deliver the buy money; he did not have any drugs in his possession at the time. Cadena waited by a telephone booth until Fegles drove into the parking lot, entered Fegles's car for a brief moment, gave Fegles $200 in Task Force currency, and exited the car.
Fegles drove away to get the drugs. The Task Force officers picked up Cadena, performed a pat-down search, and, again, found no drugs or money. For several hours thereafter, officers followed Fegles as he drove around Longview. Eventually Cadena contacted Fegles by cell phone and arranged to meet him at the `Store `N Deli' to pick up her drug purchase. 2 RP (Aug. 30-Sept. 2, 2004) at 251.
Fegles arrived around midnight, Cadena entered his car, and they drove into an alley behind the deli. Within a minute, Cadena walked out from behind the deli, walked up to another car, and then returned to the Task Force officers. Cadena gave the officers a baggie of methamphetamine she purchased from Fegles and told them that, at Fegles's request, she also delivered a quantity of methamphetamine to the driver of the other car. An officer searched Cadena and found no drugs or money.
Although no Task Force officers actually witnessed the transaction, they identified Fegles driving his car.
The officers arrested Fegles and recovered 1/4 ounce of methamphetamine on his person, a cell phone, and $2,867 in cash.
II. Procedure
The State charged Fegles with three counts of unlawful delivery of a controlled substance, methamphetamine, and one count of unlawful possession of a controlled substance, methamphetamine.
A. Pretrial
Before trial, the State moved to preclude Fegles from eliciting the factual circumstances underlying Cadena's arrest, including that Cadena lied to police officers about her identity and about a ring purchased with a stolen credit card. Fegles argued that this evidence was admissible to demonstrate Cadena's bias and to impeach her credibility.
The trial court ruled that (1) Cadena's arrest for drug, forgery, and possession of stolen property; the State's dismissal of the drug charges; the remaining forgery and stolen property charges; and Cadena's corresponding, substantially reduced, potential sentence, were admissible to show Cadena's bias and prejudice based on her legal status; (2) Cadena's statement to police, that she was willing to do anything to avoid punishment, was admissible; and (3) the amount and variety of drugs in Cadena's possession at the time of her arrest was admissible to show her access to drugs, which supported Fegles's theory that Cadena was the dealer and able to obtain methamphetamine without his assistance.
The trial court did not allow evidence of Cadena's deceptive conduct toward the arresting officers, including lying about her identity, and the stolen ring and credit card. The trial court ruled this evidence inadmissible as specific acts of misconduct under ER 404(b) and as improper impeachment under ER 608(b) because these charges were still pending, Cadena had not yet been convicted, and these lies were not related to the case against Fegles. In support of this ruling, the trial court recited the following text from ER 608(b), as `almost a restatement of 404,' 1 RP (Aug. 30-Sept. 2, 2004) at 26:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the [witness's] credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.
1 RP at 26 (quoting ER 608(b)).
B. Trial
Officer Timothy Watson testified at trial that he had been unable to develop fingerprints from one of the baggies of methamphetamine Cadena purchased from Fegles. He did not attempt to develop fingerprints on the other two baggies because, according to Watson, it is typically futile to get fingerprints from plastic baggies that have been handled by numerous individuals. Moreover, at least four people had touched the baggies — two officers, Cadena, and Fegles — making it `tough' to lift fingerprints. 2 RP at 216. Fegles objected to Officer Watson's testimony that Fegles had touched the bag. The court overruled the objection, noting that it was a matter for argument.
In testifying about his surveillance of the controlled purchase on May 25 at the Motel 6, Detective Darren Ullman stated, `Miss Cadena was let out of the vehicle, and she walked over to the room where Mr. Fegles was [staying] and went into the room.' 2 RP at 238. Fegles objected that there was no evidence he was staying in that particular motel room. The trial court overruled the objection, again noting that it was a matter for argument.
Cadena testified that when she was arrested with drugs and stolen property in her possession, she was scared and desperate, she knew she could be going to prison, and she told the officer that she `would do anything and tell him anything to stay out of jail or prison.' 3 RP at 375. She further admitted on cross-examination by Watson's counsel that (1) at the time of her arrest, she would `say anything to get out of trouble,' 3 RP at 375-76; (2) if she did not testify against Fegles, she was `going to go to prison' for about five to ten years, 3 RP at 376; (3) the drug charges against her would `go away,' 3 RP at 374; and (4) her forgery and possession of stolen property charges were still pending.
