Opinion
No. 64729-6-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for King County, No. 09-1-05531-5, Mary E. Roberts, J., entered December 21, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Grosse and Ellington, JJ.
Gabriel Stanley appeals his conviction of robbery in the second degree. Stanley contends the trial court violated his Sixth Amendment right by not allowing him to cross-examine the codefendant to establish bias. While error, it appears beyond a reasonable doubt that a fact finder would have reached the same result in the absence of the error, and we affirm.
FACTS
On July 31, 2009, Andrew Mueller had dinner with a friend at a restaurant near his home in Burien. Mueller drank two glasses of beer and a shot of Jagermeister with his pizza. While walking home two hours later, Mueller stopped at Ronnie's Market to purchase a six pack of beer. As Mueller entered the alley behind his apartment building, two men approached him. Gabriel Stanley walked up to Mueller and asked what he was doing. Fulton Johnson was approximately ten feet away, pacing. After Mueller refused to tell Stanley where he lived, Stanley asked Mueller if he had any money and demanded his wallet. Johnson then approached and in a loud voice, said something like, "[M]otherfucker, this is real."
Mueller tried to run away, but Stanley pushed him into a retaining wall and punched him in the face two times. Mueller fell to the ground, dazed, and felt one of the men going through his pockets, taking his keys and wallet. The two men ran away. Mueller went back to Ronnie's Market and called the police. He told the police that one of the men was wearing a maroon jumpsuit and the other was wearing a black hooded sweatshirt.
Deputy Christopher Dearth testified that he responded to the call and drove around the area looking for subjects matching the description of two black males in possible red and blue clothing. From a distance, Deputy Dearth saw two men walking together, but as he approached, one of the men stopped at a bus stop and the other walked off in another direction. Deputy Dearth made contact with the man at the bus stop, Johnson, and arrested him. Johnson was wearing a dark tee shirt and jeans. Johnson led the deputy to a nearby hedge where the deputy found a green Seattle Sonics jersey and a white tee-shirt with blood on it. After speaking with Johnson, the police went to Stanley's apartment and arrested him. The police photographed Stanley's hands, which showed inflamed knuckles on his left hand.
Deputy Scott Fitchett took Mueller's statement and photographed his injuries. Deputy Fitchett then drove Mueller to the bus stop where Johnson was standing.
Mueller identified Johnson as one of the men who robbed him. The police then drove Mueller to a parking lot where he identified Stanley.
A surveillance video from Ronnie's Market taken on the night of the robbery showed Stanley wearing the Sonics jersey found in the bushes. Mueller found his wallet the next morning under some bushes in the alley.
The State charged Stanley and Johnson with robbery in the second degree. Before trial, the State made a motion to impeach Johnson with his prior convictions for attempted residential burglary and vehicle prowl. The court denied the motion, ruling that evidence of Johnson's prior convictions for attempted residential burglary and vehicle prowl would be more prejudicial than probative.
Stanley's attorney then made a motion to cross-examine Johnson about his probation status without mentioning the underlying convictions. Johnson made statements to the police that he was on probation, he knew better than to participate in the crime while he was being watched closely, and that he had applied to the Department of Corrections (DOC) for permission to leave the state. The State joined in the motion, noting that "it weighs heavily in his bias, particularly with the statements he made and the number of times that he mentioned that why would . . . he do this, he is on DOC, he doesn't need this heat, and things of that nature." Johnson's attorney argued that the evidence fell under the court's ER 609 ruling to exclude prior convictions and was more prejudicial than probative. The trial court agreed and ruled that no mention of Johnson's probation status would be allowed "unless the door is opened by Mr. Johnson."
At trial, Johnson testified and denied that he was involved in the robbery. Johnson said he tried to stop Stanley by yelling at him when Stanley attacked Mueller. Johnson stated that Stanley was the instigator who assaulted Mueller, stole his wallet, and then hid the Sonics jersey, tee shirt and wallet in the hedge.
The jury convicted Stanley of robbery in the second degree, but acquitted Johnson.
ANALYSIS
Stanley argues that the trial court deprived him of his right to confront an adverse witness by not allowing him to cross-examine Johnson about his probation status to show bias.
Stanley does not challenge the underlying evidentiary ruling.
We review alleged violations of the state and federal confrontation clauses de novo. State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005 (2002). The Sixth Amendment to the United States Constitution and Constitution article I, section 22 guarantee criminal defendants the right to confront and cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1994). Although this right is of constitutional magnitude, it is subject to the following limits: (1) the evidence sought to be admitted must be relevant and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process. See Washington v. Texas, 388 U.S. 14, 16, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983); State v. Gallegos, 65 Wn. App. 230, 236-37, 828 But a constitutional error is harmless where the untainted evidence is so overwhelming that "the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." State v. Watt, 160 Wn.2d 626, 635, 160 P.2d 640 (2007).
Bias of a witness is subject to cross-examination at trial, and is always relevant to discredit the witness and affect the weight of the testimony. Davis, 415 U.S. at 316. In Davis, the State's primary witness was a juvenile who lived near where a stolen safe was found. The witness was on probation after being found guilty of burglary, but the defendant was not permitted to cross-examine the witness about his probation status or his prior convictions. The Alaska Supreme Court held that despite the limitations on cross-examination, the defendant was permitted to sufficiently develop the issue of bias. But the United States Supreme Court disagreed, holding that "counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Davis, 415 U.S. at 318. The court held that "[t]he accuracy and truthfulness of [the witness's] testimony were key elements in the State's case against petitioner." Davis, 415 U.S. at 317.
As in Davis, Johnson's probation status was relevant to his credibility and bias, and the trial court erred in denying Stanley the opportunity to cross-examine Johnson about his probationary status. Below, the State agreed at trial that Johnson's probation status was relevant to his motivation for testifying and potential bias. But while the court erred and facts of this case are similar to those in Davis, the Davis court did not engage in a harmless constitutional error analysis.
The State now argues that evidence of Johnson's probation status would be more prejudicial than probative.
Constitutional error is presumed to be prejudicial and the State has the burden of proving the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). In determining whether constitutional error is harmless, Washington courts use the "overwhelming untainted evidence test" to decide whether it appears beyond a reasonable doubt that a fact finder would have reached the same result in the absence of the error. Guloy, 104 Wn.2d at 425-26.
Here, the error is harmless because the untainted evidence necessarily leads to a finding of guilt beyond a reasonable doubt. Unlike the witness's testimony in Davis, Johnson's testimony was not "`a crucial link in the proof . . . of petitioner's act.'" Davis, 415 U.S. at 317. Mueller was the State's primary witness. Mueller testified that he was certain that Stanley was the one who instigated the robbery and Stanley punched him in the face two times. In addition, the State introduced as evidence the Sonics jersey and the white tee shirt, the video of Stanley wearing one of the shirts just before the robbery, and the photographs of the inflamed knuckles on Stanley's hands. Johnson's testimony merely corroborated Mueller's description of what happened and the physical evidence.
Mueller's testimony, combined with the physical evidence and the photographs, establishes overwhelming evidence of guilt beyond a reasonable doubt.
We affirm.