State v. Portnoy

• Decision Date: 15 April 1986
• Docket Number: No. 7297-1-II,7297-1-II
• Parties: The STATE of Washington, Respondent, v. Ronald B. PORTNOY, Appellant, and Donald W. Parker, Defendant.
• Court: Washington Court of Appeals

Page 455

43 Wn.App. 455

718 P.2d 805

The STATE of Washington, Respondent, v. Ronald B. PORTNOY, Appellant and Donald W. Parker, Defendant.

No. 7297-1-II.

Court of Appeals of Washington Division 2.

April 15, 1986.

James M. Marshall, Marshall & Goetz, Tacoma (Court-appointed), for appellant.

Barbara L. Corey-Boulet, Deputy Pros. Atty., Tacoma, for respondent.

REED, Judge.

Ronald Portnoy appeals his convictions of two charges of assault in the second degree, both of which carried special findings that he had been armed with a deadly weapon, a firearm. We affirm.

Portnoy was a Tacoma bail bondsman. In early October 1982 he furnished bail to Gerald Edmundson after meeting with Edmundson, his wife, and his wife's sister-in-law, Nancy Perez. In mid-October Portnoy became concerned because Edmundson had never communicated with him and decided to arrest Edmundson, revoke his bond and return Edmundson to police custody.

Portnoy took a pistol, and, accompanied by an employee, Donald Parker, he went to Edmundson's home in Bonney Lake soon after midnight on October 17, 1982. At Edmundson's house Portnoy gave the pistol to Parker.

When Mrs. Edmundson refused to admit Portnoy and Parker at the front door, Portnoy told Parker to go around to the back of the house and ensure that Edmundson not escape that way. Nevertheless, Edmundson did escape through a side window and took no part in the ensuing events. Not knowing this, Parker and Portnoy then entered through a door at the back.

After blows were exchanged between Portnoy and Mrs. Edmundson (who asserted that she could not recognize Portnoy because of the dim light), she ran across the street to the home of her brother and sister-in-law, Steven and Nancy Perez. Mrs. Edmundson and the Perezes testified that she awakened them and told them that intruders, whom she did not recognize, had entered her home and attacked her. Steven Perez ran to the Edmundson home, and, brushing Parker aside, entered. He saw Portnoy and grabbed him, striking him and wrestling him quickly to the floor. Perez testified that he heard Portnoy ordering Parker to shoot; he looked up, saw the pistol at his head and let Portnoy go. Parker kept the pistol aimed at him.

Perez's daughter, Anna Marie Perez, then entered, and, seeing the pistol, ran between Parker and her father, pleading with Parker not to shoot him. The father and daughter testified that Portnoy repeatedly told Parker to shoot Steven, and that Parker kept the pistol trained on both of them. Portnoy and Parker denied that Portnoy ordered Parker to shoot Steven Perez, and Parker testified that Portnoy told him only to hold the gun on Steven. Parker also testified that he had lowered the gun when Anna Marie ran in front of him, contradicting Steven's and Anna Marie's testimony. The father and daughter testified that Steven repeatedly asked Portnoy and Parker to identify themselves, and that Portnoy refused, saying he did not have to identify himself, and threatened them with jail for interfering with him. Nancy Perez, Steven's wife, then entered and recognized Portnoy as Edmundson's bail bondsman. The altercation subsided, and Portnoy and Parker left.

Portnoy and Parker were both charged with assault in the second degree on Steven Perez, assault in the second degree on Anna Marie Perez, and first degree criminal trespass. Portnoy alone was also charged with simple assault on Mrs. Edmundson. The second-degree assaults were alleged to have been committed with a pistol, in violation of the deadly weapon statute (RCW 9.95.040 (1981)) and the firearm statute (RCW 9.41.025, codifying Laws of 1982, 1st Ex.Sess., ch. 47, § 1, p. 1321).

The defense successfully argued that Portnoy, as a bail bondsman, had a contractual right to break into the home of the person whom he had bonded in order to arrest him and revoke the bond. The court therefore dismissed the charge of criminal trespass.

Parker pleaded guilty to a reduced charge of attempted second degree assault, without a deadly weapon or firearm charge, and testified for the State. The court permitted him to testify to his plea bargain, but forbade the defense to cross examine him so as to elicit the information that the firearm enhancement charge that Portnoy still faced required a mandatory minimum imprisonment.

Other rulings of the trial court to which Portnoy assigns error will be noted in the course of our discussion.

The jury convicted Portnoy of both second degree assault charges and made special findings of firearm enhancement. It acquitted Portnoy of simple assault on Mrs. Edmundson.

