STATE v. DIMATTEO, 141 Wn. App. 1022 (2007)

No. 35244-3-II.The Court of Appeals of Washington, Division Two.
November 6, 2007.

Appeal from a judgment of the Superior Court for Thurston County, No. 04-1-00285-4, Christine A. Pomeroy, J., entered August 18, 2006.

Reversed and remanded by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J.; Quinn-Brintnall, J., dissenting.

ARMSTRONG, J.

A jury convicted Dorothy Dimatteo of one count each of delivery of methamphetamine and possession of methamphetamine with intent to deliver. She appeals, arguing that the trial court erred in admitting evidence of two prior convictions as impeachment evidence. She contends that the error was not harmless because her credibility was the key issue in her case. This court initially considered Dimatteo’s appeal as a motion on the merits under RAP 18.14. A commissioner of this court referred the appeal to a panel of judges. We conclude that the trial court erroneously admitted evidence of Dimatteo’s prior convictions and that the error was not harmless. We reverse the convictions and remand for a new trial.

FACTS
On February 5, 2004, Thurston County Detective Steve Hamilton received a tip that the two people occupying a local motel room, Room 306, were selling drugs out of the room. The following day, he investigated the tip with several other detectives. Detective Hamilton asked Cynthia Rubiano, an employee of the motel, to attempt to buy $20 worth of methamphetamine from the occupants of Room 306. Rubiano agreed. She returned from the room with a small bag of a “granular translucent” substance. Report of Proceedings (RP) (Aug. 16, 2006) at 20. That substance later tested positive for methamphetamine. Detective Hamilton then applied for, and received, a telephonic search warrant for Room 306.

When they executed the warrant, the detectives found Rick Holle and Dimatteo in the room. They both agreed to speak to the detectives after being advised of their constitutional rights. Holle denied selling methamphetamine. He also said that Dimatteo did not “have anything to do with it.” RP (Aug. 16, 2006) at 25. Dimatteo denied selling methamphetamine, but admitted to using it.

During their search of the room, the detectives found three cell phones, a syringe, a spoon, a small piece of cotton, a gram scale containing a “powder or rock substance,” and a payment receipt for the room bearing Dimatteo’s name. RP (Aug. 16, 2006) at 29. In a nightstand, they also found 49 empty small plastic bags and two small bags containing a “crystallized rock substance.” RP (Aug. 16, 2006) at 40. Finally, they found approximately $65 in cash in Dimatteo’s purse and approximately $169 in cash on top of the nightstand. All of the substances the detectives collected from the room later tested positive for methamphetamine.

The State charged Dimatteo with one count each of delivery of methamphetamine and possession of methamphetamine with intent to deliver. The information alleged that she was either a principal or an accomplice to both crimes. At trial, Detective Hamilton identified Dimatteo as one of the occupants of Room 306. He testified as described above. He also testified that, when Rubiano was inside Room 306, he had an unobstructed view of the building from approximately 50 or 60 yards away, but that he could not see into the room. He said the items found in Room 306 were consistent with “packag[ing]” methamphetamine. RP (Aug. 16, 2006) at 49. He also said that the amount of methamphetamine the detectives recovered from the room could not “legitimately” fill the 49 empty small plastic bags. RP (Aug. 16, 2006) at 73. Finally, Detective Hamilton testified that the amount of methamphetamine found in Room 306 was “indicative of someone barely getting along, just barely surviving.” RP (Aug. 16, 2006) at 65.

Rubiano testified that when she entered Room 306, Dimatteo retrieved three small plastic bags of methamphetamine from the nightstand and handed them to her. Holle then told Rubiano to choose which bag she wanted to buy. She selected one bag and gave the other two to Holle. According to Rubiano, the following exchange then took place:

And [Holle] said: “If you need any more let me know.” And I said: “Okay.” And he said: “If you watch my back I’ll be more than happy to give you more.” And I said: “What do you mean by watch your back?” He said: “If you tell me if any cops are coming, anybody is coming, and I’ll make sure you get some.” And [Dimatteo] said: “Give her more right now.” And I said: “No, that’s all right.”

RP (Aug. 16, 2006) at 88.

Dimatteo testified that she paid for the motel room in cash. She said that when Rubiano came to the room, Holle “picked up three bags” of methamphetamine and told Rubiano to choose one. RP (Aug. 16, 2006) at 127. Dimatteo denied that she handed, offered, or sold any drugs to Rubiano. Dimatteo admitted to using methamphetamine and knowing that Holle sold it, but she denied “help[ing]” Holle sell it. RP (Aug. 16, 2006) at 133. She knew several bags of methamphetamine and the gram scale were in the nightstand, but she did not know about the 49 empty plastic bags.

On cross-examination, the State asked Dimatteo if she had “been in trouble before.” RP (Aug. 26, 2006) at 137. She objected. In an offer of proof, the State explained that it intended to impeach Dimatteo with two prior convictions, one in 2001 and one in 2003, for possession of methamphetamine. Dimatteo argued that the prior convictions were not relevant and would be highly prejudicial. The trial court ruled as follows:

I will allow it in but you will not tell what type of felony unless she denies it. . . . Your objection to it is that the probative value does not outweigh the prejudice. The [c]ourt feels otherwise, and will allow it in.

