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                                                                                                          ILED
                                                                                                  OURT OF APPEALS
                                                                                                             PALS
                                                                                                        014 if
                                                                                              2013 LEP 17 AM 8: 4 1

                                                                                              a    T'     A       INGTON
                                                                                              B
                                                                                                          UTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,                                                         No. 43249 8 II
                                                                                       - -


                                     Respondent,

            V.




RICHARD DONALD LLOYD JANSSEN,                                          UNPUBLISHED OPINION




                 BRINTNALL, J. —
            QUINN-                         A jury found Richard Donald Lloyd Janssen guilty of first

degree assault with a deadly weapon enhancement. Janssen appeals, arguing that the trial court
erred   by admitting     a   witness's written-
                                              statement   as a   Smith affidavit and that the trial court erred
                                                                                                    -

by excluding evidence of the victim's drug use. We do not find any error, and we affirm.
                                                    FACTS


            On May 26, 2011, Brandon Allen Johnson was incarcerated at Cowlitz County Jail. That

evening, Johnson was transferred into a new cell with Janssen. Several hours after the transfer,

Janssen jumped on top of Johnson and began stabbing Johnson in the neck. Johnson was able to

reach the call box and summon help. Corrections officers responded to the call and separated




1
    State   v.   Smith, 97 Wn. d 856, 651 P. d 207 (
                             2             2       1982).
No.43249 8 II
         - -



Janssen and Johnson. Johnson was first evaluated by the medical unit and then transported to the

hospital. Johnson was treated for several lacerations on his face and neck.

       While breaking up the altercation, Corrections Officer Tracy.Bottemiller observed

Janssen throw an object against the cell wall. Bottemiller later recovered the object. hich was
                                                                                     w

approximately "four or five inches long, wrapped in,tightly in cellophane, it had a razor blade in

the end of it and then it had some of the jail inmate clothing strips wrapped around it."Report
                                                                                        1

of Proceedings (RP)at 98.

       After the altercation, Deputy Sheriff Lorenzo Gladson of the Cowlitz County Sheriff's

Office was dispatched to the Cowlitz County Jail to investigate the incident. ,Gladson spoke to

other inmates in the housing unit where the incident occurred. Rodger Berry agreed to write out

a statement for Gladson. Berry wrote that Janssen called Johnson a weirdo and said that Johnson

would not last long"because Janssen was "going to [hurt] him bad."Ex. 3. Berry also filled

out the statement on the bottom of the form which stated,

       I,Rodger N.Berry, Jr, do certify ( eclare)under penalty of perjury under the laws
                                        d
        of the State of Washington that I have read the foregoing statement or it has been
       read to me and I know the contents of the statement, and that the foregoing
        statement is true and correct. (
                                       RCW 9A. 2.
                                           085).
                                             7

Ex. 3. Before Berry signed the statement, Gladson also explained to Berry that he was signing

the statement under the penalty of perjury.

        The State charged Janssen with first degree assault with a deadly weapon enhancement

or, alternatively, second degree assault with a deadly weapon enhancement. Prior to trial, the
State obtained material witness warrants for       Berry and Johnson.   Berry and Johnson were

arrested   on   the warrants and testified at trial.   When Johnson was arrested on the warrant,




                                                   2
No. 43249 8 II
          - -



officers found " wo ( )
               t    2 well used glass drug pipes"which tested positive for amphetamines. Ex.
19.


         At trial, Berry testified that Janssen told him that Johnson was not going to last long but

that Janssen did not say    why. Berry also testified that he made the statement voluntarily and

signed   it under the   penalty   of   perjury. And he testified that the statement was truthful and

accurate.    The State did not    move     to admit    Berry's   statement.   Berry was released from the

subpoena after his testimony. Later, Deputy Gladson testified that he used Berry's statement to

establish probable cause for the charges against Janssen. After Gladson's testimony, the State
moved to admit Berry's statement            as   a   Smith affidavit.   The trial court admitted Berry's

statement.


         During cross -examination, Johnson testified that he had been arrested on a material
witness warrant.     Then defense counsel asked, " nd at the time you got arrested this past
                                                 A

weekend, isn't   it true that you had in your        pocket - -." 1 RP at 119. The State objected and the

trial court sustained the objection.

         Thejury found Janssen guilty of first degree assault with a deadly weapon enhancement.

The trial court found that Janssen was a persistent offender and sentenced him to life without the

possibility of early release. Janssen timely appeals.
                                                     ANALYSIS


         Janssen appeals, arguing that the trial court violated his Sixth Amendment right to

confrontation by (1)admitting Berry's statement after Berry had already been released from the

subpoena, and (2)excluding evidence that Johnson was in possession of drug pipes at the time of


2 Janssen does not challenge the trial court's persistent offender finding on his sentence to life
without the possibility of early release.

