Nos. 24644-2-III; 24967-1-III.
April 26, 2007.
Appeal from a judgment of the Superior Court for Grant County, No. 05-1-00469-2, Kenneth L. Jorgensen, J., entered October 31, 2005, together with a petition for relief from personal restraint.
Judgment affirmed and petition dismissed by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Brown, J.
Carlos Ruiz was convicted for the crime of possession of methamphetamine. On appeal, he argues that the trial court should have granted his request for a mistrial because the State failed to disclose evidence used at trial during cross-examination about Mr. Ruiz's past drug use. He asserts that this evidence of past drug use was inadmissible propensity evidence. Mr. Ruiz cannot demonstrate that he was prejudiced by the State's failure to disclose. Therefore, we affirm.
Carlos Ruiz was employed as a harvester for Quincy Foods. On June 26, 2005, Mr. Ruiz's supervisor, Shawn Lee, was informed that there was a possible drug transaction occurring in the parking lot of the Quincy Foods facility. Mr. Lee called the Quincy police. Coworkers identified Mr. Ruiz as one of the people who may have been involved in the drug transaction.
When a police officer and Mr. Lee went to the parking lot, Mr. Ruiz was at his car with his girl friend and a Quincy Foods security officer. The police officer, the security guard, and Mr. Ruiz started toward the Quincy Foods security station. As they were headed for the station, Mr. Ruiz asked Mr. Lee to take some money to Mr. Ruiz's girl friend. Mr. Lee agreed.
Mr. Ruiz then handed Mr. Lee a wadded ball of bills. Mr. Lee took the money and unfolded the bills. There was a powdery substance covering the bills. Mr. Lee saw this substance on the money and immediately handed it over to the police officer. Laboratory tests revealed that the powdery substance was methamphetamine.
After Mr. Lee gave the powder-coated bills to the police officer, Mr. Ruiz turned around with his hands behind his back and offered himself up for arrest. Mr. Ruiz also stated that he had warrants for his arrest in Texas. He later admitted that the powder on the wad of bills was methamphetamine.
Mr. Ruiz was charged with possession of methamphetamine. At trial, defense counsel asked Mr. Lee if Mr. Ruiz took a drug test prior to his being hired. Mr. Lee testified that Mr. Ruiz passed a urinalysis test. In response, the State questioned Mr. Lee about statements Mr. Ruiz made about his past addiction to methamphetamine.
Mr. Ruiz objected to the testimony about his prior addiction to methamphetamine as impermissible character evidence. He further objected that these statements had not been disclosed by the State prior to trial.
The State argued that Mr. Ruiz opened the door to this evidence by offering testimony that he had passed a drug test. The State also asserted that it was not required to disclose these statements since they were presented only in rebuttal and were not elicited during Mr. Lee's direct examination. The trial court agreed with the State's argument and overruled Mr. Ruiz's objections.
At the close of his case, Mr. Ruiz moved for a mistrial based on the admission of his statements regarding his past drug addiction. Mr. Ruiz asserted that he would not have asked the question regarding the drug test had he known that the State would rebut with evidence of his prior drug addiction. The trial court found that the State did not consider the statements regarding past drug use to be important until Mr. Ruiz put his past drug use at issue. The court denied the motion for a mistrial.
The jury found Mr. Ruiz guilty of possession of methamphetamine. This appeal timely followed.
Disclosure of past evidence of drug abuse.
When a criminal defendant challenges the trial court's denial of a mistrial based on an alleged violation of CrR 4.7, the defendant must establish two things. First, the defendant must show that the State violated its duty to disclose the material. Dunivin, 65 Wn. App. at 731-32. Next, the defendant must show that this failure deprived him or her of a fair trial. id.
CrR 4.7 imposes an ongoing duty on prosecutors to disclose any written or recorded statements and the substance of any oral statements of the defendant that it may reasonably expect to use at trial. See Dunivin, 65 Wn. App. at 733. This rule covers statements that the State may foreseeably use in its case-in-chief, for rebuttal, for impeachment purposes, or for some other purpose. State v. Falk, 17 Wn. App. 905, 907-08, 567 P.2d 235 (1977). Any doubts are resolved in favor of disclosure. Dunivin, 65 Wn. App. at 733.
The State is not required under CrR 4.7 to "anticipate all facets of the defendant's case and prepare for its rebuttal case in advance of trial." State v. Harris, 14 Wn. App. 414, 419-20, 542 P.2d 122 (1975). But the State may have a duty to disclose potential rebuttal evidence where there is a reasonable probability that a witness will open the door to that testimony. Dunivin, 65 Wn. App. at 733-34. CrR 4.7 makes no distinction between evidence intended for use as rebuttal evidence or evidence to be used in the State's case-in-chief. id.
Here, the State argues that it had no way of knowing that Mr. Ruiz would raise the "implausible" and "false" implication that he was not a drug user. As such, the State asserts it had no reasonable expectation that it would use Mr. Ruiz's admissions of past drug abuse at trial. In the State's view, it had no duty to disclose.
