IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) ) ) ) ) ) ) ) ) No. 60937-8-I DIVISION ONE
ARLEN LOPEZ, Appellant.
FILED : March 7, 2011
spearman, j. – Arlen Lopez appeals his convictions for trafficking in stolen property and forgery, arguing that he was denied a fair trial when a police officer vouched for a witness, and the trial court held a pre-trial conference in chambers and admitted evidence of his drug addiction. But Lopez did not object to the officer’s testimony at trial and cannot establish manifest constitutional error on appeal. He also fails to establish any violation of his public trial right or any prejudicial error in the trial court’s evidentiary rulings. We also reject Lopez’s claim of cumulative error and the contentions set forth in his statement of additional grounds for review. We therefore affirm. FACTS
No. 60937-8-I/2 With the assistance of her brother-in-law, 92-year-old Alvina Holte reported to Mount Vernon police that four checks had been stolen from her check ledger and that her bank had paid out $640 on the checks to a payee unknown to her, Francisco Esquivel. Sergeant Mark Shipman prepared a photomontage including Esquivel, but Holte did not recognize anyone in the montage. Sergeant Shipman then interviewed Esquivel while Officer Walter Martinez translated. Esquivel explained that he cashed the checks to assist Arlen Lopez, an acquaintance who did not have proper identification. When Sergeant Shipman showed Holte a new photomontage including Lopez, Holte pointed to the picture of Lopez and indicated that he appeared to be the same person who had been to her house on numerous occasions asking for money. After his arrest, Lopez agreed to an interview with Sergeant Shipman and made several statements. The State charged Lopez with one count of first degree trafficking in stolen property and four counts of forgery. Lopez represented himself at trial. Before voir dire, the court met with the prosecutor and Lopez in chambers with a court reporter, in order to confirm the final list of witnesses to be read to the jury. The court asked whether subpoenas had been issued for all the witnesses on the seven-page witness list filed by Lopez. After the parties agreed on the final witness list, the court suggested that Lopez watch the prosecutor “[w]hen it
No. 60937-8-I/3 comes to questioning the entire panel,” and confirmed that Lopez could question the panel as a whole or individually. The court and the parties then returned to open court for voir dire. During trial, the State called Officer Martinez to testify about assisting Sergeant Shipman in the interview of Esquivel. When the prosecutor asked Officer Martinez to describe Esquivel’s demeanor during the interview, Officer Martinez testified: “He was very truthful and very cooperative. He wanted to clear up whatever he might be involved in. He wanted to cooperate.” Lopez did not object. Martinez then twice acknowledged that Esquivel did not refuse to answer any questions. Esquivel testified that Lopez asked him to cash some checks because Lopez did not have identification. Esquivel testified that he did not look at the checks, he just endorsed the checks and cashed them after Lopez wrote Esquivel’s name on the payee line. Esquivel admitted that Lopez gave him gas money after he cashed the checks, but he denied receiving any other money from the proceeds. During cross-examination, Esquivel indicated that when he cashed the checks, he believed Lopez received them as payment for yard work. Sergeant Shipman testified that Lopez agreed to an interview after his arrest. According to Sergeant Shipman, Lopez initially claimed that he did some work for Holte. W hen Sergeant Shipman challenged the claim, Lopez said, “I knew from the first minute I did this I was going to prison.” Following the trial
No. 60937-8-I/4 court’s evidentiary rulings, Sergeant Shipman testified that Lopez also admitted that he was addicted to crack cocaine and asked about making a deal to avoid jail. Holte testified that when she discovered that her checkbook was missing, she asked her brother-in-law to assist her and then reported a theft to the police. Holte testified that Lopez looked familiar to her. Holte did not recognize the name Fransisco Esquivel and testified that she did not know what happened to the checks. Holte testified that a man came to her house asking for money on more than one occasion and she admitted that she had given him cash or a check. When Lopez cross-examined Holte, she asked Lopez whether he was “the one that came to the house asking for money” or “the one who asked to clean the gutters,” but she did not testify that she had a particular memory of him. In closing, Lopez argued that Holte admitted to giving checks to people and then forgetting names and specifics. Claiming that he was the man to whom Holte admitted giving checks, Lopez argued that no evidence showed that he had stolen the checks. Lopez argued that the police presumed that he had stolen the checks and arranged everything to make him look guilty. The jury found Lopez guilty as charged and the trial court imposed a standard range sentence. Lopez appeals. DISCUSSION
No. 60937-8-I/5 Vouching Lopez first contends that Martinez’s testimony that Esquivel was “very truthful” amounted to improper vouching for the credibility of a witness and is manifest constitutional error that he may raise for the first time on appeal. Under RAP 2.5(a), a party may raise manifest error affecting a constitutional right for the first time on appeal. Our analysis of such a claim involves the following four steps: First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). On the specific issue of whether the admission of opinion testimony on an ultimate fact, without objection, is reviewable as a “manifest” constitutional error, the Washington Supreme Court has held: “Manifest error” requires a nearly explicit statement by the witness that the witness believed the accusing victim. Requiring an explicit or almost explicit witness statement on an ultimate issue of fact is consistent with our precedent holding the manifest error exception is narrow.... [It] is also consistent with this court's precedent that it is improper for any witness to express a personal opinion on the defendant's guilt.
