State v. Hertwig
| Decision Date | 29 January 2013 |
| Docket Number | 41934-3-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. DONOVAN RICHARD HERTWIG, Appellant. |
UNPUBLISHED OPINION
Donovan Richard Hertwig appeals six convictions relating to illegal controlled substances. We reverse and remand for a new trial because the trial court abused its discretion by improperly admitting Hertwig's prior drug convictions denying him a fair trial.
In June 2010, Tenino Police Officer Adam P. Haggerty, with the help of Yelm Police Officer Robert Malloy and others, led a narcotics investigation using a confidential informant, CI 311[1]. CI 311 told Officer Haggerty that "Janice Carr" and "Donovan" might be potential investigation targets. 1 Verbatim Report of Proceedings (VRP) at 52. Officer Haggerty eventually identified "Donovan" as Donovan Hertwig. CI 311 arranged to purchase methamphetamine from Carr at the Grand Mound Park and Ride on June 1, 2010, and Officer Haggerty gave CI 311 $245 in prerecorded money to buy the drugs.
Officers stationed themselves in sight of the entrance and exit but not in direct sight of the park and ride. They knew that Carr would be driving a white Ford Explorer. At 8:29 p.m officers followed a white Ford Explorer into the park and ride and watched it pull alongside CI 311. After Carr parked next to CI 311, Officers Haggerty and Malloy left the park and ride to station themselves near Hertwig's residence because they understood that Carr would go to Hertwig's house to purchase the drugs. Other officers remained near the park and ride. Officer Haggerty was in constant communication with CI 311.
CI 311 gave Carr the prerecorded buy money to purchase the drugs from Hertwig. Carr and CI 311 waited at the park and ride for about an hour and a half. Carr testified that she was in telephone communication with Hertwig during this time and was waiting for him to tell her she could go to his house. The officers did not witness her using a telephone.
Carr eventually drove to Hertwig's residence, and at 10:05 p.m. Officers Haggerty and Malloy watched Carr's vehicle arrive just as a sport utility vehicle (SUV) with a trailer attached, known to be Hertwig's, also arrived. The officers could not see who drove either vehicle. Officer Malloy testified that he was watching specifically for the SUV because the officers believed Hertwig would be driving it. The officers did not testify to seeing anything else until they saw Carr's vehicle leave Hertwig's at 10:30. Six minutes after Carr left Hertwig's house, a truck arrived and left at 10:38, two minutes after arriving.
When Carr's vehicle left Hertwig's residence, Officer Haggerty followed it back to the park and ride. When CI 311 alerted Officer Haggerty that he and Carr had completed their drug exchange, Officer Haggerty ordered the officers at the park and ride to arrest Carr, and they handcuffed both Carr and CI 311. In CI 311's pocket, Officer Haggerty found a baggie with red lips on it filled with methamphetamine.
After Carr left Hertwig's house, Officer Malloy remained stationed there for observation. He notified Officer Haggerty when the truck left the property at 10:38 p.m. Officer Haggerty followed the truck and he learned that the truck was registered to Hertwig. He stopped the truck and confirmed that Hertwig was the driver. Officer Haggerty handcuffed Hertwig, informed him that officers suspected him of delivery of a controlled substance, and brought him to the park and ride. After Carr identified Hertwig, Officer Haggerty read Hertwig his rights and arrested him for delivery of a controlled substance.
At the park and ride, Officer Haggerty left Hertwig in the patrol car and continued his discussion with Carr. Officers informed Carr of her rights. Officer Haggerty told Carr that if she cooperated, "maybe things would go a little bit easier, " though he did not explain exactly how things may get easier. 1 VRP at 116. Carr gave Officer Haggerty methamphetamine and $15 in prerecorded money she had kept from the transaction. She also turned over marijuana that she said did not come from Hertwig's house. Officer Haggerty then released her.
Officer Haggerty interviewed Hertwig privately and asked him about the marijuana and methamphetamine; and, Hertwig told him that he sold Carr marijuana and that he had marijuana in the freezer in his home shop and methamphetamine on his workbench in his shop. Officer Haggerty searched Hertwig and found $230 in prerecorded buy money in his pocket. Officer Haggerty then obtained a telephonic warrant to search Hertwig's residence and adjacent shop.
