No. 27203-2-II.The Court of Appeals of Washington, Division Two.
Filed: February 25, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED PINION
Appeal from Superior Court of Clark County Docket No: 00-1-01609-3 Judgment or order under review Date filed: 03/21/2001.
Counsel for Appellant(s), R. A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.
Counsel for Respondent(s), Leann Shill Larson, Attorney at Law, 1200 Franklin St, P.O. Box 5000, Vancouver, WA 98666-5000.
ARMSTRONG, J.
Matthew Hastings appeals his conviction of unlawful delivery of methamphetamine, arguing that the court (1) unduly restricted his right to cross examine the informant, (2) allowed an officer to vouch for the informant’s credibility, (3) improperly instructed on accomplice liability, and (4) incorrectly calculated his sentence. Hastings also contends that his counsel was ineffective and that a juror engaged in misconduct. Because the State concedes the sentencing error, we remand for resentencing. Otherwise, we find no error and, thus, affirm the conviction.
FACTS
Matthew Hastings and his co-defendant, Keith Monahan, sold methamphetamine to a drug task force informant, Dale Ramsey. Another co-defendant, Sherry Bushaw, arranged the transaction. Ramsey was wearing a body wire, and police recorded the transaction. Although police lost sight of the informant’s car while he was driving to the meeting place, they caught up to him and watched the transaction from afar.
The informant and a police officer who watched the transaction with binoculars identified Hastings as a participant. Both Hastings and Monahan held the packet of methamphetamine before selling it to the informant, and each was charged as a principal and an accomplice to the unlawful delivery.
At trial, defense counsel attempted to show that Ramsey was biased because he was paid to buy drugs. The defendants were able to show that Ramsey had worked with the drug task force before and had been paid for the work. But the court did not allow defendants to ask details about Ramsey’s past cases because he was acting as a confidential informant at the time. Several weeks after the jury’s verdict, Hastings moved for a new trial based on alleged juror misconduct. His fianc`e knew a juror and believed that the juror had threatened her in the past. Hastings claimed the juror was biased, that she had not been forthright with the court, and that she had discussed the case with non-jurors while the trial was ongoing. After a hearing, the trial court found that no misconduct had occurred and denied Hastings’ motion.
ANALYSIS I. Opinion Testimony
Hastings contends that Deputy Nelson improperly vouched for the informant’s credibility by implying that he believed that the informant was telling the truth. At the beginning of Nelson’s testimony, the State asked him to explain how the police use informants and why a person would inform for the police. Nelson explained that the task force commonly uses informants because they have been in the drug subculture and can easily get involved in a drug transaction. He said that informants might be motivated by a desire to help change the drug subculture, by money, or by favorable recommendations on charges pending against them. He did not say that informants were truthful.
In closing, defense counsel stressed the informant’s lack of credibility. Counsel implied that the State itself did not believe the informant because of problems in his testimony. The State responded that it was not a `bad thing’ that the informant had informed before, but that the police used him again showed that they trusted him. IV Report of Proceedings (RP) at 148.
The prosecutor reminded the jury that Ramsey was not a `complete angel,’ but it noted that his connection to the drug subculture was what made him useful as an informant. IV RP at 152. Hastings’ argument has two problems. First, because he did not object to Nelson’s testimony, he can raise this issue on appeal only if it is a manifest constitutional error. RAP 2.5(a); State v. Jones, 71 Wn. App. 798, 812, 863 P.2d 85
(1993). But where the witness does not explicitly state his belief in a person’s story, the error is not of constitutional magnitude. Jones, 71 Wn. App. at 812-13 (citing State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989)). Nelson did not explicitly testify that he believed the informant. Thus, any error is not of constitutional magnitude and may not be raised for the first time on appeal. See Jones, 71 Wn. App. at 813. Second, even if Hastings had raised this issue below, Nelson’s testimony was not improper as he did not vouch for the informant’s credibility.
