State v. Reynolds

STATE OF WASHINGTON, Respondent, v. THOMAS DOUGLAS REYNOLDS, Appellant.

No. 30743-3-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

Dated: December 18, 2012

UNPUBLISHED OPINION

Siddoway, J. — Thomas Reynolds was convicted of delivering a controlled substance after selling twenty dollars' worth of heroin to a confidential informant in a controlled buy. He assigns error to trial rulings addressing the competency of the confidential informant (a heroin user) to testify, to a detective's testimony that unidentified sources corroborated the identification of Mr. Reynolds as a drug dealer, and to problems with recording equipment leading to an allegedly inadequate record for his appeal. He also claims ineffective assistance of counsel and trial error in the sentencing hearing. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

Thomas Reynolds was charged with violating the Uniform Controlled Substances Act, chapter 69.50 RCW, after selling twenty dollars' worth¹ of heroin to Edward Fairman, a confidential informant for the Longview Police Department. The amended information alleged that the sale occurred within 1,000 feet of a school bus route stop in violation of RCW 69.50.435(1)(c).

At trial, Detective Brian Streissguth testified that Mr. Reynolds was selected as a target of a controlled buy after Mr. Fairman told officers that Mr. Reynolds was someone from whom he could purchase drugs, information that was consistent with knowledge gained by the detective from other sources. When questioned about corroboration, the detective testified:

Q . . . [A]s part of your job and duties as a street crimes detective, do you, I guess, keep up with the information of what's going on in the community?

A Definitely. I work with several different informants who provide intelligence on a daily basis.

Q Okay. So part of your job is knowing who's who in the drug community?

A Correct.

Q Okay. And so, would it be fair to say, then, that you take the list [of targets] that [Mr. Fairman] provides and then you cross-reference that with the intelligence you already have?

A Definitely.

[DEFENSE COUNSEL]: Objection. Hearsay.

THE COURT: Overruled.

A Definitely.

Q Okay. And so that was what ultimately identified in this case. You decided to go after Mr. Reynolds and he was on the list?

A Correct.

Report of Proceedings (RP) (Dec. 6, 2010) at 37-38. In addition to lodging the hearsay objection, Mr. Reynolds objected to the testimony on the basis that it violated his Sixth Amendment right to confrontation. The State defended the testimony as being offered for the nonhearsay purpose of establishing why the detective investigated Mr. Reynolds. The objections were overruled.

The State also called Mr. Fairman as a witness, but before he could testify, defense counsel challenged his competency, representing to the court that Mr. Fairman admitted to him that he had used heroin that morning. The trial court conducted a brief competency hearing outside the presence of the jury, in which Mr. Fairman admitted that he was addicted to heroin and had consumed a tenth of a gram approximately six hours earlier. He explained that a dose of that amount was a maintenance level, that "just keeps you from gettin' sick." Id. at 97. He testified that he did not feel like he was under the effects of the drug and was having no difficulty understanding the proceedings. The trial court found him competent to testify.

Upon being called, Mr. Fairman testified that both Mr. Reynolds and Mr. Reynolds' girl friend, Michelle Green, were present and participated in discussions about his purchase of the heroin, but that it was Mr. Reynolds whom he paid and who handedhim the drugs. Mr. Fairman had worn a wire during the purchase and an audio compact disc (CD) of the recorded transaction had been admitted as an exhibit. The State played the recording during Mr. Fairman's testimony. No one objected to the quality of the recording or expressed concern that it was difficult to understand. As it was played, Mr. Fairman identified the three voices on the recording as belonging to Mr. Reynolds, Ms. Green, and himself. He also identified for the jury when, during the playback of the recording, Mr. Reynolds told him he had twenty dollars' worth of heroin for sale.

Ms. Green was the only defense witness. She claimed that she was the one who sold the heroin to Mr. Fairman, that Mr. Reynolds was not involved, and that she had already pleaded guilty for the crime.

