State v. Powell , 166 Wash. 2d 73 ( 2009 )

Stephens, J.

¶26 (concurring) — The majority holds that Jason Powell failed to preserve his objection to the admission of evidence of his drug use and that such admission did not constitute manifest constitutional error to allow us to address it on appeal. The majority reverses the Court of Appeals and upholds Powell’s conviction. I agree with this result, but not the reason. The record confirms that Powell adequately preserved his evidentiary objection; his counsel, the State’s counsel, and the trial court all understood the objection, and the trial court ruled on it. While I agree with Justice Sanders that the trial court erred in admitting evidence of Powell’s drug use, I believe the error was harmless and, for this reason, would affirm Powell’s conviction.

Powell Preserved His Challenge to the Drug Use Evidence

¶27 It is clear from the record that Powell’s counsel adequately stated his objection, and the issue was fully considered by the trial court. On the first day of trial, the State announced it would offer ER 404(b) testimony of Amber Williams and Greg Kincaid that touched on Powell’s use of methamphetamine. Powell’s counsel stated:

I don’t want the word drug used anywhere in this trial. It’s not a trial about drugs and I’d prefer — my problem is you say methamphetamines and drugs, he’s going to jail. I don’t want that to happen. I — it’s not a trial about drugs. I want to keep that out in particular.

1 Verbatim Report of Proceedings (VRP) (Feb. 6, 2006) at 12. The trial court made a limited ruling, subject to a later offer of proof:

With regard to the allegations involving drug use, they shouldn’t be mentioned in opening statement. I guess we’re going to need to have a — an offer of proof from the witnesses as to what it is that they are willing to testify to and the basis of their knowledge before I allow them to discuss potential drug use by the — by the Defendant.

Id. at 19. Ultimately, the court disallowed testimony from Amber Williams regarding Powell’s drug use, concluding the prejudice of this evidence, which did not relate to the specific drug use on the morning of the incident, outweighed any probative value. Id. at 28-29.

¶28 As to Greg Kincaid, the trial court ruled his testimony was admissible to show Powell’s mental state. Id. at 40-42. During the State’s offer of proof, defense counsel challenged Kincaid’s credibility, but the trial court properly kept the focus on the relative probative value and prejudice of the evidence, noting:

Well, first of all, neither of these issues - arguments has anything to do with the admissibility of the evidence. In determining whether the evidence is admissible, it is — doesn’t make any difference whether I personally believe the witness or not. So, arguing his credibility to me is not something that I need to have considered. What I have to determine is whether the probative value of the testimony outweighs its potential prejudicial effect.

Id. at 40. The court advised counsel he would admit Kincaid’s testimony and also allow defense counsel to question Kincaid’s credibility. Id. at 41. The trial court stated:

The prohibitive [sic] value of that is pretty strong, in my opinion, because apparently, that’s the issue that we have here, is whether he intended to just go over and talk to her or whether he intended to commit some other crime. I don’t— haven’t heard any argument that its prejudicial effect is outweighed by its prohibitive [sic] value and I wouldn’t find that it was in this point. So I’m going to admit the testimony, as indicated by the witness.

Id. ⁶

¶29 As this review of the record confirms, the ER 404(b) issue was raised and fully considered in the trial court. The reasons for requiring an adequate objection are served here: the trial court was presented with the issue now before us and given an opportunity to rule on it. While the majority is correct that Powell’s counsel made a misguided credibility challenge to Kincaid’s testimony, this was not the sole basis of his objection. Rather, at the beginning of the colloquy over the admission of ER 404(b) evidence Powell’s counsel plainly objected to the admission of any drug evidence based on its potential for prejudice. 1 VRP at 12. Even granting the majority’s point that Powell’s objection was not clear with respect to Kincaid’s testimony, the nature of the objection was clearly understood — and acted upon — by the trial court. See ER 103(a)(1); State v. Black, 109 Wn.2d 336, 340, 745 P.2d 12 (1987) (noting ER 103(a)(1) allows appellate review when grounds for objection, though not specifically lodged at trial, are readily apparent from circumstances); 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 103.11, at 58-59 (5th ed. 2007) (even if no specific objection was made, under ER 103(a) “the propriety of the ruling will be examined on appeal if the specific basis for the objection was ‘apparent from the context.’” (quoting ER 103(a)(1)).⁷ We should reach the merits of Powell’s claim.