In State v. Carlson, 80 Wn. App. 116, 123-24, 906 P.2d 999 (1995), the appellate court found that a doctor improperly expressed an opinion about the victim’s testimony. The doctor said she believed the victim had been sexually abused, and she based her belief mainly on the victim’s statements. Carlson, 80 Wn. App. at 123-24. And in State v. Padilla, 69 Wn. App. 295, 299-300, 846 P.2d 564 (1993), the prosecutor committed misconduct by asking a witness whether he was saying that an officer was lying. In contrast, here Nelson only discussed why informants agree to work for the police and why the police use informants. As the State argues, he provided background information on the drug task force’s use of informants to the jury. He did not vouch for the informant’s credibility.
The trial court did not err by allowing Nelson to testify.
II. Restriction on Cross Examination
In response to the State’s motion in limine, the trial court ruled that defense counsel could ask the informant how long he had worked for the drug task force, but he could not ask about the details of past cases. The court based its ruling on the privilege given to confidential informants; although the informant was named in Hastings’ trial, his identity was apparently kept confidential in past trials. Hastings contends that the court’s ruling improperly restricted his right to cross examine the informant. Specifically, he argues that he was denied the right to explore the informant’s motive and bias in order to attack his credibility.
The Sixth Amendment right of confrontation includes the right to cross examine witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The government may refuse to disclose the identity of confidential informants unless `disclosure of an informer’s identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause{.}’ State v. Petrina, 73 Wn. App. 779, 783, 871 P.2d 637 (1994) (quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). A confidential informant’s privilege yields only when the informant is `a material witness on the question of a defendant’s guilt or innocence.’ State v. Casal, 103 Wn.2d 812, 816, 699 P.2d 1234 (1985) (emphasis omitted). Hastings has not shown how evidence about Ramsey’s past cases is helpful to his defense or essential to a fair determination of his case. And the court’s ruling did not deny him the opportunity to impeach Ramsey’s credibility. The defense team extensively cross examined the informant. Counsel attacked his credibility, pointing out inconsistencies and irregularities in his testimony, like his claim that he was `magically’ convicted of a felony. Counsel also questioned his motive and bias, showing that he had worked for the drug task force in the past and that he was paid for his effort. In closing arguments, counsel highlighted the problems of motive and bias that can arise when police pay informants.
In Davis, the trial court prohibited defense counsel from asking a key witness about his juvenile record and about being on probation at the time he implicated the defendant to the police. Davis, 415 U.S. at 311-12. The Supreme Court was especially troubled by an answer it suspected the witness would not have given unless he felt sure he would not be cross examined as to its falsity. Davis, 415 U.S. at 314. The Court said the trial court’s ruling prevented the defense from adequately cross examining the witness; the trial court should have allowed counsel to ask questions from which the jury could infer the witness lacked credibility. Davis, 415 U.S. at 318. Here, however, Hastings fully exercised his right to cross examine the informant. He has not shown that the informant’s testimony was different because he knew he would not be asked certain questions. Nor has he explained how privileged information would have helped his defense. The scope of cross examination lies within the trial court’s discretion. State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991). The trial court did not err by upholding the confidential informant’s privilege from previous trials.
III. Accomplice Liability Instruction
Under RCW 9A.08.020(3), a defendant is liable as an accomplice only if he knew that his actions would promote or facilitate the charged crime. State v. Cronin, 142 Wn.2d 568, 578, 14 P.3d 752 (2000). Here, the jury instructions required the jury to find only that Hastings helped commit `a crime’ and that he knew that his actions would promote or facilitate `a crime.’ The State contends that Hastings waived his right to appeal this issue by failing to object to the instruction and that any error was harmless. Jury instructions that relieve the State of its burden to prove each element of a charged crime constitute constitutional error. State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001). Thus, a defendant may raise the error for the first time on appeal. RAP 2.5(a). Moreover, in most cases since Cronin where the defendant challenges the improper accomplice liability instruction, appellate courts have exercised their discretion to review the claim, even if defendant did not object below. State v. King, 113 Wn. App. 243, 265 n. 2, 54 P.3d 1218 (2002).
We presume that an instructional error was prejudicial; the State has the burden to show that it was harmless. Stein, 144 Wn.2d at 246. A constitutional error is harmless if the court concludes beyond a reasonable doubt that any reasonable jury would reach the same result absent the error. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285
(1996). An instructional error is not harmless if it relieves the State of its burden to prove every essential element of a crime beyond a reasonable doubt. Cronin, 142 Wn.2d at 580; see also Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (omission of elements from a jury instruction can be harmless).
