State v. Williams

• Decision Date: 09 August 1995
• Docket Number: No. 16160-5-II,16160-5-II
• Citation: 79 Wn.App. 21,902 P.2d 1258
• Parties: The STATE of Washington, Respondent, v. Ernest L. WILLIAMS, Appellant.
• Court: Washington Court of Appeals

Page 21

79 Wn.App. 21

902 P.2d 1258

The STATE of Washington, Respondent, v. Ernest L. WILLIAMS, Appellant.

No. 16160-5-II.

Court of Appeals of Washington Division 2.

Aug. 9, 1995.

As Amended Sept. 26, 1995.

Patricia M. Stuart, Kitsap Co. Deputy Pros. Atty., Port Orchard, for respondent.

Court Appointed Counsel, Ronald Dean Ness, Ronald D. Ness & Assoc., Port Orchard, for appellant.

MORGAN, Judge.

Ernest L. Williams appeals from convictions on two counts of delivery of a controlled substance. We reverse and remand for new trial.

This drug case involves three controlled buys. The first occurred mid-afternoon on November 19, 1991; the second mid-afternoon on November 26, 1991; and the third mid-afternoon on December 3, 1991. The first two occurred inside a house located at 34 Galyan Drive, Bremerton; the third occurred inside a house located at 932 Pacific Avenue, Bremerton. On each occasion, a Bremerton Police Officer named Steele searched an informant named Castro, found no drugs, and provided money for Castro to use in making a buy. Castro then entered the house and came out a few minutes later. After driving to a different location, with Steele following, Castro handed cocaine to Steele. According to Steele's understanding at the time, Castro said he had bought the cocaine from "Ray".

On December 5, 1991, Castro identified "Ray" as Williams. It is undisputed that Williams' street name is "Red".

On March 30, 1992, the State charged Williams with two counts of delivery of a controlled substance, based on the November 19 and November 26 buys. Later, the State added a third count, charging the December 3 buy.

On May 5, 1992, the trial court held an omnibus hearing at which Williams was present. The prosecutor and Williams' counsel submitted a written "Omnibus Stipulation" in which Williams' attorney stated that the nature of the defense would be "[g]eneral denial, [e]ntrapment". ¹ The attorney had not discussed this statement with Williams before the hearing, it was not discussed aloud at the hearing, and the stipulation was not signed by Williams.

A jury trial commenced on May 28, 1992. Castro testified that he had made three buys from Williams. Defense counsel asked, "You said [to the police] the person you bought from was named Ray, isn't that correct?" Castro answered, "That's correct." ² Castro went on to explain that he had initially thought Williams' name was Ray. He learned it was "Red" when Steele told him so, and when he saw the name "Red" tatooed on Williams' arm.

Steele testified to what he had observed concerning each buy, and that Castro had been employed as an informant since August 1991, with compensation of $1,100 per month. He further testified that he had misunderstood what Castro had said at the time he turned over the cocaine--"[W]hen I thought he was saying Ray, he was actually saying Red." ³ Steele explained that Castro "has a very strong Mexican accent, and he has a hard time saying the D in the American language". ⁴

Taking the stand in his own defense, Williams denied selling drugs to Castro. Rather, he said, a person named Ray Curry was the one who had sold to Castro.

During the prosecutor's cross-examination of Williams, the following exchange occurred:

Q. [Prosecutor]: ... On May 5th of 1992, you had an omnibus hearing where the defense was going to be a general denial, you didn't do it.

A. [Williams]: Yes.

Q. But weren't you also claiming that your other defense was entrapment, that police tricked you into selling cocaine?

A. No, that's not correct.... [Y]ou talked to me on this here ... I stated to you then that Lopez had purchased drugs from Ray.... I told you that I was not present when the drugs were transactioned.... ⁵

Q. (Interposing) At your omnibus hearing, though, you state that your other defense was going to be that you were tricked into selling drugs; right?