RP (Aug. 16, 2006) at 140. Dimatteo then testified that she was convicted of felonies in 2001 and 2003.

The trial court instructed the jury as to its consideration of Dimatteo’s prior convictions as follows:

Evidence that the defendant has previously been convicted of a crime is not evidence of the defendant’s guilt. Such evidence may be considered by you in deciding what weight or credibility should be given to testimony of the defendant and for no other purpose.
RP (Aug. 27, 2006) at 11.

In its closing argument, the State argued:

When you consider the testimony of someone like the defendant’s . . . you may consider her memory, her manner, any biases, any prejudices she may have, her desire to not be held accountable . . . by being found guilty or perhaps being punished, and any other factors that bear on believability or weight.

RP (Aug. 17, 2006) at 18-19.

Dimatteo’s attorney argued that her prior convictions had “nothing to do with this case, except in light of how [the jury members] want[ed] to consider” her testimony. RP (Aug. 17, 2006) at 29. Finally, in its rebuttal, the State argued that:

[C]ounsel says to you that, well, the fact that Ms. Dimatteo has felony convictions, . . . has nothing to do with this case. But the Court . . . has instructed you that you may consider the fact that Ms. Dimatteo has been convicted of felony crimes when you consider her testimony. It is another factor that you can consider in determining whether or not to give any credence to what she has to say[.] So the fact of those felony convictions does have a lot to do with this case, because the argument of counsel for the accused is essentially based on the testimony of what his clients have [sic] to say. And we know it because we have an instruction on how to assess credibility, that people lie on the stand. People lie in their daily lives. And people certainly, when the crunch is on, lie on the stand and lie under oath, and that is why you’re told you may consider any factors that bear on believability and weight, including the fact of prior felony convictions.

RP (Aug. 17, 2006) at 38-39. The jury found Dimatteo guilty as charged on both counts. She appeals.

ANALYSIS
Dimatteo argues that the trial court erred when it admitted evidence of her prior convictions because it did not perform the required balancing test before it found that the evidence’s probative value outweighed the risk of prejudice to her defense. The State concedes that the court erred in admitting evidence of Dimatteo’s convictions without performing the required balancing test, but maintains that the error was harmless.

Evidence of a testifying witness’s prior felony convictions is admissible to attack that witness’s credibility if the trial court determines the probative value of the evidence “outweighs the prejudice to the party against whom the evidence is offered.” ER 609(a)(1). The State must prove that “the probative value of the prior conviction outweighs any prejudice.” State v. Saunders, 91 Wn. App. 575, 579, 958 P.2d 364 (1998) (citing State v. Calegar, 133 Wn.2d 718, 722, 947 P.2d 235 (1997)). Before ruling on the evidence’s admissibility, the trial court must consider the following factors on the record: (1) the length of the witness’s criminal record, (2) the remoteness of the prior convictions, (3) the nature of the prior crime, (4) the witness’s age and circumstances at the time the prior crime was committed, and (5) the impeachment value of the prior convictions. Saunders, 91 Wn. App. at 579
(citing State v. Alexis, 95 Wn.2d 15, 19, 621 P.2d 1269 (1980)).

The trial court here ruled that the probative value of Dimatteo’s two prior convictions outweighed any prejudicial effect that evidence may have had on her defense. But the court did not consider any of the Alexis
factors on the record before it so ruled. We therefore accept the State’s concession that the trial court erred in admitting evidence of Dimatteo’s prior convictions and turn to the question of whether that error was harmless. Calegar, 133 Wn.2d at 727. The erroneous ruling is reversible error only if there is a reasonable probability that the outcome of the trial would have been different had the court not erred. Saunders, 91 Wn. App. at 581; Calegar, 133 Wn.2d at 727.

Dimatteo argues that her case “turned on” whether the jury believed either her testimony or Rubiano’s testimony. Br. of Appellant at 7. Without the evidence of her prior convictions, and the attendant instructions from the court and the State that the jury could consider those convictions in weighing her credibility, Dimatteo maintains that the jury reasonably could have found her not guilty. The State responds that it presented “overwhelming” evidence of Dimatteo’s “complicity as an accomplice” to both crimes. Br. of Respondent at 4. Specifically, the State notes that Dimatteo paid for and occupied the motel room in which Holle sold Rubiano methamphetamine. It maintains that such evidence overwhelmingly supports Dimatteo’s convictions. We disagree.

