IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. DATHAN JUDE McCRARY, Appellant. NO. 67827-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 18, 2013 SO CO

co

co - ..

Lau, J. — Dathan McCrary appeals his convictions for second degree taking a motorvehicle without permission, first degree unlawful possession of a firearm, and fourth degree assault. He contends that the trial court violated his federal and state constitutional right to confront witnesses when itprecluded cross-examination of a King County sheriffs office detective about a 1999 internal investigation disciplinary incident under ER 608(b). Because the trial court properly exercised its broad discretion to exclude this evidence and because McCrary's statementofadditional grounds (SAG) fails, we affirm. FACTS In December 2008, Dathan McCrary spent the night at Tanya Mapp-Bynum's apartment. Before going to sleep, McCrary put some belongings, including a gun box,67827-2-1/2 in Mapp-Bynum's dresser. The next morning, during an argument, McCrary twice 

### grabbed Mapp-Bynum bythe throat. Mapp-Bynum then drove McCrary to the liquor store where she worked. Mapp-Bynum told McCrary he could sit in her car and listen to the radio until his friends picked him up. McCrary drove away in Mapp-Bynum's car. 

### Twenty minutes later, Mapp-Bynum called 911 to reportthat McCrary had stolen her car and choked her. 

### The Des Moines police department and the King County sheriffs office (KCSO) 

### responded tothe 911 call. Working with the officers, Mapp-Bynum called McCrary to meet her at a park and ride. That evening, McCrary arrived at the park and ride in an SUV (sport utility vehicle) owned and driven by his friend, Terry Meyers. Officers quickly identified and arrested McCrary. 

### While officers secured McCrary, KCSO Detective Keith Martin parked his 

### unmarked police van directly behind Meyers' SUV. Police radio alerted him about two occupants in the SUV. He drew his gun and yelled at the occupants to showtheir hands. After receiving no response, he opened the rear driver's side door and saw a 

### handgun partially hidden on the floor under the rear seats. Detective Martin arranged to impound the SUV pending issuance of a search warrant. 

### Later that evening, officers recovered a gun box from Mapp-Bynum's apartment. 

### The serial number on the gun box matched the serial number on the handgun found in Meyers' SUV. Nousable fingerprints were found on the gun or the gun box, but McCrary's fingerprints matched those found on a report ofsale inside the gun box. McCrarymade several calls to his fiance's telephone numberfrom the King 

### County Correctional Facility. During one call, the jail recorded McCrary stating to an
-2-67827-2-1/3 

### unknown female, "they found my thing, man." Verbatim Report ofProceedings (VRP) (Aug. 1,2011) at 853. 

### The State charged McCrary by amended information with second degree assault, second degree taking a motorvehicle without permission, and firstdegree unlawful possession of a firearm. At a pretrial hearing, the State moved to preclude McCrary 

### from impeaching Detective Martin's credibility withevidence of two KCSO internal 

### investigation incidentsfrom 1999 and 2000.1 The 1999 incident involved a report Martin made to his employer, the KCSO, that his apartment had been burglarized and his Jeep had been stolen. At the time ofthis report, Martin knew his ex-girlfriend had been driving the Jeep with his consent. Although he later corrected his report, he received a one-day suspension without pay based on a sustained allegation involving "conduct... unbecoming
... [resulting in] diminished confidence inthe operation ofthe department, and adversely affect[ing] or impair[ing] the efficiency ofthe department member in that on March 12, 1999, he admitted facts when reporting the theft ofpersonal property during a burglary of his residence." VRP (July 21, 2011) at 23. When court ordered to disclose in a defense interview details aboutthe 1999 internal investigation, Martin claimed lack ofmemory about the incident.



### 1This opinion addresses the 1999incidentonly. McCrarydoes not challengethe exclusion ofthe 2000 incident because he acknowledges it is irrelevant (he received a reprimand for violating KCSO courtesy standards). Pretrial, the trial court admitted two KCSO Internal Investigations Unit files containing evidence ofthe 1999 and 2000 incidents. These pretrial exhibits are not part of our record. -3-67827-2-1/4 The trial court granted the State's motion, precluding McCrary from asking Martin 

### anyquestions about the 1999or 2000disciplinary incidents.2 Thecourtalsodenied McCrary's CrR 3.6 motion to suppress the handgun found in Meyers' SUV. Following a nine day trial, a jury found McCrary guilty of second degree taking a motorvehicle without permission, first degree unlawful possession of a firearm, and the lesserdegree charge offourth degree assault. McCrary appeals. ANALYSIS McCrary contends that the trial court abused its discretion in precluding crossexamination on Detective Martin's 1999 disciplinary incident. The State responds that 

### the trial court properly exercised its discretion to preclude this impeachmentevidence under ER 608(b). 

### The right to cross-examine an adverse witness is guaranteed by both the federal and state constitutions. But the right is not absolute: 

