State v. Cruz

• Decision Date: 15 May 1995
• Docket Number: No. 31381-9-I,31381-9-I
• Citation: 77 Wn.App. 811,894 P.2d 573
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Vicente CRUZ, Appellant.

Page 811

77 Wn.App. 811

894 P.2d 573

The STATE of Washington, Respondent, v. Vicente CRUZ, Appellant.

No. 31381-9-I.

Court of Appeals of Washington Division 1.

May 15, 1995.

Kathryn Miller, Wash. Appellate Defender, for appellant.

Brenda Pahmeier, King County Deputy Prosecutor for respondent.

GROSSE, Judge.

Vicente Cruz appeals his conviction of one count of delivery of heroin. On appeal, he claims the trial court erred by (1) permitting a detective, who was not involved in Cruz's case, to testify about heroin users, heroin transactions, and the Seattle heroin market; and (2) admitting evidence of the drug paraphernalia found in the middle man's apartment and evidence of prior controlled buys between the informant and the middle man in which Cruz was not involved. In a pro se brief, he contends his counsel's lack of preparation and her failure to investigate and establish a defense deprived him of effective assistance of counsel. We affirm.

This case arose from a controlled buy involving Michael Hewson, a police informant; Gary Fay, the "middle man"; and Cruz, the seller. This buy was one of several controlled buys set up by Detective Roger Kellams of the Kent Police Department involving Hewson and Fay, and began with Hewson arranging with Fay to buy 4 grams of heroin. Hewson went to Fay's apartment and gave him $800 of the $2,000 of marked police buy money he was carrying. Fay paged a supplier and arranged for the delivery of 4 grams of heroin across the street from his apartment, at the Washington State Convention Center. Police surveillance officers observed Fay and Hewson leave Fay's apartment and meet Cruz in the tunnel that runs under the Convention Center. Fay handed the $800 of buy money to Cruz. Cruz and Hewson continued through the tunnel and stopped near some plants. Cruz reached into the plants, pulled out a brown bag, and handed it to Fay. Cruz left in one direction, and Hewson and Fay in another. Fay handed Hewson the bag and Hewson signalled to the surveillance officers that the deal had been completed.

Both Fay and Cruz were arrested. Police searched Cruz and found $720 of buy money in his pocket and $60 of unmarked money in another pocket. Eighty dollars of buy money was found in a bag in Fay's possession. The brown bag Cruz retrieved out of the plants contained a substance later determined to be heroin.

Cruz was tried twice. His first trial ended in a mistrial when the jury was unable to return a unanimous verdict. At a second trial, Cruz was found guilty of one count of delivery of heroin and sentenced to 47 months. His defense was that his meeting with Fay near the Convention Center was a chance encounter and that the exchange of money was Fay's repayment of money Cruz had loaned to him.

EVIDENCE OF "TYPICAL" HEROIN TRANSACTIONS AND HEROIN USERS

The trial court permitted the State to call Detective Glenn Edmondson of the King County Police Department Drug Enforcement Unit to testify about "typical" heroin transactions. Detective Edmondson was neither involved in the controlled buy at issue here, nor was he familiar with Fay or Cruz. At the time he testified, Detective Edmondson had been a member of the Drug Enforcement Unit for 10 years and had been involved in 500 to 600 undercover investigations, the majority of which involved heroin. His testimony consisted of responses to the following questions: (1) What does heroin look like? (2) How much is typically involved in a transaction? (3) How and with what implements is heroin ingested? (4) Is heroin a social drug? (5) Do police officers in a heroin investigation usually work undercover alone? (6) Why are informants used in heroin investigations? (7) What is a controlled buy? (8) Where do heroin transactions commonly take place? (9) Why do they usually take place in public areas? (10) Why is it common for a heroin supplier to hide the drugs outside? (11) How does a typical heroin transaction proceed after the parties agree to meet? (12) Did the detective gain his knowledge of heroin transactions from personal experience? ¹

Cruz contends the trial court erred by admitting this testimony because, when coupled with the prosecutor's closing argument in which he argued that Cruz's actions fit within the detective's description of a typical heroin transaction, the testimony constituted an improper opinion about Cruz's guilt. We disagree.

Opinion testimony is not objectionable merely because it embraces an ultimate issue to be decided by the trier or fact. ER 704. However, "[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987). While Black does condemn testimony expressing an opinion of guilt even by inference, subsequent cases, reviewed in Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658 (1993), review denied, 123 Wash.2d 1011, 869 P.2d 1085 (1994), have attempted to delimit this rather broad principle by balancing it against the permissive scope of ER 702. ²

"[T]estimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." Seattle v. Heatley, 70 Wash.App. at 578, 854 P.2d 658. The determination of whether testimony constitutes an impermissible opinion as to the defendant's guilt depends on the particular circumstances of each case. Seattle v. Heatley, 70 Wash.App. at 579, 854 P.2d 658.

The trial court must be accorded broad discretion to determine the admissibility of ultimate issue testimony, [State v.] Jones, 59 Wn.App. [744, 751, 801 P.2d 263 (1990), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991) ] and this court has expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt.

Seattle v. Heatley, 70 Wash.App. at 579, 854 P.2d 658.

The evil sought to be avoided by prohibiting a witness from expressing an opinion as to the defendant's guilt or innocence is having that witness tell the jury what result to reach. 5A K. Tegland, Wash.Prac., Evidence, § 309, at 470 (3d ed. 1989).

Obviously, a witness's statement that a particular defendant is guilty goes beyond the pale. In addition, inferential testimony that leaves no other conclusion but that a defendant is guilty cannot be condoned, no matter how artfully worded.

In the present case, the detective's testimony did not amount to a directive telling the jury what result to reach on the issue of Cruz's guilt or innocence. The detective did not render an opinion or otherwise make an assertion that directly implicated Cruz. Rather, the testimony consisted solely of the detective's knowledge of typical heroin transactions and typical heroin users gained from his involvement in 500 to 600 undercover investigations involving that drug. Even after the detective testified, the jury still had to...