State v. Ramirez
| Decision Date | 05 August 1991 |
| Docket Number | No. 25244-5-I,25244-5-I |
| Citation | 814 P.2d 227,62 Wn.App. 301 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Sabino M. RAMIREZ, Andre G. Lopez, Alejandro Sanchez, Defendants, and Juan Rincon Barrera, aka Juan L. Marretta, Appellant. |
Norm Maleng, King County Pros. Atty., Raymond Thomas, Deputy King County Pros. Atty., Seattle, for respondent.
Juan Barrera appeals a judgment for delivering cocaine in violation of RCW 69.50.401(a). He contends the trial court erred in admitting hearsay testimony, and in refusing to give proposed jury instructions. We affirm.
Seattle police officers arrested Barrera during a buy-bust operation at Victor Steinbrueck Park in the Pike Place Market area. The operation required an undercover officer to attempt to buy drugs while additional officers watched from a nearby building. Upon making a purchase, the undercover buying officer was to signal the observing officers, who would then direct other officers in the area to make arrests.
On the night of Barrera's arrest, the undercover buying officer was Officer Martindale and the observing officer was Officer Kilburg. Kilburg saw Martindale make contact with a man in a peach-colored shirt. That man then "appeared to lead" Martindale to a group of Hispanic males located on a nearby knoll. Kilburg watched Martindale converse with one of the men, later identified as Barrera, walk a few feet away and take money from his pocket, and then return to Barrera. One of Barrera's companions handed something to another of Barrera's companions Barrera and his companions were charged with delivering cocaine. He and one of those companions, Andre Lopez, were tried together before a jury. At trial, Kilburg testified about his observations. Martindale also testified. He did not mention the man in the peach-colored shirt. Martindale did say that he entered the park, saw three Hispanic males sitting on the bluff, and approached them. He asked Barrera whether he had "any blanca" (cocaine). Barrera said he only had a gram, "Like a grama", and asked Martindale "How much?" Martindale said $40. Martindale then walked a few feet away and counted out $40. When he returned to the group, he told Barrera that he wanted to see the blanca before he turned over any money. Barrera then said something in Spanish to Lopez, who in turn spoke in Spanish to another member of the group, Sabino Ramirez. Ramirez took out a bindle of white powder and handed it to Lopez. Lopez handed the bindle to Martindale, and took Martindale's $40. Martindale signalled the observing officers and walked away.
who then took Martindale's money and handed Martindale the item. Martindale signalled that he had made a successful buy and left the area. Kilburg notified the arrest team, whose members apprehended Barrera and his companions. A search incident to arrest revealed that Barrera had neither drugs nor any of the marked money that Martindale used to buy cocaine in his possession
Neither Barrera nor Lopez testified or presented any evidence at trial. The jury found both men guilty as charged. This appeal by Barrera followed.
I would like the jury instructed that the testimony regarding this individual in the peach-colored T-shirt is being admitted only for the purpose of explaining why Officer Martindale went from one location to another and that it's not been admitted for any other purpose.
An unreported sidebar conference ensued, after which the court did not give a limiting instruction. The court did, however, give Barrera the option of submitting a written limiting instruction to be given with the court's other instructions. Barrera decided against submitting such an instruction, apparently because he believed that instructing the jury after the fact would cause it to reflect further on the evidence rather than disregard it.
On appeal, Barrera assigns error to the trial court's denial of his motion in limine and to its refusal to give a limiting instruction contemporaneously with Kilburg's testimony. Because resolution of the latter challenge affects disposition of the former, we consider it first.
Although it is usually preferable to give a limiting instruction contemporaneously with the evidence at issue, 1 it is within a trial court's discretion to choose instead to give a limiting instruction at the close of all of the evidence. E.g., United States v. Longbehn, 898 F.2d 635, 639-40 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2217, 109 L.Ed.2d 542, --- U.S. ----, 111 S.Ct. 208, 112 L.Ed.2d 168 (1990); United States v. Dabish, 708 F.2d 240, 243 (6th Cir.1983); United States v. Weil, 561 F.2d 1109, 1111 (4th Cir.1977); United States v. Campanale, 518 F.2d 352, Because the trial court properly deferred giving a limiting instruction, we do not reach the merits of Barrera's challenge to the propriety of the court's ruling admitting testimony about the man in the peach-colored shirt. By refusing the court's invitation to prepare a written limiting instruction to be given with the court's other instructions, Barrera made a tactical decision which amounted to withdrawing his earlier request for a limiting instruction. 2 We therefore treat this case as one in which no limiting instruction was requested.