Contrary to the State's claims, it is reasonable to foresee that Mr. Ruiz would attempt to provide evidence that he was not associated with drugs. Here, the State had a duty to disclose Mr. Ruiz's admissions of past drug abuse.
However, the failure to disclose a defendant's statements does not deprive the defendant of a fair trial if the defendant cannot establish prejudice. A prejudicial error is one which affects the outcome of the trial. Dunivin, 65 Wn. App. at 734. The trial judge is best suited to judge the prejudice of a statement, and mistrial should not be granted unless the defendant has been so prejudiced that nothing short of a new trial can insure the defendant's fair treatment. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996), review denied, 156 Wn.2d 1014 (2006).
Here, there is no possibility that Mr. Ruiz's statements regarding past addiction to methamphetamine affected the jury's verdict. Mr. Ruiz handed Mr. Lee a wad of bills in the presence of a police officer and a security guard. The bills were coated with white powder that tested positive for methamphetamine. Mr. Lee then turned the bills over to a police officer. Mr. Ruiz later admitted that the substance on the bills was methamphetamine. In light of this overwhelming evidence, Mr. Ruiz cannot demonstrate that he was prejudiced by the introduction of his statements regarding past drug addiction.
Impermissible Propensity Evidence.
This court reviews a trial court's admission of evidence for abuse of discretion. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. id.
ER 404(b) precludes the use of prior bad acts to prove that the defendant was predisposed to commit the charged offense. Wade, 98 Wn. App. at 333. But evidence of prior acts can be used for certain other purposes. id.
It is not an abuse of discretion to allow the State to present evidence to clarify or rebut a false impression created by the defense. See, e.g., United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000). Sometimes referred to as "opening the door," a defendant who presents evidence of his or her past good behavior may, in so doing, invite the State to legitimately impeach the implication or assertion of good character. See State v. Swan, 114 Wn.2d 613, 653, 790 P.2d 610 (1990); ER 404(a)(1).
While a defendant normally presents evidence of good character in the form of testimony by others as to reputation, relating events from the defendant's personal history may also open the door for rebuttal evidence dealing with the same subject matter or character trait. State v. Brush, 32 Wn. App. 445, 450-51, 648 P.2d 897 (1982).
Here, Mr. Ruiz elicited testimony that he had passed a drug test prior to being hired at Quincy Foods. The only relevance of this testimony was to create the impression that Mr. Ruiz was not a drug user. Contrary to Mr. Ruiz's assertions, this evidence was not merely presented to show that he was drug free on the date he was hired. Mr. Ruiz was hired several weeks prior to his arrest for possession of methamphetamine. Events strictly limited to the date of his hiring were immaterial to the charge of possession of methamphetamine weeks later. Therefore, the only extent to which this evidence was relevant to the charge of possession of methamphetamine was to show a general character or propensity of abstaining from drug use.
The State's rebuttal evidence dealt with Mr. Ruiz's general character or propensity regarding drug use. This same character trait was raised by Mr. Ruiz and was intended to rebut a potentially false impression created by Mr. Ruiz. The trial court did not err in admitting this evidence.
PERSONAL RESTRAINT PETITION
Mr. Ruiz presents this court with a personal restraint petition in which he seeks relief from the cost provisions of his judgment and sentence based on his current and future inability to pay.
The authority of trial courts to impose costs on a convicted criminal defendant is derived from statutes. State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). Under RCW 10.04.110, the trial court is required to impose judgment for the fine and costs against the defendant unless otherwise provided in chapter 10.04 RCW. There is no limitation in chapter 10.04 RCW that would render the trial court's imposition of costs beyond the scope of its statutory authority.
But a different provision, RCW 10.01.160, permits a criminal defendant to seek relief from costs imposed. RCW 10.01.160(4). And the trial court may not require that these costs be paid if the defendant is or will be unable to pay them. RCW 10.02.160(3).
The imposition of restitution is reviewed for an abuse of discretion. Davison, 116 Wn.2d at 919. The legislature has granted trial courts broad discretion in setting restitution. id. at 920. In keeping with this intent, statutes permitting the imposition of restitution are broadly interpreted. id.
Assuming that the issue is ripe for review, Mr. Ruiz has not established an inability to pay. Mere conclusory assertions are not sufficient to support a personal restraint petition. The petition must be supported by facts and evidence. See Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083 (1999). Mr. Ruiz asserts that he does not have the ability to pay for the costs imposed as part of his judgment and sentence. But he identifies no specific disability, ailment, or other factor that would undermine his present or future ability to pay costs.
The crux of Mr. Ruiz's argument seems to be that the trial court did not enter findings of fact as to his ability to pay when imposing costs as part of the judgment and sentence. This argument ignores clear precedent that trial courts are not required to enter formal findings of fact regarding the defendant's ability to pay. See State v. Herzog, 69 Wn. App. 521, 528, 849 P.2d 1235 (1993).
There is no basis for this court to find that Mr. Ruiz has a present or future inability to pay his court costs. The trial court did not err in failing to enter formal findings of fact regarding Mr. Ruiz's ability to pay.
We affirm. Mr. Ruiz's personal restraint petition is dismissed.
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.
WE CONCUR: Schultheis, A.C.J., Brown, J.