       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                          )       No. 74966-8-1
                     Respondent,          )
                                          )       DIVISION ONE
              v.                          )
                                          )
PAWEL ALBIN ORLINSKI,                     )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: July 24, 2017
                                          )

       BECKER, J. — Evidence that a police officer was disciplined for violating

official policy in his relationship with a confidential informant was not relevant to

his credibility as the investigating officer who discovered appellant in possession

of methamphetamine. The trial court did not err in excluding the evidence. We

affirm appellant's conviction for possession.

       Deputy Mark Brown encountered appellant Pawel Orlinski acting

erratically in the street one night in June 2015. Deputy Brown searched Orlinski

incident to arrest and found a baggie with a substance later identified as

methamphetamine. A jury convicted Orlinski of possession of

methamphetamine. He appeals and argues that the trial court violated his

constitutional right to present a defense by limiting his cross-examination of

Deputy Brown.




 No. 74966-8-1/2

        Orlinski wanted to cross-examine Deputy Brown about two internal

 investigations. In 2009, Deputy Brown was investigated for transporting a

 confidential informant in his patrol car in violation of department policy.

 Allegedly, he had a sexual relationship with the informant. Then at the time of

 trial in this case, another internal investigation was pending concerning an

 allegation that Deputy Brown lied to a sergeant by concealing the fact that he

 made a traffic stop when he was not on duty.
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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                 —4=.

                                                                                          tTi c)
STATE OF WASHINGTON,                       )
                                           )       No. 74966-8-1
                     Respondent,           )                                               coorrt)
                                                                                   3:0
                                           )      DIVISION ONE                             5E17-
              V.                           )                                        c??    CY5P
                                           )                                        cit    =7—
PAWEL ALBIN ORLINSKI,                      )       UNPUBLISHED OPINION
                                           )
                     Appellant.            )      FILED: July 24, 2017
                                           )

       BECKER, J. — Evidence that a police officer was disciplined for violating

official policy in his relationship with a confidential informant was not relevant to

his credibility as the investigating officer who discovered appellant in possession

of methamphetamine. The trial court did not err in excluding the evidence. We

affirm appellant's conviction for possession.

       Deputy Mark Brown encountered appellant Pawel Orlinski acting

erratically in the street one night in June 2015. Deputy Brown searched Orlinski

incident to arrest and found a baggie with a substance later identified as

methamphetamine. A jury convicted Orlinski of possession of

methamphetamine. He appeals and argues that the trial court violated his

constitutional right to present a defense by limiting his cross-examination of

Deputy Brown.
No. 74966-8-1/2

       Orlinski wanted to cross-examine Deputy Brown about two internal

investigations. In 2009, Deputy Brown was investigated for transporting a

confidential informant in his patrol car in violation of department policy.

Allegedly, he had a sexual relationship with the informant. Then at the time of

trial in this case, another internal investigation was pending concerning an

allegation that Deputy Brown lied to a sergeant by concealing the fact that he

made a traffic stop when he was not on duty.

       The trial court allowed cross-examination only about the pending

investigation:

               THE COURT: Okay. At this point the prior incident with
       respect to sexual misconduct and misconduct with the confidential
       informant, unless there is evidence—and I haven't been presented
       with any at this point—that Deputy Brown . . . at the time of Mr.
       Orlinski's arrest and at the time he wrote his report was somehow
       facing loss of his job or something like that such that he would have
       some motive to fabricate what occurred with Mr. Orlinski, I just don't
       see how that prior disciplinary matter is really relevant to anything.
               With respect to the current investigation for dishonesty, I
       don't know what the stage of the investigation is or the adjudicative
       process. . . . But it does appear to me to be relevant generally to
       Deputy Brown's credibility and given that he's the sole witness in
       this case as to the reasons why Mr. Orlinski was detained in the
       first instance or that he even came into contact with Mr. Orlinski in
       the first instance, I think that that evidence is relevant at least for
       purposes of cross-examination under ER 608 and I'm going to
       permit it in cross-examination.

