No. 24869-7-II.The Court of Appeals of Washington, Division Two.
Filed: May 4, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Cowlitz County, No. 95-1-00087-5, Hon. Randolph Furman, July 6, 1999, Judgment or order under review.
Counsel for Appellant(s), John A. Hays, Attorney At Law, 1402 Broadway, Suite 103, Longview, WA 98632.
Counsel for Respondent(s), A. O. Denny, Cowlitz Co Dep Pros Atty, Cowlitz Co Pros Office, 312 S.W. 1st Ave, Kelso, WA 98626.
Susan I. Baur, Cowlitz County Prosecuting Attorney, Hall of Justice, 312 S.W. 1st, Kelso, WA 98626.
DAVID H. ARMSTRONG, C.J.
A jury convicted Billy Joseph Donley of one count of robbery and four counts of assault for an episode of violence involving four victims. On appeal, Donley argues that (1) a photo montage shown to two of the victims was unduly suggestive; (2) the prosecutor failed to prove the details of her leading cross-examination questions of his alibi witness; and (3) the court erred in allowing the State to call another deputy prosecutor to impeach one of his alibi witnesses. Donley also argues that the trial court erred in continuing the trial and allowing the State to amend the information. We hold that the prosecutor’s failure to produce evidence of the facts stated in her cross-examination was error, but the error was harmless beyond a reasonable doubt. Otherwise, we find no error and affirm.
FACTS
On the night of February 18, 1995, Bradley Parsons was at his home in Longview with his wife, Angela Parsons, their son Bradley, and a friend, Richard Ruzek. Someone knocked at the door. When Parsons opened the door, someone punched him in the face. Parsons recognized the assailant as Billy Donley.[1] Donley was holding either a gun or a knife. After ordering Parsons to the floor, Donley started kicking him. Parsons lost consciousness, but he came to when he heard a popping sound and his wife screaming. Parsons got up, saw that his wallet had been taken out of his front pocket and that the contents were scattered on the floor. In a daze, Parsons checked on his wife, who had a towel wrapped around her hand, and called 911. Richard Ruzek testified that when Brad Parsons answered the knock at the door, the man at the door said, `Long time no see,’ and then punched Parsons in the face. Ruzek started to intervene but then saw that the man had a gun. The man ordered Ruzek to the floor. The man then beat Parsons unconscious. Ruzek heard the man say something about money owed to him.
The man took out Parsons’ wallet, thumbed through it, and threw its contents on the floor. The man fired a shot at Angela Parsons on his way out of the apartment. He also fired a shot out the door. Angela Parsons testified that she had been sleeping on the couch. She awakened to yelling and screaming and saw a man kicking her husband Brad in the head while holding a gun to his face. As the man beat Parsons, he asked where his money was. The man got Parsons’ wallet, took the money out, and threw the wallet down. As the man turned to leave, he pointed the gun at Angela’s infant son in his swing. Angela yelled at him to shoot her instead of the baby. The man turned and fired at Angela, hitting her in the hand. Angela went to the hospital where she underwent surgery on her hand. Aaron McDaniel testified that one night in February 1995, he was riding his bicycle past a Longview apartment building when he heard a shot inside an apartment. A man stepped out of the apartment, said, `You, too, you son of a’ and fired a shot at McDaniel. RP at 139. McDaniel was scared and pedaled away from the man, but he then became angry and rode back to the apartment. When he returned, McDaniel saw the man get in a mid-70’s red Ford Mustang and leave. Parsons told the police that Billy Donley was the assailant. Police then compiled a six-picture photo montage that included Billy Donley’s photograph. Parsons and Ruzek separately viewed the photo montage and separately identified Billy Donley. It did not `take them very long to pick Billy Donley[‘s] [picture] out of the photo montage.’ RP at 46.
