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Patrick
Stiley: Cases
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Washington v. Babich, 68 Wash. App. 438, 842 P.2d 1053 (Wa.App.
01/12/1993) |
| [1] |
COURT OF APPEALS OF WASHINGTON, DIVISION THREE |
| [2] |
No. 11701-4-III |
| [3] |
1993.WA.40855 842 P.2d 1053; 68 Wash. App. 438 |
| [4] |
January 12, 1993 |
| [5] |
THE STATE OF WASHINGTON, RESPONDENT,
v.
CULLENE FRANCIS BABICH, APPELLANT |
| [6] |
Patrick K. Stiley and Pat Stiley
& Associates, P.S., for appellant. |
| [7] |
Jack Burchard, Prosecuting Attorney, and Joe J. Solseng, Deputy,
for respondent. |
| [8] |
Thompson, J. Shields, C.j., and Munson, J., concur. |
| [9] |
Author: Thompson |
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[68 WashApp Page 439] |
| [10] |
Cullene F. Babich appeals her jury convictions for possession
of marijuana and delivery of marijuana and cocaine to a police informant.
She contends she was denied a fair trial by the prosecutor's improper
impeachment of defense witnesses. We reverse her conviction for
delivery of cocaine, but affirm the remaining convictions. |
| [11] |
Gary Townsend and his wife, Marjorie, are paid police informants.
He testified that on January 29, 1990, Sherry Vanzile telephoned
him and told him she had someone at her house who had marijuana
for sale. He went to Ms. Vanzile's home and purchased marijuana
from Cullene Babich. |
| [12] |
On March 28, 1990, Mr. Townsend was in the Pub Tavern in Oroville.
He and his wife were drinking with Ms. Babich and Kevin Bartell.
The Townsends invited Ms. Babich and Mr. Bartell to their house
where they continued drinking. Mr. Townsend testified he asked Ms.
Babich if she could get cocaine for him. She told him she could
get him an ounce. The next morning he called her at the telephone
number she had given him the night before and advised her he had
$350 for a quarter ounce. Kevin Bartell went to the Townsends' house,
picked up $300 from Mr. Townsend and returned later with the cocaine.
Mr. Townsend stated he gave Mr. Bartell a ride to the Pub Tavern
where he delivered the remaining $50 to Ms. Babich personally. |
| [13] |
During direct examination, the prosecutor asked Mr. Townsend
if he used drugs while working as an informant and whether he was
tested for drug use during this time period. He stated he had not
used drugs since 1988 and that he had been subjected to several
urinalyses and blood tests. The prosecutor then asked if he knew
the results of the tests. Defense counsel objected to the latter
question on the basis of hearsay, but the court allowed Mr. Townsend
to answer, ruling, "the question was does he know". However, Mr.
Townsend answered all the tests were returned negative for drug
use. The prosecutor had previously asked Officer John Scott Alden
of the Okanogan Sheriff's office, also over defense objection, about
whether Mr. Townsend |
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[68 WashApp Page 440] |
| [14] |
had been tested and if he remembered the results, and received
the same response. |
| [15] |
Agent Alvin Bauman of the United States Border Patrol testified
he was the law enforcement officer who worked with Mr. Townsend
on both the January marijuana buy and the March cocaine buy. He
later executed a warrant to search Ms. Babich's residence and found
marijuana. |
| [16] |
In the defense case, Ms. Babich admitted both of the deliveries
to Mr. Townsend. However, she stated a friend gave her the marijuana.
She did not know beforehand that Ms. Vanzile had arranged for Mr.
Townsend to purchase it. When she went to Ms. Vanzile's house, her
intent was to make a little money by selling it to Ms. Vanzile,
whom she knew. |
| [17] |
Ms. Babich's version of the March cocaine delivery raised the
defense of entrapment. Ms. Babich stated she was drinking in the
Pub Tavern with Mr. Bartell when Mr. and Mrs. Townsend sat down
with them and started buying them beers. After they went to the
Townsends' residence, Mr. Townsend passed around a marijuana joint,
which they all smoked. Mr. Townsend told her he had been looking
for cocaine. She responded that she did not know anything about
it. Mr. Townsend then passed around some cocaine. He continued to
pressure her about getting him more of the drug. |
| [18] |
Ms. Babich stated that at some point during the evening she
"broke down" and told Mr. Townsend she might know someone who could
help him and that she would check on it in the morning. He called
her twice before noon the next day. She was reluctant to go through
with the deal, but Mr. Bartell told her that if she would get the
cocaine, he would take it to Mr. Townsend. She next saw Mr. Townsend
in the Pub Tavern when he dropped Mr. Bartell off there. He placed
$50 in front of her, said "Here's for doing that cocaine deal",
and left before she could respond. Ms. Babich refused to say from
whom she obtained the cocaine. The inference |
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[68 WashApp Page 441] |
| [19] |
raised at trial was that she got the cocaine from her brother.*fn1 |
| [20] |
Other witnesses also testified that in their dealings with Mr.