        Orlinski argues that the trial court violated his Sixth Amendment right to

present a defense and ER 608(b) by refusing to allow him to cross-examine

Deputy Brown about the 2009 internal investigation.

       A court's limitation of the scope of cross-examination will not be disturbed

unless it is the result of manifest abuse of discretion. State v. Darden, 145


                                          2
No. 74966-8-1/3

Wn.2d 612, 619,41 P.3d 1189(2002). The more essential the witness is to the

prosecution's case, the more latitude the defense should be given to explore

fundamental elements such as motive, bias, credibility, or foundational matters.

Darden, 145 Wn.2d at 619.

       The right to confront and cross-examine adverse witnesses is guaranteed

by both the federal and state constitutions. U.S. CONST. amend 6; WASH. CONST.

art. 1,§ 22. The primary and most important component is the right to conduct a

meaningful cross-examination of adverse witnesses. The purpose is to test the

perception, memory, and credibility of witnesses. Darden, 145 Wn.2d at 620.

Still, the confrontation right and the right to associated cross-examination are

limited by general considerations of relevance. Darden, 145 Wn.2d at 621. See

ER 401, 403. There is no right, constitutional or otherwise, to have irrelevant

evidence admitted. Darden, 145 Wn.2d at 624.

       Evidence is relevant if it has a tendency to make the existence of any fact

of consequence more probable or less probable than it would be without the

evidence. ER 401.

      The allegation against Deputy Brown in 2009 stated in full:

             It is alleged that Deputy Mark Brown is involved in the
      following misconduct: 1. Is having or has had a sexual relationship
      with a KCSO and DEA confidential/transactional informant[name
      redacted]. [Name redacted] is an habitual drug user with a criminal
      history. 2. That this relationship occurred and was primarily
      conducted during Deputy Brown's working hours. 3. That Deputy
      Brown's relationship with [name redacted]jeopardized a Federal
      drug investigation in which [name redacted] is a key witness. 4. As
      a result, it is alleged that Deputy Brown's conduct is this matter has
      caused diminished respect and confidence in the Sheriff's Office
      and that his conduct can reasonably be conceived to compromise
      the integrity or credibility of himself and the Sheriff's Office. 5. That

                                          3
No. 74966-8-1/4

       Deputy Brown transported [name redacted] in his patrol car while
       on-duty without advising his supervisor or having a hold harmless
       waiver on file.

Deputy Brown received a written reprimand for transporting a civilian rider with

whom he had a relationship. "This was done without the required permission

from a supervisor, and without the proper hold-harmless paperwork and

background work done."

       There was no allegation that Deputy Brown was untruthful. His improper

behavior was not probative of his truthfulness. It did not reflect a motivation to

fabricate a justification for his actions to avoid further disciplinary action. His

violation of the rules of the King County Sheriff's Office did not make it more or

less likely that he lied about finding methamphetamine in Orlinski's possession.

       The trial court properly allowed Orlinski to cross-examine Deputy Brown

about the pending investigation, which did involve his credibility, and Orlinski

used it to argue that the officer was not credible. Because the internal

investigation in 2009 was not relevant to Deputy Brown's credibility, the trial court

did not abuse its discretion by precluding Orlinski from delving into it on cross-

examination.

       The same outcome is obtained under ER 608(b). This evidence rule

provides:

       Specific instances of the conduct of a witness, for the purpose of
       attacking or supporting the witness' credibility. .. may not be
       proved by extrinsic evidence. They may, however, in the discretion
       of the court, if probative of truthfulness or untruthfulness, be
       inquired into on cross examination of the witness (1) concerning the
       witness' character for truthfulness or untruthfulness.



                                           4
No. 74966-8-1/5

(Emphasis added.) Because the internal investigation into the 2009 ride-along

was not probative of Deputy Brown's character for truthfulness or untruthfulness,

ER 608(b) did not provide an alternative basis for cross-examination on that

topic.

         The State is not seeking appellate costs. Appellate costs shall not be

imposed.

         Affirmed.




WE CONCUR:



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