State v. Gallagher

• Decision Date: 26 July 2002
• Docket Number: No. 25222-8-II.,25222-8-II.
• Citation: 51 P.3d 100,112 Wash.App. 601
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dennis Desales GALLAGHER, Appellant.

51 P.3d 100

112 Wash.App. 601

STATE of Washington, Respondent, v. Dennis Desales GALLAGHER, Appellant.

No. 25222-8-II.

Court of Appeals of Washington, Division 2.

July 26, 2002.

Thomas Edward Doyle, Hansville, WA, for appellant (Court-appointed).

David Mathews Soukup, Thurston County Pros. Atty. Office, Olympia, for respondent.

HOUGHTON, J.

Dennis Desales Gallagher appeals his conviction of unlawful manufacture of methamphetamine. He argues that the trial court erred in various evidentiary rulings, in instructing the jury, and in imposing community placement without a specific duration. He also argues that he was denied effective assistance of counsel and that there was insufficient evidence to support his conviction as an accomplice. We affirm the conviction, but remand with instructions to amend the community placement portion of the sentence.

FACTS

On November 13, 1998, Detective Chris Edin of the Thurston County Sheriff's Office arrived at Gallagher and Dorothy Bennett's residence. Detective Edin believed that Jason Slinker also lived there. There was an outstanding felony arrest warrant for Slinker.

While executing on the warrant, Detective Edin observed several items in Slinker's bedroom that he suspected were used in the manufacture of methamphetamine, including a "frying pan or hot plate" and a propane tank or torch. 1 Report of Proceedings (RP) at 48. Following department protocol, he stopped his activities and he contacted the Thurston County Narcotics Task Force to handle the matter.

Detective John Snaza of the Thurston County Narcotics Task Force responded to Detective Edin's call. When Detective Snaza arrived at the house that day, he noticed a strong, solvent-type odor in the home. Detective Snaza recognized the odor as similar to ones he had encountered on his previous investigations of methamphetamine labs. He also noticed a large fan running in the master bedroom, although November 13 was not a hot day.

In Slinker's bedroom,¹ the detectives found evidence of methamphetamine manufacturing, including two pyrex plates with a brown liquid solution, a small butane or propane tank, stained coffee filters, a spatula, a pie plate with a liquid solution, an electric skillet with a small amount of liquid solution, a blender, and a one gallon can of denatured alcohol.

In the bathroom adjacent to Gallagher and Bennett's master bedroom, the detectives found a can of acetone and a one quart glass vinegar jar with brown liquid inside and a hose emerging from the top. Gallagher's fingerprints were found on the can of denatured alcohol from Slinker's room and on the glass vinegar jar found in the bathroom adjacent to the master bedroom.

State Crime Lab tests confirmed that items taken from the house contained pseudoephedrine. At trial, Crime Lab Forensic Scientist Frank Boshears testified that the items found in the bedroom were those used to extract pseudoephedrine from cold tablets in order to manufacture methamphetamine. He also testified that denatured alcohol may be used to extract pseudoephedrine from cold tablets and that the glass vinegar bottle with the tube and the brown liquid were a hydrochloric acid gas generator.²

The State charged Gallagher with unlawful manufacture of a controlled substance, methamphetamine (count I), and reckless endangerment (count II).³

Before trial, the court granted Gallagher's motion in limine to exclude evidence of used and unused hypodermic syringes found in the master bedroom and adjacent bathroom. During cross-examination of Detective Snaza, defense counsel inquired about the lack of various drug-related items. The State then asked the trial court to allow questioning about the syringes on redirect examination to refute Gallagher's implication that there was no evidence of any drug activities in the house. The trial court ruled that defense counsel had opened the door to this line of questioning and allowed the State to introduce syringe evidence. Gallagher then proposed a limiting instruction, but the court declined, indicating that it would constitute a comment on the evidence.

The State pursued its case on the theory of accomplice liability.⁴ Both the State and Gallagher submitted accomplice liability jury instructions based on 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.51 (2d ed. 1994) (WPIC).

The jury found Gallagher guilty as an accomplice of manufacturing methamphetamine. At Gallagher's October 22, 1999 sentencing, the trial court imposed a sentence of 75 months' confinement, community placement "for the period of time provided by law,"⁵ and various other fines and conditions.

Gallagher appeals his conviction and sentence.