The same evening a police officer drove to where he had been told Donley’s girlfriend, Felicia, lived. There he saw a car that matched the description McDaniel had given. The police could not locate Donley. Parsons and Donley knew each other before the assault. Parsons testified that he met Donley when they were slash-burning together in the summer of 1989 or 1990. They became fairly good friends and Donley gave Parsons a tattoo. A few years later, the two men lived next door to each other in an apartment building for a month. Donley gave Parsons two more tattoos.
They socialized and drank beer together. Parsons paid for two of the tattoos with a laptop word processor, a car stereo, and some cash. Parsons testified that he ran into Donley four or five months before the assault; Donley complained that the car stereo did not work and threatened to `take . . . back’ the tattoos if Parsons did not pay for them. RP at 81. On February 21, 1995, Donley was charged with one count of first degree robbery, one count of first degree assault, and two counts of second degree assault. Donley first appeared in court on March 31, 1999. He was arraigned on April 13, 1999, and trial was set for June 7, 1999. At a pretrial hearing, Donley said he would use an alibi defense. The court ordered Donley to provide the State with contact information for his witnesses by May 20, 1999. Donley did not provide this information until May 26, 1999. Because Donley failed to comply with the discovery order, the trial court granted the State’s motion to continue the trial one week.
At a second pretrial hearing on June 11, 1999, the court allowed the State to amend the information to add another count of second degree assault while armed with a deadly weapon and to add deadly weapon enhancements to the previously charged offenses. Trial began on June 14, 1999, but after a mistrial, the trial started again on June 15, 1999. Donley relied on an alibi defense. Two of his friends, Ben Robles and Sean Dougherty, testified that on the night of the assault, Donley was with them at a tattooing and drinking party in southeast Portland. During cross-examination of Ben Robles, the prosecuting attorney impeached Robles’ testimony with statements he purportedly made to her in a telephone conversation the previous week. The prosecutor tried to get Robles to admit that he had told her he was not with Donley the night of the assault, and that he did not know where Donley was that night. Robles denied ever saying these things. Similarly, the prosecutor attempted to impeach Sean Dougherty by trying to get him to admit that he called his brother, Shannon Dougherty, and urged him to lie on Donley’s behalf. Dougherty also denied making these statements.
The jury convicted Donley on all counts and affirmatively answered all the deadly weapon enhancement interrogatories. The court later sentenced Donley within the standard range, imposing 318 months of incarceration.
ANALYSIS I. Rebuttal Testimony by Deputy Prosecutor Carol Case
Donley argues that the trial court erred in allowing the State to call deputy prosecutor Carol Case as a rebuttal witness to impeach the testimony of defense alibi witness Ben Robles. After both parties had rested, the State, with the court’s permission, called Case as a rebuttal witness. Case testified that one week earlier she had talked with `Ben’ on the telephone at the request of Susan Baur, the deputy prosecuting Donley’s case. Ben admitted to Case that he was not with Donley on the night of the assault. Donley asserts that this was error for three reasons: The State did not lay the necessary foundation to authenticate the telephone call, Ben’s statements were inadmissible hearsay, and Case’s testimony was improper impeachment. But Donley did not object to the testimony on any of these grounds at trial. With a few exceptions, none of which apply here, we do not review any claim of error that was not raised in the trial court. RAP 2.5(a); State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). Because he did not raise these objections at trial, we do not consider them on appeal.
II. Cross-Examination of Ben Robles
Donley next argues that the State’s cross-examination of Ben Robles was improper impeachment. He claims that the prosecutor introduced substantive evidence in the guise of impeachment evidence and, in effect, `testified’ without ever taking the stand. This, according to Donley, violated his right to a fair trial guaranteed by Washington Constitution, article I, section 22, and the fourteenth amendment, as well as his right under the sixth amendment to confront the witnesses against him.
Ben Robles testified that Donley was with him the night of the assault. On cross-examination, the prosecutor questioned Robles about a telephone conversation she and Robles purportedly had the previous week in which Robles stated that he was not with Donley the night of the assault:
Q: Isn’t it true, when I talked to you, I also talked to your mother?
