Opinion
No. 50448-7-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-00274-3. Judgment or order under review. Date filed: 04/17/2002.
Counsel for Appellant(s), Michael John Tario, Tario Associates PS, 119 N Commercial St. Fl 10, Bellingham, WA 98225-4446.
Counsel for Respondent(s), James T Hulbert, Attorney at Law, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Melinda Beth Miller, Attorney at Law, PO Box 5842, Bellingham, WA 98227.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
We find no abuse of the trial court's discretion by its refusal to sever five counts of delivery of controlled substances, rulings on admissibility of evidence and the scope of cross examination.
FACTS
Because this matter does not warrant publication, a detailed recitation of the facts is omitted. The facts are well known to the parties. Drug Enforcement Administration (DEA) agents believed Lawrence W. Larsen was dealing crack cocaine. They employed Craig Holleman as a confidential informant to assist them in investigating Larsen. In a series of five drug buys, with the exception of the first buy, the conversations and transactions between Holleman and Larsen were taped or overheard by more than one other person.
Larsen was charged with five counts of delivering a controlled substance, two as a principal and three as an accomplice. For reasons not important here, Tim Sandy, a codefendant, was not located and did not appear for trial.
Larsen filed a motion to sever the five counts seeking separate trials. The motion was filed before trial and again at the close of the State's case. The motions for severance were denied. During trial, Larsen made a Bruton motion to suppress the recording of the `buy' tape between Larsen and Sandy from being admitted at trial. The State intended to play the tape containing statements by Sandy, who did not appear for trial. Larsen argued that the tape improperly implicated him and violated his right to confront the witness against him. The recorded statements were reduced to a transcript that was to be made available to the jury as an illustrative exhibit during the playing of the tape. Again, over a Bruton objection the transcript was admitted.
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
Holleman was cross-examined by counsel for Larsen about his personal drug use and regarding claims that Holleman bore a grudge against Larsen for getting Holleman's sister involved with drugs. Counsel attempted to cross-examine Holleman regarding his knowledge that Sandy ran his own drug operation. The State's objection to this line of questioning was sustained by the trial court.
At the close of the State's case, defense counsel made a second motion for severance along with a motion to dismiss and a motion for mistrial. The motions were denied, but the court agreed to include a limiting instruction to the jury (instruction 17) treating any possible Bruton evidence as a hearsay issue and advising the jury that the taped evidence was admitted for the limited purpose of identifying who participated in such conversation. The jury was instructed that it could consider the tape recording for that purpose only and not as evidence of the truth of what was said, or as evidence of Larsen's guilt.
DISCUSSION
We hold that Bruton v. United States does not apply under the facts of this case because at the time of trial there was no codefendant. Bruton applies in cases where extrajudicial statements are made by a non-testifying defendant `A', which are admissible against `A' but deprives codefendant `B' of his or her right to confrontation of witness `A' in a joint trial. Where `A' is not a party to `B's' trial, the State necessarily must rely on other means for admission of the statements. Additionally, the statement is also removed from a Bruton analysis because it is not hearsay. It was not offered for the proof of the matter stated. Larsen argues that the statement is an implied assertion that falls under ER 801(c). But verbal conduct that is assertive but offered as a basis for inferring something other than the matter asserted is excluded from the definition of hearsay.
Bruton, 391 U.S. 123.
ER 801(c).
State v. Collins, 76 Wn. App. 496, 499, 886 P.2d 243 (1995).
The statements from Tim Sandy were not offered to prove the truth of the matters asserted, but were offered to support the fact that Sandy and Holleman were involved in a drug transaction. The State argued it was the transaction that was implied in these statements that provide the evidentiary value. The trial court allowed the statement for the limited purpose of identifying the participants in the conversation. Although of marginal value, it was not an abuse of discretion for the trial court to admit the statement. Further, there was no error because the statement was cumulative of other testimony and the trial court gave a specific limiting instruction to the jury.
Here, the impact of the indirect reference to Larsen was not so devastating that the jury could not be expected to follow the judge's admonition or the limiting instruction. Further, in light of the strength of the State's case against Larsen, we find the error, if any, would be harmless beyond a reasonable doubt.