ANALYSIS

Accomplice Liability Instruction

Gallagher first contends that the trial court committed reversible error in giving an accomplice liability jury instruction that was later found to be defective. The State counters that Gallagher invited the error by requesting the same instruction.⁶

Our Supreme Court recently rejected the WPIC 10.51 accomplice liability instruction because it relieves the State of proving an essential element, namely that the defendant knew he was aiding in the commission of the charged crime. See State v. Cronin, 142 Wash.2d 568, 579, 14 P.3d 752 (2000) (to be an accomplice, the person must have acted with knowledge that he was promoting or facilitating the crime for which he was eventually charged). Thus, the accomplice liability instruction was in error because it merely required the State to prove that Gallagher knew he was aiding someone (presumably Slinker) in planning or committing any crime, not the crime of unlawfully manufacturing methamphetamine.

This instructional error is presumed prejudicial unless it affirmatively appears to be harmless. State v. Stein, 144 Wash.2d 236, 246, 27 P.3d 184 (2001); State v. Jennings, 111 Wash.App. 54, 63-64, 44 P.3d 1 (2002) (adopting Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). The possible harm of a defective accomplice liability instruction is that the jury would convict based on the defendant's knowledge that the defendant's actions would promote a crime different from the crime charged. Stein, 144 Wash.2d at 246, 27 P.3d 184; Cronin, 142 Wash.2d at 580-82, 14 P.3d 752.

That possible harm did not exist here. The only crime at issue was manufacturing methamphetamine. Thus, the faulty instruction would not have misled the jury or relieved the State of its burden of proving all of the elements of the crime. The error here was harmless beyond a reasonable doubt. See State v. Easter, 130 Wash.2d 228, 242, 922 P.2d 1285 (1996) (constitutional error harmless if reviewing court concludes beyond a reasonable doubt that any reasonable jury would reach the same result absent the error); see also Neder, 527 U.S. at 9, 119 S.Ct. 1827.

Evidentiary Error

Drug-Related Items

Gallagher next contends that the trial court erred in allowing the State to introduce syringe evidence in violation of its order in limine. He asserts that defense counsel's cross-examination of Detective Snaza did not open the door to admission of this evidence.

A trial court's decision as to the scope of redirect examination and whether to admit or exclude evidence is within its wide discretion, and we will not reverse absent a manifest abuse of that discretion. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001); State v. Gould, 58 Wash.App. 175, 186, 791 P.2d 569 (1990). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).

The trial court granted Gallagher's motion in limine to exclude evidence of the used and unused syringes found in the master bedroom and adjacent bathroom. The State abided by this ruling until after defense counsel cross-examined Detective Snaza about the lack of items associated with drugs found at the house such as a large amount of cash, receipts for sales of drugs, names of sources, weapons, pagers, baggies or packing materials, "cutting agents," etc. 2 RP at 209.

The State asked that the court allow it to introduce the syringe evidence on redirect examination to refute the defense implication that there was nothing in the house indicating that drug-related activities had taken place. The trial court granted the State's request on grounds that the defense had opened the door to this line of questioning.

The trial court did not abuse its discretion in allowing the State to introduce this evidence. Fairness dictates that the rules of evidence will allow the opponent to question a witness about a subject matter that the proponent first introduced through the witness. State v. Gefeller, 76 Wash.2d 449, 455, 458 P.2d 17 (1969). Here, if the State had not been allowed to ask Detective Snaza on redirect examination about the evidence found in the master bedroom and adjacent bathroom, Gallagher would have succeeded in painting a false picture that no drug-related activities took place in the home.

Gallagher cites State v. Stockton, 91 Wash.App. 35, 955 P.2d 805 (1998) and State v. Avendano-Lopez, 79 Wash.App. 706, 904 P.2d 324 (1995), review denied, 129 Wash.2d 1007, 917 P.2d 129 (1996) to support his argument. This reliance is misplaced. These cases involved witnesses who made only passing references to prohibited topics. On direct examination in Avendano-Lopez, the defendant's answer that he had been released from jail did not open the door to allow the State to question him about his prior misconduct. Avendano-Lopez, 79 Wash.App. at 714-15, 904 P.2d 324. Likewise, in Stockton, the defendant's testimony on direct that he thought some men were trying to sell him drugs did not open the door to allow the State to question him about his prior drug use. Stockton, 91 Wash.App. at 40, 955 P.2d 805.

Here, although...