Opinion
Nos. 22839-8-III, 23475-4-III
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-03332-5. Judgment or order under review. Date filed: 03/03/2004. Judge signing: Hon. Michael P. Price.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Ofc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
This is an appeal from a conviction for delivery of a controlled substance — methamphetamine. Todd Clemens assigns error to a number of the court's evidentiary rulings. His challenges appear to be well founded. But the untainted evidence in this record (untainted by these errors) amply supports the jury's verdict and therefore any error was harmless. We affirm his conviction. In a separate personal restraint petition, Mr. Clemens claims his lawyer refused to let him testify. The showing that he `unequivocally demanded' to testify is equivocal at best. But, even if he did demand to testify, we cannot conclude that the denial prejudiced his case, and we therefore deny the petition.
FACTS
Kevin Langford is a detective with the Spokane Police Department. He received complaints of drug activity at Todd Clemens' apartment, so he investigated.
Glenda Davis is a confidential informant. She went to Mr. Clemens' apartment and bought three $20 baggies of methamphetamine. Police watched as she made this buy. Ms. Davis returned to Detective Langford's car and gave him the three baggies of methamphetamine. She also gave him a detailed statement of what happened in the apartment. And she described the man who sold her the drugs.
The police executed a search warrant for Mr. Clemens' apartment and arrested him. He matched the description given by Ms. Davis exactly. And Ms. Davis identified him later from a photo montage.
The State charged Mr. Clemens with one count of delivery of a controlled substance — methamphetamine.
Travis Homer lived with Mr. Clemens. He testified that Mr. Clemens was not employed and sold meth to make money. He `couldn't count' the number of times he had seen Mr. Clemens sell meth from the apartment. Report of Proceedings (RP) at 219.
Detective Langford testified that police seized a marijuana pipe, various pills, and a list of items needed to manufacture methamphetamine from Mr. Clemens' apartment. He also testified that the police investigated this apartment because they received two calls from unidentified informants that someone named `Todd' was involved in drug activity at the apartment.
Mr. Clemens moved in limine to exclude these statements by Mr. Homer and Detective Langford. The court denied his motion. And a jury found him guilty.
DISCUSSION
Mr. Clemens assigns error to three of the court's evidentiary rulings:
(1) The court failed to take any of the necessary steps to admit Mr. Homer's testimony that Mr. Clemens sold drugs to support himself. Mr. Clemens contends this prior bad acts evidence was offered solely to show propensity to commit this crime. Admission of ER 404(b) evidence is a three-step process. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002). The court must first make preliminary findings of fact that the events related more probably than not occurred. Id. at 292-94. Next, the judge must articulate some reason why the evidence is admissible (something other than propensity). The judge must show why the bad acts are relevant to some factual issue the jury will have to resolve. Id. at 292; State v. Wade, 138 Wn.2d 460, 463, 979 P.2d 850 (1999). And finally, the court must weigh the probative value of the evidence. Kilgore, 147 Wn.2d at 292; Wade, 138 Wn.2d at 463. None of these questions are addressed in this record.
(2) Next, the court allowed Detective Langford to testify that he seized a marijuana pipe, various pills, and a list of items used to make methamphetamine. And again while the list of methamphetamine ingredients may be relevant to the factual issues here, it is difficult for us to identify any relevancy to the pipe and the pills. ER 401.
(3) Finally, the court permitted Detective Langford to testify that he received a tip that someone named `Todd' was involved in drugs at the apartment. This was admitted to show Detective Langford's state of mind. But Detective Langford's state of mind was not an issue here, at least an issue in controversy. Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522 (1996).
So each challenge appears to have merit. The problem is that even if were we to conclude each challenge did have merit, they still would not require reversal under Washington's version of the harmless error rule.
Evidentiary rulings generally are not of constitutional magnitude and therefore require reversal only if the defendant is prejudiced. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). And that prejudice is not presumed. Id. The error is prejudicial only if `within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.' State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). The question in this harmless error analysis is whether the untainted evidence is sufficient to support, overwhelmingly, the jury's finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985); see State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). And here that is the case.
Ms. Davis worked as the confidential informant. Police gave her $80 to buy methamphetamine from Mr. Clemens. She knocked on the door of his apartment. He let her in. She told him she had money and was there to `score.' RP at 198. He said that `[w]hat he did have was personal use and he didn't really want to let go of it, but he called the other person while I was standing right there to confirm that he could reup his after the guy got home.' RP at 198. Mr. Clemens then sold her three $20 baggies filled with methamphetamine. After Ms. Davis made the buy, she asked him `if he was for sure going to have more later and he said yes and he welcomed [her] back.' RP at 199.
Ms. Davis left the apartment and returned to Detective Langford's car. She immediately gave the remaining $20 bill and the three baggies to the detective. She also provided a written statement and described the man who sold her the drugs.
Police then arrested Mr. Clemens in his apartment; he matched Ms. Davis's description exactly. Ms. Davis later identified him from a photo montage.
This evidence is untainted by the evidence Mr. Clemens complains of. And it easily supports the jury's finding of guilt here. Any error was then harmless. Guloy, 104 Wn.2d at 426; see Halstien, 122 Wn.2d at 127.
