Opinion
No. 58395-6-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10226-4, Palmer Robinson, J., entered June 1, 2006.
Affirmed by unpublished per curiam opinion.
A jury convicted Jason Wiley of felony harassment and unlawful display of a weapon, but found him not guilty of assault in the second degree. The State's primary witness, Michael Williams, testified that Wiley assaulted him with a knife at a bus stop. Wiley sought to admit evidence on cross-examination that Williams had used a racial slur to show bias and a motive to fabricate. The court denied Wiley's motion but allowed him to question Williams about whether he had used a racial slur towards Wiley. On appeal, Wiley contends the trial court violated his constitutional right to cross-examine Williams to show bias. Finding no error, we affirm.
Wiley was also charged and convicted for one count of felony possession of heroin, which he does not appeal.
FACTS
At around 5:30 p.m., on August 8, 2005, Michael Williams and his two friends, Gary Monasmith and Robert Rich, were waiting at a bus stop in the Capitol Hill neighborhood of Seattle. While Williams was smoking a cigarette Jason Wiley walked up and asked Williams for a cigarette. Williams told Wiley he did not have any more cigarettes.
But a few minutes later, Williams took out another cigarette and gave it to his friend, Rich. When Wiley saw this, he angrily accused Williams of lying to him and demanded that Williams give him a cigarette. Williams refused, telling Wiley to leave him alone and that panhandling was illegal. Meanwhile, Rich had stepped away to smoke the cigarette. Monasmith was also nearby talking on his cell phone.
Wiley walked a short distance away, but a few moments later, he returned to where Williams was standing and again angrily demanded a cigarette. Williams said he would call the police if Wiley did not leave him alone. When Wiley continued to argue with him, Williams walked toward Monasmith and asked to use his cell phone to call 911. Both Williams and Rich testified that as Williams began to dial 911, Wiley pulled out a switchblade knife.
Williams said that Wiley flicked open the knife as he walked forward, pointed it at Williams and said, "[y]ou'll be dead before the police get here." When the 911 operator answered the call, Williams told her that a man was panhandling and had a knife. Williams said that Wiley then backed him up against the wall of a building near the bus stop and pointed the knife at his face. At this point, Rich tried to intervene and said that he saw the knife. Wiley continued to shout obscenities at Williams and wave the knife at him. During the exchange, Williams continued talking to the 911 operator.
When, Wiley heard the police sirens, he put the knife in his front pants pocket and rapidly walked away. When the police arrived, Wiley was running away down the block. Officer O'Cleary first interviewed Williams, Monasmith, and Rich. Officer O'Cleary then walked to where the police were detaining Wiley. During a search incident to arrest, Officer O'Cleary found a knife in Wiley's front pants pocket and a syringe filled with brownish liquid in his backpack. A field drug testing kit confirmed that the substance in the syringe was heroin.
Wiley was charged with felony harassment and possession of heroin. Before trial, the State amended the charges to add assault in the second degree with a deadly weapon.
At trial, Williams testified that when Wiley threatened him with the knife, he was afraid that Wiley was going to kill him. Officer O'Cleary also testified that Williams was shaken and afraid after the encounter with Wiley. Monasmith testified about the threats Wiley made but admitted he did not see Wiley pull a knife.
After the State located Rich, the defense requested an opportunity to interview him before he testified at trial. Following the interview, the defense told the court that Rich said Williams had used a derogatory racial slur against African-Americans in the past. The defense wanted to elicit this testimony from Rich to show that Williams was biased against Wiley. The court ruled the defense could not ask Rich whether Williams had used the racial slur in the past, but the defense could question Williams about whether he used a racial slur toward Wiley at any time during the incident at the bus stop. The court ruled that any comments Williams made directly to Wiley were relevant, but evidence of Williams's general racial prejudice was "character evidence" and under ER 404 any probative value was outweighed by the prejudicial effect.
At trial, Rich testified that Wiley pulled out a knife when Williams refused to give him a cigarette. On cross-examination, Rich admitted that although he saw the knife, he did not see Wiley bring the knife close to Williams's face. The defense did not ask Rich any questions about whether Williams used a racial slur during the incident at the bus stop.
The next day, the defense asked to recall Williams to ask him about whether he had used a racial slur in the past. If Williams denied using the racial slur, the defense planned to impeach his testimony with Rich or the defense investigator who interviewed Rich. The court reiterated its previous ruling and denied the motion.
The jury found Wiley not guilty of assault in the second degree and by special verdict found that he was not armed with a deadly weapon. But the jury found Wiley guilty of felony harassment, unlawful display of a weapon, and possession of heroin. Wiley appeals his conviction of felony harassment and unlawful display of a weapon.
The court imposed a standard sentence.
Analysis
Wiley contends his constitutional right to confrontation was violated when the trial court denied the defense request to ask Williams or question Rich about whether Williams used a derogatory racial slur in the past to refer to African-Americans.
