State v. Casteneda-Perez
| Decision Date | 20 May 1991 |
| Docket Number | A,CASTENEDA-PERE,No. 24662-3-1,24662-3-1 |
| Parties | STATE of Washington, Respondent, v. Salvadorppellant, Roberto M. Gonzales, and each of them, Defendant. |
| Court | Washington Court of Appeals |
Washington Appellate Defender, Scott Busby, Seattle, for appellant.
Norm Maleng, King County Pros. Atty., Jeanette Dalton, Seattle, for respondent.
Salvador Casteneda-Perez appeals his conviction for delivery of a controlled substance. We affirm.
The arrest of Casteneda-Perez arose out of a "controlled buy" by Seattle police officers on February 28, 1989. Officer Debbie Barnett testified that at approximately 6:30 p.m. on that date at the corner of Second and Pike in downtown Seattle, she approached Casteneda-Perez and asked him if he had some "coca". He replied, "Yes", and asked Barnett how much she wanted. She replied that she wanted $20 worth. At the time, Casteneda-Perez was standing in a group of people. Two of the people in the group ultimately were Casteneda-Perez' codefendants, Ricardo Rodriguez and Roberto Gonzales. Rodriguez pleaded guilty prior to trial.
After Barnett made her request to Casteneda-Perez, Rodriguez took a bindle of cocaine out of his mouth and gave it to her. Barnett paid for the bindle of cocaine with two prerecorded $10 bills, which she testified she gave to the third codefendant, Roberto Gonzales.
Barnett then walked away from the group, and gave a prearranged signal to the other officers who were there as observers. These officers signaled to the arrest team, and the arrests were made.
Officer Dennis Tichi testified that he arrested Rodriguez after receiving radio instructions to do so and found the two marked $10 bills on him. Tichi further testified that a total of four suspects were arrested. Barnett was shown the four photographs, and the fourth suspect was released after Barnett indicated that he was not involved in the transaction.
Officer David Unger was working as an observer that evening from one of the upper floors of a building across the street from where the transaction took place. There were a number of people milling about on the corner, and Unger saw Barnett make contact with someone Unger could only see from the knees down, due to an awning that obstructed his view. According to Unger, Barnett was in contact with this individual for several minutes before signaling the transaction was completed. Shortly thereafter, Unger was able to see the person with whom Barnett had been talking and identified the individual as Casteneda-Perez.
Officer Paul Grady testified that he was also an observer that evening, and he observed Barnett make contact with a group of four people. One of them walked away, and Barnett's contact with the other three lasted less than a minute. Grady testified that after the buy was completed, he focused his attention on Casteneda-Perez and Gonzales, and eventually told the arrest team to arrest them. Grady identified blue and white jackets that he claimed he saw Casteneda-Perez and Gonzales wearing.
After reviewing his notes, Grady corrected his testimony to indicate that it was Rodriguez and Gonzales whom he had described to the arrest team. Apparently, neither Rodriguez nor Gonzales was wearing a blue and white jacket that evening; one wore a tan leather jacket and the other wore a black and red jacket. Grady also corrected his testimony to indicate that only Casteneda-Perez was wearing a blue and white jacket.
Rodriguez testified and admitted that he sold cocaine to an undercover police officer. However, he testified that he did not know either Casteneda-Perez or Gonzales and that he worked alone. On cross examination, the deputy prosecutor asked Rodriguez a series of questions designed to make Rodriguez respond that the police were lying in their testimony. In part, the testimony is set forth as follows:
Q So, if the officer who bought the cocaine from you testified that there were two other persons facing inward as those arrows on a drawing indicate, you would say that she's lying?
The deputy prosecutor was then asked to repeat the question:
Q So, Mr. Rodriguez, what you are telling this jury is that Officer Barnett's testimony that there were yourself, her and two other persons all facing inward that Officer Barnett was telling a lie when she testified to that?
A Possibly. I don't know, there were so many people there around and I didn't notice and I don't know those two over there.
Rodriguez admitted that he was carrying the bindle in his mouth and that he delivered it to an undercover police officer. He denied, however, that the officer gave the money for the cocaine to someone else. The questioning continued:
Q So the officer is lying when she testifies that someone else took the money?
