State v. Rodriguez

• Decision Date: 14 December 2000
• Docket Number: No. 18538-9-III.,18538-9-III.
• Citation: 14 P.3d 157,103 Wash.App. 693
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Marcelino J. RODRIGUEZ, Appellant.

14 P.3d 157

103 Wash.App. 693

STATE of Washington, Respondent, v. Marcelino J. RODRIGUEZ, Appellant.

No. 18538-9-III.

Court of Appeals of Washington, Division 3, Panel Eight.

December 14, 2000.

William D. Edelblute, Spokane, for Appellant.

Gabriel E. Acosta, Deputy Prosecutor, Walla Walla, for Respondent.

BROWN, J.

A jury found Marcelino Rodriguez guilty of two counts of delivering cocaine to a confidential informant (CI). A prosecution witness, garbed in a jail uniform and shackled, testified he sold cocaine to Mr. Rodriguez that was later sold to the CI. Mr. Rodriguez unsuccessfully moved for a mistrial based upon the witness's shackling and dress. Mr. Rodriquez argues on appeal that (1) the trial court erred denying his mistrial motion, (2) his trial attorney was ineffective, and (3) the prosecutor's examination of a witness was misconduct. We affirm.

FACTS

Marcelino Rodriguez was convicted of two counts of delivery of a controlled substance, cocaine. The convictions arose out of two controlled buys, in which a paid police informant, Arturo Suarez, contacted Mr. Rodriguez and purchased cocaine.

Mr. Suarez testified that on March 19, 1999, he was searched by officers and then given money to buy the drugs. He went to Mr. Rodriguez's apartment where he met Mr. Rodriguez. Mr. Rodriguez told Mr. Suarez to leave the money and return in a few minutes; he further told Mr. Suarez that his connection had not yet arrived. When Mr. Suarez returned, Mr. Rodriguez handed him "an eight-ball of Coke underneath the table." Mr. Suarez returned to the police officers and was searched again.

Mr. Suarez testified that a few days later, he called Mr. Rodriguez at a tavern and told him he wanted to buy more cocaine. Mr. Rodriguez agreed to meet with him. Mr. Suarez contacted police, was searched, and given money. When Mr. Suarez arrived at the bar, Mr. Rodriguez said he had sold the last of the drugs and they needed to go pick up more. Mr. Suarez accompanied Mr. Rodriguez to a Safeway parking lot where Mr. Rodriquez left the car alone. When Mr. Rodriguez reappeared he gave Mr. Suarez the drugs. Mr. Suarez was picked up by an officer and searched.

Detective Ascension Castillo corroborated Mr. Suarez's testimony. He said Mr. Suarez was searched, provided with prerecorded bills to make the purchase, and observed during the first purchase. Detective Castillo testified that while Mr. Suarez was purchasing drugs on the first occasion, a small white car pulled up to the apartment and the occupant delivered drugs. The detective later discovered the individual driving the car was Arnulfo Ojeda. A search of Mr. Ojeda's residence yielded two of the prerecorded bills given to Mr. Suarez to purchase drugs from Mr. Rodriguez.

Officer Mike Ralston corroborated Mr. Suarez's testimony about the first drug purchase. Reserve police officer Doug Nelson and Detective Sergeant D.A. Lindemann corroborated the testimony about the second drug purchase. Officer Nelson and Detective Castillo differed about who searched the CI after the second buy. When Officer Nelson was examined by the State, counsel asked without objection: "So if Officer Castillo testified that you did it, that would be a mistake on his part?"

Mr. Ojeda testified for the State saying that he sold cocaine to Mr. Rodriguez:

Q. Have you been charged with having delivered drugs to Mr. Marcelino Rodriguez?

A. Yes.

Q. And you have pled guilty?

A. Yes, I plead guilty for my deportation.

After Mr. Ojeda's testimony, Mr. Rodriguez unsuccessfully moved for a mistrial, arguing that Mr. Ojeda was brought into court in a jail uniform, handcuffed, and shackled making him more credible to the jury.

ANALYSIS

A. Witness Shackling

The issue here is not whether Mr. Ojeda should, or should not, have been permitted to testify in shackles. Nor is it what prejudice, if any, resulted. The question is who should make those decisions—the trial judge in the courtroom, or a panel of appellate judges in Spokane.

The standard of review is whether no reasonable judge would have made this decision. State v. Hopson, 113 Wash.2d 273, 284, 778 P.2d 1014 (1989). Generally, a trial court should grant a mistrial motion when prejudice exists to an extent that nothing short of a new trial would insure a fair trial. Id. An error is prejudicial in this sense if it affects the outcome of the trial. Id.