We review alleged Confrontation Clause violations de novo. State v. Larry, 108 Wn. App. 894, 901, 34 P.3d 241 (2001). Under the Confrontation Clause of the Sixth Amendment and article I, § 22 of the Washington State Constitution, the defendant has the right to confront and cross-examine witnesses. U.S. Const. Amend. VI ("[T]he accused shall enjoy the right to . . . be confronted with the witnesses against him."); Wash. Const., art. $b/b$, § 22 (The accused has "the right to . . . meet the witnesses against him face to face.").
This right was made applicable to state as well as federal criminal proceedings in Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).
A defendant's right to confrontation includes the right to engage in otherwise appropriate cross-examination to show that a witness is biased. Delaware v. Van Ardsall, 475 U.S. 673, 680, 106 S. Ct. 1431 (1986); Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Bias refers to "the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party." United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984). Bias may be established through cross-examination or by introducing extrinsic evidence, including third party testimony. Abel, 469 U.S. at 49. But the right to cross-examine adverse witnesses is not absolute. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002) (citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). The trial court "has discretion to control the scope of cross-examination and may reject lines of questions that only remotely tend to show bias or prejudice, or where the evidence is vague or merely speculative or argumentative." State v. Kilgore, 107 Wn. App. 160, 185, 26 P.3d 308 (2001). See also State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965).
Wiley relies primarily on Davis, State v. Dolan, 118 Wn. App. 323, 327-28, 73 P.3d 1011 (2003), and State v. Roberts, 25 Wn. App. 830, 611 P.2d 1297 (1980), to support his argument that the trial court erred in denying him the opportunity to establish bias by questioning Williams about whether he used a racial slur in the past. Davis, Dolan, and Roberts, are distinguishable.
In Davis, the Court held that the defense could cross-examine the sole eyewitness to a burglary to show bias or motive because the witness was a possible suspect and the prosecution's case depended almost entirely on the truthfulness and accuracy of his testimony. Davis, 415 U.S. at 317-18. In Dolan, a child's mother testified against the father on child abuse charges, while in a separate action the mother was party to a bitter custody dispute with the father and allegedly told him she would drop the abuse charges if he relinquished custody of the child. The court concluded the defendant father had the right to cross-examine the mother about her possible bias against him stemming from the custody battle. Dolan, 118 Wn. App. at 326. In Roberts, this court ruled that evidence of bias to impeach a rape victim was admissible to show that the victim was pressured by her father to testify against the defendant, because the outcome of the case hinged on whether the jury believed the victim. Roberts, 25 Wn. App. at 834-35.
Here, unlike in Davis, Dolan, and Roberts, the State's case did not hinge solely on Williams's testimony, and evidence of Williams's alleged use of a racial slur in the past was ambiguous and speculative regarding bias directly related to Wiley.
In addition to Williams's testimony, Rich testified that he saw Wiley threaten Williams and pull out a knife. And Officer O'Cleary testified that she found a knife matching Williams's description in Wiley's pocket. In addition, the jury heard the 911 recording. In the 911 call, Williams describes a man with a knife, and the man can be heard shouting at Williams in the background. Moreover, unlike in Davis, in Dolan, and Roberts, there was no evidence Williams was a suspect, or that he knew Wiley.
Wiley also argues that his right to confrontation was violated when the trial court denied him the opportunity to introduce extrinsic evidence through the cross-examination of Rich, that Williams had used racial slur in the past to show bias.
Wiley relies on Abel and State v. Spencer, to support his argument. Abel and Spencer are distinguishable.
Wiley also asserts that he sought to elicit Rich's testimony under ER 607 and that the court erred in excluding the testimony under ER 404 and ER 608. However, he does not cite authority for this argument. Because we will not consider an assignment of error that is unsupported by argument or citation of authority, we decline to address Wiley's assertion. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
In Abel, the Court ruled it was not error for the prosecution to impeach a defense witness by introducing testimony that the witness and defendant both belonged to a prison gang that required its members to lie to protect each other. Abel, 469 U.S. 45. In Spencer, when the defendant's girlfriend testified against him to discredit his alibi at the time of a drive-by shooting, the court ruled the defendant was entitled to introduce third party testimony to show that the girlfriend was motivated to testify against the defendant, because she recently learned he was dating another woman. State v. Spencer, 111 Wn. App. 401, 45 P.3d 209 (2002). By contrast, here, the testimony Wiley sought to elicit from Rich did not show Williams had any relationship or affiliation with Wiley.
Even if evidence of Williams's use of a racial slur in the past was admissible to show bias, we conclude any error was harmless beyond a reasonable doubt. Under the Confrontation Clause, any error in excluding bias evidence "is presumed prejudicial but is subject to a harmless error analysis." Spencer, 111 Wn. App. at 408 (citing State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1999)): Van Arsdall, 475 U.S. at 684.
Here, the defense successfully impeached Williams's testimony. The defense was able to show there were inconsistencies between Williams's testimony and Monasmith's testimony about the knife. The defense also established inconsistencies between Williams's and Rich's testimony regarding the sequence of events. And, as the defense pointed out, contrary to his testimony that he was terrified Wiley intended to kill him, in the 911 call, Williams's voice sounded very calm and unafraid. On this record, any error in excluding evidence of the use of a racial slur in the past was harmless beyond a reasonable doubt.
We affirm Wiley's conviction for felony harassment and unlawful display of a weapon.