March 27, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-01815-7, Richard A. Strophy, J., entered November 10, 2005.
Counsel for Appellant(s), David Harold Bruneau, Nielsen Broman Koch PLLC, Seattle WA.
Counsel for Respondent(s), Michelle Luna-green, Thurston Co Pros Aty Office, Olympia, WA.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Kevin Donavon Moore appeals his conviction for first degree robbery. He argues that the trial court erred when it denied inquiry into the victim's pending burglary charge, and when it allowed the State to present evidence that a defense alibi witness feared Moore. Moore also raises several issues in his Statement of Additional Grounds for Review (SAG). We affirm.
On June 30, 2004, Mitchell Coxwell contacted Ian McRea to purchase Oxycontin. McRea agreed to arrange the purchase with a third party, and Coxwell and McRea agreed to meet at a nearby truck stop. Coxwell said he took $700 with him and intended to use the full amount to purchase the drugs.
Coxwell arrived at the truck stop between three and four in the afternoon, accompanied by Alfredo Garza and Megan Dickinson, both of whom were 17. McRea was already at the truck stop and was sitting in the passenger seat of a green car driven by Moore. Coxwell had never seen nor met Moore before. Uncomfortable with the situation, Coxwell left approximately half of his money in the car with Garza and Dickinson, before getting into the green car with McRea and Moore.
Moore drove several blocks before parking the car, where McRea and Moore demanded Coxwell's money. When Coxwell tried to get out of the car, McRea and Moore assaulted him. Coxwell testified that McRea and Moore took between $450 and $550 from him before the two drove away and left him on the side of the road. Upon returning to his own car and dropping off Dickinson, Coxwell called 911.
Coxwell told responding deputies that he was robbed after having gone to the bank to cash a check. He identified McRea, but could only describe Moore. Eventually, the police identified and arrested Moore. The State charged Moore with one count of first degree robbery.
Prior to trial, the State moved in limine to prohibit Moore from eliciting testimony that Coxwell had an unrelated, pending burglary charge. Moore sought to admit the charge as evidence of Coxwell's bias and credibility. Specifically, Moore sought to admit evidence that Coxwell offered the prosecutor his testimony in exchange for a lesser burglary charge. The trial court granted the State's motion, finding the sought evidence irrelevant on the issue of Coxwell's credibility. At trial though, the court allowed Moore to establish that Coxwell was currently in jail.
At trial, Moore defended on the basis of alibi. Moore's ex-girlfriend Stephanie Colston, and his friends Eric Manning, Eric Nevils, and Brad Blackburn testified that on June 30, 2004, Moore was with them all day at Long Lake. During cross-examination, Colston denied that Moore had tried to break into her apartment in June 2005, after they broke up. However, the State was allowed to impeach Colston, showing her potential for bias. The State called Thurston County Sheriff's Deputy Ryan Russell who testified that on June 11, 2005, he was dispatched to Colston's apartment because Colston called the sheriff saying Moore was trying to get into her apartment. Deputy Russell also testified that Colston did not give a statement because she was afraid of Moore.
The inference the State was seeking was to show that Colston was biased because she was afraid of Moore and, therefore, could be threatened into perjuring herself.
The jury found Moore guilty, and the trial court sentenced him to 102 months' confinement. This timely appeal followed.
I. Coxwell's Burglary Charge
Moore asserts that the trial court committed a constitutional error by denying his Sixth Amendment (article 1, section 22 of the Washington Constitution) right to present testimony in his own defense and confront and cross-examine the witnesses against him. Moore theorizes that although there was no agreement between the State and Coxwell regarding Coxwell's testimony at Moore's trial, he should have been allowed to admit Coxwell's burglary charge to show Coxwell had a reason to lie about Moore's involvement to garner favor with the State.
The State responds that since Coxwell was only facing charges of burglary at the time of trial, ER 608 prohibits inquiry into specific instances of conduct of a witness unless they are "probative of truthfulness or untruthfulness." Br. of Resp't at 8. Alternatively, the State asserts that even if the trial court erred in denying evidence of Coxwell's burglary charge, it did not deprive Moore of his ability to undermine Coxwell's testimony; Moore established that Coxwell had a criminal history, was currently in custody, was addicted to illegal drugs, made inconsistent statements to the State, questioned his motives for testifying, and questioned his ability to remember. Adopting a strict application of ER 608, we reject Moore's analysis.
