Opinion
No. 27047-5-III.
March 31, 2009.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 06-1-03198-0, Gregory D. Sypolt, J., entered April 21, 2008.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Kulik, J.
UNPUBLISHED OPINION
George David Hopkins appeals his three Spokane County convictions for delivering methamphetamine and one conviction for possessing methamphetamine with the intent to deliver, contending his incriminating statements were erroneously admitted and that the trial court impermissibly limited his cross-examination of the State's cooperative individual (CI). We affirm.
FACTS
Based on the following events, the State charged Mr. Hopkins with three counts of delivery of methamphetamine and one count of possession of methamphetamine with intent to deliver. The primary trial dispute was whether to believe the CI, Anna Phelan, or Mr. Hopkins, who denied that the CI purchased illegal drugs from him.
In June 2006, Spokane Police Detective Michael Bahr conducted three controlled buys at Mr. Hopkins' residence using Ms. Phelan as his CI. Each time, Ms. Phelan returned from the residence with a baggie of methamphetamine. Ms. Phelan identified Mr. Hopkins as the person who sold her the methamphetamine. Detective Bahr then obtained and executed a search warrant for Mr. Hopkins' residence. There, officers recovered abundant evidence produced at trial supporting his later convictions.
When executing the search warrant the Spokane Police Department's SWAT team entered the residence. Mr. Hopkins struggled with the officers, resulting in an abrasion over Mr. Hopkins' eye and leaving him completely dirty. When Detective Bahr first spoke to Mr. Hopkins, he was in handcuffs. Detective Bahr read Mr. Hopkins the relevant Miranda rights from a standard card. Spokane Police Detective Bryan Tafoya witnessed the recitation of the rights. Mr. Hopkins indicated he would waive his rights and answer questions. Mr. Hopkins then made a series of statements. First, he indicated he had used methamphetamine. When Detective Bahr asked about the sale of methamphetamine, Mr. Hopkins said that he sold it to support his habit. Next, he said that he acted as a go-between to assist other people with buying methamphetamine. Finally, he denied possessing or selling methamphetamine.
The facts in this paragraph, unchallenged findings of fact entered following the CrR 3.5 hearing, are verities on appeal. See State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the CrR 3.5 hearing to determine the admissibility of Mr. Hopkins' statements, Detectives Bahr and Tafoya testified giving the above facts. Detective Bahr testified Mr. Hopkins did not have any trouble understanding his rights as they were being read to him. He further testified during his questioning that Mr. Hopkins did not appear to have any difficulty understanding. Detective Bahr testified that although Mr. Hopkins was arrested, because he claimed injury, he was released to go to the hospital on his own and not booked into jail. Mr. Hopkins did not testify at the CrR 3.5 hearing.
Mr. Hopkins argued his statements were involuntary, given his injuries requiring hospitalization. Orally, the trial court ruled Mr. Hopkins made a knowing, intelligent, and voluntary Miranda waiver, rendering his statements to Detective Bahr admissible at trial. Regarding Mr. Hopkins' injuries, the trial court stated:
Mr. Hopkins was told he could go to the hospital. In fact, he was released from custody, not booked following the interrogation by Detective Bahr, questioning by Detective Bahr, and the testimony further indicates that Mr. Hopkins did not go to the hospital, and there is no evidence the Court can recall, this would be disputed apparently, that Mr. Hopkins did go to the hospital ultimately.
2 Report of Proceedings (RP) (Jan. 23, 2008) at 37. The trial court in writing concluded Mr. Hopkins validly waived his Miranda rights and specified, "[t]he fact that he was involved in a scuffle prior to being placed in handcuffs does not render the statements involuntary." Clerk's Papers (CP) at 98.
At trial, Detective Bahr testified Ms. Phelan signed an agreement to work as a CI on July 27, 2005. The agreement recites Ms. Phelan understood she was "not privileged to break any laws during the course of [her] association with the [police] Department." 3 RP (Jan. 24, 2008) at 129. Detective Bahr testified Ms. Phelan worked as a CI to obtain dismissal of two driving while license suspended (DWLS) charges. Detective Bahr testified after Ms. Phelan worked off these two charges, he let her work for monetary compensation and that Ms. Phelan was working for monetary compensation during the first controlled buy from Mr. Hopkins.
On cross-examination, Detective Bahr testified Ms. Phelan had a pending DWLS charge when she signed the agreement to work as a CI, and obtained at least two more DWLS charges after signing the agreement. When asked about additional DWLS charges, Detective Bahr stated, "[s]he was arrested on a couple of occasions and maybe up to eight, I don't know, for [DWLS]." 3 RP (Jan. 24, 2008) at 130.
