State v. Valladares

• Decision Date: 15 January 1982
• Docket Number: 5026-II,Nos. 4440-I,s. 4440-I
• Citation: 31 Wn.App. 63,639 P.2d 813
• Parties: The STATE of Washington, Respondent, v. Rudolpho VALLADARES and Charles L. Minium, Appellants.
• Court: Washington Court of Appeals

Page 63

31 Wn.App. 63

639 P.2d 813

The STATE of Washington, Respondent, v.Rudolpho VALLADARES and Charles L. Minium, Appellants.

Nos. 4440-II, 5026-II.

Court of Appeals of Washington, Division 2.

Jan. 15, 1982.

Jeffrey Steinborn, Timothy K. Ford, Seattle, for appellant valladares.

Charles LeGrand Minium, II, pro se.

Patrick D. Sutherland, Pros.Atty., Gary R. Tabor, Deputy Pros.Atty., Olympia, for respondent.

REED, Chief Judge.

Two criminal prosecutions arising from a common set of facts have been consolidated on appeal.The principal assignment of error concerns the trial court's admission of certain hearsay statements of a police informant, through the testimony of undercover agents, which inculpate one defendant in prior drug trafficking.This presents an issue similar to that addressed recently by this court in State v. Parris, 30 Wash.App. 268, 633 P.2d 914, pet. rev. granted96 Wash.2d 1016(1981).Because this area of the law has undergone rapid development, we believe it is desirable that the principles of Parris be further enunciated.For the reasons that follow we affirm the convictions of both defendants.

Barbara Campbell contacted Detective Fisher of the Longview Police Department on December 28, 1978.She advised Fisher that she had been dealing in cocaine in the Longview-Kelso area and that her source was the defendant, Rudolpho Valladares.Her story was related from a hospital room where she was recovering from a suicide attempt.Campbell characterized Valladares as a major drug dealer and expressed concern that she was unable to make a $1,000 payment due on her last consignment.Fisher was not acquainted with Valladares and in order to properly investigate Campbell's story contacted Agent Sexton of the Washington State Patrol Drug Control Assistance Unit for help.According to the testimony of undercover officers, the following sequence of events took place during the next three months.

Sexton interviewed Campbell and offered to pay her debt to Valladares in exchange for an introduction whereby Sexton would assume the identity of a pimp from Vancouver.The meeting took place at a local bar.Sexton and Valladares discussed the possibility of Sexton supplying prostitutes for a Seattle "key club" with which Valladares was allegedly connected.During the conversation Valladares opened the subject of cocaine and Sexton expressed an interest in the drug.

As negotiations continued, Sexton advised Valladares of a large debt Sexton owed Las Vegas gangsters.This debt was due in three $80,000 installments.Sexton posited he might be able to persuade his creditors to allow him to invest a portion of an installment due shortly.Ostensibly to help convince his creditors of the quality of the merchandise, Sexton bought a one-ounce sample of cocaine from Valladares.Sexton also purchased two more ounces for "his girls."

Thereafter, Agent Grippen, a federal drug enforcement agent, was brought in to pose as a "moneyman" from Las Vegas.Grippen related to Valladares a need for collateral.Consequently, Valladares introduced the agents to defendantCharles Minium, who had agreed to supply a timber deed to be held until delivery of the cocaine.As negotiations progressed, Valladares suggested to Sexton on the side that they hold back some of the cocaine to be purchased by Grippen by cutting it with an adulterant.Valladares would sell the extra and split the profit with Sexton.Grippen was to receive two pounds of cocaine for $50,000.

The parties then met to consummate the deal, at which time Minium assigned the timber deed to the agents and Valladares accepted a briefcase containing the money.Valladares and Minium were placed under arrest.

At trial Valladares relied on an entrapment defense.His version of the facts differs accordingly.Valladares argues that his defense was shattered by the trial court's admission of hearsay statements of Barbara Campbell, through the testimony of narcotics officers, concerning his involvement in cocaine distribution.Defendant advances several reasons why admission of this testimony constitutes reversible error.First, Valladares urges this court to adopt a per se rule against the admissibility of hearsay statements made against penal interest which inculpate the accused.Defendant contends that United States v. Sarmiento-Perez, 633 F.2d 1092(5th Cir.1981), supports his position.Defendant misreads Sarmiento-Perez ; rather than adopting a per se rule against the admissibility of such statements, the court merely concluded inculpatory statements are admissible under the same standard ER804(b)(3) sets for exculpatory statements.¹This court in State v. Parris, 30 Wash.App. 268, 633 P.2d 914(1981), recently aligned itself with the weight of authority adopting the Sarmiento-Perez approach.See e.g., United States v. Riley, 657 F.2d 1377(8th Cir.1981);United States v. Palumbo, 639 F.2d 123(3d Cir.1981);United States v. Garris, 616 F.2d 626(2d Cir.1980), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119(1980);United States v. Alvarez, 584 F.2d 694(5th Cir.1978).

