Opinion
No. 23664-1-III.
June 22, 2006.
Appeal from a judgment of the Superior Court for Spo-kane County, No. 04-1-03985-2, Salvatore F. Cozza, J., entered November 15, 2004.
Counsel for Appellant(s), Janet G. Gemberling, Gemberling Dooris Ladich PS, PO Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Affirmed by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Schultheis, J.
Mark Vincent Borunda was convicted of third degree theft and possession of a controlled substance — methamphetamine. The court sentenced him to 18 months. He claims he was denied his constitutional right to confrontation, the prosecutor committed misconduct, and his sentence constituted cruel and unusual punishment. We affirm.
On March 6, 2004, Sergeant Matt Lyons and Corporal Shane McClary stopped at a convenience store. While inside, they saw the clerk, Neva Worrell, run outside to the parking lot where she yelled at the driver of a truck to stop. After she told the officers the driver left without paying for gas, they got into their vehicles and chased the truck.
When the officers stopped the vehicle, both recognized the driver from prior contacts as Mark Vincent Borunda. He claimed he forgot to pay for the gas. Both officers noticed a quart of chocolate milk inside the truck that Mr. Borunda had spilled over himself. The milk was still cold. Sergeant Lyons called Ms. Worrell and asked if she sold the milk to Mr. Borunda. Ms. Worrell asked her fellow cashier whether she remembered selling it, but she did not recall ringing anyone up for milk.
Mr. Borunda was then arrested for theft. A search incident to arrest revealed a baggie containing a white substance in his truck. The substance tested positive for methamphetamine. Mr. Borunda was charged by amended information with third degree theft and possession of a controlled substance — methamphetamine.
At trial, the prosecutor questioned Mr. Borunda about a man named Tracy Lyden, the brother of Kelly Lyden. Mr. Borunda had loaned his truck to Kelly prior to the incident. Defense counsel objected to the line of questioning as irrelevant. The court permitted the questions but later admonished the prosecutor that her questions were becoming tangential.
The jury found Mr. Borunda guilty as charged. He was sentenced to 18 months, comprised of consecutive sentences of six months for the possession of a controlled substance and 12 months for the third degree theft. This appeal follows.
Mr. Borunda contends he was denied his constitutional right to confrontation when the court admitted Ms. Worrell's testimony regarding her fellow cashier's statements. Ms. Worrell testified:
Q. Did you have any subsequent contact with him?
A. Yes. They called me and asked me if he had bought chocolate milk. I do believe it was a quart of milk. I told them that I didn't ring him up. I asked the other cashier, she said that she didn't ring him up, so I had told them no.
. . . .
Q. The milk, do you know if he paid for that?
A. I didn't ring him up. When the officer called me, I asked my co-worker if she rang him up for milk, she didn't recall ringing anybody up for milk. Report of Proceedings (RP) at 100, 106.
The State contends Mr. Borunda waived the issue because he failed to object at trial. Although we may refuse to review a claim of error if the issue was not raised at trial, we will review the claim for the first time on appeal if it affects a 'manifest error affecting a constitutional right.' RAP 2.5(a)(3).
The United States Constitution's confrontation clause provides the accused in a criminal prosecution a right to confront the witnesses against him. Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). An alleged violation of this right is reviewed de novo. United States v. Aguilar, 295 F.3d 1018, 1020 (9th Cir.), cert. denied, 537 U.S. 966 (2002).
A witness's testimonial statement is inadmissible if the witness did not appear at trial. Crawford, 541 U.S. at 54. The only exception is under circumstances where the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. Id.
The confrontation clause applies to witnesses who 'bear testimony' against the accused. Id. at 51. 'Testimony' is a solemn declaration made for the purpose of establishing fact. Id. Testimonial statements include affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used at a later trial. Id. at 51-52.
In order for the confrontation clause to apply, the fellow cashier's statement must be testimonial in nature. But her statement was merely a response to the question whether she remembered ringing Mr. Borunda up for milk. The cashier's response was not testimonial in nature. Her statement was not a solemn declaration made for the purpose of proving a fact, but merely an answer to Ms. Worrell's question. The statement was neither given in an affidavit nor during a custodial examination. In any event, her answer was to whether she rang up milk, not a gasoline sale.