Mr. Hopkins sought to cross-examine Ms. Phelan regarding several criminal charges, most of which did not result in conviction. The charges ranged from 2005 into 2007 and included DWLS, one minor theft, and one count of possession of stolen property. All charges were dismissed, except for third degree DWLS charges on July 7, 2006 and March 27, 2007. Mr. Hopkins argued:
First of all, they go to credibility. She made an agreement not to violate the law, and she's violating the law consistently.
Secondly, . . . [t]hey go to motive to fabricate controlled substance purchases. She's highly motivated. I mean, she's getting paid. That's a motivation, and she keeps driving while suspended and getting off of it. That's another motive.
3 RP (Jan. 24, 2008) at 217. Although Mr. Hopkins did not specifically state the evidence rule under which he sought admission of the criminal charges, he did not disagree when the trial court asked if ER 608 was at issue.
The trial court ruled Mr. Hopkins could cross-examine Ms. Phelan regarding second degree DWLS charges from July 21, 2005, August 13, 2005, and August 24, 2005, as Detective Bahr had previously testified these charges were dismissed as a result of Ms. Phelan working as a CI. The trial court prohibited cross-examination regarding the remaining charges. The trial court ruled the January 2005 theft and the June 2005 possession of stolen property charges "are not relevant since they're not within the temporal proximity of the [CI] agreement." 3 RP (Jan. 24, 2008) at 226. The trial court ruled the remaining charges inadmissible on the basis that they are not probative of the untruthfulness of Ms. Phelan, pursuant to ER 608(b), because arrests are vastly different from convictions with respect to impeachment value. The trial court stated, "charges, arrest[s] or time spent in custody without convictions are not admissible to affect credibility." 3 RP (Jan. 24, 2008) at 224.
Mr. Hopkins also sought to cross-examine Ms. Phelan regarding different names she gave to the police when stopped on three occasions for DWLS. The trial court ruled Mr. Hopkins could question Ms. Phelan regarding what names she used. Ms. Phelan testified: "I believe I worked off three [DWLS] and possibly a parking ticket." 3 RP (Jan. 24, 2008) at 233. She testified she then began to work for money. She further testified she did not recall whether, at the time of the controlled buys from Mr. Hopkins, she was working off charges or working for money. On cross-examination, Ms. Phelan acknowledged she was cited for DWLS after she signed the CI agreement, and that she drove with a suspended license when she completed the controlled buys in this case. Mr. Hopkins argued this evidence went toward Ms. Phelan's credibility.
At trial, Mr. Hopkins denied ever selling methamphetamine to Ms. Phelan. Mr. Hopkins testified he went to the hospital after he was released and he described his rib and head injuries and episodes of blacking out.
The jury found Mr. Hopkins guilty as charged. Mr. Hopkins appealed.
ANALYSIS A. Statement Rulings
The issue is whether the trial court erred in admitting Mr. Hopkins' statements to Detective Bahr. Mr. Hopkins contends the trial court made findings not supported by the evidence; specifically, that Mr. Hopkins did not go to the hospital.
The admission of a defendant's incriminating statements is governed by CrR 3.5. "[T]he rule to be applied in confession cases is that findings of fact entered following a CrR 3.5 hearing will be verities on appeal if unchallenged, and, if challenged, they are verities if supported by substantial evidence in the record." State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). "A trial court's erroneous determination of facts, unsupported by substantial evidence, will not be binding on appeal." Id. (quoting State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994)). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." Hill, 123 Wn.2d at 644 (citing State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993)). We review the trial court's conclusions of law de novo. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).
After the CrR 3.5 hearing, the trial court entered written findings of fact and conclusions of law. In its oral ruling, the trial court stated "the testimony further indicates that Mr. Hopkins did not go to the hospital, and there is no evidence the court can recall . . . that Mr. Hopkins did go to the hospital ultimately." 2 RP (Jan. 23, 2008) at 37. This finding was not reduced to a written finding of fact. However, "[n]o remand is necessary where, as here, ambiguous written findings of fact are supplemented by the trial court's oral opinion." State v. Motherwell, 114 Wn.2d 353, 358 n. 2, 788 P.2d 1066 (1990). Further, substantial evidence supports the trial court's disputed finding. At the CrR 3.5 hearing Detectives Bahr and Tafoya did not testify that Mr. Hopkins went to the hospital. Mr. Hopkins merely points to his testimony during the defense case-in-chief as evidence that he went to the hospital.
