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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
67630-0 |
| Title of Case: |
State Of Washington, Respondent V Timothy Robert English, Appellant |
| File Date: |
01/17/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Clark Superior Court |
| Docket No: | 10-1-01167-6 |
| Judgment or order under review |
| Date filed: | 09/16/2010 |
| Judge signing: | Honorable Diane M Woolard |
JUDGES
------
| Authored by | Ronald Cox |
| Concurring: | Stephen J. Dwyer |
| Michael S. Spearman |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | David L. Donnan |
| | Washington Appellate Project |
| | 1511 3rd Ave Ste 701 |
| | Seattle, WA, 98101-3635 |
|
| | Oliver Ross Davis |
| | Washington Appellate Project |
| | 1511 3rd Ave Ste 701 |
| | Seattle, WA, 98101-3647 |
Counsel for Respondent(s) |
| | Abigail E Bartlett |
| | Clark County Prosecuting Attorney's Offi |
| | 1013 Franklin St |
| | Vancouver, WA, 98660-3039 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 67630-0-I
)
Respondent, ) DIVISION ONE
)
v. )
)
TIMOTHY ROBERT ENGLISH ) UNPUBLISHED
)
Appellant. ) FILED: January 17, 2012
)
)
Cox, J. -- A passing reference to illegal drugs during examination does
not open the door for cross-examination about prior misconduct that is otherwise
inadmissible.1 Even if a trial judge improperly rules that a witness has opened
the door to evidence that is not admissible, reversal is not required unless it was
prejudicial.2 Assuming without deciding that the trial judge erroneously ruled that
Timothy English opened the door to prior misconduct, he fails to demonstrate
prejudice. We reject his additional claims that the trial judge improperly
commented on the evidence by giving a certain jury instruction and that the
prosecutor committed misconduct during closing. Finally, because we conclude
there was no prejudicial error at trial, we reject English's contention that there
was cumulative error below. We affirm.
1 State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998).
2 State v. Avendano-Lopez, 79 Wn. App. 706, 716-17, 904 P.2d 324 (1995).
No. 67630-0-I/2
English was arrested by Battle Ground Police Officer Richard Kelly for
failure to pay his outstanding legal financial obligations. During the search
incident to his arrest, English's belongings were put into a pile and then
deposited into an evidence bag. At no time during this search did Officer Kelly
find any narcotics. Nevertheless, when a property officer examined English's
belongings at the police station, he found a blue baggy with a Superman logo
that contained a white baggy of methamphetamine. English was charged with
possession of a controlled substance.
English testified at trial. During cross-examination, the prosecutor asked
English whether he was "familiar with a plastic baggie with a white crystal
substance in it?" He responded "I'm not familiar with it." The court excused the
jury and considered argument by the parties whether English had opened the
door to examination of his prior experience with methamphetamine. The court
ruled that he had opened the door and allowed the State to examine English with
certain restrictions. On return of the jury, the prosecutor asked English whether
he would recognize the white substance in the baggie as an illegal controlled
substance. A jury found English guilty.
English appeals.
OPENING THE DOOR
English argues that the trial court abused its discretion when it found that
his testimony opened the door to questions regarding his familiarity with
methamphetamines. Further, he argues that this testimony prejudiced him. We
2
No. 67630-0-I/3
disagree.
Under Evidence Rule 404(b), evidence of other crimes, wrongs, or acts is
inadmissible to show conformity with prior crimes, wrongs, or acts. If the
defendant himself introduces evidence that was initially inadmissible, the State
is then permitted to explain, clarify, or contradict the evidence.3 Under this rule,
"[o]therwise inadmissible evidence is admissible on cross-examination if the
witness 'opens the door' during direct examination and the evidence is relevant
to some issue at trial."4
As we held in State v. Stockton,5 a passing reference to a prohibited topic
during examination does not open the door for further examination about prior
misconduct.6 Even if a trial court improperly rules that a witness has opened the
door to evidence not normally admissible, reversal is not required unless it was
prejudicial.7 Evidence that is unlikely to have affected the verdict because the
State's case was believable and its evidence corroborated is generally not
prejudicial.8
3 State v. Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008), abrogated on
other grounds by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011).
4 Stockton, 91 Wn. App. at 40 (citing State v. Tarman, 27 Wn. App. 645, 650-
52, 621 P.2d 737 (1980)).
5 91 Wn. App. 35, 955 P.2d 805 (1998).
6 Id. at 40.
7 Avendano-Lopez, 79 Wn. App. 706, 716-17, 904 P.2d 324 (1995).
8 Id. See also Stockton, 91 Wn. App. at 43 (citing State v. Padilla, 69 Wn. App.
295, 301, 846 P.2d 564 (1993); State v. Millante, 80 Wn. App. 237, 246, 908 P.2d 374
(1995)).