### Courts may, withintheir sound discretion, deny cross-examination ifthe evidence sought is vague, argumentative, or speculative. Since cross-examination is at the heart ofthe confrontation clause, itfollows thatthe confrontation right is also not absolute. The confrontation right and associated cross-examination are limited by general considerations ofrelevance. State v.Darden. 145 Wn.2d 612, 620-21, 41 P.3d 1189 (2002) (citation omitted). To determine whether the trial court violated McCrary's constitutional rights, we apply basic rules ofevidence. Darden, 145 Wn.2d at 624. Under ER 607, "[t]he credibility of a witness may be attacked by any party, 

### including the party calling the witness." Under ER 608(b), a party may introduce 

### 2McCrary renewed his opposition attrial, butthecourtdeclinedtoreconsiderits earlier ruling. -4-67827-2-1/5 "[sjpecific instances ofthe conduct of a witness," otherthan conviction of a crime, and 

### only "forthe purpose ofattacking or supporting the witness' credibility . . . ." The conduct may not be proved by extrinsic evidence. ER 608(b). The proponent may, however, cross-examine the witness aboutthe conduct ifthe inquiry is probative ofthe witness's characterfor truthfulness or untruthfulness, and the court exercises its 

### discretion to allowthe questioning. ER 608(b). Because we review a trial court's ruling on a motion in limine for abuse ofdiscretion, we will reverse "only if no reasonable person would have decided the matter as the trial court did." State v. O'Connor, 155 

### Wn.2d 335, 351, 119 P.3d 806 (2005); see also Darden. 145 Wn.2d at 619 ("Abuse exists when the trial court's exercise ofdiscretion is 'manifestly unreasonable or based upon untenable grounds or reasons.'") (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). It is well-established inWashington that "not every instance of a witness's (even
a key witness's) misconduct is probative of a witness's truthfulness or untruthfulness under ER 608(b)." O'Connor, 155 Wn.2d at 350. "Specific instances of lyingmay be admitted whether sworn or unsworn, buttheir admission is highly discretionary under ER 608(b)." State v. Kunze, 97 Wn. App. 832, 859, 988 P.2d 977 (1999) (emphasis added). "In exercising its discretion, the trial court may considerwhetherthe instance of misconduct is relevant to the witness's veracity on the stand and whether it is germane or relevant to the issues presented attrial." O'Connor. 155 Wn.2d at 349. "The need for cross-examination on misconduct diminishes with the significance ofthe witness in the state's case." State v. Clark, 143 Wn.2d 731, 766, 24 P.3d 1006 (2001). "[T]he
more essential the witness is to the prosecution's case, the more latitude the defense -5-67827-2-1/6 

### should be given to explorefundamental elements such as motive, bias, credibility, or foundational matters." Darden, 145 Wn.2d at 619. The materiality ofthe misconduct 

### may also diminishwith the passage of time. State v. Wilson, 60 Wn. App. 887, 893, 808 P.2d 754 (1991) (instances ofmisconduct "mustbe probative oftruthfulness and not remote in time"). Even ifcross-examination is allowed under ER 608, the trialcourt retains discretion under ER 403 to limitcross-examination premised on waste oftime or undue prejudice. 

### McCrarysoughtto cross-examine Martin regarding his 1999 suspension, to 

### undermine his credibility. Defense counsel deposed Martin, who denied any memory of the 1999 incident. Because ER 608(b) flatly prohibits admission ofextrinsic evidence to 

### provepriorconduct relevant to the witness's untruthfulness, thetrial court acted well within its discretion to exclude cross-examination on Martin's 1999 internal investigation 

### discipline. As the trial court notedpretrial, under ER 608(b), the inquiryends and no extrinsicevidence is permitted given Martin's anticipated lack of memory attrial. In addition, the record shows Martin's limited involvement in this case. According to 

### McCrary, "[Martin] discovered the gun inside the car, alerted otherofficers to its location, and was the main source of information relied on to obtain the search 

### warrant."3 Appellant's Br. at21. McCrary neverdisputedthatMartinfound the gunin the car or impounded the car pending a warrant. Thetrial court also denied McCrary's CrR 3.6 motion to suppress evidence of the gun. Hechallenges this ruling in his SAG, but itlacks merit as discussed below. Martin's credibility, therefore, was not a central 

### 3McCrary does not contend thatMartin's disciplinary historywas germane to his charges forassaultand taking a motor vehicle without permission. -6-67827-2-1/7 

### issue at trial. Accordingly, his 1999 internal investigation discipline had limited impeachmentvalue and the trial court acted well within its discretion to preclude crossexamination. Clark. 143 Wn.2d at 766; State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980). McCrary relies principally on State v. York, 28 Wn. App. 33, 621 P.2d 784 (1980), 

### to argue thatthe trial court abused its discretion. There, the trial court precluded crossexamination of an undercover drug agent regarding the circumstances underwhich he


### was fired from a previous lawenforcementjob. The agent's credibilitywas crucial since he was the onlywitness to testify thatthe defendant sold him marijuana. In closing, the prosecutor argued, "There's no reason at all to doubtthe testimony of [the agent]. 

