Opinion
No. 51147-5-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-04024-8. Judgment or order under review. Date filed: 09/03/2002. Judge signing: Hon. Anthony P Wartnik.
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Steven W Kim, King Cty Pros Ofc, 516 3rd Ave, Seattle, WA 98104.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
The erroneous admission of evidence is harmless when it is reasonably probable that it did not affect the outcome of the trial. Irrelevant evidence may well be harmless simply because of its irrelevance. That was the case here. Evidence in the guise of expert opinion regarding fake dope when there is no charge or other evidence regarding fake dope was irrelevant. As the State concedes, it should not have been admitted. Nevertheless, we fail to see any significant prejudice. Affirmed.
FACTS
On April 4, 2002, police officers Burns, Drummond, and Jokela were monitoring a high narcotics activity area from a fixed observation point. With the aid of binoculars, Officer Burns observed Raymond Smith exchange what appeared to be rock cocaine for paper money with a male individual, later identified as Samuel Williams. Officer Burns then saw Smith exchange what appeared to be rock cocaine for paper money with a female individual, later identified as Johnnie Mae Jordan. Officer Jokela also observed Smith showing Jordan some white rocks and he gave her one. After Smith and a third person boarded a bus, police officers stopped the bus and arrested them.
As Officer Drummond approached Williams to arrest him, Williams turned, made eye contact with the officer, and dropped a piece of suspected rock cocaine onto the sidewalk. The item later tested positive for cocaine. Officer Burns arrested Jordan. Suspected rock cocaine found on her person tested positive for cocaine. When police officers searched Smith they found two pieces of suspected rock cocaine however they did not find an amount of money of any significance. The suspected rock cocaine was tested and found to be quartz pebbles.
Smith was charged by information with one count of delivery of cocaine, a violation of the Uniformed Controlled Substances Act. This charge related to the delivery to Williams. The amended information alleged that he was within 1000 feet of a school bus stop.
Williams did not testify at trial. Jordan testified that when she approached Smith for cocaine he showed her rocks but she did not want them. She stated she contacted another dealer and purchased her cocaine from him. Smith testified that when Jordan approached him for cocaine, he showed her candy in his hand and told her that was all he had. He also testified that the quartz rocks in his pockets were landscaping pebbles from his work arranging a window display at a caf`. He stated that he had a bag of pebbles with him when he was arrested, but the police officers threw it on the ground.
Although Smith was not charged with selling or attempting to sell fake dope, the court allowed, over defense counsel's objections, testimony from Officer Jokela regarding why drug dealers sell `fake dope.' In answer to questions from the prosecutor on the subject, Officer Jokela stated, `There are probably two main reasons. One is to get money to support your own habit, and the other reason, it's just greed, easy money.' The prosecutor then asked whether people who sold drugs ever gave them away. Defense counsel objected stating that the evidence was irrelevant and called for speculation. The trial court overruled the objection, and Officer Jokela replied, `Yes. Just last week I arrested somebody for delivery and as I had seen them just give this person the drugs and didn't receive any money for it [sic].'
A jury found Smith guilty of the delivery charge and found by special verdict the school bus route enhancement. Smith appeals.
DISCUSSION
Smith asserts that the trial court erred in allowing testimony from the police officer regarding why someone would sell fake dope. The State admits that the evidence was irrelevant to the ultimate issue of whether Smith was guilty of delivery of a controlled substance and that it was erroneously admitted. However, the State argues that the testimony was harmless error. We agree.
Smith was charged with delivery only with respect to Williams. An officer witnessed Smith exchange suspected rock cocaine for paper money with two separate individuals within a short amount of time. Both individuals that Smith engaged were arrested. Both possessed rocklike items that tested positive for cocaine.
While the rocks in Smith's possession were not cocaine, indeed they were rocks. Smith testified that they were from a work project. This was not sufficient to create a reasonable doubt in the mind of the jury about Smith's guilt of delivery in the transaction the officers witnessed. The substance of the officer's testimony as to why someone would deal in `fake dope,' was completely off the subject. It may have allowed the jury to dismiss Smith's explanation of the quartz rocks in his pockets but that had little to do with the transaction at issue.
Smith's secondary claim is that the testimony from the policy officer regarding arrests of individuals who gave away drugs rather than selling them for `delivery,' constituted an impermissible comment on his guilt. Smith does not argue that this error materially affected the outcome of the trial. Nor do we see it as a comment on his guilt.
The decision of the trial court is affirmed.
GROSSE, COX, and BECKER, JJ., concurs.