A: Yes.
. . . .
Q: Is it true, you had told me Billy had called you from the jail?
A: No.
Q: Isn’t it true you told me that you were not in fact with Billy the night before the concert?
A: No.
Q: Isn’t it true that I told you: `Ben, you got to tell the truth,’ and then you said, after a long pause, I said: `Were you with him the night before the concert?’ And you said: `No?’
A: That’s not true.
. . . .
Q: Do you remember telling me after that long pause: `I don’t want to get Billy in trouble, he’s my friend?’
A: No.
Q: Don’t remember that either?
A: I don’t.
. . . .
Q: And isn’t it true that you told me on the phone when I said: `Do you have any idea where Billy was the night before the concert?’ You said: `I don’t know where he was?’
A: I don’t remember telling you that.
Q: You could have said it?
A: No.
. . . .
Q: When I talked to you on the phone last Wednesday, you had no idea where this supposed party took place, did you?
A: It was in Portland.
Q: Okay. Well, you were told that by Billy when he called you to say that?
A: No, I wasn’t.
. . . .
Q: Isn’t it true you told me you had no idea where the party was, you didn’t want to get your friend in trouble, and you really didn’t want to have anything to do with testifying?
A: That’s not true.
RP at 232-39.
This impeachment was improper. In State v. Babich, 68 Wn. App. 438, 441-42, 842 P.2d 1053 (1993), the prosecutor attempted to impeach defense witnesses by referring to their prior inconsistent statements. But the State never introduced extrinsic evidence of those statements. If the trial court does not require the cross-examiner to produce extrinsic evidence of the inconsistent statement, `cross-examination could be abused by making insinuations about statements that the witness did not in fact make, and the jury could be misled into thinking that the statements allegedly attributable to the witness were evidence.’ Babich, 68 Wn. App. at 443-44 (quoting 5A K. Tegland, Wash. Prac., Evidence § 254(1), at 316 (3d Ed. 1989)). See also State v. Lopez, 95 Wn. App. 842, 855, 980 P.2d 224 (1999) (finding that `a prosecutor’s impeachment of witnesses by referring to extrinsic evidence never introduced may rise to a violation of the right to confrontation’); State v. Denton, 58 Wn. App. 251, 257, 792 P.2d 537 (1990) (affirming trial court’s refusal to allow defense counsel to impeach witness with extrinsic evidence that could not be produced at trial). Furthermore, the defendant does not waive error by failing to object to the cross-examination. `[I]n this situation, failure to object is not a waiver. It was not the questions themselves that were improper; it was the failure to prove the statements in rebuttal that was error.’ Babich, 68 Wn. App. at 446. Because this error implicated the defendant’s right to confrontation, it was an error of constitutional magnitude. Babich, 68 Wn. App. at 446.
The error, however, was harmless. Constitutional error is harmless when overwhelming evidence supports the conviction. State v. Whelchel, 115 Wn.2d 708, 728, 801 P.2d 948 (1990). Constitutional error requires reversal unless the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result absent the error. Whelchel, 115 Wn.2d at 728. Here, the jury would have returned a guilty verdict even without the improper impeachment. Brad and Angela Parsons, Ruzek, and McDaniel were consistent in their descriptions of the assaults. Parsons and Ruzek each identified Donley from a photo montage. Parsons had known Donley since 1989 or 1990; the two were good friends and drank beer together; Donley had given Parsons three tattoos. Parsons saw Donley four or five months before the assaults. The same night, police found a car fitting the description of the one the assailant used at Donley’s girlfriend’s residence. The prosecutor also properly impeached one of Donley’s alibi witnesses with the testimony of another deputy prosecutor. Finally, the State established a motive — Donley wanted to `take back’ the tattoos he gave Parsons. We are satisfied beyond a reasonable doubt that even without the improper impeachment, a reasonable jury would have reached the same result.
