State v. DeVries

• Decision Date: 17 July 2003
• Docket Number: No. 72251-0.,72251-0.
• Citation: 149 Wash.2d 842,149 Wn.2d 842,72 P.3d 748
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Collette S. DEVRIES, Petitioner.

72 P.3d 748

149 Wn.2d 842

149 Wash.2d 842

The STATE of Washington, Respondent, v. Collette S. DEVRIES, Petitioner.

No. 72251-0.

Supreme Court of Washington, En Banc.

Argued November 14, 2002.

Decided July 17, 2003.

William Edelblute, Spokane, for petitioner.

James L. Nagle, Walla Walla County Prosecutor, Jill Peitersen, Deputy, for respondent.

CHAMBERS, J.

Collette S. DeVries, a juvenile in the ninth grade, was charged with the class B felony offense of knowingly delivering amphetamines to a fellow student, a violation of RCW 69.50.401(a)(1)(ii) of the Uniform Controlled Substances Act. She was convicted at a bench trial where the court improperly refused to hear closing arguments. The Court of Appeals reversed her conviction solely on the grounds of the trial court's violation of DeVries' right to present closing argument and did not address the evidentiary issues that she raised or her request for a new judge on remand.

DeVries sought review of four contentions not addressed by the Court of Appeals. First, whether the foundational requirements of identification and authentication were met for records admitted into evidence under the Uniform Business Records as Evidence Act (UBRA), chapter 5.45 RCW. Second, whether evidence of a prior act was improperly admitted under an exception to Evidence Rule (ER) 404(b). Third, whether the evidence was sufficient to convict. Fourth, whether remanding the case to the same judge is an appropriate remedy for the violation of DeVries' Sixth Amendment right.

Concluding the evidence is insufficient to convict, we reverse her conviction and dismiss the case with prejudice.

FACTS

DeVries was charged and convicted of knowingly delivering amphetamines after an incident with a classmate following a high school physical education class. A fellow classmate, Dieadera Mannen, testified at trial that DeVries gave her an "energy" pill and that after taking the pill she began to act irrationally, shake, and breathe hard. Report of Proceedings (RP) at 8-10, 13-14. Due to her irrational behavior and physical symptoms, Mannen was taken to an emergency room. The treating physician ordered a urine drug screen, which allegedly was positive for amphetamine.

Over DeVries' objections, the trial court admitted into evidence a copy of Mannen's urine drug screen laboratory report. The prosecution's witness, the emergency room physician who treated Mannen, testified by telephone and did not have a copy of the report before him or in his file.

The State offered testimony that DeVries had given two "energy" pills to another classmate, Melissa Bowden, three days before the incident for which DeVries was charged. Bowden testified that she felt "like really hyper" after ingesting the energy pill from DeVries. RP at 66. Bowden testified that the pills she received from DeVries looked different from the pill Mannen claimed to have received. The trial court admitted Bowden's testimony regarding the prior act, even though the descriptions of the pills in the two incidents were strikingly different and there was no evidence that the pills in the prior incident contained a controlled substance. Neither Mannen nor Bowden, the two classmates who claimed to have received energy pills from DeVries, believed the pills were either dangerous or a controlled substance.

Walla Walla County Deputy Sheriff Humphreys, who interviewed DeVries after the incident as a part of his investigation, testified that DeVries denied any involvement with narcotics and told him she received four pills from a Spokane man.

At the conclusion of the evidence, the trial court rendered its decision without the benefit of summation:

I'm not going to ask for any closing arguments.... [C]ertainly I understand everybody's theory. I understand what the evidence is ... I feel that I have a basis and am in a position to give my decision.

RP at 155. The trial court then pronounced DeVries guilty. The Court of Appeals reversed, holding that the trial court erred by denying DeVries her Sixth Amendment right to have counsel make a closing argument. State v. DeVries, 109 Wash.App. 322, 324, 34 P.3d 927 (2001).

In addition, but without specifically addressing the evidentiary issues raised by DeVries, the court below concluded that the evidence presented at trial was sufficient to convict. DeVries, 109 Wash.App. at 324-25, 34 P.3d 927. It remanded the case for a new trial before the same judge. Id. at 325, 34 P.3d 927. DeVries sought review of the Court of Appeals decision on the unaddressed evidentiary and remedy issues. We granted review.

