State v. Bonner

• Decision Date: 08 November 1978
• Docket Number: No. 2572-II,2572-II
• Citation: 21 Wn.App. 783,587 P.2d 580
• Parties: STATE of Washington, Respondent, v. Claudia M. BONNER, Appellant.
• Court: Washington Court of Appeals

Page 783

21 Wn.App. 783

587 P.2d 580

STATE of Washington, Respondent, v. Claudia M. BONNER, Appellant.

No. 2572-II.

Court of Appeals of Washington, Division 2.

Nov. 8, 1978.

[587 P.2d 581] William L. Britton, Olympia, for appellant.

Edward F. Schaller, Jr., Olympia, for respondent.

DORE, Judge.

Defendant was convicted of two crimes, unlawful possession of a controlled substance with intent to deliver, and unlawful delivery of a controlled substance.

ISSUES

ISSUE 1: Whether the trial court erred in failing to grant defendant's motion for a change of venue based on claimed prejudicial pretrial publicity.

ISSUE 2: Was the defendant prejudiced and unable to have a fair trial because she was paraded while handcuffed in front of the jury panel in the hallway outside the courtroom?

ISSUE 3: Whether the trial court erred in admitting the testimony of a police officer outlining the history of the drug problem and drug enforcement in the county.

ISSUE 4: Whether the trial court erred in finding informant was not an "absent witness"; refusing an "absent witness" instruction, and restricting defendant's counsel on the subject in closing argument.

ISSUE 5: Whether the trial court erred in sentencing defendant to consecutive rather than concurrent terms of imprisonment.

FACTS

In May of 1976, Dennis Cunningham, an investigator for the Washington State Patrol Drug Assistance Unit, collaborated with a paid informant named Fromm, to purchase drugs. At 2:30 a. m. on June 11, 1976, Cunningham and Fromm entered a residence in Olympia, Washington, where they were introduced to the defendant. Cunningham expressed an interest in purchasing cocaine and defendant agreed to sell him some for $110 per ounce. Cunningham paid the money and he was instructed to return at 4:30 a. m. for the pickup. Upon his return defendant gave Cunningham a plastic bag containing cocaine. Defendant was arrested a week later at her Olympia residence.

On Monday, June 21, 1976, an article appeared in The Daily Olympian (a local newspaper serving the area), naming the defendant among numerous persons arrested as part of a "drug raid." The article appeared under a 3/4 inch heading captioned "Weekend Drug Raids Net Pretty Good Dealers." The article itself was spread across three columns, the width of a page. Pertinent parts of the article pertaining to the defendant stated:

Released from jail yesterday were: Richard A. Watts, 26, 1215 Bowman St., two counts of delivery and two counts of possession with intent to deliver ($1,500 bail); Dennis B. Parmelee, 25, Rainier, unlawful delivery ($1,000); Raylene M. Shunkwiler, 23, 948 Nell St. NE, unlawful delivery ($1,000); James W. Powell, no age given, 5895 Capitol Boulevard, delivery of a controlled substance ($2,000); Jay B. Woods, 19, Tenino, attempted delivery ($1,000), and Arnold L. Wellman, 19, Route 8 (Box 284); unlawful delivery ($1,500).

Those arrested and being held in lieu of bail include: Frederick R. Doughty, Jr., 21, 1443 Brown St. NE, delivery ($1,000); James W. Showalter, 38, 1110 East Ave., possession and delivery ($2,500); Elden L. Brown, 21, Route 1 (Box 454-D3), unlawful delivery ($2,000); Theresa G. Farrington, 21, 512 Bigelow Ave., possession Being held for investigation were: Brian T. Kirk, 22, Tacoma, unlawful delivery; Claudia M. Bonner, 32, 503 N. Puget St., unlawful delivery; Emory J. Treadaway, 21, 1024 Prospect Ave., unlawful possession; Gary L. Kelly, 20, Route 3 (Box 381) unlawful possession and delivery; Mark G. Lee, 19, 2411 State Ave. E., delivery; Lawrence W. Sweeney, 21, Route 18 (Box 153), unlawful delivery; Robert W. Burdick, 25, 1807 7th Ave. E., three counts delivery and three possession with intent to deliver, and John A. Hanson, 20, 5118 Brassfield Ave., unlawful delivery.

with intent to sell ($2,500); Shannon V. Westcott, 24, Route 5 (Box 234), three counts of delivery ($10,000); Della M. Bell, 20, 511 South Sawyer St., possession with intent to deliver and delivery ($1,000); William P. Harrington, 20, 401 N. Lybarger St., conspiracy to deliver and second degree burglary ($3,500); Douglas L. Andersen, 26, 420 Steele St., two counts of possession and two counts of delivery ($10,000).