III. Identification Procedures and Admission of Photo Montage
Donley argues that it was error to admit the photo montage into evidence and the identifications made from the montage. He contends that the montage was unduly suggestive because he was the only subject of the six who had a visible tattoo. Because of this, continues Donley, there was a substantial likelihood of irreparable misidentification.
In State v. Shea, 85 Wn. App. 56, 930 P.2d 1232 (1997), this court collapsed the two-part test traditionally used to evaluate identification procedures under the due process clause. Washington law had previously required that the defendant first show that the identification procedure was unnecessarily suggestive and, if so, whether under the circumstances, the suggestiveness created a substantial likelihood of irreparable misidentification. Shea, 85 Wn. App. at 59. To evaluate the second step, the court considers (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Merging the two steps, the test becomes whether, considering the total circumstances and the above five factors, the identification procedure leads to a substantial likelihood of irreparable misidentification. Shea, 85 Wn. App. at 60. Under this framework, Donley’s claim fails. Even if the photo montage was impermissibly suggestive because of the tattoo, there is no substantial likelihood of irreparable misidentification. Ruzek testified that he was able to observe Donley for 30 to 60 seconds before Donley ordered him to the floor. After lying down, Ruzek turned his head to the side to watch what was going on. He had a clear view of Donley. He saw Donley’s clothing, face, hair, and tattoo. The identification procedure took place within hours of the assault. When he picked Donley from the photo montage, Ruzek was `100 percent sure’ that the person he identified was the one who came to the apartment.
Officer Homad testified that both Ruzek and Parsons picked Donley’s photograph quickly. Brad Parsons arguably had less chance to observe Donley reliably, as Donley punched Parsons in the face as soon as he opened the door. Parsons, however, testified that he knew Donley and immediately recognized him. And even if a photographic identification is improper, a reliable, independent basis for the victim’s in-court identification exists where the victim knows the defendant. State v. Hilliard, 89 Wn.2d 430, 440, 573 P.2d 22 (1977); State v. Griggs, 33 Wn. App. 496, 502, 656 P.2d 529 (1982). Thus, when a witness recognizes a defendant as someone he or she already knows, the reliability of the photographic identification is bolstered. State v. Hoopingarner, 845 S.W.2d 89, 93 (Mo.Ct.App. 1993) (`An additional circumstance supporting reliability [of a photographic identification] arises where the witness already knows the defendant and recognizes him at the scene of the crime.’); State v. Butler, 415 S.E.2d 719, 724 (N.C. 1992) (`The danger that a suggestive photographic line-up will result in a misidentification is much greater when the witness has never seen the perpetrator prior to the time of the crime.’). In sum, the trial court did not err in admitting evidence of the witness’s photographic identification of Donley.
IV. Amendment of the Information
Donley next claims that the trial court denied him his right to equal protection when it permitted the State to amend the information to add a deadly weapon enhancement. He contends that the State added the deadly weapon enhancement to punish him for refusing to plead guilty to first degree assault and for exercising his right to go to trial. Prosecutorial vindictiveness is the intentional filing of a more serious crime in retaliation for a defendant’s lawful exercise of a procedural right. State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998), review denied, 137 Wn.2d 1024 (1999). A prosecutor may add a charge when a fully informed and represented defendant refuses to plead guilty to a lesser charge, but the prosecutor may not do so to punish the defendant. Bonisisio, 92 Wn. App. at 790-91 (citations omitted). There is no presumption of vindictiveness in the pretrial setting. Bonisisio, 92 Wn. App. at 791. The defendant must prove either actual vindictiveness or a `realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness.’ Bonisisio, 92 Wn. App. at 791 (quoting United States v. Wall, 37 F.3d 1443, 1447
(10th Cir. 1994)). If the defendant meets this burden, the burden shifts to the State to `justify its decision with legitimate, articulable, objective reasons.’ Bonisisio, 92 Wn. App. at 791 (quoting Wall, 37 F.3d at 1447).