ANALYSIS

LABORATORY REPORT AND DOCTOR'S TESTIMONY

DeVries argues that the trial court abused its discretion in admitting the laboratory report of Mannen's drug screen because it was not properly identified and authenticated by the emergency room doctor as the report he saw on October 25, 1999 while treating Mannen. We agree.

The UBRA provides an exception for business records to the general hearsay rules. RCW 5.45.020. This court has interpreted the UBRA as applying to medical records and has set forth criteria to ensure the reliability of these records. See State v. Ziegler, 114 Wash.2d 533, 538-40, 789 P.2d 79 (1990)

. While the UBRA is a statutory exception to hearsay rules, it does not create an exception for the foundational requirements of identification and authentication. 5C KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 803.42, at 23 (4th ed.1999). A trial court's decision to admit records under the act is reviewed for a manifest abuse of discretion. Ziegler, 114 Wash.2d at 538,

789 P.2d 79.

In this case, exhibit 1 was a laboratory report of the urine test, which the State contended was from the victim, Mannen. The State introduced the report through the emergency room doctor, who testified by phone. Critically, the doctor did not have a copy of the report before him to consult while testifying. He could not say that the report he had seen previously on October 25, 1999, while treating Mannen, was the same one that the prosecution sought to admit. The identification of exhibit 1 was further confused by the prosecutor's repeated reference to the exhibit as a blood test. Mannen did have a blood test but it was only the urine test that was screened for drugs.

Because the exhibit was not properly identified and authenticated by a witness, it was a manifest abuse of discretion for the trial court to admit it into evidence.¹

It is possible that upon a proper foundation the doctor could have offered an opinion as to the condition for which he treated his patient. But that is not the question before us. The doctor was never asked for his expert opinion. The trial judge, perhaps frustrated by persistent foundation objections of defense counsel, asked the critical question himself:

THE COURT: You can go ahead tell us what the drug screen said.

A. It was positive for amphetamines.

RP at 90.

The trial court abused its discretion in admitting the laboratory report without proper foundation.²

EVIDENCE OF PRIOR ACT

DeVries challenges the court's admission of evidence under ER 404(b) that DeVries gave two pills to Bowden a few days before the incident involving Mannen. The court stated the prior incident showed DeVries knew the pill given to Mannen was a controlled substance even though the pills were not the same. Bowden testified the pill she took was a soft capsule, while Mannen testified the pill she took was hard.

Evidence can be admitted under ER 404(b) only if the trial court finds the evidence serves a legitimate purpose, is relevant to prove an element of the crime charged, and, on balance, the probative value of the evidence outweighs its prejudicial effect. State v. Lough, 125 Wash.2d 847, 853, 889 P.2d 487 (1995). In doubtful cases, the evidence should be excluded. State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986). There was no evidence the prior pills were a controlled substance or that the pills were the same. The prior incident had little or no probative value on the elements of the crime charged and it should have been excluded.

SUFFICIENCY OF THE EVIDENCE

DeVries challenges the sufficiency of the evidence relied upon by the trial court to find that she had a controlled substance and knowingly delivered a controlled substance. Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, it allows any rational trier of fact to find all of the elements of the crime charged beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. Green, 94 Wash.2d 216, 222, 616 P.2d 628 (1980). As the United States Supreme Court noted, it is critical that our criminal law not be diluted by a standard of proof that leaves the public to wonder whether innocent persons are being condemned. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). "`"[T]he reasonable-doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue."'" State v. Hundley, 126 Wash.2d 418, 421-22, 895 P.2d 403 (1995) (quoting Winship, 397 U.S. at 364, 90 S.Ct. 1068).

The State charged DeVries with knowingly delivering a controlled substance, in violation of RCW 69.50.401(a).³ The necessary elements of the crime are (1) delivery of a controlled substance, and (2) knowledge that the substance delivered was a controlled substance. RCW 69.50.401(a)(1)(ii); State v. Hernandez, 85 Wash.App. 672, 675, 935 P.2d 623 (1997). The State was required to plead and prove that DeVries knew that she was delivering a controlled substance.⁴State v. Nunez-Martinez, 90 Wash.App. 250, 255, 951 P.2d 823 (1998). Several young women, all classmates of the accused, testified to the incident which...