Opinion
66726-2-I
06-11-2012
STATE OF WASHINGTON, Respondent, v. ABDI HUSSEIN HILOW, Appellant.
UNPUBLISHED OPINION
Appelwick, J.
Hilow appeals his conviction for possession of cocaine with intent to deliver, arguing his Sixth Amendment right to confrontation was violated when the trial court excluded evidence that could have been used to impeach Officer Lee's credibility. He also argues the State violated his due process rights by failing to disclose that same allegedly material impeachment information before trial and committed prosecutorial misconduct during closing argument. Because the evidence sought was not probative of Officer Lee's truthfulness or bias, the trial court acted within its discretion in excluding it and the State thus did not withhold any material evidence. The prosecutor did not commit prejudicial misconduct. We affirm.
FACTS
Officer James Lee was working as the surveillance officer in a narcotics operation. He was positioned on the seventh floor of a parking garage looking down at the street below when he observed Abdi Hilow and another man, Sadam Salah, as they approached a large group of people. Officer Lee was approximately one block away from Hilow and Salah, and used binoculars to observe them. Officer Lee watched as Salah reached into his pocket, pulled out a clear cellophane bag, and exchanged small items in the bag for money. Salah conducted three such exchanges while Hilow stood beside him.
Several minutes later, after visiting a store in the middle of the block, Salah and Hilow repositioned themselves outside the store with their backs to the building, where Officer Lee observed two additional similar transactions. In the first, an individual approached Salah, and after they spoke, Salah nodded to Hilow. Hilow took a small item from his coat pocket and handed it to the individual. After inspecting the item, the individual handed money to Salah. In the last exchange Officer Lee observed, another individual approached the men and Hilow handed him an item from his coat pocket. The individual handed money directly to Hilow.
At that point, Officer Lee requested that the arrest team place Hilow and Salah under arrest. Officers Jason Diamond and Andrew West were the arresting officers. They approached Hilow and Salah as they were entering a parked car. Officer Lee had described Hilow and Salah's appearance and actions and, at the time of the arrest, he confirmed to the arrest team that they had contacted the correct individuals. Officer Diamond contacted Hilow as he was entering the passenger side of the car, and after grabbing him, observed Hilow throw a rock of suspected crack cocaine onto the floor of the car. The rock weighed .11 grams and was confirmed by testing to contain cocaine. Hilow also had $20 in cash on his person. Officer West found 1.5 grams of crack cocaine in Salah's pants pockets, as well as $262 in cash.
The State charged Hilow with possession of a controlled substance with intent to deliver. At trial, Hilow testified that he was with Salah on the night in question, but asserted he was minding his own business and was only there because Salah had offered to give him a ride later. Hilow testified he had no cocaine on him and that he was not aware that Salah had any cocaine either. A jury found Hilow guilty as charged, and he received a standard range sentence. He timely appeals.
DISCUSSION
I. Confrontation
Hilow argues that the trial court violated his rights under the Confrontation Clause by preventing him from impeaching Officer Lee with two particular incidents Hilow sought to admit at trial. A person accused of a crime has a constitutional right to confront his or her accuser. U.S. Const. amend. VI; U.S. Const. amend. XIV; Wash. Const. art. 1, § 22; State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). The primary and most important component is the right to conduct a meaningful cross-examination of adverse witnesses. State v. Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998). ER 608(b) allows cross-examination of a witness regarding specific instances of misconduct to impeach a witness's credibility, particularly concerning the witness's character for truthfulness or untruthfulness. Adequate cross-examination includes the opportunity to question witnesses to reveal "possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 47 (1974). The more essential a witness is to the State's case, the more latitude the defendant should have to explore the motive, bias, and credibility of that witness. Darden, 145 Wn.2d at 619.
The right to cross-examine an adverse witness is not absolute, however. Id. at 620. The trial court maintains 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), aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002). And, a court's evidentiary determinations are limited by general considerations of relevance. Darden, 145 Wn.2d at 621; see ER 401, 403. There is no right, constitutional or otherwise, to have irrelevant evidence admitted. Darden, 145 Wn.2d at 624. Even if the evidence is relevant, a defendant's right to introduce relevant evidence must also be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the trial. Id. at 621. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. Id. at 619.