Mr. Hopkins challenges the trial court's conclusion that he made a knowing, intelligent, and voluntary waiver of his Miranda rights. However, Mr. Hopkins concedes "there was evidence presented from the officers suggesting he was fit enough to make a lawful waiver." Reply Br. at 1. An accused may waive his Miranda rights if the waiver is knowing, intelligent, and voluntary. State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999). "When considering the validity of a waiver, two determinations must be made." State v. Corn, 95 Wn. App. 41, 57, 975 P.2d 520 (1999) (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). "First, the relinquishment of the right must be voluntary in that `it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.'" Id. (quoting Burbine, 475 U.S. at 421). "Second, the waiver must be made with `full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.'" Id. (quoting Burbine, 475 U.S. at 421).
Here, the unchallenged findings of fact establish that after receiving his Miranda rights, Mr. Hopkins indicated he would waive his rights and answer questions. Detective Bahr testified Mr. Hopkins did not indicate any trouble understanding his rights and did not appear to have any difficulty understanding the questions. No evidence shows Mr. Hopkins was intimidated, coerced, or deceived into waiving his rights. See Corn, 95 Wn. App. at 57 (citing Burbine, 475 U.S. at 421).
Regarding Mr. Hopkins' injury claims, the trial court concluded, "[t]he fact that [Mr. Hopkins] was involved in a scuffle prior to being placed in handcuffs does not render the statements involuntary." CP at 98. To determine whether a confession was voluntary, "the inquiry is whether, under the totality of the circumstances, the confession was coerced." Broadaway, 133 Wn.2d at 132. "In assessing the totality of the circumstances, a court must consider any promises or misrepresentations made by the interrogating officers." Id. "The inquiry is whether the Defendant's will was overborne." Id. Further, "[a] defendant's age, weakened physical or emotional state, intelligence, and experience with the police are factors in assessing his or her condition." State v. Trout, 125 Wn. App. 403, 414, 105 P.3d 69 (2005).
While the unchallenged findings of fact establish Mr. Hopkins was engaged in a struggle with SWAT team members resulting in him obtaining an abrasion over his eye and becoming dirty before he received the Miranda warnings, no evidence showed promises or misrepresentations made by Detective Bahr. See Broadaway, 133 Wn.2d at 132. Under these facts, the trial court did not err in concluding Mr. Hopkins' statements were voluntary.
B. Evidence Ruling
The issue is whether the trial court erred in limiting Mr. Hopkins' cross-examination of Ms. Phelan.
A trial court's decisions regarding the admission or exclusion of evidence are reviewed for an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). This standard of review applies despite the fact that Mr. Hopkins argues his confrontation rights were violated. See State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (applying the abuse of discretion standard where the defendant raised a confrontation clause violation). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds or reasons. Stenson, 132 Wn.2d at 701.
Mr. Hopkins first contends the trial court erred, under ER 608(b), by prohibiting him from cross-examining Ms. Phelan regarding her charges for theft and possession of stolen property. Under ER 608:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' 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.
ER 608(b). "However, charges, arrests, or time spent in custody without convictions are not admissible to affect credibility." State v. Beard, 74 Wn.2d 335, 338, 444 P.2d 651 (1968); see also State v. Cardenas, 146 Wn.2d 400, 413, 47 P.3d 127 (2002). The reasoning behind this rule is that it is the finding of guilty that impeaches credibility; a witness should not be impeached by mere accusation. See State v. Roberts, 25 Wn. App. 830, 837, 611 P.2d 1297 (1980) (stating "[a] witness should not be discredited except by those misdeeds for which he has been convicted").
Mr. Hopkins urges us to follow the reasoning in State v. York. See State v. York, 28 Wn. App. 33, 621 P.2d 784 (1980). There, the defendant was convicted of two counts of delivery of a controlled substance, based primarily on the testimony of an undercover investigator. York, 28 Wn. App. at 34. The trial court prohibited the defendant from cross-examining the investigator regarding his prior employment with a sheriff's office, where he was fired due to irregularities in his paperwork procedures and general unsuitability for the job. Id. The defendant sought to elicit this testimony to show that the defendant "was not above fabricating or otherwise adjusting his testimony regarding drug buys in order to obtain money." Id. at 35. The investigator was the sole witness who testified seeing the defendant deliver controlled substances. Id. In addition, in closing argument, the prosecutor stated:
There's no reason at all to doubt the testimony of [the investigator]. Absolutely no reason at all. He has no axe to grind. He has no stake in the outcome. He's not working here anymore. His time here is through. He's done a good job, just like he's done in the past in his prior jobs.
Id.
On appeal, the court found under ER 608(b), the trial court abused its discretion by prohibiting the defendant from cross-examining the investigator regarding his job dismissal. Id. at 35-38. The court reasoned that credibility was the essence of the defense, and the investigator's credibility "based on his apparent unsullied background and the total lack of meaningful impeachment, was stressed heavily by the prosecution." Id. at 35. The court concluded "the defense should have been allowed to bring out the only negative characteristics of the one most important witness against [the defendant]." Id. at 37.
