No. 59230-1-I.The Court of Appeals of Washington, Division One.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08191-7, Michael J. Fox, J., entered November 1, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Jes Brown appeals his convictions of possession of cocaine with intent to deliver, possession of methamphetamine, possession of heroin, first degree unlawful possession of a firearm, and second degree taking a motor vehicle without permission. He primarily contends that the trial court abused its discretion by admitting testimony about other uncharged drug transactions. He claims that the trial court violated his constitutional right to present a defense when it denied his motion for a continuance to secure the presence of a witness. Brown also argues that he received ineffective assistance of counsel when his attorney failed to subpoena the witness for trial. Finally, Brown claims cumulative error requires reversal of his convictions. Because Brown fails to demonstrate prejudice resulting from any of these alleged errors, we disagree and affirm.
On May 26, 2005, Seattle Police Detective John Fox organized a “buy-bust” operation targeting Brown. Detective Fox instructed Dwayne Tanner, a confidential informant, to call Brown and offer to buy drugs. Tanner told Detective Fox that Brown agreed to meet him in the parking lot of Las Margaritas. Detective Fox searched Tanner and gave him money to purchase drugs.
Detective Fox watched Brown drive into the parking lot in a red Dodge Durango matching the description of a car reported stolen. Detective Fox saw Tanner meet Brown at the car. Detective Fox watched as Brown reached over the cargo area before entering the restaurant with Tanner. When Tanner came out a short time later, Detective Fox picked him up.
Detective Rudy Gonzalez drove into the parking lot as Brown left the restaurant. Detective Gonzalez noticed that Brown was carrying a small gray bag. When Detective Gonzalez and other officers got out of the car and identified themselves, Brown ran. Detective Gonzalez chased Brown and arrested him. Detective Gonzalez found the gray bag on the ground near the Durango. The bag contained a pipe, a scale and several plastic bags of cocaine, methamphetamine, and heroin. In a search of the Durango, Detective Gonzalez noted that the ignition was punched out. He found a gun in a paper bag in the back of the car. Testing revealed no usable fingerprints on the gun.
At trial, Tanner testified that he volunteered to cooperate with the police as an informant. He described his role in the drug transaction at Las Margaritas. Over defense objections, the trial court also allowed Tanner to testify that (1) he had seen Brown purchase drugs while in possession of a gun as much as five weeks before the incident at Las Margaritas; (2) he bought drugs from Brown sometime prior to May 25 to establish “good faith;” (3) in a controlled buy on May 25, he bought cocaine, heroin, and methamphetamine from Brown in a red Dodge Durango with a punched ignition, and Brown tossed a gun to him; (4) on May 26 before the transaction at Las Margaritas, he bought cocaine, heroin, and methamphetamine from Brown in a different car.
The jury found Brown guilty as charged. Brown appeals.
Evidentiary Rulings
Brown contends that the trial court erred by admitting evidence of alleged prior transactions between Brown and Tanner. In particular, Brown complains that the admission of the evidence served no proper purpose under ER 404(b), that the trial court failed to determine whether the prior incidents occurred, failed to balance on the record the probative value of the evidence against its prejudicial effect, and failed to adequately instruct the jury on the proper use of the evidence. He argues that he suffered prejudice requiring reversal of his convictions. We disagree.
Evidentiary errors are not grounds for reversal “unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.”[1]
Brown argues that without Tanner’s testimony that Brown had a gun five weeks before the charged incident and on May 25, the jury would likely have found that a reasonable doubt existed as to Brown’s knowledge of the firearm found in the back of the Durango. He also contends that given the lack of an adequate limiting instruction, the court improperly admitted evidence that allowed the jury to infer that Brown knew the Durango was stolen based on propensity alone. Finally, he asserts that the lack of adequate limiting instructions allowed the jury to use all the challenged evidence to determine each of the charges.