Townsend it was his habit to use drugs and alcohol with them prior
to proposing they sell him drugs.*fn2
One of these people, Ernesto Franco, stated on cross examination
he did not know Ms. Babich dealt drugs and he never said he bought
drugs from her. The prosecutor then questioned Mr. Franco about
a conversation he had with Gary Townsend on May 30, 1990, which
Mr. Townsend allegedly recorded using a body wire. This cross examination
included the following: |
| [21] |
Q: And then, and you said, "Well, we should go talk to her [Ms.
Babich], and then she can call her brother." Do you remember that? |
| [22] |
A: Okay. I remember. |
| [23] |
Q: And so, you used to -- You knew that she was a drug dealer? |
| [24] |
A: No. |
| [25] |
Q: All right. You don't remember saying that -- You don't remember
discussing buying ounces from her [Ms. Babich], or anything like
that? |
| [26] |
A: No. |
| [27] |
Q: And, talking to her, "Well, if she can't do it, then her
brother can do it," stuff like that? |
| [28] |
A: No. |
| [29] |
Q: You don't remember that? |
| [30] |
A: It's not that I don't remember. That's a "no." I never said
that she was going to buy -- sell me some ounces. |
| [31] |
Q: Okay. Well, I mean, do you remember saying "Cullene, she
was dealing, she was dealing in halves and eighths, and shit, I
wish I could get some?" |
| [32] |
A: Not really. |
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[68 WashApp Page 442] |
| [33] |
Q: Okay. Well, see, here, it says, "EF;" that's "Ernie Franco."
That's you, right? And that's what this says, right? Right? "She
was dealing. She was dealing in halves and eighths." |
| [34] |
A: That's what that says. |
| [35] |
Q: And then you say, "Her [Ms. Babich's] brother, her brother
is one of the oldest motherfuckers that sells coke here. But he
does to Canadian people, and what he does, he cuts the son of a
bitch in half." |
| [36] |
"I never wanted to deal with him," you say ; "I never did."
Do you remember saying this? "And he doesn't trust me. I don't trust
him, because he knows that I know what he does. Cullene trusts me,
and she even paid me stuff -- from me." |
| [37] |
"Why didn't she get it from her brother?" "Because she knew
that her brother was fucking stepping on it." What does "stepping
on it," mean? What is to "step on" drugs? |
| [38] |
A: To cut it. |
| [39] |
Q: And then you said, later on, "So Cullene, instead of buying
from her brother, . . ." and then it breaks off. Do you remember
that statement? |
| [40] |
A: No. |
| [41] |
(Italics ours.) |
| [42] |
Michaelyn Maldonado, the Townsends' neighbor, testified on cross
examination: |
| [43] |
Q: Do you remember having a conversation on May 30, of 1990
with Gary Townsend in which you told him, when he came to you about
some cocaine, that what he needed to do was to deal with the defendant
because she had had a new shipment come in? Do you remember that
conversation? |
| [44] |
A: No, I don't remember it as being -- That's not the way the
conversation went. He came to me, and he asked me if I would provide
him with a connection, and that he very much wanted to connect,
for some reason, with Cullene, to purchase drugs. |
| [45] |
The State did not introduce extrinsic evidence to prove Mr.
Franco or Ms. Maldonado said Ms. Babich dealt in cocaine. Nevertheless,
the prosecutor argued during closing: |
| [46] |
You also have the testimony from Michaelyn Maldonado [the Townsends'
neighbor] that during a body wire she didn't know about, she told
the Townsends that if they wanted to get rid of a new supply of
cocaine that they were getting in, that the person they needed to
talk to was the defendant, because she had buyers for cocaine. |
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[68 WashApp Page 443] |
| [47] |
You also have evidence of predisposition because Ernie Franco
was quoted on a body wire. And, you have to remember, these people
didn't know this body wire was out there. Ernie Franco said, on
the body wire, that the defendant dealt in halves and eighths. .
. . She was known to other cocaine dealers as a cocaine dealer. |
| [48] |
(Italics ours.) |
| [49] |
The jury rejected Ms. Babich's entrapment defense and found
her guilty on all charges. |
| [50] |
First, Ms. Babich contends her due process right to a fair trial
was violated by the prosecutor's use of the prior statements allegedly
made by the witnesses to the informant. |
| [51] |
[1] Traditional practice in Washington allows admission of a
witness' prior inconsistent statement for impeachment purposes.