A. (no response)

Q. How the police entrapped you.

A. What, here, at the omnibus hearing?

Q. Em-hem.

A. I didn't have no omnibus hearings here.

Q. All right, you weren't present at an omnibus hearing?

A. Here?

Q. Em-hem.

A. I was at it, but I didn't testify to anything that my friend tricked me into selling drugs.[ ⁶

Following this exchange, the prosecutor moved to admit a certified copy of the omnibus stipulation. She argued "the State is entitled to impeach the defendant" ⁷ with his attorney's statement that the defense would be "general denial, entrapment". Williams' attorney objected, initially arguing mistake; he said the statement in question

is error on my part, and my copy [of the stipulation] ... doesn't have "entrapment", it basically says "General denial". Mr. Williams didn't see the Stipulation.[ ⁸

The attorney next argued that the stipulation constituted improper impeachment. ⁹ Finally, he argued that "you can't have entrapment and general denial at the same time"; ¹⁰ thus, he said, the statement set forth inconsistent defenses, and it merely put the prosecutor "on notice that those may be the possible defense[s]". ¹¹

The trial court overruled these objections and admitted the stipulation, which ultimately went to the jury room as an exhibit. Defense counsel then moved to withdraw, so he could take the stand and testify that he had never discussed the stipulation with Williams. The trial court denied the motion to withdraw, but nonetheless allowed counsel to take the stand and testify as he proposed.

The jury convicted on the first two counts but deadlocked on the third, which ultimately was dismissed. Later, Williams was sentenced to standard range concurrent sentences of 108 months each.

The dispositive issue on appeal is whether the statement, "general denial, entrapment" was properly admitted. ¹² We consider (1) whether it was properly admitted and (2) whether any error was harmless.

I

Turning to admissibility, we begin with the fundamentals of the hearsay rule. The basic definition of hearsay is set forth in ER 801(c). It provides:

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

A statement that falls within this definition is inadmissible, subject to various exemptions and exceptions. ER 802; see ER 801(d) (exemptions); ER 803-04 (exceptions).

Here, it is undisputed that Williams' attorney was the declarant, and that he did not make the statement while testifying at the trial. Thus, the questions are (1) whether the statement was offered to prove the truth of the matter asserted, and (2) whether the statement was exempted or excepted from the basic definition of hearsay.

A

At trial, the State argued that it was offering the statement only to impeach Williams' credibility. Williams' attorney responded, "I don't think it should be [used for] impeachment". ¹³ The question thus raised was whether the statement was being offered to prove the truth of the matter asserted.

A trial witness' own prior inconsistent statement is not offered to prove the truth of the matter asserted to the extent it is offered to cast doubt on the witness' credibility. To say that a witness' prior statement is "inconsistent" is to say it has been compared with, and found different from, the witness' trial testimony. This comparison, without regard to the truth of either statement, tends to cast doubt on the witness' credibility, for a person who speaks inconsistently is thought to be less credible than a person who does not. McCormick on Evidence § 34, at 114 (4th ed.1992). ¹⁴ Thus, to the extent that a witness' own prior inconsistent statement is offered to cast doubt on his or her credibility, it is not offered to prove the truth of the matter asserted, it is nonhearsay, and it may be admissible "to impeach". Webb v. Seattle, 22 Wash.2d 596, 610, 157 P.2d 312 (1945).

This reasoning does not extend to situations in which the prior inconsistent statement was made by someone other than the trial witness. If A's prior out-of-court statement is inconsistent with B's trial testimony, A's statement casts doubt on B's credibility if A's statement is true; but A's statement does not cast doubt on B's credibility if A's statement is not true. In this situation, A's statement is offered to prove the truth of the matter asserted, even though it also is offered "to impeach" B.

At least two Washington cases are on point. In Singer v. Metz Co., 101 Wash. 67, 72, 171 P. 1032 (1918), a case in which one Spangler was impeached with the out-of-court inconsistent statement of one Helvey, the Supreme Court said, "A witness cannot be impeached by statements of others for which he is not responsible and which have not been approved by him." And in Miller v. Kennedy, 11 Wash.App. 272, 291, 522 P.2d 852 (1974), aff'd, 85 Wash.2d 151, 530 P.2d 334 (1975), a case in which a letter "did not contain inconsistent pronouncements of the person whose credibility was sought to be impeached", Division One said the letter "contained merely the contradictory statements of another, would-be hearsay, and [was] not available for impeachment purposes".

In this case, the statement at issue was made not by Williams, but by his attorney. Thus, even though it was offered "to impeach" Williams, it was also offered to prove the truth of the matter asserted, and it was inadmissible unless exempted or excepted from the basic definition of hearsay.

B

Citing State v. Acosta, 34 Wash.App. 387, 392, 661 P.2d 602 (1983), reversed on other grounds, 101 Wash.2d 612, 683 P.2d 1069 (1984), the State implicitly argued at trial that the statement in issue was the admission of a party opponent. Williams argued it was not, because it set forth inconsistent defenses and merely put the prosecutor "on notice that those may be the possible defense[s]". ¹⁵ The question thus raised was whether the statement was exempted from the basic definition of hearsay on grounds it was the admission of a party opponent.

ER 801(d)(2)...