Opinion
No. 29184-3-II.
Filed: February 18, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-02391-8. Judgment or order under review. Date filed: 08/02/2002. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Kathryn A. Russell Selk, Attorney at Law, PO Box 30124, Seattle, WA 98113-0124.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Pedro Acosta-Diaz appeals his convictions and enhanced sentence for possession and delivery of a controlled substance near a school. He argues that (1) the trial court erred by admitting improper opinion testimony implicating his guilt and bolstering the veracity of a State witness; (2) the trial court erred by allowing the State to call a witness solely for her impeachment with inadmissible hearsay; (3) the State committed prosecutorial misconduct; (4) he received ineffective assistance of counsel; and (5) there was insufficient evidence to support his 24-month sentencing enhancement for delivery of a controlled substance within 1,000 feet of school grounds. Finding cumulative prejudicial error, including improper hearsay and opinion evidence and ineffective assistance of counsel, we reverse.
FACTS I. Controlled Buy
Pierce County Sheriff's Department officers arranged a controlled buy of cocaine at an apartment complex using Jamie Melton as a confidential informant. Melton began serving as a confidential informant to work off a criminal charge. After completing his contract, he continued to work for the sheriff's department for pay. He was working for money when he performed the controlled buy in this case.
The sheriff's deputies are under contract with the Lakewood precinct and work for the Lakewood special operations unit.
In keeping with standard procedure, on the day of the controlled buy here, Melton first went to the precinct, where Deputy Darrin Smith strip-searched him to ensure that he had no controlled substances on his person. Smith then gave Melton $100 in prerecorded 'buy' money and drove him to the Bank View Apartments in Tillicum. Melton went to apartment number one and knocked on the door. According to Melton, he purchased $100 worth of crack cocaine from a man he identified initially as 'Jesse' but later as Acosta-Diaz. 2 RP at 109. After the controlled buy, Smith strip-searched Melton again to ensure that Melton had not kept any of the drugs or the 'buy' money.
Based on this controlled buy, Smith sought and obtained a search warrant for the apartment. Eight days after the controlled buy, the deputies served the search warrant and arrested Acosta-Diaz in the apartment. Deputy Joseph McDonald searched the apartment and found a baggie of rock cocaine on top of a cupboard, which was covered with a thick layer of dust. The baggie, however, was not covered with dust, indicating that it had not been there long.
The officers did not recover any of the prerecorded buy money from the apartment. Although Smith found $429 on Acosta-Diaz, it was not the prerecorded 'buy' money. 2 RP at 74. Acosta-Diaz told Smith that he was unemployed but that he worked fixing cars. At the time of his arrest, Acosta-Diaz apparently told Smith that he used to deliver drugs but did not anymore.
Jamie Zueger, Acosta-Diaz's girlfriend, was also present at the apartment the day of his arrest. According to Deputy Smith, Zueger told him that Acosta-Diaz had been selling drugs to pay for the apartment and food. She later recanted this statement before trial.
II. Procedure
The State charged Pedro Acosta-Diaz with unlawful possession of a controlled substance and unlawful delivery of a controlled substance in a school zone.
A. Pretrial
Acosta-Diaz filed a CrR 3.5 motion to suppress evidence, asserting that his waiver of Miranda rights was not knowing, voluntary, or intelligent. During the suppression hearing, defense counsel objected on hearsay grounds to Smith's testimony that Zueger had said that Acosta-Diaz sells drugs to pay for rent and food. The State conceded that Zueger's statement was hearsay, but it contended the statement was admissible for suppression hearing purposes. The State also informed the trial court that it had 'no intention' of offering Zueger's statements at trial. 1 RP (Jul. 24, 2002) at 13. During arguments, defense counsel notified the prosecutor that Zueger intended to testify at trial that she had never made any such statements about Acosta-Diaz selling drugs.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
B. Trial 1. Deputy Smith
At trial, Smith testified that (1) informants must be reliable or the sheriff's department will not use them; (2) the preliminary 'reliability buys' prove that the informants are 'reliable,' 'honest,' and 'telling the truth,' 'not lying,' 2 RP at 61; (3) although Melton's initial contract was fulfilled, the sheriff's department continued using and paying him because he 'did really good work' and was 'honest,' 2 RP at 65; and (4) Melton never stole from the police and never lied to them. Defense counsel did not object to this testimony.
Smith also testified that (1) the area was 'busy dealing drugs'; (2) community reports noted that the apartment complex where Acosta-Diaz lived was a 'problem complex,' 2 RP at 67-68; and (3) when police arrested Acosta-Diaz, there was an outstanding warrant for his arrest for second degree assault. Again, defense counsel did not object.