5A K. Tegland, Wash. Prac., Evidence § 254(1), at 298 (3d ed. 1989).*fn3
Proper impeachment by prior inconsistent statement utilizes a procedure
in which the cross examiner first asks the witness whether he made
the prior statement. If the witness admits the prior statement,
extrinsic evidence of the statement is not allowed because such
evidence "would waste time and would be of little additional value".
5A K. Tegland § 258(2), at 315. If the witness denies the prior
statement, extrinsic evidence of the statement is admissible unless
it concerns a collateral matter. In fact, as Professor Tegland points
out, it may be error for the prosecutor not to introduce extrinsic
evidence. |
| [52] |
If foundation questions are asked and the witness denies making
the inconsistent statement, there may be error under particular
circumstances if the cross-examiner does not later |
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[68 WashApp Page 444] |
| [53] |
introduce extrinsic evidence of the statement. If the rule were
otherwise, 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. |
| [54] |
(Footnotes omitted. Some italics ours.) 5A K. Tegland, at 316. |
| [55] |
In State v. Yoakum,
37 Wash. 2d 137,
222 P.2d 181 (1950), during cross examination
the prosecutor quoted extensively from a transcript of a taped interview
of the defendant conducted by law enforcement officers. When the
prosecutor asked the defendant if he had made those statements,
the defendant answered, "I don't know". Yoakum, at 140. The State
did not produce any extrinsic evidence concerning the alleged questions
and answers referred to by the prosecutor. Yoakum, at 141. The court
held this procedure left the jury with the impression "that in the
mind of the county prosecutor the witness had made the statements
inquired of, without any testimony except the questions of the county
prosecutor". Yoakum, at 141 (quoting Thurmond v. State, 57 Okla.
Crim. 388, 48 P.2d 845 (1935)). It reversed the defendant's conviction,
reasoning: |
| [56] |
A person being tried on a criminal charge can be convicted only
by evidence, not by innuendo. The effect of the cross-examination
as conducted by the deputy prosecutor was to place before the jury,
as evidence, certain questions and answers purportedly given in
the office of the chief of police, without the sworn testimony of
any witness. This procedure, followed with such persistence and
apparent show of authenticity, was prejudicial to the rights of
appellant. |
| [57] |
Yoakum, at 144. |
| [58] |
Cases from other jurisdictions also set forth the rule that
"the duty to follow up foundation with evidence is breached at the
risk of reversal of any tainted victory." United States v. Bohle,
445 F.2d 54, 74 (7th Cir. 1971). "[A] prosecutor may not use
impeachment as a guise for submitting to the jury substantive evidence
that is otherwise unavailable"; "a prosecutor who asks the accused
a question that implies the existence of a prejudicial fact must
be prepared to prove that fact". United States v. Silverstein, 737
F.2d 864, 868 (10th Cir. 1984). |
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[68 WashApp Page 445] |
| [59] |
In Silverstein, at 868, the prosecutor knew he could not prove
by independent evidence the substance of an alleged conversation
between one Malone and the defendant because Malone had escaped
from prison before trial. Scott v. State, 446 So. 2d 580 (Miss.