The Trial Court Erroneously Admitted Evidence of Powell’s Drug Use

¶30 On the merits, I find myself in agreement with Justice Sanders and the Court of Appeals below that the trial court erred in admitting Kincaid’s testimony. Though it was not error to conclude the evidence had some probative value, the admission of Kincaid’s testimony in the absence of competent expert testimony establishing how the use of methamphetamine affects a person was misleading at best. See dissent at 92; see also State v. Powell, 139 Wn. App. 808, 818, 162 P.3d 1180 (2007).

¶31 The conclusion that the trial court erred does not end the inquiry, however. This court will not reverse a conviction based on “‘unsubstantial error[ ].’” State v. Jamison, 93 Wn.2d 794, 801, 613 P.2d 776 (1980) (emphasis omitted) (quoting State v. Martin, 73 Wn.2d 616, 627, 440 P.2d 429 (1968)). Where the error involves the violation of an evidentiary rule rather than a constitutional mandate, “we apply the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.” State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). Here, the admission of Kincaid’s testimony was not so prejudicial as to warrant reversal of his conviction. The evidence was brief — a single sentence — and of minor significance when compared to the evidence as a whole.⁸ Cf. Maicke v. RDH, Inc., 37 Wn. App. 750, 754, 683 P.2d 227 (1984) (finding harmless error where improper evidence was minimal and not referenced in counsel’s argument to the jury); see also Powell, 139 Wn. App. at 826-27 (Hunt, J., dissenting) (listing other evidence in the record supporting Powell’s conviction). I would hold, therefore, that the admission of Kincaid’s testimony, while error, was harmless.

CONCLUSION

¶32 I concur in the result reached by the majority, but I do so on the ground of harmless error. Powell’s evidentiary objection was adequately preserved, and the trial court abused its discretion in admitting drug use testimony in the absence of expert testimony establishing the effect of drug use. In the context of this trial, however, the error was harmless. Accordingly, I would reverse the Court of Appeals and uphold Powell’s conviction.

Alexander, C.J., and Chambers, J., concur with Stephens, J.

6 Given the court’s reasoning and analysis, it appears clear he intended to say he heard no argument that the prejudicial effect outweighs the probative value and simply misspoke in saying, “is outweighed by.”

7 The majority invokes the principle that counsel cannot raise one objection at trial and then rely on a different evidentiary rule on appeal. See majority at 82-83. This principle has no application here, especially if the suggestion is that Powell waived am ER 403 argument because the record does not show any reference to ER 403. We have long recognized that the balancing of probative value versus prejudicial effect of evidence is integral to an ER 404(b) analysis and should not require that counsel specify an ER 403 objection in addition to ER 404(b). See State v. Kelly, 102 Wn.2d 188, 198, 685 P.2d 564 (1984) (noting “[b]efore evidence of prior crimes, wrongs, or acts can be admitted, it must be shown to be logically relevant to a material issue before the jury and its probative value must be shown to outweigh its potential for prejudice”); see also State v. Saltarelli, 98 Wn.2d 358, 361-62, 655 P.2d 697 (1982) (same); 5 Tegland, supra, § 404.32, at 603-04 (“In keeping with common law tradition, Washington’s courts have emphasized that balancing is an integral part of the test for admissibility under Rule 404(b).” (footnote omitted)). The former comment to ER 404 also made this point. See State v. Jackson, 102 Wn.2d 689, 693, 689 P.2d 76 (1984) (citing former ER 404 cmt. (1991)). Accordingly, the fact that Powell did not rely on ER 403 until his appellate briefing does not affect the scope of our review.

8 The extent of Greg Kincaid’s testimony concerning drug use was as follows: “Q. Did you see the Defendant use methamphetamines that morning? A. Yes, I did.” 1 VRP (Feb. 6, 2006) at 120-21.