Opinion
No. 27631-3-II
Filed: February 14, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 00-1-02251-4 Judgment or order under review Date filed: 07/12/2001
Counsel for Appellant(s), R. A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98666-5000.
A jury convicted Sergio Perez Hernandez of two counts of unlawful delivery of a controlled substance and two counts of unlawful possession of a controlled substance with intent to deliver. He appeals, arguing various trial court errors, jury misconduct and ineffective assistance of counsel. Because the trial court improperly commented on the evidence, we reverse and remand.
Because Hernandez is also known by the names enumerated in the caption, for clarity and uniformity, we refer to him as Hernandez.
FACTS
In October 2000, after the State charged them with third degree theft, Robert Williams and Kimberly Anderson contacted the Clark-Skamania Drug Task Force (Task Force) and offered to serve as confidential informants.
In exchange, they sought a favorable Task Force recommendation to the prosecuting attorney on the disposition of the theft charges.
On referral to the Task Force, Williams told Deputy Sheriff Steve Nelson that he had purchased heroin from Hernandez about three or four times a week during the preceding six months. Hernandez then became the subject of a Task Force investigation.
On November 17, while under Task Force surveillance, Williams purchased two balloons of heroin from Hernandez. He paid for the drugs with Task Force money. The transaction occurred in the parking lot of a Vancouver gas station.
On November 30, undercover detectives, including Nelson, planned to contact Hernandez to purchase heroin directly from him. But soon after arriving at the same gas station, the detectives observed Williams and Anderson make a 'personal buy' from Hernandez.
When Hernandez left the parking lot, the detectives approached and stopped Williams and Anderson. Nelson informed them that criminal charges would be brought against them for this drug purchase and that he was no longer willing to offer a favorable recommendation to the prosecuting attorney on their behalf. Nevertheless, Williams and Anderson agreed to continue working with the Task Force.
Williams agreed to participate in a second controlled buy from Hernandez on December 13. The Task Force members planned to arrest Hernandez on completion of the transaction. Williams gave Hernandez $100, provided by the Task Force, in exchange for two balloons of heroin. As Hernandez drove away, a Task Force member radioed nearby deputy sheriffs who apprehended Hernandez.
The investigating officers recovered $100 in cash from Hernandez. The serial numbers on each bill matched the serial numbers on the money the Task Force supplied to Williams. In the search of Hernandez' car incident to his arrest, investigating officers recovered fifteen balloons of what they believed was heroin concealed in a Clearasil bottle. The state crime laboratory later confirmed that the substance in twelve of the balloons was heroin and that two of the balloons contained cocaine.
One of the balloons was empty, but a 'piece of plastic' also taken into evidence contained what was later confirmed to be heroin. Report of Proceedings (RP) at 119.
The State charged Hernandez, by second amended information, with:
Count I unlawful delivery of controlled substance (heroin), committed on November 17, 2000
Count II unlawful delivery of controlled substance (heroin), committed on November 30, 2000
Hernandez was acquitted of this charge and it is not before us.
Count III unlawful delivery of controlled substance (heroin), committed on December 13, 2000
Count IV unlawful possession of controlled substance with intent to deliver (heroin), committed on December 13, 2000
Count V unlawful possession of controlled substance with intent to deliver (cocaine), committed on December 13, 2000
Hernandez moved to sever counts I and II from the remaining counts. He argued that he was preparing an affirmative defense on counts III and IV and that trying all counts together would prejudice the jury and would allow them to consider evidence and testimony used to defend counts III and IV when considering the remaining counts, causing the jury to infer his guilt on those counts as well. The trial court ruled that the evidence indicated a common scheme or plan and declined to sever the charges.
He filed this motion before the State amended the information to include count V, but it was argued and ruled upon as though it included count V.
Various Task Force members testified at trial. Each officer told about his personal participation in and observation of the drug transaction surveillance involving Hernandez. One undercover officer accompanied Williams on the first controlled buy. Another watched and photographed the buys. A third observed the transactions, followed, and stopped Hernandez as he drove away from the December 13 controlled buy. The fourth officer provided surveillance and participated in the postarrest search of Hernandez' car.
Hernandez' live-in girlfriend, Yolanda Montes, also testified. She said that she and Hernandez knew Williams before the charged drug transactions took place. The next day, during redirect examination, defense counsel asked Montes whether her testimony at trial would differ from the testimony she gave in pretrial interviews. Montes replied that she had previously been afraid to answer the questions truthfully, but that at trial, she was 'going to answer all those things that [she] was afraid of saying the last time.' IV-A Report of Proceedings (RP) at 383-84. The trial court interrupted, cautioning defense counsel: '[Y]ou can ask questions relating to the scope of the cross. We're not going to reinvent her direct testimony that wasn't elicited by you yesterday.' IV-A RP at 384.