                                                         3
No. 43249 8 II
          - -



his arrest. Berry was subject to cross -examination and his statement was properly admitted as a

Smith affidavit. The trial court did not err by excluding evidence that Janssen was arrested with

drug pipes because Janssen failed to make an offer of proof that established the pipes' relevance.

Accordingly,there was no error and we affirm.

BERRY'S STATEMENT


        Janssen argues that the trial court violated his Sixth Amendment right to cross -examine

witnesses by admitting Berry's statement after Berry had been released from the subpoena. We

review a trial court's decision to admit a Smith affidavit for abuse of discretion. State v. Nelson,

74 Wn. App. 380, 385, 874 P. d 170, review denied, 125 Wn. d 1002 (1994).In State v. Smith,
                           2                             2

97 Wn. d 856, 863, 651 P. d 207 (1982), court held that a written statement taken in the
     2                  2             the

course of an investigation can be admitted as substantive evidence under ER 801( )( if the
                                                                            1 i)
                                                                               d 3)(
statement is   sufficiently reliable. When evaluating the reliability of the statement, the court

considers


         1)whether the witness voluntarily made the statement; ( )whether there were
                                                               2
         minimal. guaranties of truthfulness; (3)whether the statement was taken as
         standard procedure in one of the four legally permissible methods for determining
         the existence of probable cause; and (4)whether the witness was subject to cross
         examination when giving the subsequent inconsistent statement.

Nelson, 74 Wn. App.       at' 387 ( footnote   omitted) citing Smith,
                                                        (               97 Wn. d at 861 63).Here,
                                                                             2          -


Janssen does not challenge the first three factors, but rather he argues that Berry was not subject

to cross -examination because Berry was released from the subpoena before the trial court

admitted his statement.


3
    ER 801( )(
       1) d provides that a statement is not hearsay if t] declarant testifies at the trial or
                                                        "[ he
hearing and is subject to cross examination concerning the statement, and the statement is (i)
inconsistent with the declarant's testimony, and was given under oath subject to the penalty of
perjury at a trial,hearing, or other proceeding, or in a deposition."
                                                    in
No. 43249 8 II
          - -



       A defendant has a constitutional right to cross -examine witnesses to expose bias,

prejudice, or interest. State v. Buss, 76 Wn. App. 780, 787, 887 P. d 920 (1995),
                                                                  2             abrogated on

other grounds by State v. Martin, 137 Wn. d 774, 975 P. d 1020 (1999).Here, Berry testified at
                                        2             2

trial and was subject to cross -examination. Although the substance of the written statement was

not admitted at that time, Berry testified about giving the statement to Deputy Gladson. Janssen

had the opportunity to elicit evidence of potential bias or prejudice, therefore Berry was subject

to cross -examination. Because Berry was subject to cross -examination concerning the statement,

the trial court did not err by admitting Berry's statement as a Smith affidavit.

       More importantly, the admission of Berry's statement was clearly harmless. Violations

of the confrontation clause are subject to harmless error analysis. State v. Davis, 154 Wn. d 291,
                                                                                          2

304, 111 P. d 844 (2005), d by Davis v. Washington, 547 U. . 813, 126 S. Ct. 2266, 165 L.
          3             aff'                             S

Ed. 2d 224 (2006). When      determing whether a constitutional error is harmless, we apply the

overwhelming untainted evidence test. Davis, 154 Wn. d at 305. "Under that test, where the
                                                   2

untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt, the

error is harmless.   Davis 154 Wn: d at 305 citing State v. Smith; 148 Wn. d 122, 139, 59 P. d
                                 2          "(                           2                 3

74 (2002)).

        Here, several corrections officers observed Janssen on top of Johnson repeatedly hitting

or stabbing Johnson in the head and neck. There was essentially no controversy about whether

Janssen attacked Johnson. Instead, the defense argued that Janssen was guilty of fourth degree

assault, rather than first degree or second degree assault, because the razor blade weapon was not
a deadly weapon. A deadly weapon is any weapon "which, under the circumstances in which it

is used, attempted to be used, or threatened to be used, is readily capable of causing death or

substantial bodily harm."RCW 9A. 4. Excluding Berry and Johnson's testimony, the
                             110(
                                6
                                0 ).
                                                  5
No. 43249 8 II
          - -



State presented evidence that Janssen stabbed Johnson repeatedly in the head and neck area with

a weapon "
         four or five inches long, wrapped in,tightly in cellophane, it had a razor blade in the

end of it and then it had some of the jail inmate clothing strips wrapped around it."RP at 98.
                                                                                    1

When a razor blade is used to repeatedly stab another person in the head or neck it is capable of

causing death or substantial bodily harm. Therefore, any error in relation to Berry's or Johnson's

testimony is harmless.