The trial court overruled the State's motion to strike this statement.
At the close of evidence, Fegles made an offer of proof that Kelso Officer Blain would have testified about additional circumstances of Cadena's arrest, including that she had twice lied about her identity and had denied knowing about the stolen credit card and ring purchased with the stolen card. Fegles argued that this evidence was important to show Cadena's willingness to lie in order `to get out of trouble' with the police. 3 RP at 432. The trial court reaffirmed its earlier ruling in limine, citing ER 608 and stating it is impermissible to impeach a witness with prior bad acts.
The jury acquitted Fegles on one count of delivery and convicted him on the remaining counts.
III. Post-Trial
While the jury was deliberating, Offender Services made Cadena submit to a UA. She initially tried to avoid taking the UA and the results showed that, in the previous 48 to 72 hours, Cadena had used methamphetamine and cocaine. When informed of the results, Cadena admitted to using methamphetamine, but denied using cocaine. Offender Services then took Cadena into custody.
Cadena contacted the Task Force and told them she had not used cocaine, but she had used methamphetamine on Wednesday night after testifying in Fegles's case.
After the verdict, Fegles moved for a new trial based on the newly discovered UA evidence of Cadena's drug use. He argued: (1) this evidence demonstrated that Cadena perjured herself when she testified she had not used drugs since March 24, 2004; (2) her credibility was essential to the State's case on the delivery charge; and (3) the compelling evidence of perjury impugning her credibility required a new trial. The trial court denied the motion.
Fegles then moved for relief from judgment, arguing that the State violated his right to equal protection by entering into a plea agreement with a similarly situated defendant for whom the prosecutor had dropped delivery charges, which had been based on Cadena's testimony. The State had dismissed these charges because Cadena failed her UA after Fegles's trial and, therefore, the State could no longer rely on her to prove their case. The trial court denied this motion.
Fegles appeals.
ANALYSIS I. Trial Testimony A. Cross-examination of Cadena
Fegles argues the trial court denied him his right to confront the witnesses against him by precluding his cross-examination of Cadena about her dishonest conduct at the time of her arrest in order to show bias and prejudice. We disagree.
U.S. Const. amend. VI; WASH. Const. art. 1, sec. 22.
In limiting the scope of Cadena's cross-examination, the trial court relied on ER 404(b) and ER 608(b), which provides, in pertinent part:
The trial court also cited ER 404(b) to the extent that Cadena's deceptive behavior constituted inadmissible prior bad acts being used to show her action in conformity therewith.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness'[s] credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross[-]examination of the witness (1) concerning the witness'[s] character for truthfulness or untruthfulness.
(Emphasis added).
1. Standard of review
The scope of cross-examination of a witness generally rests with the trial court's sound discretion. With respect to cross-examination of a witness about her truthfulness, ER 609 expressly vests such discretion in the trial court. We will not overturn a trial court's limitation of cross-examination absent an abuse of discretion. Abuse of discretion occurs when the trial court's decision was manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We find no such abuse here.
2. Right to confrontation
Fegles correctly notes that an important function of the constitutional right to cross-examination is to expose a witness's motivation for testifying. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). It is a violation of the Confrontation Clause when a defendant is `prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.' Van Arsdall, 475 U.S. at 680. A prototypical form of bias may include the State's dismissal of criminal charges in exchange for witness testimony. See Van Arsdall, 475 U.S. at 679-80.
Great latitude must be allowed in cross-examining a key prosecution witness, particularly an accomplice who has turned State's witness, to show motive for his testimony. The right of cross-examination allows more than the asking of general questions concerning bias; it guarantees an opportunity to show specific reasons why a witness might be biased in a particular case.
State v. Brooks, 25 Wn. App. 550, 551-52, 611 P.2d 1274, review denied, 93 Wn.2d 1030 (1980).
3. Trial court discretion
Here, the trial court gave Fegles ample opportunity to expose Cadena's motivation for testifying. The trial court's ruling on the State's pretrial motion permitted Fegles to offer evidence regarding Cadena's dismissed and pending charges and reduced prison-sentence exposure to show her bias and prejudice based on her legal status. The jury heard that (1) Cadena's cooperation with the Task Force resulted in a reduction of her possible maximum sentence from ten years to six months; (2) Cadena told police that she was willing to do anything to avoid prison; and (3) Cadena had a variety of drugs in varying amounts in her possession at the time of her arrest, showing her access to drugs and supporting Fegles's theory that Cadena was the dealer and that she was able to obtain methamphetamine without him. These circumstances amply demonstrated Cadena's bias and prejudice based on her legal jeopardy and her self-interest in testifying against Fegles.