Here, Ms. Phelan was the sole witness who testified that it was Mr. Hopkins who delivered the controlled substances. Nonetheless, York is distinguishable. First, the testimony Mr. Hopkins sought to elicit consisted of criminal charges, which are mere accusations. Second, Mr. Hopkins sought to elicit other negative characteristics. Mr. Hopkins elicited from Ms. Phelan that she was cited for DWLS after she signed the CI agreement, and that she drove with a suspended license when she completed the controlled buys in this case. Third, unlike the prosecutor in York, the prosecutor here did not stress the lack of impeachment of Ms. Phelan.
The other cases cited by Mr. Hopkins do not involve the admission of criminal charges, and therefore, are inapposite. See State v. Wilson, 60 Wn. App. 887, 891-94, 808 P.2d 754 (1991) (trial court did not abuse its discretion in permitting impeachment of a witness by questioning regarding a prior false statement under oath); Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now, 119 Wn. App. 665, 707-08, 82 P.3d 1199 (2004) (trial court did not abuse its discretion in excluding evidence of a witness' false misrepresentation and false testimony).
Given all, the trial court did not abuse its discretion in prohibiting questioning of Ms. Phelan regarding her charges for theft and possession of stolen property that did not result in convictions, because charges are not admissible on the issue of credibility. See Beard, 74 Wn.2d at 338; Cardenas, 146 Wn.2d at 413.
Second, Mr. Hopkins contends the trial court erred by prohibiting him from cross-examining Ms. Phelan regarding her other dismissed charges, which consisted of two counts of second degree DWLS, and three counts of third degree DWLS.
Mr. Hopkins first argues the trial court erred in not admitting this evidence pursuant to ER 608(b). However, because these charges did not result in convictions, the trial court did not abuse its discretion in excluding them on the issue of credibility under ER 608(b). See Beard, 74 Wn.2d at 338; Cardenas, 146 Wn.2d at 413.
Third, Mr. Hopkins contends the DWLS charges should have been admitted as motive to fabricate the controlled buys, under ER 404(b). Mr. Hopkins did not argue for admission of this evidence below based on ER 404(b). Evidentiary errors under ER 404(b) are not of constitutional magnitude and, therefore, cannot be raised for the first time on appeal. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). Further, because the trial court was never asked to exercise its discretion to determine the admissibility of this evidence under ER 404(b), we have nothing to review.
Nonetheless, "ER 404(b) applies solely to prior misconduct offered as substantive evidence." Wilson, 60 Wn. App. at 891. That Ms. Phelan was charged with DWLS on several occasions was not relevant for a substantive purpose.
Finally, Mr. Hopkins contends, for the first time on appeal, the trial court violated his confrontation rights by prohibiting him from cross-examining Ms. Phelan regarding her criminal charges. Denial of the right of confrontation is a manifest constitutional error that may be raised for the first time on appeal. State v. Clark, 139 Wn.2d 152, 156, 985 P.2d 377 (1999).
The federal and state constitutions guarantee the right of confrontation and cross-examination of adverse witnesses. Darden, 145 Wn.2d at 620 (citing U.S. Const. amend. 6; Const. art. I, § 22). "`[C]onfrontation' means more than mere physical confrontation." Id. (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). Rather, "[t]he primary and most important component is the right to conduct a meaningful cross-examination of adverse witnesses." Id. (citing State v. Foster, 135 Wn.2d 441, 455-56, 957 P.2d 712 (1998)). However, "[c]ourts may, within their sound discretion, deny cross-examination if the evidence sought is vague, argumentative, or speculative." Id. at 620-21 (citing State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965)). In addition, "a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense." State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983) (citing Washington v. Texas, 388 U.S. 14, 16, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)).
Mr. Hopkins was given the opportunity to conduct a meaningful cross-examination of Ms. Phelan. Specifically, Mr. Hopkins questioned her regarding DWLS citations after she signed the CI agreement, and whether she drove with a suspended license when she completed the controlled buys in this case. The trial court ruled Mr. Hopkins could question Ms. Phelan regarding differing names given to the police when she was cited with DWLS. Mr. Hopkins was not prevented from arguing and did argue his case theory to the jury based Ms. Phelan's testimony. In sum, Mr. Hopkins' right of confrontation was not violated. The trial court did not err by prohibiting Mr. Hopkins from cross-examining Ms. Phelan regarding her criminal charges.
Affirmed.
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.
SCHULTHEIS, C.J. and KULIK, J., concur.