Moore is correct that an error prohibiting a defendant from full and effective cross-examination is an error of constitutional magnitude. California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. York, 28 Wn. App. 33, 36-37, 621 P.2d 784 (1980). We review claims of manifest constitutional error de novo. State v. Pirtle, 127 Wn.2d 628, 656-57, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996); State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004).
While a significant frustration of the defendant's ability to cross-examine a prosecution witness may result in a violation of the right to confrontation, particularly when the cross — examiner seeks to show bias or prejudice, State v. Portnoy, 43 Wn. App. 455, 461, 718 P.2d 805 (1986), a trial court may refuse to permit cross-examination where the circumstances only remotely tend to show bias or prejudice of the witness, or where the evidence is merely argumentative or speculative. State v. Guizzotti, 60 Wn. App. 289, 293, 803 P.2d 808 (1991), review denied, 116 Wn.2d 1026 (1991).
ER 608(b) defines when a specific instance of witness conduct may be inquired into.
Specific instances of the conduct of a witness, for the purposes of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proven 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' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross — examined has testified.
ER 608(b) (emphasis added). In the context of impeachment, evidence of a witness's prior misconduct is admissible only if it is probative of the witness's character for truthfulness under ER 608. State v. Cochran, 102 Wn. App. 480, 486-87, 8 P.3d 313 (2000), review denied 143 Wn.2d 1004 (2001). In Cochran, Court of Appeals Division Three held that evidence of alleged drug and child abuse was irrelevant to the impeachment of a witness. Cochran, 102 Wn. App. at 487.
But, without deciding that evidence of a burglary charge may be probative of truthfulness or untruthfulness, a trial court may, in its discretion, preclude otherwise admissible evidence under ER 403 if the danger of unfair prejudice outweighs the evidence's probative value. ER 403. We review such exercise of discretion for abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). Abuse occurs when the trial court's discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983). 34166-2-II
Under Guzzotti, the trial court was within its discretion to exclude evidence of Coxwell's burglary charge because Moore only sought to admit it to speculate on Moore's bias to aid the State. Other than this assertion, Moore offered no other evidence to support his theory of Coxwell's prejudice. This is a remote and speculative assertion, and Moore has failed to show how the trial court acted unreasonably, on untenable grounds, or for untenable reasons when denying its admission. Therefore, his argument fails.
II. Deputy Russell's Testimony
Moore contends that the trial court erroneously allowed the State to present impeachment evidence regarding defense witness Colston. According to Moore, extrinsic evidence relating to collateral matters is inadmissible to contradict a witness. State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). Furthermore, Moore asserts that impeaching testimony is collateral if it could not be admitted for any other purpose than to contradict the witness. State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963). The State responds, citing no authority, that the credibility of an alibi witness is material to the case. Considering the application of ER 608(b), the State is correct.
ER 608(b) allows a party to inquire into specific instances of conduct of a testifying witness, as long as (1) the inquiry is not into a criminal conviction, and (2) the inquiring party does not seek to prove the specific acts by extrinsic evidence. ER 608(b). On cross-examination, the examiner may only inquire into the witness's specific acts if, in the trial court's discretion, the acts are determined to be probative of the witness's character for truthfulness or untruthfulness. ER 608(b). But Washington courts have two exceptions to ER 608(b): (1) when the specific instances of conduct are offered to show that the witness is biased, State v. McDaniel, 37 Wn. App. 768, 772-73, 683 P.2d 231 (1984) ("Bias [of the witness] may be shown by the witness['s] conduct."); and (2) if the specific instances are offered to contradict a witness on a material fact. See, e.g., State v. Smith, 115 Wn.2d 434, 442-44, 798 P.2d 1146 (1990).