Although a different trial judge might have allowed Fegles more leeway in cross-examining Cadena, we cannot say that the trial court's limitation here prejudiced Fegles, especially in light of the nature and amount of his cross-examination of Cadena that the trial court did allow over the State's objection. We therefore hold that the trial court did not abuse its discretion in excluding evidence of Cadena's use of a stolen credit card and false name as improper propensity evidence, generally inadmissible under ER 404(b) and improper impeachment under ER 608(b).
We also hold that the trial court's cross-examination limitation did not violate Fegles's confrontation right because the trial court still allowed him (1) to explore Cadena's motivation for testifying and her bias and prejudice, and (2) to inquire into every facet of Cadena's agreement with the State, including the amount of potential prison time she was both avoiding and facing and her strong motivation to `do anything' to avoid prison. 3 RP at 375.
B. Alleged Opinion Testimony
Fegles next argues that the trial court denied him his right to a jury trial by admitting improper opinion testimony of his guilt. We disagree.
U.S. Const. amend. VI; Wash. Const. art. 1, sec. 21.
Generally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant or the credibility of a witness; such testimony is unfairly prejudicial `because it invades the exclusive province of the jury.' State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). `Opinion testimony' is evidence given at trial, under oath, that is based on one's belief or idea rather than on direct knowledge of facts at issue. Demery, 144 Wn.2d at 759-60.
To determine whether a witness has offered improper opinion testimony, we consider four factors: (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. Demery, 144 Wn.2d at 759.
Under ER 704, opinion testimony is not required to be excluded merely because it encompasses an ultimate issue of fact to be decided by the factfinder. State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992). Courts have held that evidence does not constitute improper opinion testimony when the testimony is not a direct comment on the defendant's guilt or on a witness's veracity, is helpful to the jury, and is based on inferences from the evidence. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994).
Here, Officer Watson's testimony was not an improper opinion about Fegles's guilt. In discussing his decision not to conduct a fingerprint analysis, Officer Watson testified, `Detective Ullman touched the bag; I touched the bag; Tracy [Cadena] touched the bag and whoever she got it from; Mr. Fegles touched the bag. You know, four people touched this bag, and you want to print it with those fingerprints on it. It's tough.' 2 RP at 216 (emphasis added). During this line of testimony, Officer Watson explained why fingerprint analysis was impractical under the circumstances; he was not offering an opinion that Fegles had actually possessed and delivered the baggie to Cadena.
Clearly, it was for the jury to determine whether Fegles had possessed the baggie before delivering it to Cadena. But Officer Watson's testimony did not espouse his belief that Fegles had actually delivered the baggies. Rather, Officer Watson's testimony was based on a reasonable inference from the evidence, including Cadena's testimony and police surveillance of the controlled purchases. Moreover, it was important for the jury to hear why the baggies could not be forensically linked to Fegles, or anyone else, through lab analysis.
Likewise, Detective Ullman's testimony that `Miss Cadena was let out of the vehicle, and she walked over to the room where Mr. Fegles was [staying] and went into the room,' was not an improper opinion about Fegles's guilt. 2 RP at 238. Detective Ullman knew from the motel registry that Fegles had rented the room and could reasonably infer that Fegles was staying in that particular room. Detective Ullman's testimony was, at most, simply an opinion that Fegles was in the motel room; it was not an opinion that Fegles had delivered methamphetamine to Cadena. As with Officer Watson's statement, there was no direct comment that Fegles was guilty of delivery.
Accordingly, we hold that the trial court did not err by admitting this line of testimony from Watson and Ullman.
II. Motion For a New Trial
Fegles argues that the trial court abused its discretion in denying his motion for a new trial because he presented compelling evidence that Cadena had committed perjury when she testified about her illegal drug use. Again, we disagree.
