Opinion
No. 26355-0-III.
July 24, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 06-1-00412-1, Robert L. Zagelow, J., entered July 16, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
UNPUBLISHED OPINION
Dietrich James Harmon appeals his six convictions of unlawful delivery of various controlled substances, contending the trial court erred in (1) admitting statements Mr. Harmon made to a detective, (2) admitting evidence of harassment against the State's informant, and (3) excluding evidence of the informant's juvenile convictions. We reject his contentions and affirm.
FACTS
The State charged Mr. Harmon with six counts of unlawful delivery of controlled substances, including marijuana, methylenedioxymethamphetamine (ecstasy), and cocaine. Before trial, Mr. Harmon sought to impeach the State's informant with his juvenile adjudications for crimes of dishonesty. The trial court ruled that they were inadmissible, noting the informant was only 13 when they occurred and that juvenile adjudications are generally inadmissible for impeachment purposes.
The trial court also conducted a CrR 3.5 hearing to determine the admissibility of statements Mr. Harmon made to police. Detective Chris Buttice testified that on August 15, 2006, he went to Mr. Harmon's house accompanied by three other officers to discuss the possibility of Mr. Harmon working with police as an informant. He stated, "My initial purpose was to notify him that I had controlled buys on him of several different substances . . . I thought he would have decent information that could lead us to bigger and better things." Report of Proceedings (RP) at 21. Detective Buttice testified that as he spoke with Mr. Harmon on the front porch, one police officer was standing near the porch and two other officers were standing near the street.
Detective Buttice testified that he did not inform Mr. Harmon of his Miranda rights because he did not intend to arrest Mr. Harmon. The detective testified, "I told him right then we weren't arresting him or taking him to jail. . . . I told him we had the deliveries and we weren't going to take him to jail regardless." RP at 24. Mr. Harmon told the detective that he only sold enough drugs to support his marijuana habit. The detective gave him two weeks to decide whether he would work with police.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Detective Buttice also testified that he immediately smelled marijuana inside Mr. Harmon's house and told Mr. Harmon that if he turned it over, he would not be taken to jail. He gave Mr. Harmon Ferrier warnings and Mr. Harmon allowed the detective inside his house. Mr. Harmon was not arrested.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
Mr. Harmon testified that when he first saw the officers in his front yard he thought he was going to be arrested. "I had four officers at my house. I figured they weren't there for anything small." RP at 33. Mr. Harmon claimed he did not feel free to leave because Detective Buttice told him that he was going to be booked. He explained, "I had four officers and bulletproof vests on the outside with badges, like one sitting next to me, one on the steps, and then two like right in front of the steps off to the side. Pretty much [felt] surrounded." RP at 34.
The trial court admitted Mr. Harmon's statements, concluding Mr. Harmon was not in custody during his conversation with the detective. The court emphasized that at the outset of the encounter, Detective Buttice told Mr. Harmon he was not going to be arrested, and that police could have arrested Mr. Harmon on the spot, but they were more interested in discovering whether he was willing to work with them.
At trial, Detective Buttice testified that Reuben Lopez, an informant, participated in three controlled buys of various controlled substances from Mr. Harmon. Mr. Lopez testified that he agreed to assist police with controlled drug buys, explaining that he needed to work to support his family and that his work release otherwise would have been revoked due to a probation violation. The agreement permitted him to remain in work release, although he spent nights at the jail.
Mr. Harmon produced several witnesses who had been present during the various controlled buys. They testified that they never saw any drug transactions or heard any discussion about drug sales. Mr. Harmon denied selling any controlled substances to Mr. Lopez.
During deliberations, one of the jurors expressed concern about the possibility of retaliation from someone in the audience. The court responded, "You are to follow the instructions previously given to you." Clerk's Papers (CP) at 10. The jury returned a verdict of guilty on all counts. Mr. Harmon appeals.
ANALYSIS
Mr. Harmon first contends that the trial court erred in admitting evidence of threats and harassment directed at Mr. Lopez. Decisions as to the admissibility of evidence are within the discretion of the trial court, and are reversible only for abuse of that discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Discretion is abused if it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Alexander, 125 Wn.2d 717, 732 n. 28, 888 P.2d 1169 (1995).