Montes called Williams 'Roberto.' III-B RP at 355. The first time she saw Williams, he followed her and Hernandez as Hernandez drove Montes to work one day; the next time, she and Hernandez ran into Williams at a grocery store. Williams took the groceries Montes was carrying and kept them. Montes also testified that another time, this same man came to their apartment. The next meeting was at a gas station, where Williams pulled up behind Hernandez and 'grabbed [Hernandez] by his collar' while Hernandez sat at the driver's seat. III-B RP at 363. Montes testified that her next encounter with Williams was when he followed her to a store, where he parked near her but never approached her.
Montes then testified that she was afraid of Williams because she had overheard several telephone calls Williams made to Hernandez in which Williams threatened to kill Montes and her two children if Hernandez did not take him some drugs. Montes also testified that Williams would sometimes follow her home in his car while she walked home from work.
The State objected on grounds that the questions and answers were outside the scope of the State's cross-examination. The court ruled, 'I think this is all new matter as opposed to redirect, so I'm going to sustain your objection. . . . You can ask her questions that relate to the cross-examination, not present a new direct examination that hasn't been presented before.' IV-A RP at 390. As soon as defense counsel resumed questioning Montes, the trial court stopped her, ruling: 'Okay, counsel, this is not redirect, . . . you're seeking to amplify original testimony. This is not the time to do that. It's beyond the scope of the cross.' IV-A RP at 391. On re-cross, the State reminded Montes that she had never mentioned these prior contacts with Williams during an initial interview at defense counsel's office.
Hernandez also testified at trial. He explained his relationship with Williams before the controlled buys. He testified that Williams had forced him to buy a stolen stereo from him. Hernandez further testified that while Anderson pointed a gun at him, Williams demanded that Hernandez 'give him the money.' IV-A RP at 467. Holding a knife, Williams repeated: 'You don't give it to me, I'll kill you.' IV-A RP at 468.
Hernandez described other incidents where Williams followed him and Montes' children to a restaurant and demanded money from him. Hernandez testified that most of his contacts with Williams before the controlled buys involved demanding money or drugs from him and threatening to kill Hernandez and his family if he refused ('[I]f you don't give me drugs, I'm going to kill you and your kids and hurt your little girl. I'm gonna rape your little girl. I'm gonna kill you and your kids, your family.'). IV-A RP at 473. In closing, defense counsel argued that Williams was Hernandez' 'intimidator' and that Williams coerced Hernandez into selling Williams drugs, 'actions that [Hernandez] was not predisposed to do.' IV-B RP at 616, 618.
The jury convicted Hernandez of counts I, III, IV, and V and he appeals.
ANALYSIS
Comment on the Evidence
Hernandez contends that the trial court's comments that defense counsel was attempting to 'reinvent' Montes' direct testimony on redirect violated article IV, section 16 of the Washington Constitution. We agree.
To prevent a trial judge's opinion from influencing the jury's verdict, article IV, section 16 of the Washington Constitution prohibits the court from commenting on the evidence. Smith v. Behr Process Corp., 113 Wn. App. 306, 335, 54 P.3d 665 (2002) (citing State v. Deal, 128 Wn.2d 693, 703, 911 P.2d 996 (1996)). A trial court's statement is an improper comment on the evidence "if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement." Smith, 113 Wn. App. at 335 (quoting State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995)). Whether a comment on the evidence is improper depends on the facts and circumstances in each case. State v. Eaker, 113 Wn. App. 111, 118, 53 P.3d 37 (2002); State v. Painter, 27 Wn. App. 708, 714, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981).
Generally, a trial court's reasons for its ruling on an objection do not constitute an impermissible comment on the evidence. State v. Renfro, 96 Wn.2d 902, 909-10, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982). Nevertheless here, the trial court's choice of the word, 're-invent,' impliedly commented on Montes' credibility. As Montes' credibility was central to Hernandez' duress defense, the comment deprived Hernandez of a fair trial and his conviction must be reversed.
We recognize that the experienced and capable trial judge may have meant to say 'revisit' or even 'resurrect' the testimony. Nonetheless, the word 're-invent' necessarily implies a comment on credibility.
Because we reverse and remand, we limit the remainder of our analysis to Hernandez' severance argument to provide guidance on remand.
We do not address Hernandez' ineffective assistance of counsel and jury misconduct claims. 8 CrR 4.4(b) provides: 'The court, on application of the prosecuting attorney, or on application of the defendant . . . shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.'
Severance
Hernandez next contends that the trial court erred in denying his CrR 4.4(b)8 motion to sever counts I and II from counts III-V. Hernandez asserts that in denying his motion, the trial court forced him to testify regarding counts I and II. Because Hernandez generally denied counts I and II, and was arguing an affirmative defense (duress) on counts III-V, he argues that trying all offenses together necessarily forced him to present inconsistent defenses and invited the jury to infer his guilt on counts I and II.
