Opinion
No. 22474-1-III
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No: 03-1-00263-9. Judgment or order under review. Date filed: 10/15/2003. Judge signing: Hon. Donald W Schacht.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Gabriel Eliud Acosta, Attorney at Law, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Michelle Marie Mulhern, Walla Walla Co Pros Office, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Michael A. Ramirez appeals his convictions for delivery of methamphetamine within 1000 feet of a school bus stop and possession of methamphetamine with intent to deliver. He contends a police officer's testimony constituted an impermissible opinion as to guilt and the court erred by denying his motion for mistrial based on juror bias. We affirm.
On June 17, 2003, Detective Kevin Huxoll used a confidential informant (CI) to conduct a controlled drug buy from Mr. Ramirez, who sold $90 of methamphetamine to the CI. The sale occurred in a grocery store parking lot and was within 1000 feet of a school bus stop.
A few days later, Detective Huxoll was contacted by a casino surveillance officer at the Bowlaway Casino. The surveillance officer told the detective Mr. Ramirez was at the casino. When the detective arrived at the casino, he arrested Mr. Ramirez for selling methamphetamine to the CI. In a search incident to arrest, he found two large folding knives, $250 or more in cash, and a plastic bag containing 3 separate bags of methamphetamine in Mr. Ramirez's pocket. Detective Huxoll also found a glass pipe and a copy of a newspaper article on Mr. Ramirez. The newspaper article identified the name of the CI and stated he was working with the police department's drug task force.
The casino's officer had previously provided a surveillance tape to the detective identifying Mr. Ramirez as a participant in a potential drug deal at one of the casino tables.
Mr. Ramirez was charged with one count of delivery of methamphetamine within 1000 feet of a school bus stop while armed with a firearm and one count of possession of methamphetamine with intent to deliver. The jury found him guilty of both counts, but declined to find he was armed with a firearm. This appeal follows.
Mr. Ramirez first contends Detective Huxoll's testimony invaded the province of the jury because it was impermissible testimony as to his guilt.
At trial, Detective Huxoll testified:
I buy all kinds of quantities of methamphetamine. It could be down to a quarter gram, half gram, gram. Teener, which is a 16th of an ounce and then an 8 ball. They are all street names. Which an eighth of an ounce, an eighth of an ounce is actually a fairly substantial amount of narcotics to purchase.
Based on what Mr. Ramirez had in his possession, three 8 balls is one-eighth of an ounce short of half of an ounce, which is a considerable amount. And based on how he had each individual 8 ball packaged, to me that indicated he was in possession with intent to deliver.
Report of Proceedings (RP) at 128.
Although Mr. Ramirez failed to raise this issue at trial, a manifest error involving a constitutional right may be raised for the first time on appeal. RAP 2.5(a)(3). To determine whether an error is a manifest constitutional error, we apply the following four-step analysis: (1) Is the alleged error in fact a constitutional issue? (2) Is there a plausible showing by the defendant that the asserted error had practical and identifiable consequences? (3) Is there merit to the constitutional issue? (4) If error was committed, was it harmless? State v. Barr, 123 Wn. App. 373, 380, 98 P.3d 518 (2004).
We first determine whether the alleged error is in fact a constitutional issue. A trial court's decision to admit or exclude testimony is reviewed for an abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The decision to admit or exclude opinion testimony generally involves the routine exercise of discretion by the trial court under applicable evidentiary rules not necessarily implicating constitutional rights. State v. Trader, 54 Wn. App. 479, 484, 774 P.2d 522, review denied, 113 Wn.2d 1027 (1989). No witness, however, may express an opinion as to the guilt of a defendant, whether by direct statement or inference. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Such an opinion violates the defendant's right to a trial by an impartial jury and his right to have the jury make an independent evaluation of the facts. State v. Carlin, 40 Wn. App. 698, 700-01, 700 P.2d 323 (1985), overruled on other grounds by City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994). Because a constitutional issue is raised should the testimony here constitute an impermissible opinion on Mr. Ramirez's guilt, the first part of the inquiry is satisfied. We next determine whether Mr. Ramirez has made a plausible showing the alleged error had practical and identifiable consequences. Some reasonable showing of a likelihood of actual prejudice is what makes a 'manifest error affecting a constitutional right.' State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). Here, the detective stated the amount of methamphetamine in Mr. Ramirez's possession and how it was packaged indicated he was in possession with intent to deliver. This was an opinion as to guilt. Thus, Mr. Ramirez has made a plausible showing the opinion on guilt had practical and identifiable consequences at trial that were likely to result in actual prejudice.
We then determine the merits of the constitutional issue. To meet this burden, Mr. Ramirez must establish Detective Huxoll's testimony constituted an impermissible opinion on guilt. The determination as to whether testimony is an impermissible opinion on guilt or a permissible opinion pertaining to an ultimate issue requires consideration of (1) the particular circumstances of the case; (2) the type of witnesses called; (3) the nature of the testimony and the charges; (4) the defenses invoked; and (5) the other evidence presented to the trier of fact. Barr, 123 Wn. App. at 381. 'Significantly, opinion testimony as to guilt does not necessarily implicate a constitutional right.' Id. An opinion of a law enforcement officer or other governmental official, however, may influence the finder of fact and thereby deprive the defendant of a fair and impartial trial. Id. The State argues Detective Huxoll's testimony was proper because his comments were general in nature and did not refer to the terms 'conviction' or 'guilt.' But whether the opinion of guilt is express or implied, it may still be impermissible. In the circumstances here, the detective's testimony was an impermissible opinion that Mr. Ramirez had committed the offense.