The jury found Mr. Reynolds guilty and, by special verdict, found that the delivery occurred within 1,000 feet of a school bus route stop. At sentencing, defense counsel requested an exceptional downward sentence of 20 months based upon the small amount of heroin involved. The State argued for a sentence at the high end of the standard range based upon Mr. Reynolds' criminal history and the fact that only five years earlier, he had received an exceptional downward sentence pursuant to a plea deal. The trial court questioned defense counsel about the possibility of a DOSA² sentence, to which defense counsel responded,

Well, Your Honor, he does [qualify]. But that would actually involve a sentence of, you know, a hundred months. And I personally feel, and I've advised my client to this, that that is still disproportionate with what he was convicted of doing.

THE COURT: Okay.

[DEFENSE COUNSEL]: You know, a DOSA sentence, if he was eligible for residential DOSA at any point, we would have likely asked for that. But a prison-based DOSA, he would do, you know, half the mid range of, you know, basically 105 months or a 104 months.

RP (Dec. 21, 2010) at 247.

The court rejected the request for an exceptional sentence downward, reasoning that the small amount of drugs involved was typical for the offense. In imposing a low-end sentence of 84 months plus 12 months of community custody, the court noted that "[Mr. Reynolds] did 40 months before and he didn't learn. He sold then and he sold again." Id. at 253.

Mr. Reynolds timely appealed.

ANALYSIS

Mr. Reynolds argues on appeal that the trial court abused its discretion by finding Mr. Fairman competent to testify despite his having used heroin earlier in the day and by allowing Detective Streissguth to testify that Mr. Fairman's identification of Mr. Reynolds as a drug dealer was consistent with information known by the detective from other, unidentified, sources. He also argues that the verbatim report of proceedings, which was prepared from a videotape of the trial, is constitutionally inadequate becauseapproximately 126 omissions, characterized as "inaudible," appear in the portion of the transcript reporting the playing of the audio CD of the wire recording. He also argues that in light of the shortcomings of the report of proceedings, insufficient evidence supports the conviction. Finally, he complains of sentencing error, arguing that the trial court improperly denied his request for an exceptional downward sentence, and that his lawyer was ineffective in failing to pursue a DOSA sentence.

We first address his assignments of error relating to the trial and then turn to his challenges to the sentencing hearing.

I

Mr. Reynolds alleges two problems with the trial court's ruling on Mr. Fairman's competency to testify: first, that the court abused its discretion in finding Mr. Fairman competent and, second, that it violated his Sixth Amendment right to confrontation by limiting his cross-examination of Mr. Fairman during the competency hearing.

A reviewing court will not disturb a determination that a witness is competent to testify absent a showing of manifest abuse of discretion. Faust v. Albertson, 167 Wn.2d 531, 546, 222 P.3d 1208 (2009). The same manifest abuse of discretion standard applies to our review of a court's limitation on the scope of cross-examination. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). A trial court abuses its discretion when an order is manifestly unreasonable or based on untenable grounds. State v. Rafay, 167Wn.2d 644, 655, 222 P.3d 86 (2009). A discretionary decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. State v. Thompson, 173 Wn.2d 865, 870, 271 P.3d 204 (2012).

Witness Competency Under RCW 5.60.050

Witnesses are incompetent to testify if they are (1) "of unsound mind, or intoxicated at the time of their production for examination," or (2) "appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly." RCW 5.60.050(1)-(2). All witnesses are presumed competent until proved otherwise by a preponderance of evidence. State v. Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209 (2011). The burden of proving incompetency is on the party challenging the competency of the witness. Id. Witness competency determinations rest primarily with the trial judge who "'sees the witness, notices his manner, and considers his capacity and intelligence.'" State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990) (quoting State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)).

Mr. Reynolds argues that Mr. Fairman should have been excluded as incompetent to testify, because he was "intoxicated at the time of [his] production for examination." RCW 5.60.050(1). The statute does not define the term "intoxicated." Webster's Third New International Dictionary 1185 (1993) defines it as "being under the markedinfluence of an intoxicant." Our Supreme Court interprets the term consistent with this definition, requiring that a disqualified witness display signs of actually being under the influence of an intoxicating substance, not merely have an intoxicating substance present in his or her system. Faust, 167 Wn.2d at 546 (finding no abuse of discretion in permitting a witness with alcohol on his breath to testify where there was "no indication that [the witness] was under the influence of or affected...