Opinion
Nos. 26291-0-III; 26679-6-III.
August 12, 2008.
Appeals from a judgment of the Superior Court for Benton County, No. 00-1-00793-4, Carrie L. Runge and Vic L. VanderSchoor, JJ., entered June 14, 2007 and February 29, 2008.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
Appellant Francisco Sanchez contends that the prosecutor committed misconduct by cross examining him concerning the testimony of a codefendant. The cross-examination properly focused on the testimony of the codefendant rather than on opinions of credibility. Since the evidence also supported the jury's verdict, we affirm.
Francisco Sanchez and Emilio Herrera each were charged with one count of delivery of cocaine within 1,000 feet of a school bus stop. The charges arose after an undercover police officer purchased one-fourth kilogram of cocaine from the two men.
Mr. Herrera pleaded guilty while Mr. Sanchez's case proceeded to trial.
Detective Darrin Pitt made two undercover purchases of cocaine from Mr. Herrera during the late summer of 2000. He then asked to purchase nine ounces of cocaine for $6,000. Herrera told the detective that his source had the cocaine and arranged a meeting for September 22, 2000. On that date, Mr. Herrera drove up to the meeting spot at a Subway store with Mr. Sanchez, who was seated in the front passenger seat. Pitt testified that after an exchange of conversation, Sanchez handed Herrera a brown paper bag. Herrera then got in the detective's car and exchanged the bag, which contained the cocaine, for the detective's money. Mr. Herrera then left the car and police arrested him and Mr. Sanchez.
Herrera was called as a witness for the State. His testimony was not what the prosecution expected it to be. Mr. Herrera told the jury that he had the paper bag between his legs and that Sanchez did not have it. He denied that either man owned the cocaine.
Mr. Sanchez testified on his own behalf. He told jurors that he was a passenger in the car on a drive to see an attorney. En route to a Subway store, Herrera handed him a brown paper bag and told him it contained cocaine. He also testified that he initially lied to the officer in order to help his friend Herrera.
The prosecutor confirmed with Mr. Sanchez that Mr. Herrera had handed him the package of drugs. He then asked Sanchez about Herrera's testimony that Sanchez had never had the drugs: "He's not being accurate about that, is he?" Mr. Sanchez replied, "I do not know why he's saying that, but he did give it to me."
The jury convicted Mr. Sanchez as charged. He disappeared for over six years before being sentenced June 14, 2007. Mr. Sanchez then appealed to this court. His appeal challenges both the questioning by the prosecutor and the sufficiency of the evidence to support the verdict.
Witnesses are not permitted to opine as to the guilt of the defendant. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Similarly, it is error for an attorney to ask a witness to comment on the credibility of another witness. State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996). A proper objection must be made at trial to perceived errors in admitting or excluding evidence; the failure to do so precludes raising the issue on appeal. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). "'[A] litigant cannot remain silent as to claimed error during trial and later, for the first time, urge objections thereto on appeal.'" Id. (quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)).
An exception to this general rule exists if the issue involves a manifest error affecting a constitutional right. RAP 2.5(a). A party claiming the existence of manifest constitutional error is first required to establish the existence of error that is constitutional in nature. If such an error is demonstrated, the party must then show that the error was not harmless and actually had an identifiable and practical impact on the case. State v. Scott, 110 Wn.2d 682, 687-688, 757 P.2d 492 (1988); State v. Kirkman, 159 Wn.2d 918, 934-935, 155 P.3d 125 (2007).
Our Supreme Court recently held that opinion testimony indirectly related to an ultimate fact is not a "manifest" constitutional error that may be raised for the first time on appeal. Rather, in order to be manifest error the testimony must be a "nearly explicit" comment on credibility. Kirkman, 159 Wn.2d at 936. In Kirkman, testimony that the child victim's report of sexual abuse was "consistent" with the medical findings did not amount to a comment on the victim's credibility.
Similarly here, the testimony did not amount to a "nearly explicit" comment on credibility. The two codefendants had given differing testimony as to Mr. Sanchez's control over the cocaine, with Mr. Herrera being more favorable to Mr. Sanchez than his own testimony had been. The prosecutor would understandably focus on that testimony in his examination of Mr. Sanchez and ascertain that he was not in agreement with the testimony given by Mr. Herrera. Cross-examining a witness about testimony that is inconsistent with the testimony of another witness does not amount to a nearly explicit comment on the credibility of the other witness. Having a witness reinforce the conflict in his testimony with that of another witness may well call into question the veracity of one or the other, but it is not an "explicit" comment on credibility.
Appellant has not presented an issue of manifest constitutional error in his challenge to the cross-examination questioning.
The other issue argued by appellant is a contention that the evidence did not support the jury's verdict that he delivered cocaine. Evidence is sufficient to support a verdict if the jury has a factual basis for finding each element of the offense proven beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The evidence is viewed in the light most favorable to the prosecution. Id. at 221.
Application of that standard here requires affirmance of the conviction. The testimony of Detective Pitt showed that Mr. Sanchez delivered a bag containing cocaine to Mr. Herrera, who then delivered it to the detective. That testimony alone, viewed most favorably to the prosecution, permitted the jury to conclude that Mr. Sanchez was guilty of delivery of a controlled substance. Other evidence also supported that view of the case. In the previous drug sales, Mr. Herrera alone sold to the officer and produced the drugs from his person. On this occasion, Mr. Sanchez accompanied Mr. Herrera and was the one to produce the controlled substance. Mr. Herrera had also told Detective Pitt that his "source" had the larger quantity of drugs that the detective was seeking to purchase. Given all of this evidence, the jury could easily conclude that Mr. Sanchez owned the drugs that he delivered to Mr. Herrera for delivery to Detective Pitt. The evidence supported the verdict.
The judgment is 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.
SCHULTHEIS, C.J. AND BROWN, J., concur.