Opinion
No. 52961-7-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-03836-5, Judgment or order under review. Date filed: 08/15/2003. Judge signing: Hon. Richard a Jones.
Counsel for Appellant(s), Ricko Fernandez Easterling (Appearing Pro Se), 5459 23rd Ave SW, Seattle, WA 98106.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Elaine L Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Amy R Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Ricko Easterling appeals his conviction for unlawful delivery of cocaine, arguing that the trial court violated his constitutional right to cross-examine a witness and that he was denied his right to effective assistance of counsel. We affirm. The trial court properly prevented Easterling from eliciting testimony that was only marginally relevant and likely to mislead the jury, and Easterling has not shown that he was prejudiced by defense counsel's representation.
Facts
On January 11, 2003, Seattle Police Officer John Tovar was working undercover as a buyer in a buy/bust operation. Tovar approached a woman on the street and told her he was looking for `a thirty,' meaning $30 worth of crack cocaine. The woman, Shawn Modest, told Tovar to `hold on, that it was cooking,' which meant to Tovar that he should wait and he could get what he wanted. Modest and Tovar then crossed the street and joined Easterling, Anthony Jackson, and another man. Tovar heard Jackson say to Easterling, `Let me get it right here,' and Easterling responded, `No, you have to go down the street.' Jackson and Easterling then walked away together and left Tovar's sight. A short time later, Jackson came back into view and signaled for Tovar and Modest to join him. When they met again, Jackson reached his left hand to his mouth and spit out what appeared to Tovar to be rock cocaine. Tovar gave Jackson some pre-recorded buy money and Jackson gave Tovar some cocaine. Tovar then walked away and gave observing officers his `good buy' sign.
Easterling, Jackson, and Modest were arrested and charged with one count of Violation of the Uniformed Controlled Substances Act for unlawful delivery of cocaine. Before Easterling and Jackson were tried, Jackson and the State entered a plea agreement in which the State agreed to reduce the delivery charge and dismiss another unrelated possession charge against Jackson in exchange for his testimony against Easterling. As a result of the plea agreement, the State changed its theory of the case to allege that Easterling delivered cocaine to Jackson, rather than to Tovar.
The trial court allowed Easterling's defense counsel to cross-examine Jackson about his plea bargain with the State to show that Jackson had an incentive to testify against Easterling. But the court prohibited defense counsel from eliciting testimony regarding the maximum term for the original versus the reduced charge and that the charge went from a Class B to a Class C felony.
A jury convicted Easterling as charged. This appeal followed. The Trial Court Properly Limited Cross-Examination
Easterling argues that the trial court erred when it prohibited him from cross-examining Jackson about the maximum term and offense classifications of the crimes he originally and ultimately was charged with. We disagree.
Although this issue involves the confrontation clause, the gist of the issue is whether the trial court erred in ruling that the maximum term and offense classification testimony was inadmissible. A court's ruling limiting the scope of cross-examination will not be disturbed unless it is the result of a manifest abuse of discretion. But the more essential a witness is to the prosecution's case, the more latitude the court must give the defense to explore the witness's motive, bias, credibility, or other foundational matters.
State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
Darden, 145 Wn.2d at 619.
Both the federal and state constitutions guarantee defendants the right to confront and cross-examine adverse witnesses. The purpose underlying meaningful cross-examination is to test the witness's perceptions, memory, and credibility. Therefore, confrontation helps to assure the accuracy of the fact-finding process.
U.S. Const. amend. VI; Const. art. I, sec. 22; Darden, 145 Wn.2d at 620.
Darden, 145 Wn.2d at 620.
Darden, 145 Wn.2d at 620.
But the right to cross-examine adverse witnesses is not absolute. [T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.
Darden, 145 Wn.2d at 620.
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
Hence, the Confrontation Clause does not guarantee defendants an opportunity to cross-examine witnesses in whatever way, and to whatever extent, the defense wishes. The right to confront and cross-examine witnesses is limited by general considerations of relevance.
Van Arsdall, 475 U.S. at 679.
Darden, 145 Wn.2d at 621.
Evidence is relevant if it has a tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. Relevant evidence, however, `may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'
ER 401.
ER 403.
Before a court decides to limit a defendant's right to cross-examine an adverse witness, however, the State has the burden to show that the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. The court may exclude relevant but prejudicial evidence only if the State's interest in excluding the prejudicial evidence outweighs the defendant's need for the information.
State v. Hudlow, 99 Wn.2d 1, 15-16, 659 P.2d 514 (1983).
Hudlow, 99 Wn.2d at 16.
Easterling contends that no state interest outweighed his constitutional right to confront Jackson regarding his plea agreement with the State. But the State has an interest in protecting the integrity of the fact finding process. The court prohibited Easterling only from eliciting testimony that was likely to mislead the jury and was only marginally relevant.
See Darden, 145 Wn.2d at 620.