Smith further testified that (1) he had measured the distance from Acosta-Diaz's apartment to the nearby school grounds using a pedometer; and (2) the resulting measurement was 370.4 feet, which was consistent with Smith's visual observation of the distance.
2. Deputy McDonald
Deputy McDonald testified that he measured the distance from Acosta-Diaz's apartment building to the school grounds, and the distance was never greater than 500 feet. He also testified that he had not measured the distance from the school grounds to apartment number one, where Acosta-Diaz was living.
3. Melton
Melton testified that as an informant, he made 'buys' from 'known drug dealers' and that Acosta-Diaz (whom Melton knew as 'Jesse') was 'involved in drug dealing very heavily.' 2 RP at 104-105, 109. Again, defense counsel did not object.
4. Zueger
After a few cursory questions, the prosecutor asked Zueger if she had ever told Deputy Smith that Acosta-Diaz sold drugs to pay for his apartment and food. Zueger denied having made those statements. The trial court permitted the State to recall Smith to testify that Zueger had, in fact, made those statements. Defense counsel objected that these statements were inadmissible hearsay, not prior inconsistent statements. Defense counsel did not request and the trial court did not give a limiting instruction.
5. Closing Argument
In closing, the prosecutor argued that (1) Melton had no reason to lie and was there to tell the truth; (2) the jury should base its decision on the evidence; and (3) there was no evidence to give the jury a reason to doubt Melton's testimony. Defense counsel did not object.
The jury convicted Acosta-Diaz as charged.
C. Sentencing
The trial court sentenced Acosta-Diaz to 132 months confinement, including a 24-month enhancement for controlled substance delivery in a school zone.
Acosta-Diaz appeals.
ANALYSIS I. Ineffective Assistance of Counsel
Acosta-Diaz asserts that he was denied effective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced him. There is a strong presumption that counsel 'exercised reasonable professional judgment'; we will not find ineffective assistance when the actions complained of "go to the theory of the case or to trial tactics." To demonstrate that deficient performance prejudiced a defendant's case, the defendant must show that 'there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.'
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994) (quoting State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737, cert. denied, 103 S.Ct. 94 (1982)).
Hendrickson, 129 Wn.2d at 78.
Admission of evidence is within the trial court's sound discretion, which we will not disturb on appeal absent a showing of abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). A trial court abuses its discretion when its 'decision is manifestly unreasonable or based upon untenable grounds or reasons.' State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
The State's case here depended directly on Melton's testimony about his controlled buy from Acosta-Diaz and, therefore, on Melton's credibility. Without the officer's improper opinion testimony about Melton's credibility, to which defense counsel did not object, the jury reasonably might have acquitted Acosta-Diaz. Accordingly, we hold that Acosta-Diaz has sustained his burden because the cumulative effect of multiple evidentiary errors, to which trial counsel did not object, created a reasonable probability that but for counsel's errors, the trial result would have differed. We now address the following cumulative prejudicial errors and deficiencies.
A. Improper Opinion Testimony
Acosta-Diaz argues for the first time on appeal that the trial court erred by admitting Smith's opinion testimony about Melton's veracity and Acosta-Diaz's guilt. His failure to raise these issues at trial, however, precludes our review on appeal unless it is a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3). Here, Smith's opinion about Melton's credibility, though error, did not affect a constitutional right. And we disagree with Acosta-Diaz's characterization of Smith's testimony as opinion of his (Acosta-Diaz's) guilt.
We recently held that '[b]ecause improper opinion testimony violates the constitutional right to a trial by jury, it may be raised for the first time on appeal.' State v. Dolan, 118 Wn. App. 323, 330, 73 P.3d 1011 (2003) (citing State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995)). But Dolan involved a witness's improper opinion testimony about the defendant's guilt. The same is true of the other cases that Acosta-Diaz cites, such as State v. Demery, 144 Wn.2d 753, 30 P.3d 1278 (2001). See Br. of Appellant at 12. Thus, this line of cases does not help Acosta-Diaz raise the error to one of constitutional magnitude.
Courts generally "decline to take an expansive view of claims that testimony constitutes an opinion of guilt." Demery, 144 Wn.2d at 760 (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994)). Such is the case here. Smith neither directly nor indirectly opined about Acosta-Diaz's guilt. In testifying that confidential informant Melton was honest and never lied, he did not imply that Acosta-Diaz was guilty. Accordingly, we do not find Smith's testimony objectionable on this ground.