Finally, we address whether the error was harmless beyond a reasonable doubt. To do so, we look at the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). If there is any reasonable possibility that the use of inadmissible evidence was necessary to reach a guilty verdict, the conviction will be reversed. Id.
Here, Detective Huxoll also testified on cross examination the amount of methamphetamine found on Mr. Ramirez was not consistent with personal use. He testified that based on his training and experience, drug users who had purchased drugs for long-term use would package the drugs in one package, not individual packages weighed out in certain quantities. Those allegations were denied by Mr. Ramirez, who said he had received the methamphetamine from a friend for personal use. Although the opinion of a government official may influence a jury and the likelihood of prejudice is enhanced when the official is a police officer, Barr, 123 Wn. App. 381, the untainted evidence here is of such a nature and quality as to render the admission of Detective Huxoll's testimony harmless beyond a reasonable doubt.
Mr. Ramirez contends the court erred in denying his motion for mistrial based on juror bias. During trial, Detective Huxoll also testified about the newspaper article found in Mr. Ramirez's pocket. The article was later admitted into evidence. After a recess, the judge informed counsel it had been brought to his attention that juror number nine had recalled reading the newspaper article at the time it appeared in the newspaper and had discussed the article with her family. The juror had not discussed the issue with the other jurors and did not believe it would affect her ability to be fair. Defense counsel then asked the judge to question the juror to find out what she had discussed with her family.
During the judge's inquiry, the juror stated she read the newspaper article only when it had appeared in the newspaper and had discussed the article with her husband and daughter a couple of times. The juror told the judge she did not believe her ability to be fair had been affected by the article. She also did not believe that reading the article had affected her ability to determine the credibility of any of the witnesses. The judge then asked the juror '[d]o you think that that person [the defendant] should feel at ease having you as a juror knowing your own mind?' RP at 155. The juror responded by saying '[n]o, probably not.' Id. The following exchange between the juror and the prosecutor ensued:
[Prosecutor]: If I understood the question and your response, the judge asked if you would feel comfortable if you were seated at the defense table more or less, and after some pause you said you would never feel comfortable sitting there. And you — we can all understand that. Then the follow-up question was something along the lines of — I forget how it was put now because I didn't write it down. You recall your response that the Defendant might have some difficulty with you as a juror. Do you recall the question and the response, something like that?
[Juror]: Oh, yes. If the Defendant might have some problem with me being a juror.
[Prosecutor]: Okay. Now, without explaining at least what's going on in your head about how you feel about the case right now, going merely to this article —
[Juror]: Uh-huh.
[Prosecutor]: — does the article — the fact that you have read this article before and now it's in evidence here in this case, is that the reason why you think maybe the Defendant might have some difficulty with you as a juror just looking at the article alone?
[Juror]: No.
RP at 156. Defense counsel then questioned the juror:
[Defense Counsel]: And does your concern now for the confidential informant, does that weigh with you? Do you feel concern for the confidential informant because of the paper?
[Juror]: I would say yes.
[Defense Counsel]: So you feel sympathetic toward his situation?
[Juror]: I don't know him personally.
[Defense Counsel]: Uh-huh.
[Juror]: So I would say if I was in his place, I would be concerned about myself. I felt that it caused — it might cause harm to another human being.
[Defense Counsel]: Uh-huh. And because of your concern and because of your — what appears to be empathy for whoever would in that situation, you indicated, I believe, as [the prosecutor] was trying to get out, that it would make you uncomfortable to know that a juror had this information or felt this way if you were sitting in his place?
[Juror]: That I — I don't know. I really don't know for sure.
RP at 158-59.
Defense counsel later asked the juror if the newspaper article made her believe the CI any more or less. The juror replied by saying, '[w]ell, I would say it corroborates his witness, yes.' RP at 160. Defense counsel inquired further by asking '[s]o it makes him more of a standout witness?' Id. The juror answered, 'I haven't had a lot of experience with this, but I would say, yes, it agrees with what I heard.' Id. Defense counsel requested a mistrial based on the juror having an 'inordinate interest' in the newspaper article. RP at 163. The court denied the motion.
A trial court's denial of a motion for a mistrial is reviewed for abuse of discretion. State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000). A 'court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure the defendant will be tried fairly.' State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986).
Mr. Ramirez argues that because the juror had read the newspaper article and discussed it with her family, she had actual knowledge of the facts and therefore could not be impartial. But the juror made no indication she could not be fair. In response to direct questioning by the judge, the juror stated she could be fair to both sides and she had no preconceived ideas about the merits of the case or how the case should be decided. A court may rely upon juror assurances of impartiality in deciding whether a defendant has satisfied his burden of proving actual prejudice. See State v. Coe, 109 Wn.2d 832, 841-42, 750 P.2d 208 (1988). The court did not err by denying the motion for mistrial on juror bias.
Affirmed.
A majority of the panel has determined 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.
SWEENEY, J. and BROWN, J., concur.