The first incident Hilow wanted to explore on cross-examination involved Officer Lee, in a drug case several years earlier, giving mistaken trial testimony that he had not used force against a suspect. Later in the same day, after returning to the precinct and consulting a copy of his police report, Officer Lee realized that he had in fact used force, and that the testimony he had given at trial was mistaken. He told the prosecutor about the mistake and presented a copy of the report on his use of force, and the prosecutor advised the judge of the error. The guilty verdict was subsequently dismissed. Personnel records from the police department reflect that Officer Lee was cautioned by his supervisors to carefully review reports before testifying in the future, but he received no disciplinary action or reprimand beyond that "supervisory intervention." The trial court found this incident was not probative of Officer Lee's truthfulness, and concluded that the evidence was inadmissible:
I don't find that there's any credible testimony to support any suggestion or assertions that Officer Lee previously testified dishonestly in another proceeding. So I'm denying the motion.
This ruling does not reflect an abuse of discretion. No reviewing body found that Officer Lee had been dishonest, and the trial court properly concluded that the incident was not probative of his truthfulness or relevant to his credibility. The fact that Officer Lee made a mistake testifying at trial and quickly alerted the prosecutor and the court of that mistake, actually reflects positively on his credibility. The evidence shows that he made an error, but does not demonstrate that he acted dishonestly. The trial court did not abuse its discretion by denying Hilow the opportunity to impeach Officer Lee with this evidence.
The second incident Hilow sought to impeach Officer Lee's credibility with arose from an encounter several months prior to Hillow's trial, when Officer Lee, working undercover, kicked a 17 year old African-American robbery suspect, located in a convenience store. The events were captured on videotape and subsequently broadcast in the news. Hilow's trial counsel explained the purpose for seeking admission of this evidence, arguing it pertained to Officer Lee's bias:
[T]he consistent factor in these cases is that Officer Lee appears to be in an undercover role . . . . And the individuals who are effected [sic] by his behavior are young, African-American men; and it would give the appearance that he may have a bias in that respect in the manner of his enforcement and given the allegation of his changed testimony, he may have a willingness to misstate the facts in order to effect [sic] a successful prosecution.
I would ask whether or not he's been placed in disciplinary administrative leave or other disciplinary actions as a result of his investigation for excessive use of force against an unarmed suspect.
The trial court granted Hilow the opportunity to question Officer Lee outside the presence of the jury. He testified that he had not been suspended but was reassigned to a different unit. He also testified that the matter was the subject of an internal investigation within the Seattle Police Department, but that he was not aware of any pending criminal investigation. Officer Lee went on to state that, if asked about his use of force in that incident, he would assert his Fifth Amendment right to silence. The trial court ruled that cross-examination on this issue was inadmissible, finding that it would not be probative of any issue coming before the jury, and was thus entirely irrelevant to the proceeding.
On appeal, Hilow's argument shifts its focus away from the previously asserted matter of Officer Lee's potential bias against young African-American men. Instead, Hilow asserts that the investigation of Officer Lee that was pending at the time of his trial was not just an internal one, but a criminal one. And, he argues that the existence of such a pending criminal investigation (and possible resulting criminal charges) gave Officer Lee a reason to give false testimony in support of the State's case against Hilow, in an effort to curry favor with the prosecution. This is the central issue before us: whether, by virtue of this incident and the resulting criminal investigation, Officer Lee had a personal stake in the prosecution of Hilow's case, or some bias, prejudice, or ulterior motive to give dishonest testimony that was favorable to the prosecution.
We reject Hilow's argument. In order to conclude that Officer Lee's testimony was biased based on the pending criminal investigation, we must first conclude that he was in fact aware of that criminal investigation. But, the only evidence in the record at the time of trial was the unrefuted testimony of Officer Lee that he was aware of the internal Seattle Police Department investigation, but was unaware of any pending criminal investigation or charges against him. Because Officer Lee was unaware, there can be no support for Hilow's argument that such an investigation would have biased Officer Lee or supplied him any incentive to testify falsely to curry favor with the prosecution.
Moreover, Hilow's argument presupposes that a criminal investigation against Officer Lee would give him added incentive to be helpful to the prosecution. But, this argument suggests the prosecutor in Hilow's case was interested in eliciting fabricated or dishonest testimony from Officer Lee, rather than a truthful recounting of his observations. There is no evidence that the prosecution would have preferred such dishonest testimony or that Officer Lee could have curried favor by providing it. And, as the State points out, it is a fundamental part of Officer Lee's job, as a police officer, to provide helpful testimony as a State witness in criminal cases. Officer Lee testified he had been on the police force since 1999 and had worked on hundreds of similar narcotics operations. There is no indication that this particular case was of special importance to him or to the prosecution generally. Finally, Hilow does not dispute that the testimony that Officer Lee provided at trial was consistent with the report that he filed in December 2009, at the time of Hilow's arrest. That report was written long before the incident in question and the resulting investigation. Thus, its content is plainly unaffected by whatever bias or ulterior motive that Hilow now alleges exists.