Further, the fellow cashier could not be expected to reasonably believe her answering no to Ms. Worrell's question would be used at a later trial. Her statement is not testimonial in nature and the confrontation clause does not apply. The trial court properly admitted Ms. Worrell's testimony. Mr. Borunda contends he was denied his constitutional right to a fair trial when the court allowed the State to cross-examine him regarding his association with Tracy Lyden, Kelly Lyden's brother. Mr. Borunda argues it was prosecutorial misconduct to attempt to taint his character through guilt by association.
A defendant who alleges prosecutorial misconduct must show (1) the prosecutor's comments were improper, and (2) there was a substantial likelihood the comments affected the verdict. State v. Rodriguez, 103 Wn. App. 693, 702-03, 14 P.3d 157 (2000), aff'd, 146 Wn.2d 260, 45 P.3d 541 (2002). But the First Amendment is not an absolute bar to the admission of associational evidence. Dawson v. Delaware, 503 U.S. 159, 164-67, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992). Evidence of a person's association with another is admissible when relevant to an issue in the case. Id.; Rodriguez, 103 Wn. App. at 698 (citing State v. Campbell, 78 Wn. App. 813, 822, 901 P.2d 1050, review denied, 128 Wn.2d 1004 (1995)).
The State began to question Mr. Borunda about his association with Tracy Lyden. Up to that point, Tracy had not been mentioned nor any evidence introduced that connected him to the crime. Mr. Borunda objected on relevancy grounds. Although the court initially permitted the questioning, it stopped the prosecutor after a short time because the questions were tangential.
Mr. Borunda contends the questioning indicated to the jury that the police were familiar with Tracy, thus freeing the jury to speculate he also had a criminal history. Mr. Borunda claims this allowed the jury to infer guilt based solely on his association with Mr. Lyden, a man with a criminal history. But the court stopped the State's questioning. Mr. Borunda testified he 'never ran around with Tracy Lyden' and knew him merely as an acquaintance. RP at 150. Under the circumstances, he cannot show a substantial likelihood this line of questioning affected the verdict.
Mr. Borunda argues the court violated his right to be free from cruel and unusual punishment when it sentenced him to the high end of the standard range for the felony drug possession and a maximum one-year consecutive sentence for the misdemeanor theft. He reasons his sentence is disproportionate because he received a harsher punishment for a misdemeanor than he would have received for committing a felony.
The Eighth Amendment of the U.S. Constitution provides a right to be free from cruel and unusual punishment, while article $b/b$, section 14 of the Washington Constitution prohibits the imposition of cruel punishment. State v. Morin, 100 Wn. App. 25, 29, 995 P.2d 113, review denied, 142 Wn.2d 1010 (2000). The Washington Constitution affords greater protection than its federal counterpart. Id. It necessarily follows that if the state provision is not violated, a sentence violates neither constitution. Id. A sentence violates the Washington Constitution if it is grossly disproportionate to the crime for which it is imposed. Id. In determining disproportionality, the court considers '(1) the nature of the offense; (2) the legislative purpose behind the statute; (3) the punishment the defendant would have received in other jurisdictions; and (4) the punishment imposed for other offenses in the same jurisdiction.' Id.; see State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980).
The question is whether, after consideration of these factors, a sentence of 18 months is grossly disproportionate to the crimes of third degree theft and possession of a controlled substance — methamphetamine. Mr. Borunda, however, has failed to address these factors in his arguments on appeal. In the absence of an argument specifically addressing the factors in Fain, it cannot be said that Mr. Borunda's sentence was unconstitutional.
He focuses instead on attacking State v. Bowen, 51 Wn. App 42, 48, 751 P.2d 1226, review denied, 111 Wn.2d 1017 (1988), holding that the imposition of the statutory maximum for a gross misdemeanor does not constitute cruel and unusual punishment. Mr. Borunda urges this court to revisit Bowen in light of the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), in which the United States Supreme Court held that any fact other than a prior conviction that increases the penalty beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490; Blakely, 542 U.S. at 301.
But no exceptional sentence was imposed here. Blakely and Apprendi are inapplicable. We decline the invitation to revisit the Bowen decision. Mr. Borunda's sentence was not cruel and unusual punishment.
Affirmed.
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.
SWEENEY, C.J. and SCHULTHEIS, J., concur.