3
No. 67630-0-I/4
We review the trial court's determination that a party opened the door for
abuse of discretion. The trial court has discretion to admit evidence that might
otherwise be inadmissible if the defendant opens the door to the evidence.9
Here, we need not decide whether the trial court abused its discretion by
deciding that English opened the door. Assuming without deciding that the court
erred, we conclude that admission of the evidence about English's prior
experience with methamphetamine was not prejudicial. During the State's
further examination of English, the prosecutor asked English about his familiarity
with either of the baggies.
Q: Mr. English, I'm just gonna ask you a yes or no question. Are
you familiar with bags like this larger bag with the white powder
substance in it (indicating)?
A: Am I familiar with them I've seen them before, yes.
Q: Okay. And yet that's different than what you told Officer Kelly
on that day, is it not?
A: Well, I said no because I -- just exactly what I said, no.
Q: Okay. So your answer is different today than it was to --
A: Yes. . . . I was confused.
Q: You were confused with what, Mr. English?
A: With when he held it up there, I said no right off the bat because
I saw what was in it.
Q: Okay.
A: And what his question was, was answer -- I said no both of 'em.
9 State v. Warren, 134 Wn. App. 44, 65, 138 P.3d 1081 (2006) (citing State v.
Bennett, 42 Wn. App. 125, 127, 708 P.2d 1232 (1985)).
4
No. 67630-0-I/5
And, yes, if [Officer Kelly] would ask -- if the bag -- and if it
was empty, okay, the question would have been yes, I am familiar
with those kind of bags, I've seen them before.
But when he had the -- the substance was in it, my -- my
answer's gonna be no.[10]
The prosecutor then asked "[s]o you're telling me you're -- you are not familiar
with a plastic baggie with a white crystal substance in it?"11 English responded
"I'm not familiar with it."12
From these statements, it is unclear whether English was disclaiming
familiarity with all bags containing methamphetamine, or with the particular bag
with which Officer Kelly confronted him. Thus, it is unclear whether the trial
court abused its discretion in deciding that English opened the door to inquiry
about his prior knowledge about methamphetamine. We assume without
deciding that English did not open the door to further inquiry on the subject of
methamphetamines.
Nevertheless, the evidence admitted by the trial court thereafter was not
prejudicial. Upon the State's oral motion that it should be permitted to ask
questions regarding English's past drug use because he had opened the door,
the court ruled that English's prior drug convictions were off-limits, but that the
prosecutor could ask whether English recognized the substance in the baggy.
The trial resumed, and in response to the State's question, English
10 Report of Proceedings (Sept. 14, 2010) at 172-73.
11 Id. (emphasis added).
12 Id. (emphasis added).
5
No. 67630-0-I/6
acknowledged that he did recognize the substance in the baggy as an illegal
controlled substance. This answer was not substantially different from English's
response to earlier questions. Thus, there is no showing that the additional
testimony was prejudicial.
English argues that reversal is required because the case turned on
possession of narcotics, and his confirmation that he was familiar with illegal
narcotic substances was prejudicial. Familiarity with methamphetamine is
distinct from prior use of or possession. While the latter might be prejudicial in a
case involving drug possession, the former is not.
COMMENT ON THE EVIDENCE
English next argues that a jury instruction constituted an improper
comment on the central issue at trial: whether he had possession of the
methamphetamines. We disagree.
Under article IV, section 16, of the Washington constitution, judges may
not comment to the jury on matters of fact.13 "Thus, the judge may not convey to
the jury his or her opinion concerning the testimony."14 Whether a judge has
expressed his or her opinion turns on whether the judge's feeling as to "the truth
value of the testimony of a witness has been communicated to the jury."15
13 State v. Dewey, 93 Wn. App. 50, 58-59, 966 P.2d 414 (1998) (abrogated on
other grounds) (quoting Hizey v. Carpenter, 119 Wn.2d 251, 271, 830 P.2d 646 (1992)
(citing State v. Eisner, 95 Wn.2d 458, 461-62, 626 P.2d 10 (1981))).
14 Id.
15 State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (citing State v.
Hansen, 46 Wn. App. 292, 300, 730 P.2d 706 (1986); State v. Trickel, 16 Wn. App. 18,
25, 553 P.2d 139 (1976)).