Hilow has the right, under the confrontation clause, to question witnesses to reveal possible biases, prejudices, or ulterior motives. Davis, 415 U.S. at 316. But, the trial court maintains broad 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. Kilgore, 107 Wn.App. at 185. We reject Hilow's argument, and hold that the trial court did not abuse its discretion when it found that the incident in question was not relevant or probative of Officer Lee's truthfulness.
II. Due Process
Hilow next raises an argument, under State v. Brady, that the prosecution violated his due process rights by failing to disclose that Officer Lee was being criminally investigated. 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). When the matter of Officer Lee's incident and the resulting media coverage arose, the prosecutor stated he was aware of the news reports, but did not believe anything warranted Brady disclosure. He did not state he was aware of a pending criminal investigation of Officer Lee, nor did he say anything when Officer Lee gave his own testimony that he was not, to his knowledge, being criminally investigated. Hilow now asserts that although the State did not publically announce it had filed criminal charges against Officer Lee until after Hilow's trial, the police department had announced, before Hilow's trial, that it was conducting a criminal investigation of Officer Lee. He cites to Seattle Times articles from November and December 2010 (before his February 2011 trial), as evidence that the existence of the criminal investigation was publically announced, known by the media, and thus knowable by both Officer Lee and the prosecutor in Hilow's case.
In Brady, the U.S. Supreme Court held that due process requires the State to disclose evidence that is favorable to the defendant and material either to guilt or punishment. 373 U.S. at 87. This includes material impeachment evidence. State v. Gregory, 158 Wn.2d 759, 797, 147 P.3d 1201 (2006). Evidence is material if there is a "'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different, '" or if the information "'probably would have changed the outcome of [the] trial.'" Id. (alteration in original) (internal quotation marks omitted) (quoting State v. Knutson, 121 Wn.2d 766, 772, 854 P.2d 617 (1993)). "'Wrapped up in this standard of materiality are issues of admissibility; if evidence is neither admissible nor likely to lead to admissible evidence[, ] it is unlikely that disclosure of the evidence could affect the outcome of a proceeding.'" Id. (alteration in original) (quoting Knutson, 121 Wn.2d at 773).
Hilow echoes his argument that evidence of the pending criminal investigation was relevant to Officer Lee's credibility, should have been admissible, and thus should have been disclosed by the prosecutor. But, in light of the trial court's ruling of inadmissibility and in light of our reasoning above affirming that ruling, which applies with equal force here, that argument fails. Evidence of Officer Lee's altercation in the convenience store and of the criminal investigation does not amount to material impeachment evidence, because disclosing that evidence to Hilow would not likely have changed the outcome of the trial. This is because disclosure of the evidence to the defendant would not have altered the fact of its inadmissibility. We hold that Hilow's due process rights under Brady were not violated.
III. Prosecutorial Misconduct
Lastly, Hilow argues the prosecutor committed misconduct during closing argument by urging the jury to convict based on the credibility of the police officers and the fact that they had no personal interest in the outcome of the trial, while Hilow had a very strong personal interest, affecting his credibility. At trial, defense counsel did not raise an objection to these statements.
Prosecutorial misconduct is grounds for reversal if the prosecuting attorney's conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). We evaluate a prosecutor's conduct by examining it in the full trial context, including the evidence presented, the total argument, the issues in the case, and evidence addressed in the argument, and the jury instructions. Id. A defendant suffers prejudice only where there is a substantial likelihood that the prosecutor's misconduct affected the jury's verdict. Id. Where, as here, a defendant does not raise a timely objection, the error is waived unless it is so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative jury instruction. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008). A prosecutor has wide latitude during closing argument to draw reasonable inferences from the evidence. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
The prosecutor's statements during closing simply contended the State's witnesses were credible. They did not refer to facts outside the record or ask the jury to draw improper inferences. Hilow has not demonstrated that the State's comments were flagrant or ill-intentioned misconduct. His prosecutorial misconduct argument was thus waived by the failure to object below.
We affirm.