Even assuming, without holding, that the trial court erred by admitting the evidence, Brown must establish that the prejudice he identifies materially affected the outcome of the trial despite the admissible evidence of his guilt. Here, Detective Gonzalez and Tanner testified that Brown was carrying the gray bag on May 26. Tanner testified that Brown sold cocaine to him on May 26. State witnesses testified that the large amount of cocaine in the bag, as well as the scale and separate plastic bags, was consistent with sales rather than personal use. Detective Gonzalez testified that the Durango’s punched ignition was visible inside and outside of the car and allowed it to be driven without a key. Jill Habansky testified that the Durango belonged to her father, that she reported it stolen in early May, and that she had not given Brown or anyone else permission to drive it. Detective Gonzalez also testified that he found the gun in the cargo area behind the back seat. Tanner testified that he saw Brown leaning over the back seat of the Durango and that Brown told him he was putting his gun behind the seat. And Detective Fox testified that he observed Brown reaching over the cargo area before going into the restaurant.
We conclude that any error involving the identified evidence is not prejudicial because the outcome of the trial would not have been materially affected had it not occurred.
Right to Present Defense
Brown next contends that the trial court violated his constitutional right to present a defense by denying his motion for a continuance to secure the presence of Brandon Woods. We disagree.
The constitutional right to compulsory process includes the right to present a defense.[2] But the right to present witnesses is not unlimited. The defense bears the burden of establishing the relevance and admissibility of the proposed testimony.[3] “Whether the denial of a continuance rises to the level of a constitutional violation requires a case by case inquiry.”[4] We examine the totality of the circumstances, considering “various factors such as diligence, materiality, due process, a need for an orderly procedure and the possible impact on the result of the trial.”[5] We will not disturb the trial court’s decision to deny a continuance unless the defendant was prejudiced or the result of the trial would likely have been different had the motion been granted.[6]
Brown intended to offer the testimony of Brandon Woods to challenge Tanner’s credibility and establish the primary defense theory — that Tanner was the drug dealer and was lying about Brown’s involvement in drug transactions. A statement signed by Woods indicated that he would testify that (1) he witnessed Tanner selling drugs to Brown but never saw Brown sell drugs to anyone; (2) Woods and Tanner smoked crack together every day in May and Tanner used heroin four times per week; (3) Tanner offered to sell guns to Woods; and (4) Tanner violently attacked Woods and others. Brown’s attorney did not subpoena Woods because he was in custody in the King County Jail. But on the morning he intended to call Woods as a witness, defense counsel discovered that Woods had been transferred to Shelton. Defense counsel requested a continuance and an order directing that Woods be transferred back to the King County Jail.
The trial court denied the continuance for two reasons: (1) the defense did not subpoena Woods; and (2) the jury was only available for two more days because a juror was scheduled for surgery and there were no remaining alternate jurors.
Moreover, our review of the record reveals that Brown did not establish the admissibility or materiality of Woods’s expected testimony. Woods was not a witness to any event supporting the charges. Instead, as the State points out, the only purpose of Woods’s testimony was to contradict Tanner on collateral matters and in violation of ER 608(b). But Brown had the opportunity to challenge Tanner’s credibility on cross-examination with questions regarding Tanner’s drug use and his expectation of some benefit in his pending assault case in exchange for his testimony. Brown was also free to cross-examine police witnesses regarding the procedures involved in the prior incidents between Tanner and Brown.
Under the totality of the circumstances here, we hold that Brown cannot demonstrate prejudice resulting from the trial court’s denial of a continuance.
Ineffective Assistance of Counsel
Brown claims he was denied effective assistance of counsel when his attorney failed to subpoena Woods. Because he cannot demonstrate prejudice, we disagree.
To prove ineffective assistance of counsel, Brown must demonstrate that counsel’s performance was deficient and that prejudice resulted from that deficiency.[7] Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the outcome of the proceeding would have been different.[8] If one of the two prongs of the test is absent, we need not inquire further.[9]
Brown cannot demonstrate a reasonable probability that the outcome of the trial would have been different had counsel served Woods with a subpoena. First, Brown fails to argue or establish that Woods’s testimony was admissible for any proper purpose. Second, Woods would not have testified about any of the incidents giving rise to the charges. Third, Brown was able to demonstrate Tanner’s potential bias and challenge his credibility in cross-examination and argument focused on Tanner’s use of drugs and involvement in drug running, his inconsistent statements regarding his drug use, and his expectations of leniency from the State in exchange for his testimony. Thus, we hold that Brown fails to establish ineffective assistance of counsel.
Cumulative Error
Brown 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.[10] Because no prejudicial error occurred, the doctrine is not applicable to this case.
We affirm the judgment and sentence.
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