A trial court's refusal to sever counts for trial is reversible on appeal only upon a showing that the trial court's decision was a 'manifest abuse of discretion.' State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990) (citing State v. Philips, 108 Wn.2d 627, 741 P.2d 24 (1987) (joinder of defendants) and State v. Thompson, 88 Wn.2d 518, 564 P.2d 315 (1977), overruled on other grounds by State v. Thornton, 119 Wn.2d 578 (1992)). An abuse of discretion is discretion 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); Trohimovich v. Dep't of Labor Indus., 73 Wn. App. 314, 320, 869 P.2d 95, review denied, 124 Wn.2d 1025 (1994); State v. Williams, 27 Wn. App. 430, 440, 618 P.2d 110 (1980), aff'd, 96 Wn.2d 215 (1981).
A defendant seeking severance bears the burden of demonstrating that trying the offenses charged jointly will result in specific unfair prejudice and that the resulting prejudice outweighs the policy of judicial economy that is served by joint trials. Bythrow, 114 Wn.2d at 717-18 (citing State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934 (1972), overruled on other grounds by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). See also State v. Herzog, 73 Wn. App. 34, 51, 867 P.2d 648, review denied, 124 Wn.2d 1022 (1994).
Trying offenses separately is generally disfavored in Washington. State v. Israel, 113 Wn. App. 243, 290-91, 54 P.3d 1218 (2002). As initially enumerated in State v. Gatalski, 40 Wn. App. 601, 606-07, 699 P.2d 804, review denied, 104 Wn.2d 1019 (1985), implied overruling on other grounds by State v. Baldwin, 63 Wn. App. 536 (1991), a trial court may consider four factors in determining whether multiple offenses should be severed under CrR 4.4(b): (1) the strength of the State's evidence on each count; (2) the clarity of defenses to each count; (3) the court's instruction to the jury as to the limited purpose for which it was to consider the evidence of each crime; and (4) the admissibility of the evidence of the other crimes even if they had been tried separately, never charged, or never joined. Herzog, 73 Wn. App. at 51. We address each factor in turn.
Strength of the State's Evidence on Each Count
Here, the State presented strong independent evidence to support each charge. Several Task Force members testified to their personal knowledge and observation of the drug transactions being tried. Thus, factor one is satisfied.
Clarity of Defenses to Each Count
The trial court specifically clarified Hernandez' defenses on the record during argument on posttrial motions: 'I want to make this clear for the appellate record if it ever comes up that there was any confusion, the defendant unequivocally denied commission of Counts One and Two.' V RP at 707. Hernandez' defense to counts I and II was a general denial, and he claimed an affirmative defense, duress, as to counts III, IV, and V.
Because Hernandez' defenses are easily discernable on appeal, factor two is satisfied.
Court's Limiting Instruction
The Clerk's Papers do not include a copy of the jury instructions. And the written trial transcript does not contain the trial court's verbal instruction to the jury before its deliberations. Rather, the record only includes a portion of counsel's arguments to the trial court in considering proposed instructions. State v. Johnson, 113 Wn. App. 482, 491 n. 23, 54 P.3d 155 (2002); (citing State v. Malone, 72 Wn. App. 429, 434, 864 P.2d 990 (1994); State v. Stevens, 58 Wn. App. 478, 492, 794 P.2d 38 (it is the appellant's duty to perfect the record so that the appellate court has all relevant evidence before it and can review assignments of error), review denied, 115 Wn.2d 1025 (1990)); see RAP 9.2(b).
Cross-Admissibility
In deciding pretrial motions, the trial court specifically ruled:
[P]rior bad acts are admissible even if uncharged to prove a common scheme or plan, and the State's evidence would clearly constitute a common scheme or plan, an overarching arrangement, a commercial arrangement alleged by the informants that there had been deliveries going on for a significant period of time, and in excess of these that are charged[.]
. . . .
So the informant, same witness all the way through, would be allowed to testify as to the entire . . . course of dealing and transactions between himself and the defendant.
. . . .
Likewise, if only the December 13th incidents were brought in, specifically the charge of possession with intent to deliver, the State would have to prove in its case in chief that the possession by the defendant on December 13th was with intent to deliver, and so the common scheme or plan and evidence of intent which flows from an allegation of numerous prior deliveries all becomes admissible.
I RP at 34-35. Therefore, factor four is satisfied.
Because the Gatalski factors are satisfied, we hold that the trial court did not err by declining to sever trial of counts I and II from counts III-V.
We conclude that that trial court did not err in refusing to sever, but that it did err in commenting on the evidence and, therefore, reverse and remand for further proceedings.
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.
BRIDGEWATER and ARMSTRONG, JJ., concur.