A It could be, because that's not the truth.
There was no objection to the foregoing question.
The deputy prosecutor then questioned Rodriguez about Officer Grady's testimony Q Okay. Now, Mr. Rodriguez, if Officer Grady testified that he saw two other persons standing with you and Officer Barnett, would you say that he was lying?
A Yes.
There was no objection to the foregoing question. After the question about police officers lying had been asked and answered several times, another question was asked and the defendant objected as follows:
Q So, if Officer Grady testified that you were with someone else when you were arrested, he would not be telling the truth?
MR. WACKERMAN: Your Honor, we object again. The question is calling for the witness to [comment] on the truthfulness of the other witnesses.
The court overruled the objection. The question was never answered.
Casteneda-Perez testified and acknowledged that Barnett had approached him looking for cocaine. However, Casteneda-Perez testified that he shook his head when she asked him and said nothing. He testified that Barnett then began talking to some people behind him, and he did not see the cocaine transaction occur. On cross examination, the deputy prosecutor repeated the line of questioning she had used with Rodriguez:
Q Then what you are telling this jury, Mr. Casteneda-Perez, is that Officer Grady is lying when she [sic ] says that you stood facing Officer Barnett for approximately a minute?
. . . . .
[CASTENEDA-PEREZ]: I am saying that if she saw me standing there, she saw me standing there. But I don't know what else happened. I was just standing there. I don't know what happened behind me or who did what, no.
An objection that the question had been asked and answered was overruled, and the prosecutor continued:
Q Mr. Casteneda-Perez, are you also telling this jury that Officer Barnett is lying when she testified that she had contact with you on the corner of 2nd and Pike?
A Well, never did I have contact with her for as long as a minute. And what she did behind me, what she said, I don't know.
Later on, the prosecutor tried again:
Q Mr. Casteneda-Perez, yes or no, Officer Unger is lying when he says he saw you or at least your white tennis shoes contacting Officer Barnett for an extended period of time? Yes or no.
A What I don't understand if you are saying that those are my clothing, that's true, that was my clothing. But the truth is I never talked to her for a long time.
The trial court permitted the deputy prosecutor to continue in her efforts to get Casteneda-Perez to state his opinion on the truthfulness of Officer Grady's testimony. The deputy prosecutor continued:
Q Is Officer Grady telling the truth or not?
A You are saying that I was there when they say I was there I was there. But if they are saying that I had talked with her, I entered a conversation with her, that's not true.
Q The question again Mr. Casteneda-Perez, let me try to rephrase it. Officer Grady testified that he saw you facing Officer Barnett for approximately a minute. Is that true or is that false?
A It's false.
Q That's a lie?
A Yes, it's a lie.
Similar questions were asked of Gonzales, who indicated that certain testimony might not be true, but he did not testify that the police were lying. However, in closing, the deputy prosecutor indicated that Gonzales had called Officers Barnett and Grady liars. Defense counsel's objection was overruled.
Casteneda-Perez was found guilty as charged. The jury failed to reach a verdict concerning Gonzales.
Casteneda-Perez argues that the persistent effort by the prosecutor to get the witnesses and defendant to say the officer witnesses were lying was improper, prejudicial, and denied him a fair trial. The prejudice, he argues, comes from equating an acquittal with a finding the police officers had committed perjury.
The State's response is that because credibility was a key issue, it was necessary for the jury to know whether the defendant and defense witnesses were saying the officers were merely mistaken or were lying.
Lying is stating something to be true when the speaker knows it is false. As the word "lie" was used by the prosecutor, it meant giving testimony which the officer witness knew to be false for the purpose of deceiving the jury. The tactic of the prosecutor was apparently to place the issue before the jury in a posture where, in order to acquit the defendant, the jury would have to find the officer witnesses were deliberately giving false testimony. Since jurors would be reluctant to make such a harsh evaluation of police testimony, they would be inclined to find the defendant guilty. While such a prosecutorial tactic would be totally unavailing in a bench trial, we cannot be confident it would not be effective with some jurors. With the prosecutor persistently seeking to get the witnesses to...
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