During trial, the prosecutor questioned Mr. Lopez as follows:
Q. Now, before you made the first drug buy from the defendant, had anything bad happened between you and him?
A. (The witness shook his/her head from side to side.)
Q. That caused you to have some, something against him?
A. No. . . . .
Q. Now, obviously, after this was finished, are you still friends with him?
A. No. . . .
Q. Have you received anything, either in writing or verbally, regarding your having worked for the police that has affected you detrimentally[?]
RP at 188-89. Defense counsel objected that this line of questioning was irrelevant.
During an offer of proof, Mr. Lopez testified that after the subjects of his informant work were arrested or charged, including Mr. Harmon, someone vandalized a couple of his cars. He also stated that a neighbor had recently brought him letters that had been scattered through her neighborhood stating, "`Reuben Lopez is a snitch.'" RP at 191. Defense counsel argued that the evidence should not be admitted because it was irrelevant to whether Mr. Harmon committed the crimes and was highly prejudicial.
The court agreed that the evidence was prejudicial under ER 403, but admitted it as relevant to Mr. Lopez's credibility. It explained,
What we're going to have here is a swearing contest. This man is saying certain things and your client is going to get up there and say it absolutely didn't happen. So we have a jury who is going to have to try to figure out who in the world is telling the truth here. . . . I'm admitting it for the purpose to show that he may well be reluctant to be here. . . . He is doing it, that there is some cost to him to come here and testify.
RP at 193.
On appeal, Mr. Harmon reiterates that this evidence is irrelevant and that the juror's concern about possible retaliation establishes the prejudice of the evidence. Finally, he argues that this evidence "can also be analyzed under ER 404(b) because in effect, the evidence was accusing Mr. Harmon or those at his direction, of other crimes or wrongful acts." Br. of Appellant at 12.
Evidence Rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by its prejudice. Further, under ER 404(b), evidence of other crimes, wrongs, or acts is presumptively inadmissible to prove character and show action in conformity therewith. Powell, 126 Wn.2d at 258. Such evidence is admissible, however, for other purposes. ER 404(b).
In this case, the trial court did not conduct an ER 404(b) inquiry on the record. Nevertheless, we may make the required determination based on the entire record. State v. McGhee, 57 Wn. App. 457, 460, 788 P.2d 603 (1990). Here, the trial court determined that although prejudicial, the evidence was critical to assess Mr. Lopez's credibility.
When a witness's credibility is attacked, it is permissible to elicit testimony regarding reluctance to testify. State v. Bourgeois, 133 Wn.2d 389, 400-01, 402, 945 P.2d 1120 (1997). In this case, the defense attacked Mr. Lopez's credibility during all phases of the trial. Before trial, the defense sought to discredit Mr. Lopez through admission of his juvenile adjudications. Later, during cross-examination of Mr. Lopez, defense counsel attempted to establish Mr. Lopez's possible motive to lie based on his contract with law enforcement. The defense also questioned Mr. Lopez about his violation of this contract, which included probation violations and ongoing drug use. During closing argument, defense counsel emphasized these credibility problems. He also directed the jury's attention to the testimony of officers who stated that some confidential informants had lied to them. Because Mr. Lopez's credibility was attacked, the trial court properly admitted evidence of threats against Mr. Lopez to show his possible reluctance to testify.
We next address Mr. Harmon's contention that a juror's concern about retaliation establishes the prejudice of the evidence of threats against Mr. Lopez. Bourgeois addressed a similar concern. In that case, a juror complained that during trial a spectator was glaring and made a hand-gesture in the nature of pointing a gun at a witness. Id. at 408.
The court applied a three-part test to determine whether prejudice from spectator misconduct warranted a new trial, directing courts to evaluate the seriousness of the conduct, whether it involved cumulative evidence, and whether the court instructed the jury to disregard it. Id. at 409. The Bourgeois court concluded that the spectator misconduct did not warrant a new trial because there was no evidence the defendant directed the threats, most of the jurors did not see the conduct, and the jury was instructed to consider just the testimony of witnesses and admitted exhibits. Id. at 409-10.