When denying the mistrial motion the trial court reasoned that Mr. Rodriguez's context was reversed. "Normally people object to that because they say it gives them a bad image and people won't believe them or have less credibility." The court suggested the State should have made the motion, not Mr. Rodriguez. The court rejected the concept that the appearance of a shackled State witness would cause prejudice to Mr. Rodriguez. The court offered Mr. Rodriguez the opportunity to provide authority and renew the motion post-trial. However, the record is silent whether that occurred. When a jury views a shackled defendant, that person's constitutional right to a fair and impartial trial is impaired. State v. Elmore, 139 Wash.2d 250, 273, 985 P.2d 289 (1999). This is because restraints "may abridge important constitutional rights, including the presumption of innocence[.]" State v. Hartzog, 96 Wash.2d 383, 398, 635 P.2d 694 (1981). "Slightly different" interests are implicated when a witness is shackled. Id. at 399, 635 P.2d 694. "While a shackled witness may not directly affect the presumption of innocence, it seems plain that there may be some inherent prejudice to defendant, as the jury may doubt the witness' credibility." Id. However, the context of the Hartzog case was loss of defense witness credibility and resulting prejudice to the defendant. As the trial court suggested, in that context, the Hartzog court concluded restraints for witnesses should be imposed "only in compelling circumstances, which the trial judge should explain on the record." Id.

Traditionally, the shackling of witness analyses has been applied to defense witnesses. See, e.g., Kennedy v. Cardwell, 487 F.2d 101, 105 (6th Cir.1973); Hartzog, 96 Wash.2d at 399, 635 P.2d 694. Here, the theory is advanced without authority that a State's witness's appearance in shackles may prejudice the defendant. Mr. Rodriguez moved for a mistrial after Mr. Ojeda's testimony. He argued that the appearance in shackles and prison clothing was designed to make Mr. Ojeda's testimony more believable.

Our situation is not materially distinguishable from United States v. Brooks, 125 F.3d 484 (7th Cir.1997). There, a witness appeared under a cloak of immunity and testified about her role in the crime before the court, thus clearly implicating her complicity as a principal or accomplice. Here, Mr. Ojeda's testimony was clear that he pleaded guilty to delivering drugs to Mr. Rodriguez, not that he participated with Mr. Rodriguez in the crimes before the court as a principal or accomplice. Thus, as in Brooks, Mr. Ojeda's jail clothing and shackling was explained to the jury by his conviction for disparate crimes.

Significantly, under Hartzog, 96 Wash.2d at 399, 635 P.2d 694, the appearance of a shackled witness other than the defendant implicates not the defendant's presumption of innocence, but purely witness credibility. Here, the witness was adverse to the defendant. Thus, any credibility impairment would have been adverse to the State, not Mr. Rodriguez. Therefore, no prejudice can be shown.

Additionally, this is not a case implicating freedom of association under the First Amendment. Citizens may not lawfully associate to conduct criminal enterprise. And, association evidence is admissible if relevant to an issue in a case. State v. Campbell, 78 Wash.App. 813, 822, 901 P.2d 1050, review denied, 128 Wash.2d 1004, 907 P.2d 296 (1995). Mr. Ojeda was simply a fact witness connecting the marked money back to Mr. Rodriguez. The evidence was admissible because it was relevant to Mr. Rodriguez's deliveries to the CI. Mr. Ojeda did not express an opinion as to Mr. Rodriguez's guilt nor in any way did Mr. Ojeda implicate himself in Mr. Rodriguez's crimes.

Further, the policy considerations that underlie Hartzog cut against a rule requiring a Hartzog hearing for witnesses testifying on behalf of the State. The assumption (unproven, but logical) is that a witness or a defendant's credibility is undermined when that witness or the defendant is required to appear shackled or in prison garb. If that is true, the appearance of prosecution witnesses in prison garb would tend to undermine that witness's credibility and, necessarily, the strength of the prosecution's case-something the defendant is trying to accomplish. As previously discussed, some courts have held that the rationale disfavoring jurors seeing a defendant in handcuffs applies equally to cases involving jurors seeing a witness in handcuffs. See, e.g., State v. Shelton, 779 S.W.2d 614, 616 (Mo.App.1989) (defense witness). However, these holdings all focus on the appearance of witnesses testifying on behalf of the defendant and resulting prejudice.

Even still, we agree that the use of shackles in the courtroom is "an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold." Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). On that basis alone, the use of physical restraints should be and is disfavored. Allen, 397 U.S. at 344,90 S.Ct. 1057; Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir.1995). Restraints may impede the prisoner's ability to communicate. Allen, 397 U.S. at 344,90 S.Ct. 1057. They may also "confuse and embarrass the [witness], thereby impairing his mental faculties; and they may cause him pain." Duckett, 67 F.3d at 748. For these reasons, unnecessary public shackling of prisoners is to be avoided. But again, these are decisions properly left to the judge at the scene.

The trial judge was not required to conduct a Hartzog heari...