See Bruton, 391 U.S. at 135 (It is not unreasonable to conclude that in many such cases, where a Bruton error is found, the jury can and will follow the trial judge's instructions to disregard such information.). United States v. Guerrero, 756 F.2d 1342, 1348 (9th Cir. 1984) (finding Bruton violative admission not so devastating that the jury could not be expected to disregard it if the district court had instructed them to do so).
Next, Larsen claims the trial court improperly limited the scope of the cross examination of Holleman regarding Holleman's prior dealings with Sandy, therefore violating his right to confront the witness.
Larsen argues he should have been allowed to question Holleman regarding Holleman's prior drug purchases from Sandy, in order to establish that Sandy was acting independently of Larsen when he delivered cocaine to Holleman on August 1, 2000. He claims the evidence was relevant to his defense that Sandy acted independently of Larsen. The trial court ruled that before Larsen could cross-examine Holleman in this vein he had to provide foundation showing relevance to the charged crime; otherwise, the testimony was irrelevant and would only serve to confuse the jury.
ER 401 defines relevant evidence as evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Here, absent some foundation, the evidence that Sandy may have previously sold drugs to Holleman is of little relevance to the question of whether Sandy met Holleman at the insistence of Larsen. The ruling limiting the scope of cross examination was within the discretion of the trial court and is not a violation of Larsen's right to confront Holleman.
This is especially true considering the cross examination that was allowed. Larsen extensively cross-examined Holleman about his prior criminal convictions, his prior and recent drug use, and his financial motivation for testifying. Larsen was able to elicit that at times Holleman was on drugs during his participation in the DEA investigation. Here, the jury heard that Holleman and agent Hester called Larsen on August 1, 2000, that both recognized his voice, that Larsen agreed to the drug transaction, but that he could only supply half the normal amount. Further, Larsen said that he would send Sandy out to conduct the exchange at a prearranged location. After the transaction was complete Sandy went back to Larsen's residence. This untainted and uncontradicted testimony was overwhelming, and an error, if any, in limiting Larsen's questioning of Holleman is harmless.
Finally, Larsen argues he should have been granted separate trials on each of the five counts charged. He claims that a sufficient disparity existed between the State's evidence on counts 1 and 3, where Larsen acted as principal, and the strength of the evidence on counts 2, 4, and 5, in order to justify or require severance of the offenses from one another.
A trial court's refusal to sever charges is reversible only upon a showing that the decision was a manifest abuse of discretion. Defendants seeking severance must establish not only that prejudicial effects of joinder have been produced, but they must also demonstrate that a joint trial would be so prejudicial as to outweigh concerns for judicial economy.
State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994); State v. Kalakosky, 121 Wn.2d 525, 536, 852 P.2d 1064 (1993).
State v. Bythrow, 114 Wn.2d 713, 722, 790 P.2d 154 (1990).
`CrR 4.3(a) authorizes joinder of counts where the offenses are of the same or similar character. Joinder of counts should never be used in such a way as to unduly embarrass or prejudice a defendant or deny him or her a substantial right.'
Russell, 125 Wn.2d at 62.
In determining whether the potential for prejudice requires severance, a trial court must consider (1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial.
Russell, 125 Wn.2d at 63.
In this case, while some of the witnesses to Larsen's drug activity were the same, each count involved a separate transaction. The transactions took place on specific dates, at mainly separate locations. The evidence presented to the jury was not voluminous, scientific, or difficult to assimilate. The evidence in this case was easy to compartmentalize. Contrary to Larsen's view of the evidence, the evidence on each count was strong, although obviously the evidence of his acting as a principal on two counts was stronger than the evidence on the other three counts necessitating proof only of complicity. The trial court instructed the jury to consider the crimes separately in instruction 5. The evidence of the five drug transactions here would likely be cross-admissible as the evidence shows a common scheme or plan.
We conclude the trial court was well within its discretion in finding the potential prejudice did not outweigh the concern for judicial economy.
Larsen's convictions of five counts of delivering controlled substances are affirmed.
COLEMAN and APPELWICK, J., concur.