In Parris, this court held that hearsay statements which inculpate the accused may be admitted as being against a declarant's penal interest only if the following criteria are satisfied: (1) the declarant is unavailable; (2) the statements must so far tend to subject the declarant to criminal liability that a reasonable man in his position would not have made the statements unless he believed it to be true; and (3) the statement must be corroborated by circumstances clearly indicating its trustworthiness.Parris, 30 Wash.App. at 276, 633 P.2d 914.Here no dispute exists as to Campbell's unavailability.Valladares contends, however, that Campbell's statements were not sufficiently against her penal interest because Campbell, as a police informant, could reasonably have expected immunity from prosecution.He suggests that Campbell's real motivation for contacting the police was to get rid of a legitimate creditor.

Valladares construes the term "a statement against penal interest" too narrowly.As we noted in Parris,

(b)ecause ER804(b)(3) speaks in terms of statements that "tend" to subject the declarant to criminal liability, we believe the ER rule encompasses statements that would have probative value in a trial against the declarant.

Parris, 30 Wash.App. at 277, 633 P.2d 914.²Here Campbell's statements would certainly have probative value were she to stand trial.Our inquiry, however, does not stop at this threshold determination."Whether a statement is in fact against interest must be determined from the circumstances of each case."Advisory Comm. Note, Fed.R.Evid. 804(b)(3).Several factors favor the trial court's conclusion that the declarations were against Campbell's penal interest.First, we note that Campbell was not in custody-a factor often cited as indicative that the declarant might have been attempting to "curry favor" with the authorities.Second, a reasonable person would not likely admit to the commission of a serious crime knowing there was a chance, even if slight, that the admission could subject him to prosecution.SeeState v. Lair, 95 Wash.2d 706, 711, 630 P.2d 427(1981).Additionally, Campbell was not offered immunity from prosecution.We note, further, that even where an informal understanding exists that immunity will be granted, such "immunity" is often contingent on supplying truthful information to the authorities.Finally, common sense dictates that Campbell would not concoct a story implicating Valladares in cocaine distribution simply to eliminate him as a legitimate creditor.If her story was fabricated, it should have been apparent to Campbell that officers investigating her story would quickly discover that the debt arose from a legitimate business transaction.Rather than paying Campbell's debt, the officers would more likely focus their investigation on her own confessed criminal activity.Further, if Valladares was a legitimate creditor, such false accusation would do little to relieve her from his collection demands.More importantly, if Valladares was involved in some other criminal enterprise, a false accusation would greatly enhance the risk of reprisals.

Next, Valladares contends that even if Campbell's declarations were against her penal interest, the statements should have been screened such that disserving portions were separated from those that are self-serving.Specifically, defendant argues that Campbell's statements with respect to his involvement in the cocaine trade were not disserving to Campbell and should have been excluded.Professor McCormick has outlined three alternatives for handling declarations containing both self-serving and disserving facts:

First, admit the entire declaration because part is disserving and hence by a kind of contagion of truthfulness, all will be trustworthy.Second, compare the strength of the self-serving interest and the disserving interest in making the statement as a whole, and admit it all if the disserving interest preponderates, and exclude it all if the self-serving interest is greater.Third, admit the disserving parts of the declaration, and exclude the self-serving parts.

(Footnotes omitted.)E. Cleary, McCormick's Evidence§ 279 at 677 (2d ed. 1972).Although we acknowledged in Parris that the commentators are not in accord as to which approach is preferable, we said

the better view is that the statements should be viewed as a whole in determining their admissibility; given the broad language of ER804(b)(3)we do not believe the intent of the rule is to exclude collateral matter, which, when viewed out of context, may not be disserving.

Parris, 30 Wash.App. at 277 n.9, 633 P.2d 914.Thus, Campbell's statements implicating Valladares in cocaine distribution were admissible.³

Valladares next argues that Campbell's statements were not corroborated by circumstances...