In Moore's case, both Moore and the State have misapplied the two above-mentioned exceptions to ER 608(b). Moore attacks admission of the impeaching evidence by saying that it was not material to the case, while the State defends that a witness's credibility is material. But both Moore and the State overlook the first ER 608(b) exception, i.e., that one may inquire about specific instances to show a witness's bias. "Even though evidence which establishes the bias of a witness does impeach the witness, such evidence is not considered impeachment on a purely collateral matter. In any event, such evidence is admissible notwithstanding its collateral aspects." State v. Jones, 25 Wn. App. 746, 751, 610 P.2d 934 (1980) (holding that the trial court should have allowed the defendant to establish bias by proving that the State's witness made a prior statement that he denied making) (citation omitted).
It is clear Washington law that a defendant has a constitutional right to impeach a prosecution witness with bias evidence, even if the bias evidence is presented via another witness. See, e.g., State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002); Jones, 25 Wn. App. at 751. In McDaniel, the defendant's son testified on his father's behalf. In response, the State offered testimony from the victim's mother that the defendant's son had made a threatening gesture toward her during a court recess. McDaniel, 37 Wn. App. at 772. The State offered this testimony to show that the defendant's son was biased. On appeal, Division One held that the testimony was admissible. McDaniel, 37 Wn. App. at 773. McDaniel is directly on point with Moore's scenario: the prosecution sought to prove extrinsically the bias of a defense witness.
In addition to the arguments raised in his direct appeal, Moore asserts several grounds for reversal in his SAG. Although all claims are meritless, we address each in turn:
1. Moore argues that the State violated the trial court's ruling on a motion in limine excluding evidence that Moore was "the source" of the drugs. But the trial court did not issue a ruling on the motion during pretrial, but rather reserved ruling on the matter. The trial court instructed Moore to object at trial and then the court would rule on the matter. Therefore, the State could properly inquire into the matter at trial.
2. Moore asserts that the State violated the "Brady Law by not giving us the statement[s] made by Ian McRea and the many statements made by Mitchell Coxwell, Alfredo Garza and Brian Shaw." SAG at 1. The State has an obligation to disclose to the defense in a criminal prosecution all material exculpatory evidence in its possession. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The record before us does not support a claim of a Brady violation.
3. Moore argues that evidence of plane tickets should have been admitted. There is nothing in the record showing that Moore attempted to present this evidence and was denied by the court. This claim is meritless.
4. Moore argues that the State gave impermissible personal opinion in closing arguments, opining that Moore's alibi witnesses were not credible. In closing argument, the prosecutor commits error if it is clear and unmistakable that he is not arguing an inference from the evidence but is expressing a personal opinion. State v. Papadopoulous, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). Our review of the State's closing argument shows that the State only argued inferences from the evidence.
5. Moore contends that the lead detective in his case, Detective David Haller, should have been excluded from the trial proceedings because he testified against Moore. In pretrial, the trial court granted the State's motion to exclude witnesses from the courtroom, but expressly excepted Moore and Haller, the lead detective in the case.
6. Moore asserts that during sentencing, the judge committed judicial misconduct by saying that "he wishes he could give me life, or what he really wishes is that I was a dog that he could put down." SAG at 3. Although the trial court engaged in a colorful rendition of court discretion prior to the Sentencing Reform Act, the trial court did not indicate any personal preference regarding Moore's sentence, and it clearly stated that it was bound by the legislature's statutory sentencing scheme.
7. Finally, Moore argues that the trial court should not have allowed any evidence that Coxwell was trying to purchase drugs because of the prejudicial effect. The trial court stated that such evidence was evidence of the "res gestae" of the crime. 1 RP (Oct. 26, 2005) at 8. Admission of evidence is within the sound discretion of the trial court and will not be disturbed on review absent a showing of abuse of discretion. Stubsjoen, 48 Wn. App. at 147. Abuse occurs when the trial court's discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Junker, 79 Wn.2d at 26. The appellant bears the burden of proving abuse of discretion. Hentz, 32 Wn. App. at 190. Because Moore has failed to show that the trial court admitted the evidence via an abuse of discretion, we reject his argument.
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.