Opinion
No. 22512-7-III
Filed: December 16, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No. 03-1-00267-1. Judgment or order under review. Date filed: 10/13/2003. Judge signing: Hon. Robert L Zagelow.
Counsel for Appellant(s), Richard George Wernette, Mcadams Ponti Wernette PS, 103 E Poplar St, Walla Walla, WA 99362-3028.
Counsel for Respondent(s), Gabriel Eliud Acosta, Attorney at Law, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Lazaro Pesina was convicted of methamphetamine possession and delivery. On appeal he challenges the trial court's decisions to exclude cross-examination regarding an informant's drug use and to admit portions of an alibi witness's calendar organizer as impeachment evidence. We find no abuse of the trial court's discretion, and affirm.
Facts
On June 12, 2003, Walla Walla police executed a controlled buy of methamphetamine at the home of Mr. Pesina. Informant Paul Dontae Jones was searched and given money and then officers followed his car to Mr. Pesina's house. After Mr. Jones was inside the house for about 15 minutes, he returned to his car and the officers followed him back to the undercover police office. There he and his car were again searched and he turned over a bindle containing methamphetamine. Mr. Jones was sent back a second time that day, following the same procedure, and he purchased crystal methamphetamine. Based on this evidence, the officers obtained a search warrant for Mr. Pesina's residence that was executed on June 20. They found a plastic baggie containing methamphetamine, large quantities of aluminum foil, scales, and drug paraphernalia.
Mr. Pesina was charged by amended information with two counts of delivering methamphetamine within 1,000 feet of a school bus stop (former RCW 69.50.401(a)(1)(ii) (1998); former RCW 69.50.435(a)(3) (1997)) and one count of possession of methamphetamine (former RCW 69.50.401(d)). At trial in September 2003, an officer testified that Mr. Jones was a criminal informant who had been charged with burglary and possession of stolen property. Mr. Jones testified that he agreed to inform on several people in an attempt to have the charges dropped. He admitted he had used metham phetamine for about one year and had smoked marijuana for about four years. He then described buying the drugs from Mr. Pesina.
During cross-examination, defense counsel conducted a voir dire of Mr. Jones outside the presence of the jury and asked whether Mr. Jones had told an emergency room doctor in August 2003 that he had used drugs within the past month. Mr. Jones replied, `No.' Report of Proceedings at 126. Defense counsel also asked if Mr. Jones had admitted to defense counsel during an earlier interview that he had recently used drugs. Mr. Jones replied that he had told defense counsel he used drugs about six to eight months earlier. Later, in front of the jury, defense counsel attempted to ask Mr. Jones about the medical report. The trial court interrupted, stating that this line of questioning was inadmissible because it was collateral to the issues and its prejudice outweighed any benefit.
Mr. Pesina's witnesses included Teresa Griffin, who testified that he had stayed with her at her house all day on June 12. She had brought her calendar organizer with her to the stand and referred to it during her testimony. During a break after her direct testimony, the State asked to examine the calendar. After doing so, the State told the court that the calendar contained no mention of Mr. Pesina on June 12 and asked for a copy of the pages for evidentiary purposes. The State later tried to get Ms. Griffin to admit that the calendar did not show that Mr. Pesina was at her house on the day in question. She resisted and stated she was sure he was there.
After the defense rested, the State moved to admit the calendar pages for impeachment of Ms. Griffin's testimony. Over Mr. Pesina's objection, the trial court admitted the two pages containing the week of June 9 through 15 as impeachment evidence. The jury returned a verdict of guilty on all counts and Mr. Pesina timely appealed.
Impeachment of the Informant
Mr. Pesina first contends the trial court erred in preventing cross-examination of Mr. Jones regarding alleged statements Mr. Jones made before trial about recent drug use. Defense counsel claimed Mr. Jones admitted recent drug use during interviews with defense counsel and another defense attorney. No offer of proof was made, and when questioned during voir dire, Mr. Jones asserted he told the attorneys he had not taken drugs in six to eight months. The trial court excluded this line of questions as irrelevant and more prejudicial than beneficial. We review the trial court's evidentiary rulings for abuse of discretion. State v. Chino, 117 Wn. App. 531, 542, 72 P.3d 256 (2003).
Neither party addresses a basis in the rules of evidence for its position. It appears clear, however, that the trial court based its ruling on ER 608(b), which provides that a party may be allowed to question a witness during cross-examination about specific conduct that is probative of the witness's truthfulness or untruthfulness. As noted in State v. Clark, 143 Wn.2d 731, 766, 24 P.3d 1006 (2001), `[o]nce impeached, there is less need for further impeachment on cross-examination.' Mr. Jones testified on direct examination that he had used methamphetamine for almost a year and marijuana for four years. He also admitted that he agreed to work as an informant for the police in order to reduce the charges of burglary and possession of stolen property filed against him. Generally, if evidence of a witness's drug use has already been admitted, further evidence for impeachment is not appropriate because it is not probative of truthfulness, it is cumulative, and it is highly prejudicial. State v. Stockton, 91 Wn. App. 35, 42, 955 P.2d 805 (1998). The trial court's ruling reflected this reasoning.
Mr. Pesina contends evidence of recent drug use is relevant to Mr. Jones's truthfulness because it shows that Mr. Jones violated his agreement to avoid unlawful behavior while working for the police. Even if potentially relevant, however, this evidence lacks a foundation. Defense counsel failed to make an offer of proof regarding Mr. Jones's alleged statements to another defense attorney. And when defense counsel asked about statements Mr. Jones had made to him, Mr. Jones did not admit stating he had recently taken drugs. On balance, the lack of probative value and the potential for prejudice support the trial court's exercise of discretion in excluding this line of questions.
Writing Used to Refresh Memory
Mr. Pesina also contends the trial court erred in admitting copies of Ms. Griffin's calendar into evidence. He argues that the calendar should not have been admitted as impeachment evidence because Ms. Griffin accurately testified as to its contents.
Ms. Griffin used her calendar during her testimony to refresh her memory of the events that took place on and around June 12, 2003. As an alibi witness, she claimed that Mr. Pesina was with her at her house all day on June 12, inferring that he could not have been selling methamphetamine to Mr. Jones at Mr. Pesina's house that day. The appropriate rule of evidence for Ms. Griffin's use of the calendar is ER 612. Under this rule, a witness may use a writing to refresh his or her memory for the purpose of testifying if the adverse party has an opportunity to review the writing and the witness uses the writing to aid, not supplant, his or her memory. ER 612; State v. Little, 57 Wn.2d 516, 521, 358 P.2d 120 (1961). The opposing party is entitled to cross-examine the witness from the writing and to introduce portions of it into evidence. ER 612. If, after reading the writing, the witness still cannot remember the events in question, the writing itself becomes the record and will have to satisfy the more stringent requirements of ER 803(a)(5) (the recorded recollection hearsay exception) for admission. State v. Alvarado, 89 Wn. App. 543, 548-49, 949 P.2d 831 (1998).
Ms. Griffin did not claim that she did not remember the events of June 12. After refreshing her memory with the calendar, she stated Mr. Pesina had been at her house all that day. When the State noted during cross-examination that the calendar contained no mention of Mr. Pesina on June 12, she replied that she was sure he was there. Clearly Ms. Griffin brought her calendar to the stand to refresh her memory. The State, as adverse party, had every right to introduce in evidence the portions of the calendar that related to Ms. Griffin's testimony. ER 612. The trial court did not abuse its discretion in overruling Mr. Pesina's objection to admission of this evidence.
Affirmed.
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. and SWEENEY, J., concur.