### Absolutely no reason at all..
.. He's done a good job, just likehe's done in the past in 

### his priorjobs."' York, 28 Wn. App. at 35. Because the defendant's ability to impeach the agent's credibility was the "veryessence" of his defense and because the trial court's ruling allowed the State to claim the agent had an unsullied employment background, our Supreme Court heldthatthe trialcourtabused its discretion. York, 28 

### Wn. App. at36-37.4 Therecord demonstrates thatMartin's credibilitywas notthe
essence ofMcCrary's defense. York is distinguishable. As noted above, the admissibility ofevidence under ER 608(b) is subjectto the 

### overriding protections of ER 403. Wilson, 60 Wn. App. at 893. That rule provides that relevant evidence "may be excluded ifits probative value is substantially outweighed by the dangerof unfair prejudice, confusion of the issues, or misleading the jury, or by


### 4See alsoWilson, 60 Wn.App. at 893-94 (witness's credibilitywas critical because she provided an alibi). -7-67827-2-1/8 considerations ofundue delay, waste of time, or needless presentation ofcumulative evidence." ER 403. Martin testified that he could not remember the facts underlying his 1999 discipline due to the passage of time. The trial court acted well within its discretion to exclude the 1999 internal investigation discipline on the ground itlacked probative value, given the passage of time and its unfair prejudice potential. Even ifwe assume the trial court erred in precluding cross-examination regarding Detective Martin's disciplinary history, the errorwas harmless. An error under ER 608 is harmless unless, "within reasonable probabilities, had the error not occurred, the outcome ofthe trial would have been materially affected." State v. Ferguson, 100 Wn.2d 131, 137, 667 P.2d 68 (1983). The key factual issue to which Martin testified


### was his discovery ofthe gun inMeyers' SUV. Thattestimony was not crucial to the State's case regarding McCrary's possession ofthe gun. Inaddition to Martin's testimony, the State also presented evidence that (1) two other KCSO detectives saw 

### the gun in Meyers' SUV after Martin discovered it; (2) McCrary left a gun box at MappBynum's apartment; (3) police found McCrary's fingerprints on a report ofsale located inside the box; (4) the serial number ofthe gun found in Meyers' SUV matched the 

### serial numberon the gun box; (5) during a recorded telephone call from the King County Correctional Facility, McCrarystates, "[T]heyfound my thing, man" and "[t]heyfound it inthe car;" and (6) inanother recording, McCrary asks a female to retrieve his gun box from "the bitch house," explaining that "ifthe bitch takes the shit down there, then it'll 

### prove thatthat's my shit, and Iget booked on it." VRP (Aug. 1, 2011) at 853; VRP (Aug. 2, 2011) at 868, 870. Even ifthejury had heard evidence regarding Martin's 1999

-8-67827-2-1/9 disciplinary incident and found him less credible as a result, the trial outcome would have been the same.5 STATEMENT OF ADDITIONAL GROUNDS (SAG) McCrary raises two additional issues in his SAG. First, he contends thatthe trial court engaged in "judicial misconduct" by failing to "recognize and uphold the state & government laws" at the CrR 3.6 hearing. SAG at 2. He argues that Martin's protective sweep ofthe SUVwas illegal since "Martintook itupon [himself] to search the vehicle in 

### question without any orderto do so[, and] after Ihad already been arrested ...." SAG at 2. We view this argument as a challenge to the trial court's CrR 3.6 ruling denying suppression ofthe gun. Because our record contains no written findings offact and conclusions of law on that ruling, we are unable to review the challenge. McCrary may 

### raise this argumentthrough a properly-supported personal restraint petition. State v. McFarland. 127 Wn.2d 322, 338, 899 P.2d 1251 (1995). 

### Second, McCrary contends thatthe prosecutorcommitted misconduct by failing to inform defense counsel that the King County Prosecuting Attorney's Office allegedly placed Detective Martin on a list ofofficers whose past behavior might require 

### disclosure to avoid a Brady6 violation. SAG at 3-4. Because this claim involves facts outside the trial record, itcannot be reviewed on direct appeal. McFarland, 127 Wn.2d



### 5Even under the constitutional harmless error standard, the error, ifany, was harmless. 

### 6Under Brady v. Maryland. 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), "suppression by the prosecution ofevidence favorable to an accused upon request violates due process where the evidence is material eitherto guilt or to 

### punishment, irrespective ofthe good faith or bad faith ofthe prosecution." -9-67827-2-1/10 

### at 338. The appropriate means of raising this claim is through a properly-supported personal restraint petition. McFarland. 127 Wn.2d at 338. CONCLUSION Forthe reasons discussed above, we affirm.

WE CONCUR: 

# Qj riNcQQ,

-10-