State v. Avendano-Lopez
| Decision Date | 02 November 1995 |
| Docket Number | A,AVENDANO-LOPE,No. 17683-1-II,17683-1-II |
| Citation | 904 P.2d 324,79 Wn.App. 706 |
| Parties | The STATE of Washington, Respondent, v. Ignacioppellant. |
| Court | Washington Court of Appeals |
Thomas Charles Roberts, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.
A jury found Ignacio Avendano-Lopez guilty of possession of cocaine with intent to deliver. We hold that the prosecutor improperly asked Avendano-Lopez on cross-examination whether he had "on occasion sold heroin," and improperly concluded her cross-examination by asking Avendano-Lopez, "You are not legal in this country, are you?" Avendano-Lopez did not "open the door" to these questions by testifying that he had recently been released from jail, was born in Mexico, and was raised in Mexico and Texas. Nonetheless, holding that it is unlikely that the misconduct affected the verdict, we affirm.
On July 27, 1993, Tacoma Police Officers Palmer and Krause were conducting surveillance in an area of downtown Tacoma known for extremely high drug activity. Both officers testified that they observed two men walking north on Commerce Street. One of the men was Avendano-Lopez and the other was identified as Jesus Garcia Vargus. The officers saw Avendano-Lopez and Vargus separate; Avendano-Lopez stood near a bus stop on Commerce Both officers stated that the known heroin user showed Vargus what appeared to be U.S. currency. Vargus then walked over to where Avendano-Lopez was standing. Avendano-Lopez removed an object from his mouth and handed it to Vargus. Avendano-Lopez then left the area, and Vargus remained near the bus stop. After a few moments, the known heroin user again contacted Vargus, who showed the heroin user something in his hand. The officers testified that the object was small and appeared to be dark in color. Vargus next put the object up to his mouth and appeared to make a tearing motion with his teeth. Vargus again displayed the object to the heroin user, who shook his head as if to say "no", and walked away. Later, the officers observed Vargus hand the object back to Avendano-Lopez, who then walked away. One officer approached Vargus and Avendano-Lopez as they were separating. The other officer saw Avendano-Lopez drop something from his left hand. This object was recovered by the officers and later tested positive for heroin. Both men were arrested.
Street, and Vargus seated himself on the stairs leading to a business office. The officers observed another man, whom they knew to be a heroin user, approach Vargus.
During trial, Avendano-Lopez testified that he went to the bus stop, tried to find a friend to loan him money to ride the bus home, and was approached by Vargus. Avendano-Lopez stated that Vargus then left the bus stop area and that the police officers arrested him after he asked two individuals for a dollar for the bus. Avendano-Lopez denied that he had previously sold heroin, that he had ever given Vargus heroin to sell, and that he had thrown something to the ground before being arrested.
At trial, Officer Palmer, who had been investigating drug cases for two years, averaging two to four felony arrests per day, testified about certain characteristics or behaviors of a typical drug dealer. He stated that drug dealers: usually receive money from the users; often have a lot of money and/or narcotics on their person; carry both very small and large quantities of drugs; often keep drugs in their mouths; are often users themselves; and that heroin is often wrapped in small balloons that resemble party balloons. He also explained how middlemen are used to complete drug transactions.
Avendano-Lopez asserts that the introduction of this testimony requires reversal because its prejudicial effect outweighs any probative value. But Avendano-Lopez failed to object to the substance of the officer's testimony during trial. 1 A party cannot appeal a ruling admitting evidence unless the party makes a timely and specific objection to the admission of the evidence. 2 RAP 2.5(a) states that an "appellate court may refuse to review any claim of error which was not raised in the trial court." These rules are intended "to afford the trial court an opportunity to correct any error, thereby avoiding unnecessary appeals and retrials." 3 They are also supported by considerations of fairness to the opposing party: "the opposing parties should have an opportunity at trial to respond to possible claims of error, and to shape their cases to issues and theories, at the trial level, rather than facing newly-asserted error or new theories and issues for the first time on appeal." 4
Even if we were to address the merits of Avendano-Lopez's contention, the officer's testimony was not "criminal profile" testimony. "Profile" testimony identifies a group as more likely to commit a crime and is generally "inadmissible owing to its relative lack of probative value compared to the danger of its unfair prejudice." 5 The officer's testimony in this case did not identify any group as being more likely to commit drug offenses. Rather, it was permissible expert opinion; it explained the arcane world of drug dealing and certain drug transactions and thus was helpful to the trier of fact in understanding the evidence. 6 "Profile" testimony and permissible expert opinion overlap, which underscores the necessity of objecting to questionable testimony during trial so that the trial court can limit any objectionable "profile" aspect and channel the testimony toward admissible expert opinion instead. 7
Finally, because his defense counsel used the testimony to his own advantage, Avendano-Lopez cannot argue that the introduction of this testimony constituted prejudicial error. 8 Defense counsel cross-examined Officer Palmer about the ways in which Avendano-Lopez differed from the drug dealers described by the officer. The officer testified that, although drug dealers often have a lot of money on their person, no money was found on Avendano-Lopez when he was arrested. Similarly, he testified that, although dealers often carry a lot of narcotics, Avendano-Lopez was only in possession of a very small amount of heroin. Having chosen to use Officer Palmer's expertise to his own advantage at trial, Avendano-Lopez cannot claim error on appeal.
Avendano-Lopez next contends that the trial court abused its discretion in denying his motion for mistrial, which was based on prosecutorial misconduct. Specifically, Avendano-Lopez objects to two questions the prosecutor asked of him on cross-examination: whether Avendano-Lopez had ever sold drugs before; and whether he was "legal in this country".
We must determine whether the prosecutor's questions constituted misconduct and, if so, whether there is a substantial likelihood that the misconduct affected the jury verdict, thereby denying Avendano-Lopez a fair trial. 9 We determine the effect on the verdict by considering whether the testimony by the State's witnesses and by defense witnesses was believable or corroborated. 10 We reverse only if there is a substantial likelihood that the misconduct affected the jury verdict. 11 We hold that Avendano-Lopez was not prejudiced by these questions because it is unlikely that they affected the jury verdict.
During cross-examination, the prosecutor questioned Avendano-Lopez about his past use of heroin and prior sales activity:
The question regarding prior sales activity constituted misconduct because evidence of other crimes, wrongs, or acts is inadmissible to show action in conformity with the prior crimes, wrongs, or acts. 12 Prosecutors are prohibited from inquiring into inadmissible matters. 13 "It is axiomatic that counsel cannot ask questions of a witness that have no basis in fact and are merely intended to insinuate the existence of facts to a jury." 14 The question, aside from being improper, was also irrelevant; whether or not Avendano-Lopez had previously sold narcotics had no legitimate bearing on whether, on the date in question, he possessed with intent to deliver.
We reject the State's assertion and the trial court's conclusion that Avendano-Lopez "opened the door" to this question. 15 Tegland describes the "open door" doctrine as follows:
A party may introduce inadmissible evidence if the opposing party has no objection, or may choose to introduce evidence that would be inadmissible if offered by the opposing party.... [T]he introduction of inadmissible evidence is often said to "open the door" both to cross-examination that would normally be improper and to the introduction of normally inadmissible evidence to explain or contradict the initial evidence. 16
The doctrine is intended to preserve fairness: "It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it." 17
Avendano-Lopez did not "open the door" to questions about prior drug transactions when he volunteered on direct examination that he had recently been released from jail. 18 Washington courts have held that the defendant's testimony, on direct examination, regarding a prior conviction or incarceration, opened the door for cross-examination about the conviction by the...
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