PERSONAL RESTRAINT PETITION
Mr. Clemens has also filed a personal restraint petition. And we will try to identify the issues he raises and address them.
Mr. Clemens contends that his defense counsel prevented him from testifying. He presented an affidavit that states he told his counsel he planned to testify, but his counsel failed to call him as a witness. Mr. Clemens asked his counsel after the trial why he was not called to testify. Mr. Clemens states in his affidavit that he was told: "I decided not to call you due to your extensive criminal history." Aff. of Todd Clemens attached to Personal Restraint Petition.
The constitution guarantees a criminal defendant the right to testify. State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). A defendant who alleges his attorney prevented him from testifying may be entitled to an evidentiary hearing. Id. at 759. The purpose of the hearing is to determine whether the defendant knowingly, voluntarily, and intelligently waived his right to testify. Id. at 758-59. But the defendant must first show that he `unequivocally demanded' to testify and that his defense counsel refused to call him as a witness. Id. at 760, 764.
Moreover, a petitioner who alleges a constitutional error in a personal restraint petition must be able to demonstrate that he was `actually and substantially prejudiced' to obtain relief. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 827, 650 P.2d 1103 (1982). The petitioner must be able to support his claim by competent, admissible evidence. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).
A claim that defense counsel prevented a defendant from testifying is reviewed as a claim of ineffective assistance of counsel. Robinson, 138 Wn.2d at 765. The defendant must therefore be able to prove that defense counsel's performance `fell below an objective standard of reasonableness' and that he was prejudiced by the deficiency. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The defendant must be able to prove by a preponderance of the evidence that he was actually prevented from testifying. Robinson, 138 Wn.2d at 764-65, 766. Even if proven, prejudice will not be presumed. Id. at 768. The defendant must show there is a reasonable probability the proceeding would have resulted in a different outcome had he been allowed to testify. McFarland, 127 Wn.2d at 334-35; Robinson, 138 Wn.2d at 769.
Mr. Clemens' affidavit states that his counsel did not call him as a witness despite his repeated requests to testify. He argues that if he had been allowed to testify, he would have testified as follows:
`[O]n the night of the alleged buy between him and the confidential informant, he was across town at a friend's house.' Pers. Restraint Pet. Br. at 4.
`Travis Homer told him that he had sold the confidential informant (`Angel') drugs.' Pers. Restraint Pet. Br. at 4.
`[H]e has never seen, nor has he ever met, the confidential informant, `Angel.'' Pers. Restraint Pet. Br. at 4.
`[H]e does not have any visible tattoos on his arms.' Pers. Restraint Pet. Br. at 4.
`Travis Homer has numerous fantasy tattoos on his arms, legs, back, and chest, all of which he received while in prison, and that Mr. Homer was caught red-handed in a drug deal with `Angel.'' Pers. Restraint Pet. Br. at 4-5.
`In an interview between the defendant's trial counsel and Glenda Davis, AKA `Angel,' Ms. Davis stated that, during the first buy at defendant's residence (the one that implicated the defendant), the person at the door called the `person who owns the apartment.' . . . It was undisputed that defendant owned the apartment which would mean that he was not home when the alleged drug buy occurred.' Pers. Restraint Pet. Br. at 5.
`[H]e has certainly never sold her [the confidential informant] drugs, that he doesn't have any prior convictions for drugs or for crimes of dishonesty, . . . and simply that he is not a drug dealer.' Reply to State's Response at 3.
The State, on the other hand, has provided us with an affidavit from Mr. Clemens' trial counsel that states he agreed not to testify. The State has also provided an affidavit from the prosecuting attorney rebutting Mr. Clemens' alleged testimony.
The evidence here shows that Mr. Clemens did not raise or even suggest an alibi defense at trial. He has not provided this court with the name of the friend he was visiting and he has not provided any corroborating evidence from this friend. In addition, Mr. Clemens' statement about what Mr. Homer told him is hearsay and is inadmissible. ER 802. Further, Mr. Clemens has not shown that Ms. Davis was referring to him as the owner of the apartment and not the true owner or landlord.
Mr. Clemens' statement about his tattoos also appears to be worth little weight. Mr. Clemens was both described and identified as having tattoos. The prosecuting attorney also stated in her affidavit that the police records indicated Mr. Clemens had a tattoo on his arm.
Mr. Clemens presents only his affidavit as proof that his attorney prevented him from testifying. And even it raises some question as to whether he `unequivocally demanded' to testify at trial. Robinson, 138 Wn.2d at 760, 764.
That said, it does not appear to us that he has suffered actual prejudice. Immediately after the controlled buy, Ms. Davis gave police officers a description of the man who sold her the drugs. The police arrested Mr. Clemens because he `exactly matched' Ms. Davis's description. RP at 114, 135. Ms. Davis also identified Mr. Clemens from a photo montage.
There is no reasonable probability that the result of this trial would have been different had Mr. Clemens testified. McFarland, 127 Wn.2d at 334-35; Robinson, 138 Wn.2d at 769.
We affirm the conviction and deny Mr. Clemens' personal restraint petition.
A majority of the panel has determined that 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.
KATO, C.J., KURTZ, JJ., Concur.