EVIDENCE OF JOHNSON'S POSSESSION OF DRUG PIPES


         Janssen also argues that the trial court violated his Sixth Amendment right to

confrontation when it excluded evidence that Johnson was in possession of drug pipes when he

was   arrested   on   the material witness warrant.   First, Janssen alleges that the trial court

improperly limited the scope of cross -examination because (1)evidence of drug use was relevant
to Johnson's ability to "recall and accurately relate past events" and (2)evidence of possession

of drug pipes was relevant to show bias because "it behooved [Johnson] to testify consistent with

the State's wishes, whether true or not, in the hopes that the state would either not charge him

with this new offense, or that the state would give him.a favorable recommendation if It did

charge him." of Appellant at 12. However, Janssen failed to make an adequate showing that
           Br.

evidence that Johnson was arrested with drug pipes was relevant. Therefore, the trial court did

not abuse its discretion by excluding evidence that Johnson was arrested in possession of drug

pipes.

         We review a trial court's evidentiary rulings limiting the scope of cross -examination for

manifest abuse.of discretion. State v. Campbell, 103 Wn. d 1, 20, 691 P. d 929 (1984),
                                                       2               2             cent.

denied, 471 U. . 1094 (1985). The right to confront and cross -examine adverse witnesses is '
             S                "

guaranteed by both the federal and state constitutions."State v. Darden, 145 Wn. d 612, 620, 41
                                                                               2
                                                 0
No. 43249 8 II
          - -



P. d 1189 (2002).But the right to confront and cross -examine adverse witnesses is not absolute
 3

and is limited by general considerations of relevance. Darden, 145 Wn. d at 621 (citing ER 401,
                                                                     2

403; State v. Hudlow, 99 Wn. d 1, 15, 659 P. d 514 (1983)).
                           2               2

         First, Janssen argues that evidence of Johnson's recent drug use was relevant to

Johnson's ability to "recall and accurately relate past events."Br. of Appellant at 12. Not only

does Janssen fail to cite any authority for this proposition, existing authority is directly to the

contrary. Evidence of drug use is admissible for impeachment only where a reasonable inference

exists that the individual was under the drug's influence either during the event or when

testifying. State v. Tigano, 63 Wn. App. 336, 344, 818 P. d 1369 (1991),
                                                        2              review denied, 118

Wn. d 1021 (1992).Evidence of drug use on other occasions, or of drug addiction, is generally
  2

inadmissible on the ground that it is impermissibly prejudicial. Tigano, 63 Wn. App. at 344 45
                                                                                            -

citing   State   v.   Renneberg,   83 Wn. d
                                        2                                    Here, there was no
                                              735, 737, 522 P. d 835 ( 1974)).
                                                             2


indication that Johnson was under the influence of drugs at the time of the assault or while he

was testifying. Therefore, the trial court did not err by excluding evidence of Johnson's drug use

forthe purposes of impeaching Johnson's ability to adequately recall and relate past events

         Second, Janssen argues that evidence that Johnson was arrested in possession of drug

pipes that tested positive for amphetamines was relevant because Johnson may be testifying

favorably for the State in an attempt to get the State to decline to file charges or offer him a plea

bargain. However, there was no evidence that Johnson was getting any benefit from the State in

exchange for his testimony. The trial court has discretion to reject cross -examination where the

circumstances remotely tend to show bias or prejudice, where the evidence is vague, or where

the evidence is merely argumentative and speculative. State v. Roberts, 25 Wn. App. 830, 834,

611 P. d 1297 .(
     2         1980) citing State v. Jones, 67 Wn. d 506, 512, 408 P. d 247 (1965);
                      (                          2                  2             State v.
                                                    7
No.43249 8 II
         - -



Knapp, 14 Wn. App. 101, 540 P. d 898, review denied, 86 Wn. d 1005 (1975)).
                             2                            2              Here, Janssen's

argument is based on speculation about whether Johnson was testifying falsely in an attempt to

convince the State to treat him   favorably. At the time of trial, there was no indication that

Janssen was being offered a deal from the State or even that he would be charged for the

possession of the drug pipes. Accordingly, the trial court did not err by excluding evidence that
Johnson was in possession of drug pipes when he was arrested on the material witness warrant.

       We affirm.


       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.6.it
                                                                                  040,
                                                                                   0

is so ordered.




                                                    OUINN-
                                                         BRINTNALL, J.
We concur:




HUNT,P. .
      J


MAXA, J.




4
  We also note that it may be improper for the State to charge a defendant with a crime resulting
exclusively from his arrest on a material witness warrant. Any mention of a potential deal or
leniency in charging would be highly speculative and an improper basis for impeachment..
Accordingly, it would be a best practice to limit evidence of bias to situations in which the
witness has received a specific benefit from a plea or charging recommendation.
                                                8