In this case, it is difficult to evaluate the seriousness of the conduct because the record does not detail the concerning conduct. However, the trial court and the other jurors did not observe the conduct, which suggests it was not pronounced. Further, as in Bourgeois, nothing indicates that Mr. Harmon was associated with the conduct. Next, the court directed the jury that "the concerns related by juror number eight shall not enter into your deliberations." RP at 317; CP at 10. Finally, as in Bourgeois, the jury was instructed to consider only the testimony of the witnesses and admitted exhibits and to "disregard any evidence that was either not admitted or stricken by the Court." RP at 264. We presume the jury followed these instructions.
But even if the court erred in admitting the evidence, any error was harmless. "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." Bourgeois, 133 Wn.2d at 403. Here, even if we exclude all of Mr. Lopez's testimony, ample evidence supports the jury's verdict. Police officers involved in the controlled buys testified that they searched Mr. Lopez and his car before each buy and that he returned from his contacts with Mr. Harmon with drugs purchased from Mr. Harmon. The jury apparently discounted the testimony of Mr. Harmon's witnesses and his own testimony. In light of all the evidence, any error was harmless.
Next, Mr. Harmon asserts that the statements he made to Detective Buttice should have been suppressed because he was not given Miranda warnings. He contends that all of the circumstances indicate that he was in custody, pointing out that four officers were at his house, his friends were removed from his house and searched, and that police told him he was going to be booked, they had just arrested several people for drug violations, they had evidence of his participation in three drug deliveries, and they could smell marijuana from inside his house.
We review a trial court's custodial determination de novo. State v. Ustimenko, 137 Wn. App. 109, 115, 151 P.3d 256 (2007). The prosecution may not use statements stemming from the custodial interrogation of a defendant unless the defendant is first advised of his Miranda rights. State v. Lavaris, 99 Wn.2d 851, 856, 664 P.2d 1234 (1983); Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). "While in custody, an accused's pre-Miranda statements are presumed involuntary due to the coercive nature of custodial interrogations." Ustimenko, 137 Wn. App. at 113. The voluntariness of a statement is determined by examining the totality of the circumstances in which it was made, asking whether a reasonable person in the individual's position would believe he or she was "in police custody with the loss of freedom associated with formal arrest." State v. Lorenz, 152 Wn.2d 22, 37, 93 P.3d 133 (2004).
Thus, the question before us is whether a reasonable person in Mr. Harmon's position would understand he or she was free to end the questioning. The trial court's unchallenged findings, which we treat as verities, noted that Detective Buttice told Mr. Harmon that he was not going to be arrested that day and that Detective Buttice's purpose in contacting Mr. Harmon was to see if he would agree to work as an informant, Detective Buttice gave Mr. Harmon two weeks to decide and did not threaten Mr. Harmon, Detective Buttice told Mr. Harmon that if he turned over the marijuana inside his house he would not go to jail, and Mr. Harmon was not arrested even after the discovery of marijuana at his residence. These unchallenged findings support the court's conclusion that Mr. Harmon was not in custody for Miranda purposes.
Finally, Mr. Harmon contends that the trial court erred in disallowing evidence of Mr. Lopez's three juvenile adjudications for crimes of dishonesty. He asserts this prohibition denied him a fair trial because witness credibility was central to the case. As indicated, we will not disturb a trial court's evidentiary ruling on appeal absent an abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Evidence Rule 609 governs the admission of convictions for impeachment purposes. This rule states in part:
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction . . . unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect. ER 609(b).
ER 609(d) further provides:
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Mr. Lopez had three juvenile adjudications for crimes of dishonesty, which at the time of trial were over 10 years old. The court excluded the juvenile adjudications, noting their age, that Mr. Lopez had gone 11 years without committing crimes of dishonesty, and that Mr. Lopez was only 13 years old when he committed the offenses, stating "13 year-olds do silly things, and we treat them differently than people who are 24." RP at 6.
We agree. In view of the just cited evidence rules, and according the trial court its broad discretion in this matter, we conclude the court did not err in excluding the evidence of Mr. Lopez's juvenile convictions.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to
Sweeney, J., Korsmo, J., concur.