Although Smith's bolstering of Melton's credibility was not a manifest error affecting a constitutional right, we consider it together with Acosta-Diaz's ineffective assistance of counsel argument.
We agree with Acosta-Diaz that admitting Smith's opinion about Melton's credibility was error. Evidence Rule 608 prohibits a witness from giving an opinion about another witness's credibility. See also 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 608.13, at 376 (4th ed. 1999). When the prosecutor asked why the Lakewood Police Department continued to use Melton as an informant after his contract was up, Smith answered: 'Because he did really good work under contract. He did what he was supposed to do. He was on time, he was honest, [and] he followed our directions to the [sic] T.' 2 RP at 65 (emphasis added). Smith also testified that Melton never stole from or lied to him. This testimony directly addressed Melton's truthfulness and, thus, under ER 608, it was improper opinion testimony.
'[O]pinion testimony' is '[t]estimony based on one's belief or idea rather than on direct knowledge of the facts at issue.' Black's Law Dictionary 1486 (7th ed. 1999).
Because, as we previously noted, Melton's credibility was central to the State's case, defense counsel rendered ineffective assistance in failing to object to this clearly improper testimony. No one else, not even the police, witnessed Melton's claimed controlled buy from Acosta-Diaz. Melton was not wearing a wire. The police did not see Acosta-Diaz before, during, or after the buy. Moreover, when police arrested Acosta-Diaz eight days later, he was not in possession of the marked controlled buy money, even though he had over $400 in other cash. Under these circumstances, defense counsel's failure to object and to keep this improper credibility-bolstering opinion from the jury likely affected the outcome of the jury's verdict.
Moreover, Melton himself testified that he had previously purchased drugs at this apartment from someone other than Acosta-Diaz.
B. Improper Impeachment of Zueger
Acosta-Diaz also argues that the trial court erred by allowing the State to impeach his girlfriend, Jamie Zueger, with her prior statement to Deputy Smith that the only reason Acosta-Diaz sells drugs is to pay for his apartment and food. Again, we agree.
Acosta-Diaz contends that the State called Zueger to the stand solely to introduce Zueger's otherwise inadmissible hearsay statements through Smith, to whom she had made the earlier statements about Acosta-Diaz's drug selling. The State counters that Zueger provided important testimony about (1) Acosta-Diaz's dominion and control over the apartment; and (2) his financial burden of supporting their child. Acosta-Diaz's obligation to support their child, the State's second justification for offering this testimony, was irrelevant.
As for the first justification, the State did not need Zueger to prove Acosta-Diaz's dominion and control. The trial court admitted bills and 'associated documents' found in the apartment that showed he lived and received mail at the apartment. 2 RP at 87. Nor did the State rely on Zueger's testimony in closing argument to show Acosta-Diaz's dominion and control over the apartment.
Although ER 607 permits a party to impeach its own witness, State v. Hancock, 109 Wn.2d 760, 762, 748 P.2d 611 (1988), 'a person's credibility is not a fact of consequence when he or she fails to say anything pertinent to the case.' State v. Allen S., 98 Wn. App. 452, 464, 989 P.2d 1222 (1999), review denied sub nom., State v. Swagerty, 140 Wn.2d 1022 (2000). And the State cannot "call a witness for the primary purpose of eliciting testimony . . . that would be otherwise inadmissible." State v. Lavaris, 106 Wn.2d 340, 345, 721 P.2d 515 (1986) (quoting State v. Barber, 38 Wn. App. 758, 770-71, 689 P.2d 1099 (1984), review denied, 103 Wn.2d 1013 (1985)).
Even accepting for purposes of this discussion the State's claim that it called Zueger to establish Acosta-Diaz's dominion and control over the apartment, it does not justify the State's further questioning and purported 'impeachment' of Zueger about whether she had told Smith that Acosta-Diaz sold drugs to pay for his rent and food. This case is unlike Lavaris, in which our Supreme Court found that the impeachment with the witness's prior inconsistent statements was proper where the witness's testimony was 'essential in many areas of the State's case.' Lavaris, 106 Wn.2d at 346 (finding that the witness was 'integrally involved in the events leading up to the victim's death,' was a participant, and corroborated much of the crucial testimony in the case).
Rather, the State's purported impeachment of Zueger here is more like that the impeachment our Supreme Court cautioned against in State v. Hancock:
The underlying concern is that prosecutors may abuse the rule by calling a witness they know will not provide useful evidence for the primary purpose of introducing hearsay evidence against the defendant. This tactic seeks to exploit a jury's difficulty in making the subtle distinction between impeachment and substantive evidence. The motivation in such instances is less to impeach the witness than to introduce hearsay as substantive evidence, contrary to ER 802.