The State argues that the defective instruction was harmless because neither the State nor Hastings contended that Hastings helped commit any crime other than delivery of methamphetamine.
In Cronin, the same defective instruction was not harmless because the jury could have relied on evidence of crimes other than the charged crime to find liability as an accomplice. The jury convicted Cronin of first degree felony murder and premeditated first degree murder with one aggravating factor. Cronin, 142 Wn.2d at 577. The trial court’s instructions allowed the jury to convict him by finding that he knew that his actions would promote or facilitate any crime, including either the uncharged robbery or kidnapping. See also Stein, 144 Wn.2d 236 (holding a defective accomplice liability instruction not harmless because the jury may have found guilt as an accomplice to attempted murder and burglary based on conspiracy to intimidate). Unlike in Cronin and Stein, here the State argued only that Hastings knew that his actions would facilitate, encourage, or aid the unlawful delivery of methamphetamine. And the State produced evidence of one crime only delivery of methamphetamine. In Cronin, the jury convicted the defendant as an accomplice to murder, but he might have known of and intended to aid only a kidnapping or robbery. Here, the evidence showed that Hastings knew of and intended to aid only delivering drugs. No reasonable jury would have reached a different result if the instruction had properly said `the crime’ instead of `a crime.’ We conclude that the error was harmless.
IV. Juror Misconduct
A month after the jury reached a verdict, Hastings moved for a new trial, alleging juror misconduct. He claimed that one of the jurors and her daughter disliked his fianc`e because both the daughter and the fiance?e, formerly friends, had been involved with the same man. After a two-day hearing on the question, the court ruled that the juror had not committed misconduct and it denied Hastings’ motion. Specifically, the court found that the juror and Hastings did not know each other. The juror’s only link was to Hastings’ fianc`e (now wife); Hastings’ fianc`e was acquainted with the juror’s daughter and knew the juror through her.
The court pointed out that although Hastings’ fianc`e recognized the juror before the verdict was read, she did not bring this to anyone’s attention until well after the verdict. It found that the juror did not know Hastings `in any manner which would impart information which might effect (sic) the verdict.’ Clerk’s Papers (CP) at 62.
Hastings maintains that the trial court should have granted a new trial because (1) the juror communicated with a non-juror while the trial was ongoing, (2) the juror did not disclose material information during jury selection, and (3) the juror’s bias toward and fear of Hastings’ fianc`e made her verdict partial.
Hastings has the burden of showing juror misconduct. State v. Hawkins, 72 Wn.2d 565, 568, 434 P.2d 584 (1967). We review the trial court’s decision to deny a new trial for manifest abuse of discretion. State v. Havens, 70 Wn. App. 251, 255, 852 P.2d 1120 (1993). A court abuses its discretion if its decision is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ State v. Cunningham, 96 Wn.2d 31, 34, 633 P.2d 886 (1981) (quoting State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977); State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974)).
A. Communication Outside Trial
Before she was selected for the jury, the juror asked her daughter whether she knew any of the defendants; her daughter said she did not. The juror explained that she asked because her daughter knows a lot of people and she wanted to advise the court of any potential conflict. Hastings alleges that the juror’s daughter told another person about the trial in some detail. The statements he relies on were objected to and stricken as hearsay. No other evidence showed that the juror improperly discussed the case while the trial was taking place. The trial court did not err in finding no misconduct here.
B. Disclose Information in Jury Selection
The juror did not recognize Hastings, and he did not recognize her. The juror’s daughter also testified that she did not know Hastings. The juror did recognize Hastings’ fianc`e, but she attended only the last day of trial. Hastings presented no evidence that the juror knew Hastings but failed to disclose this to the court at jury selection. The trial court did not err in finding no misconduct.
C. Verdict Affected by Fear or Bias
When Hastings’ fianc`e attended trial on the last day, the juror recognized her and felt threatened by her. Hastings’ fianc`e testified that she never threatened the juror but that she had had verbal fights with the juror and her daughter. She said that once the juror had threatened to send her and her family to jail if she `came around.’ VI RP at 52. But, the juror testified that she based her verdict solely on the evidence and testimony presented at trial.