There is no evidence here of actual vindictiveness or of a realistic likelihood of vindictiveness. In his brief Donley states, `When the defendant refused [to plead guilty to first degree assault], the state added the deadly weapon enhancement to each charge in order to punish the defendant for exercising his right to go to trial.’ Br. of App. at 43. He cites to the June 11, 1999 hearing when the court granted the State’s motion to amend the information, but he offers no specific example of how the amendment was vindictive or intended to punish. He has not met his burden of showing actual vindictiveness or a realistic likelihood of vindictiveness; accordingly, his claim of prosecutorial vindictiveness fails. He has also failed to demonstrate any prejudice to support a claim of error under CrR 2.1(d). The trial court may permit an amended information `at any time before verdict or finding if substantial rights of the defendant are not prejudiced.’ CrR 2.1(d). When the defendant seeks reversal because of a late amendment, the defendant must demonstrate `specific prejudice resulting from the information amendment.’ State v. James, 108 Wn.2d 483, 489, 739 P.2d 699 (1987). But when the defendant does not ask for a continuance, we presume there was neither surprise nor prejudice. State v. Schaffer, 63 Wn. App. 761, 767, 822 P.2d 292 (1991), aff’d, 120 Wn.2d 616 (1993). At the pretrial hearing, Donley did not request a continuance. His attorney claimed prejudice arose from the difficulty in calculating his offender score for the purpose of plea negotiations. But Donley’s attorney conceded that the State `[had] made some noise about adding the deadly weapon enhancements’ a week before. RP at 14 (6/11/99).
The original information contained allegations that Donley was armed with a deadly weapon. Thus, the amendment did not affect Donley’s `right to demand the nature of the accusation against him.’ Schaffer, 63 Wn. App. at 767. The trial court did not err in permitting the State to amend the information to include the deadly weapon enhancement.
V. Speedy Trial Violation
Donley claims that the trial court violated his right to a speedy trial by continuing his trial date beyond the 60 days required by court rule. CrR 3.3(c)(1) provides that `[a] defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment.’ But CrR 3.3(h)(2) permits the trial court to `continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense.’ We review the trial court’s decision to grant a continuance for an abuse of discretion. State v. Hartley, 51 Wn. App. 442, 445, 754 P.2d 131
(1988).
The trial court did not abuse its discretion in granting the continuance. Trial was originally set for June 7, 1999. On May 13, 1999, the trial court ordered Donley to provide contact information for his alibi witnesses to the State no later than May 20. He did not provide this information until May 26. Because of this late response, the trial court granted the State’s motion and continued the trial date from June 7 to June 14, 1999.
The new trial date was 63 days after the arraignment date. This was not an abuse of discretion as it was a proper continuance under CrR 3.3(h)(2).
VI. Cumulative Error
Donley claims that the cumulative effect of the trial court’s errors denied him his right to a fair trial under Washington Constitution, article 1, section 3, and the fourteenth amendment to the U.S. Constitution. The cumulative effect of trial court errors may require reversal even if each error on its own would otherwise be harmless. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994). Constitutional error is harmless and does not require reversal if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result absent the error. Whelchel, 115 Wn.2d at 728. Nonconstitutional error requires reversal only if, within reasonable probabilities, it materially affected the outcome of the trial. Russell, 125 Wn.2d at 94. Of the errors Donley alleges, only the claim of improper impeachment has merit. And this error is harmless. Thus, there is no cumulative error requiring reversal.
VII. Donley’s Pro Se Brief
Donley alleges a number of errors in his supplemental pro se brief. First, he claims that the prosecutor erred when she `illegally brought up the Appellant’s witnesses during the trial.’ Supp. Br. of App. at 2. This assignment of error apparently has to do with the prosecutor’s cross-examination of Sean Dougherty — one of Donley’s alibi witnesses — and questions the prosecutor asked him about his brother, Shannon Dougherty. Donley claims that this violated his right to confront the witnesses against him.