Hancock, 109 Wn.2d at 763 (citation omitted). Here, the State knew even before trial that if called to the stand, Zueger was going to recant her statement to Smith. Moreover, the State had already represented to the trial court and to Acosta-Diaz that it would not call Zueger for any purpose.
Not only was this improper 'impeachment,' but when the State inquired about the need for a limiting instruction, defense counsel had no opinion. Thus, the trial court did not instruct the jury to consider Deputy Smith's testimony about Zueger's prior inconsistent statement for impeachment purposes only, not as substantive evidence.
Questioning and impeachment of Zueger with her hearsay statement that Acosta-Diaz sold drugs to pay for the apartment and food was improper and prejudicial under both ER 608 and ER 404(b) (improperly admitted evidence of other crimes). Acosta-Diaz has established ineffective assistance of counsel because defense counsel failed to object to clearly inadmissible and prejudicial evidence and then compounded the error by subsequently failing to request a limiting instruction when the trial court asked if he wanted one.
We hold that ineffective assistance of counsel allowed substantial cumulative evidentiary errors entitling Acosta-Diaz to a new trial.
II. Prosecutorial Misconduct and Other Evidentiary Errors
Acosta-Diaz alleges four incidents of prosecutorial misconduct, to which his counsel did not object during trial. Acosta-Diaz contends that the prosecutor improperly (1) bolstered his own witness by eliciting testimony about Jamie Melton's truthfulness; (2) asked Deputy Smith to judge Melton's credibility; (3) commented on Acosta-Diaz's failure to testify; and (4) misstated the burden of proof.
Acosta-Diaz also assigns error to the admission of other prejudicial evidence, to which his counsel did not object, namely that (1) he was a known drug dealer; (2) the area was known for drug activity; (3) there had been complaints about the neighborhood; (4) his apartment was a 'problem complex'; and (5) there was a warrant for his arrest. Br. of Appellant at 2.
Having already decided to reverse based on cumulative evidentiary errors and ineffective assistance of counsel, we do not address these additional issues.
III. Sentencing Enhancement
Finally, Acosta-Diaz argues that there was insufficient evidence to support that the controlled buy took place within 1,000 feet of school grounds, a finding that is necessary to support his 24-month sentence enhancement under RCW 69.50.435(a)(4). Because this issue may reoccur on retrial, we address it to clarify double jeopardy implications.
When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). 'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 69.50.435(a)(4) allows a 24-month sentencing enhancement for anyone who delivers a controlled substance '[w]ithin one thousand feet of the perimeter of the school grounds.' This statute allows the State to prove the location a school grounds perimeter by maps or 'any other evidence or testimony.' RCW 69.50.435(e).
Here, Smith measured the distance from Tillicum Elementary School to Acosta-Diaz's apartment using a pedometer and determined the distance was 370.4 feet. He also testified that this measurement was consistent with his visual observation of the distance. This testimony, taken in the light most favorable to the State, supports the jury's finding that Acosta-Diaz sold controlled substances within 1,000 feet of the school grounds.
Acosta-Diaz cites State v. Hennessey, 80 Wn. App. 190, 192-93, 907 P.2d 331 (1995), in which the court found insufficient evidence that the drug delivery took place within 1,000 feet of a school bus stop. But that case involved the officer's mere guess, without measurement, of the distance between the drug-delivery site and the school bus stop. Here, the officer took a measurement.
Acosta-Diaz contends that the terminus of the measuring point must be the situs where the controlled buy occurred, and that there is no evidence that Deputy Smith measured from the actual perimeter of the school grounds to the site of the buy. He cites State v. Clayton, 84 Wn. App. 318, 927 P.2d 258 (1996), a Division Three case, to support his proposition. In Clayton, the officer measured from the school grounds perimeter to the edge of Clayton's property line, Clayton, 84 Wn. App. at 319, and found the distance to be 962 feet and 4 inches, just 38 feet less than the statutorily required 1,000 feet for triggering the sentencing enhancement. Clayton, 84 Wn. App. at 322. Thus in Clayton, it was possible that crime occurred outside the 1,000 foot radius. Here, however, the distance measured was only 370.4 feet, leaving some 630 feet to cover the area in the apartment in which Acosta-Diaz consummated the controlled buy. Therefore, unlike Clayton, it is highly unlikely that the buy here fell outside the 1,000 foot radius.
Reversed and remanded.
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.
MORGAN, J. and QUINN-BRINTNALL, J., concur.