Opinion
No. 25011-3-III.
May 22, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 05-1-00323-2, Robert L. Zagelow, J., entered February 24, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Kulik, JJ.
We review a trial judge's decision to exclude evidence for abuse of discretion. Here, the trial judge refused to allow the defendant to impeach a police informant with the prosecutor's comments to the informant — comments made during a pretrial investigation. We conclude the judge did not abuse his discretion and affirm the conviction.
FACTS
The State charged David L. Tucker with possession and delivery of methamphetamine. It obtained evidence supporting the charges through an informant.
The informant agreed to make controlled buys for a recommendation of decreased jail time. The informant made a single controlled buy from Mr. Tucker.
A defense investigator interviewed the informant before trial. The informant said he would be willing to help Mr. Tucker, but that he could not talk while he was incarcerated out of fear for his safety.
The prosecutor and the defense investigator again interviewed the informant. The defense investigator asked the informant when he would be released from jail. He responded, "January 29th." Report of Proceedings (RP) at 169. The prosecutor commented, "If we don't violate you." RP at 169-70. The defense investigator described the informant's response to this comment as visibly "shaken." RP at 170.
The informant testified at trial that he had not benefited in any way from his cooperation with the police. He hoped to receive decreased jail time, but he did not.
Mr. Tucker then sought to introduce testimony by the defense investigator of the informant's reaction to the prosecutor's comment to suggest that the informant did benefit from the testimony. The court refused the offer. The court concluded that the informant's reaction to the prosecutor's comment did not contradict his testimony at trial.
DISCUSSION
We review the decision of a trial court to admit or refuse evidence for an abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987). The trial court abuses its discretion if it relies on unsupported facts or applies the wrong legal standard. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
The trial court here concluded that testimony about the informant's reaction to the prosecutor's comment did not qualify as impeachment testimony because it did not contradict the informant's testimony. Evidence Rule 607 allows impeachment testimony. A witness may be impeached with a prior out-of-court statement of a material fact that is inconsistent with his testimony in court, even if such a statement would otherwise be inadmissible as hearsay. State v. Dickenson, 48 Wn. App. 457, 466, 740 P.2d 312 (1987).
Mr. Tucker argues that "non-violation" is a "reverse benefit." But if the informant is entitled to leave jail at a particular time, allowing him to do so is not a benefit, it is his right. Moreover, the context of the testimony shows that the question about receiving any benefit directly followed a question about a reduced sentence:
[Defense Counsel]: Were you upset you didn't get any kind of reduction for the amount of work you did for the police?
[Informant]: Yeah, kind of.
[Defense Counsel]: Kind of upset you?
[Informant]: Well, yeah, what could I do about it?
[Defense Counsel]: But at the time did you believe that doing this transaction for the police would benefit you?
[Informant]: Yeah.
[Defense Counsel]: At the time you did it?
[Informant]: Yeah.
[Defense Counsel]: And by benefit you, I mean they would recommend no jail time to you?
[Informant]: Right.
[Defense Counsel]: And you ended up getting how many months?
[Informant]: Six months.
RP at 106-07.
Mr. Tucker defined "benefit" for the informant when questioning him, and the informant answered accordingly.
The trial court found that testimony related to the prosecutor's joke did not impeach the informant's testimony. Those are tenable grounds for the court's refusal to admit the evidence.
We affirm the conviction.
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.
Schultheis, J., Kulik, J., Concur.