Through cross-examination, Easterling was able to show how Jackson benefited by the plea agreement. Easterling established that, in exchange for Jackson's testimony: (1) the prosecutor reduced the charge against Jackson from unlawful delivery of cocaine, the same crime as Easterling's, to solicitation to deliver cocaine; (2) the standard range for the original charge against Jackson would have been 57 to 75 months in prison, while the standard range for the reduced charge was 42.75 to 56.25 months; (3) the prosecutor agreed to recommend that the judge sentence Jackson to the lower end of the standard range; and (4) the prosecutor dropped a separate possession charge against Jackson, for which the standard range was 17 to 22 months in prison. The court prohibited defense counsel only from asking about the maximum terms and class of felonies of the original and reduced charges against Jackson.
According to Easterling, Jackson faced a maximum term of 20 years in prison if he were convicted of the delivery charge because he had a prior drug conviction, while the maximum term for the solicitation charge was only 5 years. Easterling also contends that Jackson would have faced a maximum 10 year term for the unrelated possession charge if the State had not dropped that charge.
Under Washington law, however, the court was required to impose a sentence within the standard range unless substantial and compelling reasons justified an exceptional sentence. Nothing in the record suggests that the court would impose an exceptional sentence in Jackson's case. Therefore, the maximum terms for Jackson's crimes were only minimally relevant. Because the court was unlikely to order Jackson to serve the maximum term, the testimony would tend to mislead the jury.
The United States Supreme Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), was decided after Easterling was tried.
The fact that Jackson was unlikely to be sentenced to the maximum term, distinguishes this case from State v. Brooks. In Brooks, the defendant was charged with first-degree robbery while armed with a deadly weapon. Joseph Macklin, a codefendant who originally had been charged with the same crime, agreed to testify against Brooks. In exchange for Macklin's testimony and his guilty plea, the State dropped the deadly weapon allegation, which carried a mandatory minimum 5-year term. The trial court allowed Brooks to cross-examine Macklin about his plea agreement with the State, but would not allow Brooks to ask about the specific legal effect of a deadly weapon finding. The court of appeals held that the trial court erred by limiting cross-examination: Great latitude must be allowed in cross-examining a key prosecution witness, particularly an accomplice who has turned State's witness, to show motive for his testimony. The right of cross-examination allows more than the asking of general questions concerning bias; it guarantees an opportunity to show specific reasons why a witness might be biased in a particular case.
25 Wn. App. 550, 611 P.2d 1274 (1980).
Here, the dropping of the deadly weapon allegation pursuant to the plea bargain agreement obviated a mandatory 5-year minimum term for Macklin if he were sentenced to prison. The jury was entitled to consider that evidence in weighing Macklin's credibility.
Brooks, 25 Wn. App. at 551-52 (citations omitted).
Brooks is distinguishable from Easterling's case because the deadly weapon enhancement that Macklin faced was mandatory and thus directly relevant, while the chance that Jackson would be ordered to serve the statutory maximum term was remote. Therefore, the maximum term evidence was only minimally relevant and was likely to mislead the jury.
Similarly, testimony about the classes of crimes of the original and reduced charges against Jackson was unlikely to clarify any issues for the jury. Testimony that Jackson would be sentenced for one class C felony, as opposed to one class B and one class C felony, likely would be meaningless to the average juror.
Furthermore, Easterling was able to show that Jackson's testimony might be biased. The court let Easterling elicit testimony to show that Jackson faced a significantly longer sentence before pleading guilty than the one he faced after agreeing to testify against Easterling. Under these circumstances, the State's interest in excluding the testimony outweighed Easterling's need for it. The trial court did not err.
Easterling's Ineffective Assistance of Counsel Arguments Fail Easterling next argues that he was denied his right to effective assistance of counsel because defense counsel did not propose an instruction to caution the jury about relying upon Jackson's testimony and did not object when police officers testified that Easterling's actions looked like what typically occurs in a drug transaction.
To establish that counsel was ineffective, the defendant must prove that counsel's performance was deficient and, as a result, the defendant was prejudiced. A defendant proves deficient performance by demonstrating that the representation fell below an objective standard of reasonableness. Competency is determined by considering the entire record at trial. Prejudice is established by showing that there is a reasonable probability that, but for counsel's error, the result would have been different. If either part of the test is not satisfied, an ineffective assistance of counsel claim fails.
State v. Townsend, 142 Wn.2d 838, 843, 15 P.3d 145 (2001).
Townsend, 142 Wn.2d at 843-44.
Townsend, 142 Wn.2d at 843.
Townsend, 142 Wn.2d at 843-44.
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Easterling argues that defense counsel should have proposed an instruction that cautioned the jury to consider the testimony of an accomplice carefully, as is set forth in Washington's pattern criminal instructions: The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.
11 Washington Pattern Jury Instructions: Criminal 6.05, at 136 (2d ed. 1994) (WPIC).
The State concedes that WPIC 6.05 is appropriate when an accomplice testifies against the defendant. Easterling, however, has not shown that the outcome of the trial would have been different if defense counsel had proposed such an instruction.