I

Portnoy first argues that it was improper to admit Parker's testimony that he had pleaded guilty. He asserts that this testimony was offered to impeach Parker's own testimony about the events of October 17, 1982--testimony that Portnoy justifiably regards as exculpatory of them both. See ER 609. If it does impeach Parker, its value for that purpose must be balanced against the prejudice to the defendant. State v. Alexis, 95 Wash.2d 15, 18-19, 621 P.2d 1269 (1980).

We find no merit in this assertion. The evidence was not offered to impeach the credibility of Parker's (and Portnoy's) account of events. It was properly before the jury so that all of Parker's testimony could be intelligently evaluated. State v. Long, 65 Wash.2d 303, 311, 396 P.2d 990 (1964), cert. denied, 382 U.S. 961, 86 S.Ct. 442, 15 L.Ed.2d 364 (1965).

II

Portnoy argues that if Parker's testimony was admissible, the defense should have been permitted to fully cross-examine Parker on his motivation for his plea bargain, including the enhanced sentencing that he had escaped, but that Portnoy still faced. The State argued at trial, as it argues here, that the information was correctly kept from the jury, because a jury should have no knowledge about the sentence to which a conviction might lead. The State offers no authority for this proposition except WPIC 1.02:

You have nothing whatever to do with the punishment to be inflicted in case of a violation of law. The fact that punishment may follow conviction cannot be considered by you except insofar as it may tend to make you careful.

WPIC 1.02, in relevant part. The State's position is not well founded. This instruction is no more than a correct statement of the common law.

In the absence of a statute authorizing or requiring the jury to fix the punishment to be inflicted upon a finding of guilt in a criminal case, the punishment is fixed by the trial court and governed by the laws in force....

(Footnote omitted.) 75 Am.Jur.2d Trial § 423 (1974). In addition,

At common law the jury in criminal proceedings either returns a special verdict, setting forth all the circumstances of the case and praying the judgment of the court, or a general verdict of guilty or of not guilty. The punishment is fixed by the court and governed by the laws in force; the defendant is not entitled to have his penalty assessed by the jury.

(Footnote omitted.) 21 Am.Jur.2d Criminal Law § 600 (1981).

It is therefore correct to instruct the jury that it is not its province to grant clemency or mercy, and that it has nothing to do with the punishment to be inflicted if the defendant is found guilty. State v. Lunsford, 163 Wash. 199, 205-06, 300 P. 529 (1931). Neither should the jury discuss or consider the subject of punishment. State v. Hartwig, 45 Wash.2d 76, 81, 273 P.2d 482 (1954); accord, Pittman v. United States, 368 F.2d 560, 561 (9th Cir.1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1314, 18 L.Ed.2d 343 (1967); State v. Koch, 138 Ariz. 99, 673 P.2d 297, 303 (Ariz.1983). However, we are referred to, and find, no authority suggesting that the State has the right to keep from the jury the extent of the punishment the defendant will face if found guilty, assuming that information is otherwise relevant.

First, the preventive instruction of WPIC 1.02 is always available. Second, Washington protects the right to full cross examination into the extent of a plea bargain and the motives for a guilty plea when an accomplice or co-defendant testifies for the state.

The right of cross-examination allows more than the asking of general questions concerning bias; it guarantees an opportunity to show specific reasons why a [co-defendant] witness might be biased in a particular case.

(Italics ours.) State v. Brooks, 25 Wash.App. 550, 551-52, 611 P.2d 1274, review denied, 93 Wash.2d 1030 (1980). Such cross examination is the price the State must pay for admission of a co-defendant's testimony to that plea. The jury needs to have full information about the witness's guilty plea in order to intelligently evaluate his testimony about the crimes allegedly committed with the defendant. Unfair prejudice is avoided by this opportunity for full cross-examination. State v. Redden, 71 Wash.2d 147, 149-50, 426 P.2d 854 (1967) (citing with approval State v. Long, 65 Wash.2d at 311, 396 P.2d 990). The trial court therefore erred in forbidding that cross-examination.

Further, such an error is of constitutional magnitude because it infringes upon the defendant's Sixth Amendment right to confront witnesses testifying against him. Delaware v. Van Arsdall, --- U.S. ----, 106 S.Ct. 1431, 89 L.Ed.2d ---- (1986) (available April 10, 1986, on WESTLAW, SCT database); see also Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). This error requires reversal unless it has been shown to have been harmless beyond a reasonable doubt. Delaware v. Van Arsdall, supra; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

Whether such an error [in preventing cross-examination that might reveal bias of a prosecution witness and impeach his credibility] is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was...