In addition to Rubiano’s testimony, the State presented evidence that (1) Rubiano purchased methamphetamine in Room 306, (2) detectives found methamphetamine and materials consistent with packaging methamphetamine in Room 306, (3) Dimatteo paid for and occupied Room 306, (4) Dimatteo knew Holle sold methamphetamine, (5) Dimatteo used methamphetamine, and (6) Dimatteo knew the nightstand in Room 306 contained bags of methamphetamine. At most, this is evidence of Dimatteo’s knowledge of and presence at the crime of delivery of methamphetamine. This evidence does not establish that Dimatteo herself transferred or aided Holle in transferring methamphetamine to Rubiano. Although it may establish that Dimatteo constructively possessed methamphetamine, [1] this evidence, standing alone, does not provide a logical inference that she also intended to deliver methamphetamine to Rubiano. Nor does it prove that Dimatteo aided or was ready to assist Holle in that endeavor.

The State’s case, thus, depended on the jury’s assessments of Rubiano’s and Dimatteo’s credibility. If it believed Rubiano, it reasonably could have found Dimatteo guilty of both counts. If it believed Dimatteo, it reasonably could have found her not guilty. The trial court and both parties’ attorneys told the jury that it could consider the fact that Dimatteo had two prior convictions in deciding how much weight to give her testimony. Indeed, the State thoroughly explained that the jury could use Dimatteo’s prior convictions to gauge her believability. We thus conclude that there was a reasonable probability that the improper admission of the prior convictions affected the jury’s verdicts. The error was not harmless. Accordingly, we reverse Dimatteo’s convictions and remand for retrial.

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.

HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.

QUINN-BRINTNALL, J. (dissenting).

I agree with the majority that the trial court erred in admitting evidence of Dorothy DiMatteo’s prior felony convictions without conducting a proper Alexis[2] analysis. But I disagree with the majority that this error was not harmless beyond a reasonable doubt. Therefore, I would affirm.

The majority contends that the improper admission of DiMatteo’s prior felony convictions unfairly prejudiced the jury’s assessment of DiMatteo’s credibility and the subsequent verdicts. But the majority’s holding suggests that DiMatteo’s testimony, if found credible, would have required the jury to acquit her. I disagree. DiMatteo’s testimony clearly established that she knowingly rented a hotel room where she and Rick Holle used methamphetamine. Her testimony also established that she was present in the hotel room when Holle sold the methamphetamine to Cynthia Rubiano.

At trial, DiMatteo testified that she used money from her supplemental security income to rent a hotel room for her and Holle, her boy friend. DiMatteo paid for this hotel room on a daily basis. DiMatteo admitted to knowing that Holle sold drugs. And she admitted that Holle was selling drugs out of their hotel room.[3]

Furthermore, DiMatteo testified that Rubiano came to the hotel room twice “to see if she could buy some dope.” Report of Proceedings (RP) (Aug. 16, 2006) at 125. The first time, Holle refused to sell any methamphetamine to Rubiano. The second time, when Rubiano returned with $20, Holle handed her three bags of methamphetamine and told her to pick one. DiMatteo testified that she did not hand, offer, or sell any drugs to Rubiano.[4] In fact, DiMatteo denied having any personal contact with Rubiano during this transaction.

Nevertheless, DiMatteo admitted to knowing that: (1) there was methamphetamine in the hotel room; (2) the methamphetamine was kept in the nightstand drawer; and (3) scales were kept in the nightstand drawer. But DiMatteo also denied knowing that plastic baggies were in the other nightstand drawer. She claimed, “That was his side of the bed. I didn’t open that drawer. I didn’t do anything with it.” RP (Aug. 16, 2006) at 136-37.

After both parties had rested, the trial court gave to the jury the following “to-convict” instruction:

To convict the defendant of the crime of delivery of a controlled substance . . . each of the following elements of the crime must be proved beyond a reasonable doubt.
(1) That on or about the 6th day of February, 2004, the defendant, or one with whom she was an accomplice, delivered a controlled substance;
(2) That the defendant knew that the substance delivered was a controlled substance, methamphetamine; and
(3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk’s Papers (CP) at 54.

Here, the evidence is uncontroverted that DiMatteo knew that the controlled substance delivered was methamphetamine. And the evidence is uncontroverted that Holle delivered a controlled substance, namely methamphetamine, to Rubiano on February 6, 2004.[5] The only question is whether Holle was “one with whom [DiMatteo] was an accomplice.” CP at 54. The majority notes that DiMatteo’s mere presence at the hotel room “does not provide a logical inference that she also intended to deliver methamphetamine to Rubiano.” Majority at 8. The majority seems to suggest that, because DiMatteo did not offer, hand, or deliver the methamphetamine to Rubiano, DiMatteo cannot be Holle’s accomplice. Again, I disagree.

Here, the trial court also gave the jury the following “accomplice” instruction:

A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable. A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of the crime.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word “aid” means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.

CP at 49.

In my opinion, DiMatteo’s testimony established that she knowingly aided Holle’s drug selling by knowingly providing the hotel room from which he sold drugs to Rubiano. To the extent that the majority’s holding suggests that DiMatteo cannot be found to be Holle’s accomplice unless she actively offered, handed, or delivered the methamphetamine to Rubiano, I believe it is an incorrect statement of the law. Accordingly, I respectfully dissent.