As discussed above, defense counsel showed that Jackson's testimony might be biased against Easterling. Through cross-examination, Jackson disclosed that the punishment he faced was less because the State reduced the delivery charge and dropped another unrelated charge entirely. Additionally, Jackson admitted that he had two previous convictions for making false statements to a public servant, and the jury was instructed that it could consider a witness's previous convictions `in deciding what weight or credibility should be given' to that witness's testimony. The court also instructed the jury that it could take any bias or prejudice a witness might have into account when considering the witness's testimony.
Moreover, even without Jackson's testimony, the State's case against Easterling was strong. Officer Tovar testified that after he told Modest he was looking for a `thirty,' she approached Easterling, Jackson, and another man. Jackson and Easterling then walked out of Tovar's sight, but other officers could see them. Sergeant Ron Wilson testified that he saw Easterling hand something to Jackson. Jackson looked at the item, put it in his mouth, and left. Officer Nori Etoh also testified that he saw the exchange between Easterling and Jackson and said that the two were hunched over, but looking around, as if watching out for something. Jackson then returned to Tovar and gave him a rock of cocaine in exchange for money.
Sergeant Wilson testified that it was not unusual for someone to facilitate the delivery from the actual seller to a buyer. He also said it was not uncommon for convictions to result from exchanges where officers were unable to see exactly what was passed from the seller to the buyer. The officers each testified about their extensive experience observing drug transactions and that Jackson's and Easterling's actions were consistent with those transactions.
The evidence against Easterling was strong, and the jury was instructed that it should consider a witness's bias in deciding whether the witness was credible. Hence, although an accomplice instruction would have emphasized the jury's need to consider Jackson's testimony with caution, the outcome of the trial was not affected by the absence of the special accomplice instruction.
Easterling argues, however, that defense counsel also was ineffective because he failed to object to the officers' testimony that Easterling's actions were consistent with typical drug transactions. Easterling contends that the officers' testimony was inadmissible opinion testimony on his guilt. We disagree.
A witness may not testify, either directly or by inference, about his opinion regarding the defendant's guilt. This rule seeks to prevent witnesses from telling the jury what result to reach. Therefore, testimony that the defendant is guilty or inferential testimony that leaves no other conclusion is prohibited.
State v. Cruz, 77 Wn. App. 811, 814, 894 P.2d 573 (1995).
Cruz, 77 Wn. App. at 815.
Cruz, 77 Wn. App. at 815.
But testimony is not improper opinion testimony if it is based on inferences from the evidence, is not a direct comment on the defendant's guilt, and is otherwise helpful to the jury. Whether testimony constitutes an impermissible opinion as to the defendant's guilt depends upon the circumstances in each case.
Cruz, 77 Wn. App. at 814.
Cruz, 77 Wn. App. at 814-15.
In this case, defense counsel objected to the only comment that arguably expressed an impermissible opinion about Easterling's guilt: Sergeant Wilson's statement that he believed that Jackson put rock cocaine he acquired from Easterling into his mouth. The court sustained the objection.
In all other instances about which Easterling complains, the officers testified only that Easterling's actions were consistent with typical drug transactions with which they were familiar. And, as Judge Baker expressed in State v. Cruz, behavior consistent with typical drug transactions is a subject beyond the experience of the average juror. The testimony, therefore, was helpful, was not a direct comment on Easterling's guilt, and was based upon inferences from the evidence. Under these circumstances, defense counsel was not ineffective for failing to object to the testimony. Easterling has not proved that defense counsel's performance was deficient for failing to object to the officers' testimony regarding typical drug transactions. Nor did he prove that the outcome of the trial would have been different, but for counsel's failure to propose an accomplice instruction. Easterling's ineffective assistance of counsel claim, therefore, fails.
77 Wn. App. 811, 814, 894 P.2d 573 (1995).
Cruz, 77 Wn. App. at 817 (Baker, C.J., concurring).
Easterling's Additional Grounds For Review Do Not Merit Relief
Easterling filed a statement of additional grounds for review in addition to the briefs filed by his appellate counsel. The gist of his statement seems to be that he believes his trial counsel was ineffective because counsel refused to let Easterling testify at trial, refused to call witnesses on his behalf, picked a jury that was not in his interest, and conversed with Jackson's lawyer. Easterling, however, has not set forth sufficient information for this court to properly evaluate what he alleges are additional grounds for review. If he is alleging that he was denied his right to effective assistance by citing further examples of his trial counsel's deficient performance, his claim fails because he has not shown why counsel's acts constitute ineffective representation, or that he was prejudiced by counsel's deficient performance.
Conclusion
The trial court properly limited Easterling's cross-examination of Jackson because the testimony Easterling sought to elicit was only marginally relevant and was likely to mislead the jury. Easterling's ineffective assistance of counsel claim fails because he did not show that he was prejudiced by counsel's deficient performance. His judgment and sentence is affirmed.
AFFIRMED.
BAKER, J., KENNEDY, J. and GROSSE, J.