The fianc`e’s testimony contradicts that of both the juror and her daughter in many respects. And that none of the defendants recognized the juror, and that she did not recognize them, refutes much of the fianc`e’s story and raises questions about her veracity. The trial court properly made a credibility determination. State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335 (1987). Again, we find no abuse of discretion.
V. Incorrect Calculation of Sentence Range
Hastings claims that the trial court relied on an incorrect sentence range when it sentenced him. The State concedes that the trial court incorrectly calculated the sentence range and agrees with Hastings that we should remand the case for resentencing.
VI. Effective Assistance of Counsel
Hastings claims that his counsel failed him in several ways: (1) he did not object to the admission of Nelson’s statements `vouching for’ the informant, (2) he did not make an offer of proof about what impeaching information he could have brought out if the court let him fully cross examine the informant, and (3) he miscalculated the sentence range. To prevail on an ineffective assistance of counsel claim, Hastings must show that counsel’s representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And he must show that the deficiency prejudiced him, depriving him of a fair trial. Strickland, 466 U.S. at 687. We presume that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
As discussed above, Nelson’s statements provided background information on the police’s use of informants; he did not vouch for the informant’s truthfulness. Counsel’s representation was not deficient on this issue. Hastings is correct that counsel did not make an offer of proof about impeaching the informant and did not correct the sentence calculation error. But even if counsel was ineffective in these matters, Hastings must show `a reasonable probability that, except for counsel’s unprofessional errors, the result of the proceeding would have been different.’ McFarland, 127 Wn.2d at 335. Hastings attempted to supplement the record on appeal to include evidence of his proposed cross examination. We denied his motion because he failed to satisfy the RAP 9.11 criteria. He argues that the evidence presented would have concerned the informant’s past dealings with the drug task force and would have impeached the informant. But Hastings and his two co-defendants extensively cross examined the informant, exposing his prior involvement with the drug task force and underscoring the inconsistencies in his testimony.
Nelson testified that the informant was paid and that he had known the informant for two years, alluding to the informant’s lengthy experience with the drug task force. And Hastings argued in closing, without objection, that the informant had worked as an informant for two to three years. Thus, counsel was able to attack the informant’s credibility and to question his motive and bias. There is no reasonable probability that the jury’s result would have differed had Hastings’ attorney made an offer of proof. And while Hastings may have been prejudiced by the sentencing calculation error, he failed to show that counsel’s representations caused the error. That error is corrected by a remand for resentencing.
VII. Pro Se Issues
Pro se, Hastings contends that the informant was not credible, that his testimony was inaccurate, and that no other witness saw the transaction. Essentially, he contends that the evidence is ineffective to support his conviction. Evidence is sufficient to support a conviction if, taken in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the case beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The trier of fact determines credibility. Casbeer, 48 Wn. App. at 542. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). To convict Hastings of unlawful delivery of a controlled substance (methamphetamine), the State had to prove beyond a reasonable doubt that Hastings knowingly delivered a controlled substance. RCW 69.50.401(a). Hastings contends that the evidence was insufficient to show that he actually delivered the drugs (or acted as an accomplice). Viewing the evidence in the light most favorable to the State, Hastings and co-defendant Monahan met the informant at a pre-arranged place. The informant gave the defendants money, and they gave him methamphetamine.
The informant testified about this transaction and the transaction was recorded with a body wire. The police lost sight of the informant’s vehicle for a few minutes while they were driving to the meeting place, but they could see the informant and the defendants while the transaction occurred. And although police could not see drugs or money change hands, the informant was searched before and after the transaction. Before the transaction, he had the police money and no drugs; after the transaction, he had the drugs and no money. This evidence was sufficient to find, beyond a reasonable doubt, that Hastings delivered, or aided in the delivery of, methamphetamine. Hastings also challenges the trial court’s restriction on his cross examination of the informant and trial counsel’s failure to make an offer of proof. We discussed this issue above and need not address it again. See RAP 10.3(d) (limits on pro se supplemental brief).
Affirmed, but remand for resentencing.
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.
BRIDGEWATER and SEINFELD, JJ., concur.