A. Standard of Review
CrR 7.5(a)(3) permits a defendant to move for a new trial based on newly discovered evidence material to the defense that could not have been discovered with reasonable diligence and produced at trial. We review denial of a motion for new trial for abuse of discretion. State v. McKenzie, 157 Wn.2d 44, 51, 134 P.3d 221 (2006). Abuse of discretion occurs when the trial court's decision was manifestly unreasonable or based on untenable grounds or reasons. Carroll, 79 Wn.2d at 26. Granting a new trial based on newly discovered evidence is appropriate only when the evidence:
(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. The absence of any of the five factors is grounds for the denial of a new trial, or the reversal of the grant of a new trial.
State v. Jackman, 113 Wn.2d 772, 779, 783 P.2d 580 (1989).
Under the fifth requirement, impeaching evidence is critical and can warrant a new trial if it `devastates a witness'[s] uncorroborated testimony establishing an element of the offense.' State v. Savaria, 82 Wn. App. 832, 838, 919 P.2d 1263 (1996), overruled on other grounds by State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003).
B. Cadena's Possible Perjury
The State persuasively argues that Fegles failed to establish factors one, four, and five of the Jackman test. First, it is impossible to determine whether Cadena actually lied on the stand when she denied using drugs while working with the Task Force. The post-trial UA result indicated that she had used the drugs sometime within the preceding 48-72 hours, which could have encompassed the time she testified. But she told the Task Force that she had used the drugs after her testimony, which was also within the time period encompassed by the UA test result. Thus, although it was possible Cadena had been using drugs when she was on the witness stand, it was not certain. Because it was impossible to determine whether Cadena had committed perjury about her lack of drug use during Fegles's trial, the proferred evidence was speculative.
Essentially, the trial court had to determine whether this post-trial, extrinsic evidence of Cadena's drug use would have affected the outcome of the trial. The trial court ruled that Cadena's continued drug use would not have further devastated her credibility because the jury was already aware of her drug use, her state of legal jeopardy, and her forgery arrest. We find no fault with this reasoning. In light of all the other evidence impeaching Cadena's credibility the jury had already heard, the new evidence would have been merely cumulative. Moreover, based on the existing evidence impugning Cadena's testimony, it appears that the jury did not believe her account of one of the deliveries. Thus, it is doubtful the newly discovered evidence would have changed the outcome of the trial. We hold, therefore, that the trial court did not abuse its discretion in denying Fegles's motion for a new trial.
It is undisputed that Cadena admitted to using methamphetamine while working with the Task Force, for which she spent a day in jail.
III. Equal Protection
In his SAG, Fegles argues that the State denied him equal protection when the prosecutor entered into a plea agreement with Melissa Cuevas. When Cadena failed her UA after Fegles's trial, the State dropped all drug-delivery counts against Cuevas that had been based on Cadena's testimony.
RAP 10.10.
`It is firmly established that a prosecutor has wide discretion to charge or not to charge a suspect.' State v. Pettit, 93 Wn.2d 288, 294, 609 P.2d 1364 (1980). Nonetheless, prosecutorial plea bargaining is subject to equal protection analysis. State v. Gaines, 121 Wn. App. 687, 704-05, 90 P.3d 1095 (2004). Essentially, `persons similarly situated with respect to the legitimate purpose of the law must receive like treatment.' Gaines, 121 Wn. App. at 704. The defendant must demonstrate that he is similarly situated with other persons in a class before the court will undertake an equal protection analysis. Gaines, 121 Wn. App. at 704.
Here, Fegles and Cuevas were not similarly situated and, therefore, an equal protection analysis is not required. The prosecutor properly exercised discretion in charging Fegles with delivery and relying on Cadena's testimony even though she admitted using methamphetamine at least once while working for the Task Force. The prosecutor knew that Cadena was a drug addict, highly impeachable, and trying to stay clean while working with the Task Force. Cadena even admitted using methamphetamine during her cooperation with the Task Force. Thus, the prosecutor knew Cadena was not an entirely reliable witness.
The prosecutor accepted this litigation risk, did not bargain away Fegles's distribution counts, and went to trial. The State secured convictions on two delivery counts and the jury acquitted on another.
Once the prosecutor became aware, after Fegles's trial, of Cadena's additional drug violation, it was well within his discretion to decide that Cadena was insufficiently reliable to risk prosecuting Cuevas for delivery. In light of this increased risk, it was appropriate and within the prosecutor's discretion to offer Cuevas a plea bargain. We hold that it is a matter of prosecutorial discretion to determine how to proceed with two different defendants where the risk of successful prosecution varies in each case.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.