A total of 30 officers from Lacey, Tumwater, Olympia and Thurston County were used in raids.

Arrests began at 5 a. m. Saturday and 3 a. m. Sunday.

(Emphasis added.)

In a subsequent article (August 5, 1976), four days before trial, the Chief Deputy Prosecuting Attorney Schaller was quoted in The Daily Olympian concerning the drug raid, and defendant was again mentioned by name. The article appeared under a 3/4 inch heading captioned "Drug Raid Didn't Net Much 'Big Stuff' " and pertinent parts of this article stated:

Chief Deputy Pros. Atty. Ed. Schaller said last week he thought the raid was a step in the right direction. "Although the amount of drugs may not have been great," Schaller said, "I think the people trafficking the drugs were dealing more than that."

He said he thinks the drug problem in this county is more serious than it used to be. "There may not be more drugs than in the past," Schaller said, "but there are more serious drugs."

The most impressive point of last month's raids, which amplified Schaller's remarks, was the variety of drugs confiscated.

While Redmond's claims that most of those arrested "were dealing heavily in heroin, cocaine and amphetamines," only one of those arrested faces a charge that indicates he might be considered a major dealer.

Six were charged in heroin-related episodes. One of them, Michael Krantz, is charged with delivering 26.5 grams of heroin, probably worth more than $1,000.

But it is significant that five were charged with crimes involving heroin, including Shannon V. Westcott (2.0 grams), Thomas C. Van Wey (.9), Theresa Farrington (.8), Alan Wentjar (.2) and Douglas Andersen (1.4).

Persons knowledgeable about the area's drug scene have told The Daily Olympian they don't believe most of those arrested are major dealers in heroin.

Those charged with amounts as reported by the sheriff's office include: Claudia Bonner (cocaine, .4 grams), Eldon Brown, (cocaine, unknown amount), Robert W. Burdick (methyl phenidate, 4 tablets), Della Mae Bell (LSD, five dots), James Showalter (methadone, an unknown amount) and Mrs. Anderson (methamphetamines, .3 grams).

Jay B. Woods was charged with attempt to conspire to deliver methamphetamines.

(Emphasis added.)

Defendant moved for a change of venue based on prejudicial pretrial publicity alleged to be contained in these articles. The trial court denied the motion.

During voir dire, only two prospective jurors recalled reading the subject Daily Olympian articles. Both jurors, however, stated that they could be fair and impartial jurors and give the defendant a fair trial. Defense counsel neither challenged them for cause, nor exercised either of his two remaining peremptory challenges.

At trial the prosecution failed to produce Fromm, the paid informant, as a witness. Officer Cunningham explained Fromm's absence by relating that a threat had been made against Fromm's life and that he had left the area. The defendant proposed an "absent witness" instruction which was rejected. Defense counsel, during closing argument, was prohibited from alluding to Fromm as the absent witness.

The jury convicted the defendant. On sentencing, the trial court imposed two sentences of not more than 10 years and provided that each sentence would run consecutively.

DECISION

ISSUE 1: DENIAL OF MOTION FOR CHANGE OF VENUE

Due process requires a change of venue when the probability of prejudice is shown. Actual prejudice is not required. The trial court's decision upon a motion for change of venue will only be disturbed on a showing of an abuse of discretion. State v. Crudup, 11 Wash.App. 583, 586, 524 P.2d 479 (1974).

In State v. Crudup, supra at 587, 524 P.2d at 482, this court outlined nine criteria or factors generally utilized by courts in determining the propriety of an order granting or denying a motion for a change of venue based on alleged prejudicial pretrial publicity. They are:

(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.

In State v. Valenzuela, 75 Wash.2d 876, 454 P.2d 199 (1969), the Supreme Court affirmed a denial for a change of venue where a county sheriff invited television stations to film a raid, and where the arrest and booking of subjects were shown on television.

In State v. Moxley, 6 Wash.App. 153, 491 P.2d 1326 (1971), the facts were similar to the subject case wherein this court affirmed the trial court in denying motions for change of venue and for continuance on account of pretrial publicity. The court stated at 159, 491 P.2d at 1329:

Defendant's second motion filed 5 days before trial was based on a 4-paragraph newspaper story in the same newspaper concerning a second fire which burned down the dwelling and called attention to the family's need for assistance. There were also daily broadcasts over a radio station in the vicinity several times each day containing the same information as contained in the newspaper story but adding that the house was uninsured. The trial court denied this motion. At trial the defendant renewed his motion and his renewed motion was denied. On voir dire examination, preliminary questions were asked about whether the...