6
No. 67630-0-I/7
Here, the judge did not violate article IV, section 16, as the instruction
was an accurate statement of law.16 Moreover, it did not expressly or impliedly
indicate that the court assumed English's possession of the methamphetamine.17
The court instructed the jury "[t]he law does not require that a minimum amount
of drug be possessed, but possession of any amount is sufficient to support a
conviction."18 The court gave this instruction over the defense's objection
because the defense had raised the amount of narcotics necessary for
possession as an issue. This was entirely proper in order to make clear to the
jury "the relevant legal standard." Thus, we reject the claim that this instruction
improperly comment on the evidence.
English argues that, because there was no need to give the instruction, its
inclusion alone was a comment on the evidence. He cites to cases that hold that
"[t]he defense is entitled to jury instructions allowing it to argue its case. . . ."19
Here, the judge did not reject an instruction that English proposed. Rather, the
court decided to include a proposed instruction. Thus, his case authority is
inapposite.
Additionally, English attempts to draw parallels between the instruction
16 State v. Ciskie, 110 Wn.2d 263, 282-83, 751 P.2d 1165 (1988).
17 Hansen, 46 Wn. App. at 300 (citing State v. Louie, 68 Wn.2d 304, 313-14,
413 P.2d 7 (1966); State v. Carr, 13 Wn. App. 704, 710, 537 P.2d 844 (1975)).
18 Clerk's Papers at 22.
19 State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007) (citing State v.
Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003)).
7
No. 67630-0-I/8
given in this case and the facts of State v. Lane20 and State v. Dewey.21 Both
cases are distinguishable. In Dewey, the defendant was accused of rape, and
the judge instructed the jury that "[e]vidence has been introduced in this case, on
the subject of the rape of [the victim] . . . ."22 The court of appeals held this was
an improper comment because the "incident," to which the court had previously
referred, "would become a 'rape' only if [the victim's] testimony were believed."23
But here, the instruction did not indicate the judge's opinion on the likelihood of
possession. Rather, it explained a potential legal question regarding the
amount of narcotic necessary for conviction, without assuming or implying the
defendant's own possession of this drug.
Additionally, the instruction did not provide commentary about whether or
not English had possession, unlike in State v. Lane.24 There, the supreme court
held that the trial judge improperly commented on the evidence when he
expressly conveyed his opinion as to the evidence.25 The judge explained that a
witness had been released early from jail as a result of his cooperation with the
State.26 The supreme court held that, by making that statement, the judge
20 125 Wn.2d 825, 889 P.2d 929 (1995).
21 93 Wn. App. 50, 966 P.2d 414 (1998), abrogated on other grounds by State
v. DeVincentis, 150 Wn.2d 11, 21, 74 P.3d 119 (2003).
22 Id. at 58.
23 Id. at 59.
24 125 Wn.2d 825, 889 P.2d 929 (1995).
25 Id. at 839.
8
No. 67630-0-I/9
charged the jury with a fact that was disputed by the parties.27 But here, the judge did
not provide commentary about a disputed fact.
PROSECUTORIAL MISCONDUCT
English argues that the prosecutor committed misconduct in closing
argument by discussing his personal experience and opinion. Because the
context of the State's closing argument shows that the prosecutor did not
express his personal opinion, we reject this argument.
To prevail on a claim of prosecutorial misconduct, a defendant must show
that the conduct was both improper and prejudicial.28 While prosecutors may not
"state their personal beliefs about the defendant's guilt or innocence or the
credibility of the witnesses,"29 comments are deemed prejudicial only where
[ ]
there is a substantial likelihood the misconduct affected the jury's verdict.30
Further, the effect of a prosecutor's comments is determined by examining the
remarks in the context of the State's total argument.31
Here, the comments that English alleges created prosecutorial
26 Id. at 837.
27 Id. at 839.
28 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v.
Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
29 State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003) (citing State v.
Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984)).
30 Id.
31 Id.
9
No. 67630-0-I/10
misconduct actually summarized Officer Kelly's testimony. Officer Kelly testified
that he had worked for the Clark County Jail prior to his work as a Battle Ground
police officer. Further, he testified that he had previously experienced instances
where a controlled substance had been found on a person after they'd been
dropped off at the jail by a police officer.
In his closing argument, the prosecutor merely summarized this testimony
in the first person. Thus, the prosecutor was not relating his personal
experience, unrelated to evidence adduced at trial. There was no misconduct.
CUMULATIVE ERROR
Finally, English argues that cumulative error denied him a fair trial. We
disagree.
Where several errors standing alone do not warrant reversal, the
cumulative error doctrine requires reversal when the combined effects of the
errors denied the defendant a fair trial.32
Here, there was no cumulative error. We affirm the judgment and
sentence.
WE CONCUR:
32 State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
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No. 67630-0-I/11
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