362 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976); United States v. Annoreno, 460 F.2d 1303, 1307-08 (7th Cir.), cert. denied, 409 U.S. 852, 93 S.Ct. 64, 34 L.Ed.2d 95 (1972); State v. Perez, 64 Haw. 232, 638 P.2d 335, 337 (1981); State v. Hall, 246 Kan. 728, 793 P.2d 737, 748-49 (1990). Often, for example, deferral of a limiting instruction is necessary in order to allow time for the judge and counsel to draft an appropriately worded instruction. Here, the record is silent as to the reasons for the trial judge's decision against giving a contemporaneous limiting instruction. We therefore cannot review his decision for an abuse of discretion and consequently must reject Barrera's challenge to this ruling. Allemeier v. UW, 42 Wash.App. 465, 473, 712 P.2d 306 (1985), review denied, 105 Wash.2d 1014 (1986); Sime Constr. Co. v. WPPSS, [814 P.2d 230] 28 Wash.App. 10, 18, 621 P.2d 1299 (1980), review denied, 95 Wash.2d 1012 (1981).
When error may be obviated by an instruction to the jury, the error is waived unless an instruction is requested. State v. Barber, 38 Wash.App. 758, 771, 689 P.2d 1099 (1984), review denied, 103 Wash.2d 1013 (1985); State v. Crawford, 21 Wash.App. 146, 151, 584 P.2d 442 (1978), review denied, 91 Wash.2d 1013 (1979); see also 5 K.
Tegland, Wash.Prac., Evidence § 24 (3d ed. 1989) (failure to request limiting instruction waives any objection to admission of evidence if instruction would have eliminated any unfair prejudice). Assuming arguendo that evidence about the man in the peach-colored shirt was improperly admitted, here a properly worded limiting instruction would have eliminated any unfair prejudice to Barrera that resulted from admission of that evidence. See generally State v. Grisby, 97 Wash.2d 493, 499, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983) (jury is presumed to follow the court's instructions). Accordingly, since Barrera refused to request a limiting instruction, and a limiting instruction could have cured the error complained of, we hold that Barrera has waived review of the trial court's ruling allowing the disputed evidence.
Barrera's remaining assignments of error concern the trial court's refusal of several of his proposed instructions. We uphold the trial court's decision.
Barrera's principal defense was that his participation in the drug transaction was limited to assisting Martindale by acting as his translator. He contended in the trial court and on appeal that having played such a limited role, he cannot be convicted for participating in a delivery in violation of RCW 69.50.401(a). Barrera asked the court to instruct the jury that he could not be convicted of delivery if he assisted only the purchaser, Martindale. He also requested lesser included offense instructions on attempted possession of a controlled substance. The trial court rejected all of these proposed instructions because it disagreed with Barrera's legal theory that he could not be convicted of delivery if he assisted only Martindale. 3
Before enactment of the Uniform Controlled Substances Act in 1971, 4 one who acted solely as a drug buyer's agent was exempt from prosecution for being an accomplice to the sale of dangerous drugs. State v. Walker, 82 Wash.2d 851, 857, 514 P.2d 919 (1973); State v. Catterall, 5 Wash.App. 373, 376, 486 P.2d 1167, review denied, 80 Wash.2d 1001 (1971). The reason for the exemption was that the relevant statute, RCW 69.40.060 (now repealed), expressly prohibited only the sale of dangerous drugs. Catterall, 5 Wash.App. at 376, 486 P.2d 1167.
Barrera contends that this buyer's agent exemption continues under the Uniform Controlled Substances Act, RCW 69.50 (the "Uniform Act"). He argues that cases to the contrary, namely State v. Sherman, 15 Wash.App. 168, 547 P.2d 1234 (1976), and State v. Matson, 22 Wash.App. 114, 587 P.2d 540 (1978), are wrongly decided. In those cases, the court focused on differences in the wording of the former law, RCW 69.40.060, which...
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