1984) held the prosecutor's attempt to impeach the witness by use
of her grand jury testimony was improper. No transcript of that
testimony was ever introduced. Scott held at pages 584-85: |
| [60] |
Without a transcript of the proceedings the only rebuttal to
the district attorney's line of questioning becomes the witness'
denial. This carries with it . . . inherent prejudice[]. . . . The
jury is far more likely to believe that the witness did indeed make
those statements before the grand jury simply because the district
attorney is insistent that she did. The district attorney then becomes
a witness against the defendant. |
| [61] |
State v. Amos, 490 S.W.2d 328, 331 (Mo. Ct. App. 1972) reversed
a conviction because the prosecutor, in cross-examining the defendant
about whether he had been convicted of prior crimes, made a show
of consulting an offense record, then failed to produce evidence
the defendant had been convicted of a prior offense. The court reasoned
at page 331: |
| [62] |
The prosecutor offered no evidence to rebut the defendant's
denial that he had been convicted of that offense. Rather, he undertook
a persistent inquiry into other identities and aliases the defendant
may have assumed, and those which defendant had denied having used
were tied to him by an uncanny coincidence of personal detail obviously
derived from the FBI report to which the prosecutor was making reference
. . . |
| [63] |
(Italics ours.) |
| [64] |
Here, the prosecutor also engaged in protracted impeachment
of Mr. Franco. During questioning he referred to an apparent written
transcript of the conversation allegedly recorded by Mr. Townsend
on a body wire. The format of the prosecutor's questions was, "And
then you said . . ." and |
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[68 WashApp Page 446] |
| [65] |
"You don't remember that?" Mr. Franco specifically denied saying
that Ms. Babich was a cocaine dealer, but the prosecutor never introduced
extrinsic evidence of the conversation to rebut that denial. His
cross examination of Ms. Maldonado on the same issue was less extensive,
but in the same vein. Then, he improperly argued to the jury in
closing argument that Ms. Babich was a known cocaine dealer, citing
the body wire conversations which were never introduced into evidence. |
| [66] |
The State counters Ms. Babich waived any error when she did
not object to the prosecutor's cross examination of Mr. Franco and
Ms. Maldonado and did not request a curative instruction in response
to the prosecutor's closing argument. But in 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. Until the State rested its rebuttal, Ms. Babich
had no way of knowing whether the State would or would not prove
the prior statements. By that time it was too late to undo the prejudice
resulting from the prosecutor citing those prior statements in questions
heard by the jury. |
| [67] |
[2] Nor was the error harmless. A violation of the right of
confrontation is error of constitutional magnitude. Constitutional
error is harmless only if the untainted evidence is so overwhelming
it necessarily leads to a finding of guilt. State v. Guloy,
104 Wash. 2d 412, 426,
705 P.2d 1182 (1985), cert. denied, 475
U.S. 1020 (1986). The untainted evidence in this case consists of
Mr. Townsend's version of events, contradicted by Ms. Babich's and
other witnesses' claims of entrapment. |
| [68] |
Given the definition of entrapment contained in the jury instructions
-- "the defendant was lured or induced to commit a crime which the
defendant had not otherwise intended to commit" -- the cross examination
and the argument prejudiced Ms. Babich. If the jury believed she
was a known cocaine dealer, based on inferences drawn from the cross
examination and closing argument, then it was unlikely to believe
Ms. Babich's contention that she was induced to sell cocaine to
Mr. Townsend by his giving her alcohol and drugs. |
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[68 WashApp Page 447] |
| [69] |
We therefore reverse Ms. Babich's conviction for delivery of
cocaine. The convictions for delivery and possession of marijuana
were not affected by the above error. Thus, we affirm those convictions. |
| [70] |
[3] We briefly address Ms. Babich's second issue because it
may be raised in a retrial. She asserts the court erred when it
overruled her hearsay objection to Detective Alden's and Gary Townsend's
testimony that Mr. Townsend had passed drug tests. We agree the
testimony was hearsay. The two witnesses had no personal knowledge
of the truth of the matter stated. Their testimony does not fall
within any recognized exception to the hearsay rule, ER
803, nor was there a showing that a properly
qualified witness was unavailable, or that the out-of-court statement
contained such particularized guaranties of trustworthiness as to
make cross examination of marginal utility. State v. Sosa,
59 Wash. App. 678, 683,
800 P.2d 839 (1990) (citing Ohio v. Roberts,
448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980)). If the
State seeks introduction of the test results on retrial, it must
do so through a properly qualified witness. |
| [71] |
Reversed.*fn4 |
| [72] |
Disposition |
| [73] |
Holding that the State's failure to properly rebut a witness's
denial of a prior inconsistent statement was prejudicial to the
defendant, the court reverses one of the delivery charges and affirms
the remainder of the judgment. |
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Opinion Footnotes |
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| [74] |
*fn1
Based on Ms. Babich's testimony, the court instructed the jury:
"Entrapment is a defense to a criminal charge if the criminal
design originated in the mind of law enforcement officials, or any
person acting under their direction, and the defendant was lured
or induced to commit a crime which the defendant had not otherwise
intended to commit. "The defense is not established if the law enforcement
officials did no more than afford the defendant an opportunity to
commit a crime."
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| [75] |
*fn2
These witnesses were incarcerated at the time of trial on drug convictions
stemming from Mr. Townsend's work as an informant. |
| [76] |
*fn3
ER
613 is a partial codification of this practice.
The rule provides:
"(a) Examining Witness Concerning Prior Statement. In the examination
of a witness concerning a prior statement made by the witness, whether
written or not, the court may require that the statement be shown
or its contents disclosed to the witness at that time, and on request
the same shall be shown or disclosed to opposing counsel. "(b) Extrinsic
Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence
of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny
the same and the opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent
as defined in rule 801(d)(2)."
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| [77] |
*fn4
We do not address the State's assignment of error because it did
not file a notice of cross appeal. |