No. 60937-8-I/6 State v. Kirkman, 159 Wn.2d 918, 936-37, 155 P.3d 125 (2007). In State v. Montgomery, 163 Wn.2d 577, 595, 183 P.3d 267 (2008), the same court held, “[The manifest error] exception is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences.” (Citing, Kirkman, 159 Wn.2d at 93435). The court noted, “[i]mportant to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly instructed.” Montgomery, 163 Wn.2d at 595. Here, Esquivel did not testify that Lopez had stolen or forged the checks and Lopez did not dispute Esquivel’s description of the transactions. And Lopez had the opportunity to cross-examine both Officer Martinez and Esquivel. But even if Officer Martinez’s statement that Esquivel was “very truthful” could be considered improper witness opinion testimony on an ultimate issue of fact, we conclude that Lopez may not raise the issue for the first time on appeal because he does not demonstrate actual prejudice or point out any practical and identifiable consequence that the testimony had on the trial. Importantly, the trial court instructed the jury members that they were “‘the sole judges of the credibility of the witnesses’” and “of the value or weight to be given to the testimony of each witness.” See Montgomery, 163 Wn.2d at 595-96. There was no written jury inquiry or other evidence that the jury was unfairly influenced, and we presume the jury followed the court’s instruction absent evidence to the
No. 60937-8-I/7 contrary. See id.; Kirkman, 159 Wn.2d at 928. Because the alleged error is not manifest, we need not inquire further. Public Trial Lopez next contends that the trial court violated his right to a public trial by meeting with the prosecutor and Lopez in chambers to confirm the final witness list. He argues that by doing so, the court closed the courtroom to the public without first engaging in the inquiry required by State v. Bone-Club, 128 W n.2d 254, 906 P.2d 325 (1995),1 and determining whether a courtroom closure was justified. Both the United States and Washington Constitutions protect a criminal defendant’s right to a public trial. U.S. Const. amend. VI; Wash. Const. art. I, § 22. Failure to conduct the Bone-Club inquiry before closing a courtroom violates the right to a public trial and results in reversal for a new trial. State v. Brightman, 155 Wn.2d 506, 518, 122 P.3d 150 (2005), rev. denied, 168 Wn.2d
In Bone-Club, the court set forth the following factors that a trial court must consider on the record before ordering a courtroom closure: 1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a “‘serious and imminent threat’” to that right. 2. Anyone present when the closure motion is made must be given an opportunity to object to the closure. 3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests. 4. The court must weigh the competing interests of the proponent of closure and the public. 5. The order must be no broader in its application or duration than necessary to serve its purpose. 128 Wn.2d at 258-59.
No. 60937-8-I/8 1009, 226 P.3d 782 (2010). “The public trial right applies to the evidentiary phases of the trial, and to other ‘adversary proceedings’. . . . Thus, a defendant has a right to an open court whenever evidence is taken, during a suppression hearing, and during voir dire.” State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.2d 292 (2001) (quoting Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997)); Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L.Ed.2d 629 (1984)). But a defendant does not have a right to a public hearing “on purely ministerial or legal issues that do not require the resolution of disputed facts.” State v. Sadler, 147 W n. App. 97, 114, 193 P.3d 1108 (2008); see also Rivera, 108 Wn. App. at 653 (juror’s complaint regarding another juror’s hygiene); State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231 (2010) (jury’s request for clarification of instruction); State v. Koss, ___ Wn. App. ___, 241 P.3d 415 (2010), rev. granted, ___ Wn.2d ___, 245 P.3d 775 (2010) (jury instruction language and jury questions); State v. Castro, No. 28885-4-III, 2011, W L 71447 (Wash. Ct. App. Jan. 11, 2011) (motion to exclude witnesses and discussion of admissibility of defendant’s prior criminal history). Lopez fails to show that the meeting in chambers implicated his right to a public trial, necessitating a Bone-Club inquiry. It was not an adversarial proceeding in which evidence was taken, the jury was selected or other factual or credibility determinations were made. The conference addressed the purely
No. 60937-8-I/9 ministerial matter of confirming the complete list of witness names for the court to read to the jury. There is no indication in the record that the court took evidence or otherwise made any factual determinations. Lopez fails to establish error. Evidence of Drug Addiction Lopez next contends that the trial court’s improper admission of his statements to Sergeant Shipman regarding his drug addiction resulted in unfair prejudice requiring reversal. But even assuming error, the erroneous admission of ER 404(b) evidence is harmless unless there is a reasonable probability that the error materially affected the outcome of the case. State v. Halstien, 122 W n.2d 109, 127, 857 P.2d 270 (1993). Earnest Morgan, Holte’s brother-in-law, who assisted Holte in reporting the theft to the police, identifying forgeries to the bank and closing her bank account, testified that Holte never had problems with writing checks and kept “very good track” of her checks and check numbers. W hen presented at trial with copies of checks cashed by Esquivel, Holte testified that she did not fill out the checks. The jury was able to compare the handwriting and signatures on the checks to the bank forms on which Holte identified her handwriting and signature. Holte testified that Lopez did not do any yard work or gutter cleaning for her and that she did not recall giving him any money. Holte admitted that she had given money, and possibly a check, to a young man who came to her house