Officers searched Hertwig's residence and in a bedroom dresser found $250, pills in a baggie, and marijuana in a baggie with red lips on it. The officers also found pipes in the bedroom. In the shop, they found "white crystal-like powder" and a smoking device, as well as marijuana in the shop's freezer. 2 VRP at 222. Caroline Breaux—Hertwig's girlfriend–was present with her two sons during the search, but officers did not ask them any questions.
Before trial, Hertwig moved to suppress evidence obtained from the search. The trial court denied the motion.
At trial, Carr testified that she had called Hertwig and he told her that he was home. She did not know who drove the SUV to Hertwig's house but explained that Hertwig was in his shop when she arrived. Carr was at Hertwig's house for 15 to 20 minutes and did not see anyone else there. In the shop, she gave about $240 to Hertwig for methamphetamine. The officers could not see any of Carr's alleged interactions with Hertwig.
Hertwig testified that he and Carr were friends for a year, that he had loaned her about $500 to help her with expenses, and that she was paying him back slowly. On June 1, he arrived home around 10:30 p.m., and he found money on the kitchen counter that Breaux told him Carr left for him. Hertwig took the money and left to buy cigarettes. Officer Haggerty then detained him and took him to the park and ride for investigation. This was the first time that night that Hertwig saw Carr. Hertwig told officers that he stored marijuana in his shop freezer for his neighbor who had a medical marijuana card. He said that he was not driving the SUV that arrived at his house at the same time as Carr and that he only drove his truck[2] that night. He claimed that Breaux sometimes drove the SUV with the trailer. Finally, Hertwig explained that when he said he sold Carr marijuana, he did not intend a statement but rather meant to phrase it as a question.
On cross-examination, Hertwig testified that he no longer took drugs. The State then moved to admit evidence of his three prior drug-related convictions. Defense counsel objected, but the trial court found that the prior convictions were probative for credibility purposes. A jury convicted Hertwig of unlawful delivery of methamphetamine, unlawful possession of marijuana over 40 grams, unlawful possession of oxycodone, unlawful possession of methamphetamine with intent to deliver, using a building for drug purposes, and unlawful use of drug paraphernalia. The jury answered "yes" on the school-zone enhancements. [3] 4 VRP at 625. Hertwig timely filed an appeal.
Hertwig argues that the trial court committed reversible error when it failed to balance probative value against prejudicial effect before admitting evidence of Hertwig's prior drug convictions. Because evidence of the prior drug convictions was more prejudicial than probative, the trial court erred and compromised Hertwig's right to a fair trial.
We review evidentiary matters for abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). ER 609 allows admission of evidence of prior convictions to impeach a witness's credibility. A trial court may only admit this evidence if the prior crime was a crime of dishonesty, or punishable by more than a year and "the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered." ER 609(a)(1)-(2).
Hertwig had three prior convictions from January 2003—two for manufacture of methamphetamine, and another for possessing methamphetamine. Defense counsel objected to the admission of the prior convictions, arguing that the evidence was highly prejudicial because it was similar to the crime for which he was on trial. The trial court found that the prior convictions "go[] to the very weight of [Hertwig's] credibility" because Hertwig testified that he did not even see Carr that night. 3 VRP at 460. Drug convictions, however, are not crimes of truth or honesty, so they lack probative value in addressing one's credibility, and speak instead to one's behavior. See State v. Calegar, 133 Wn.2d 718, 723, 727, 947 P.2d 235 (1997) ("[p]rior convictions admitted under ER 609 must therefore have some relevance to the defendant's ability to tell the truth" and "'few prior offenses that do not involve crimes of dishonesty or false statement are likely to be probative of a witness' veracity.'") (quoting State v. Jones, 101 Wn.2d 113, 120, 677 P.2d 131 (1984)).
Admitting evidence of the prior convictions improperly allowed the jury to infer that because Hertwig committed drug crimes in the past, he would commit drug crimes again. Because prior drug convictions are not probative of a defendant's veracity, and the prejudicial effect is high, the trial court abused its discretion by admitting them.
Next we must decide whether this is reversible error. The applicable standard is nonconstitutional harmless error. State v. Rivers, 129 Wn.2d 697, 706, 921 P.2d 495 (1996). Under this standard, improperly admitted evidence does not prejudice a defendant...
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