This claim has no merit. Although the prosecutor’s cross-examination of Sean Dougherty exceeded the scope of direct examination,[2] the cross-examination did not seek to introduce Shannon Dougherty’s hearsay testimony. The prosecutor asked Sean Dougherty if he had called Shannon and asked him to lie on Donley’s behalf. Sean denied this accusation. The prosecutor never sought to introduce any out-of-court testimony by Shannon, nor did Sean volunteer any. This did not implicate his right to confrontation.
Donley also addresses the propriety of the photographic identification procedure. He appears to argue that the witness’s identification of him was insufficient and unreliable. Much of his argument lacks citation to legal authority. He also makes a factual claim — that he repeatedly requested a lineup — that the record does not support. The rest of his argument addresses the photo montage suggestiveness, an issue his counsel argued and we found lacked merit.
Donley assigns error to Deputy Prosecutor Carol Case’s rebuttal testimony. He argues that ethical rules and case law in Washington prohibit such testimony. But as discussed above, Donley objected to Case’s testimony only on the basis that the parties had already rested. He did not object on the grounds he now argues before us. He has not preserved this error for appeal.
Donley also claims prosecutorial misconduct. First, he claims that the prosecutor sought to amend the information `in the middle of the appellant’s trial.’ Supp. Br. of App. at 25. This is untrue. The prosecutor moved to amend, and the court granted the amendment, on June 11 — three days before the start of trial. Donley claims that he `had no knowledge, whatsoever, that these new charges would be added, with an amended information.’ Supp. Br. of App. at 25. The record does not support this claim. Donley’s attorney admitted at the June 11 hearing that the State `[had] made some noise about adding the deadly weapon enhancements’ a week before the hearing. RP at 14 (6/11/99). Several other claims of prosecutorial misconduct are also without merit. Donley claims, without supporting argument, that the prosecutor attempted to `deliberately perjure the testimony of Sean Dougherty.’ Supp. Br. of App. at 25. He again argues that questions about Shannon Dougherty violated his right to confrontation. He alleges that the prosecutor `referred to matters outside the evidence when she began to testify about Shannon Dougherty’s character.’ Supp. Br. of App. at 27. Even if this was error, it is harmless nonconstitutional error. Finally, Donley states that the `prosecutor shifted the burden of proof to the defendant by telling the jury [that the] defendant told his witnesses to lie; and, that all witnesses, that were to testify for the defense were going to lie for the appellant.’ The record does not support this claim and we do not address it. Supp. Br. of App. at 27. Donley does make one meritorious assignment of error. Although he incorrectly frames it as `misstatement of the evidence,’ Donley is correct that the State’s impeachment of Sean Dougherty was error. Just as she impeached Ben Robles, the prosecutor impeached Sean Dougherty with his prior inconsistent statements without then introducing extrinsic evidence of those statements. As Donley correctly states, the prosecutor became an unsworn witness. But, as noted above in the discussion of Ben Robles’ impeachment, the error was harmless.
Finally, Donley argues that this misconduct justifies dismissal of the case against him. He notes that the Washington remedy for flagrant prosecutorial misconduct is a mistrial and new trial, but he urges this court to adopt the Oregon rule allowing dismissal of charges without retrial. He then recounts, without citation to the record, the ways in which the prosecuting attorney violated his rights and the trial court failed to protect him. He alleges, inter alia, that the prosecutor attempted to manipulate defense witnesses, that she had the trial court alleviate some of the trial testimony of several of the witnesses, and that she had the court reporter edit out certain parts of her statements to the jury. The record does not support these claims. Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: BRIDGEWATER, J., QUINN-BRINTNALL, J.