No. 60937-8-I/10 asking for money months before she discovered the checks were missing, but she did not testify that Lopez was that man. Even Lopez’s claim in closing argument that he was the young man to whom Holte had given money months earlier did not explain how he obtained the checks in issue at trial or the apparent discrepancies in the handwriting and signatures. And the trial court properly admitted Sergeant Shipman’s testimony that when challenged on his initial story, Lopez stated that he knew he was going to prison and asked about making a deal to avoid jail. Under these circumstances, Lopez fails to establish a reasonable probability that
No. 60937-8-I/11 Sergeant Shipman’s testimony that Lopez also admitted a cocaine addiction in the same conversation materially affected the jury’s verdict. Cumulative Error Lopez also argues cumulative error warrants reversal. Under the “cumulative error doctrine,” while some errors standing alone might not constitute grounds for a new trial, the accumulation of errors may. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). Given our disposition of Lopez’s other claims, the doctrine does not apply here. Statement of Additional Grounds for Review Lopez first complains that the jury included only Caucasians and cites Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). Because the record before this court does not include a transcript of jury selection or otherwise indicate that Lopez raised a Batson challenge below, we cannot review this issue. In his second and third grounds, Lopez claims he was denied effective assistance of counsel because his attorney was unprepared for trial and the public defender’s office is overburdened. To prevail, Lopez must show deficient performance and resulting prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). At a hearing on August 29, 2007, Lopez moved to dismiss his attorney, claiming that she was not prepared for trial and expressing his dissatisfaction with her representation. Counsel responded that she had
No. 60937-8-I/12 been meeting with Lopez and attempting to keep him apprised of her ongoing investigation. Lopez then elected to proceed pro se. Because the record does not support Lopez’s claims, we cannot review them. See RAP 10.10(c). To the extent relevant material facts exist outside the record on appeal, Lopez may file a properly supported personal restraint petition. See RAP 16.4. Lopez next appears to claim that he was denied access to evidence such as police reports, a 911 tape, e-mails, the forged checks, and expert analysis, in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963). But Lopez does not sufficiently explain the underlying facts to enable us to review this claim. In his fifth ground, Lopez complains that some photographs included in one or both of the photomontages were black and white while others were in color. Lopez appears to request an explanation for the difference. But Lopez did not object on the admission of either photomontage at trial on this ground and he had the opportunity to cross-examine the officer who prepared the montages at trial. Lopez fails to establish grounds for relief. Lopez next contends that Sergeant Shipman continued to interrogate him after he asked to end the interview, in violation of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court rejected Lopez’s claim at the CrR 3.5 hearing and found Sergeant Shipman’s testimony to the contrary more credible. Credibility determinations are for the
No. 60937-8-I/13 trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). In his seventh, eighth and thirteenth grounds, Lopez complains about the conditions of his confinement in jail prior to trial. Such matters are outside the record on review and appear to be moot. In his ninth ground, Lopez appears to complain that an exceptional sentence would violate double jeopardy. Because the trial court imposed a standard range sentence in this case, Lopez fails to establish error. Next, Lopez claims that the State should have charged him with trafficking in stolen property in the second degree, rather than first degree, because the case involved only $640, which is less than $1500. But the degree of the crime is based on mental state rather than dollar amount. Cf. RCW 9A.82.050 (knowingly) and RCW 9A.82.055 (recklessly). In his eleventh ground, Lopez complains about the special verdict forms regarding vulnerability of the victim. In his twelfth ground, Lopez contends that the trial court lost several motions he filed during trial or decided not to hear them until after trial. Because Lopez fails to sufficiently explain these claims, we cannot review them. See RAP 10.10(c). Affirmed.