Appeal from Superior Court of King County. Docket No: 95-1-05647-1. Date filed: 12/11/95. Judge signing: Hon. Richard A. Jones.
PER CURIAM. Douglas Jackson appeals his conviction for delivery of cocaine, arguing that the trial court abused its discretion in admitting a photocopy of "buy money" recovered following an undercover "buy-bust" operation. We agree that the exhibit was erroneously admitted, but conclude that any error was harmless. Accordingly, we affirm Jackson's conviction.
Douglas Jackson was charged with one count of delivery of cocaine following an undercover narcotics operation. Jackson's co-defendants, Raul Rios and Martin Perea, pleaded guilty prior to Jackson's trial.
At trial, Seattle Police Officer John Brooks testified that he participated as an undercover buyer during a "buy-bust" operation in Downtown Seattle on August 9, 1995. Prior to the operation, Officer Brooks was supplied with "buy money" and a photocopy of the currency by the operation commander. Brooks then compared the serial numbers to verify that the photocopy was accurate. That photocopy was subsequently admitted into evidence without objection as exhibit 2.
At about 2:15 p.m., Officer Brooks made eye contact with a man in the area of Second and Yesler. The man, subsequently identified as appellant Jackson, approached and asked what he was looking for. Officer Brooks indicated that he wanted a "40," a street term for $40 worth of rock cocaine. Jackson replied, "No problem, follow me."
Officer Brooks followed Jackson to South Washington Street, through Occidental Park, and then west towards Elliott Bay. At some point, Jackson asked for the money, and Officer Brooks handed him two $20 bills from the "buy money." As the two passed under the Alaska Way Viaduct, Jackson contacted a man later identified as Martin Perea. Jackson told Perea that he and Brooks were looking for some "soup," a slang term for rock cocaine.
Perea, Brooks, and Jackson then entered Boat Ramp Park, where Perea motioned to a man identified as Raul Rios. Jackson told Rios that they were looking for a "40." Officer Brooks, who was standing a few feet away, saw Rios hand Jackson what appeared to be 2 rocks of cocaine in exchange for the buy money. Jackson and Officer Brooks then headed towards the park exit, where Jackson handed Brooks one of the rocks. Officer Brooks gave a pre-arranged "good buy" sign and continued walking with Jackson. Jackson eventually handed over the second rock, after Officer Brooks agreed to share it with Jackson. Jackson, Rios, and Perea were then arrested by other officers. One of the rocks was later tested and found to contain cocaine.
Officer John Schweiger was one of the surveillance officers on the investigation team. He observed Officer Brooks contact Jackson and then hand something to Jackson. Schweiger then followed Brooks and Jackson to Boat Ramp Park. While in the park, Jackson exchanged something with Rios. Jackson then gave something to Brooks as the two were exiting the park. Officer Schweiger watched as both Rios and Perea were arrested.
Officer Christopher Fowler, who participated in the operation as an observer, was located near Boat Ramp Park. Officer Fowler watched as Brooks and Jackson contacted Perea near the Alaska Way Viaduct. The three men walked over to Boat Ramp Park, where they were joined by Rios. Fowler observed what appeared to be a "mutual exchange" between Brooks and Jackson and then an exchange between Jackson and Rios. Jackson returned to Brooks and appeared to transfer something. When Brooks gave a "good buy" sign, Officer Fowler called in the arrest teams. Fowler was able to see Rios's arrest.
The jury found Jackson guilty as charged, and he was sentenced to a standard-range term.
Jackson contends that the trial court abused its discretion in admitting exhibit 3, a photocopy of the "buy money" allegedly recovered from Rios following his arrest. He argues that the foundation was insufficient to identify the exhibit or establish the chain of custody.
Before a physical object connected with a crime may be admitted into evidence, "it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed." State v. Campbell, 103 Wash. 2d 1, 21, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 525, 105 S. Ct. 2169 (1995). Factors to be considered include "the nature of the article, the circumstances surrounding the preservation and custody of it, and the likelihood of intermeddlers tampering with it." Campbell, 103 Wash. 2d at 21 (quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960)). Minor discrepancies or uncertainty on the part of witnesses affect only the weight of the evidence, and the trial court is necessarily accorded broad discretion in determining admissibility. Campbell, 103 Wash. 2d at 21.
At the Conclusion of its case, the State moved to admit exhibit 3, a photocopy of the "buy money" that, the State asserted, was recovered from Rios after his arrest by Officer Boling. Defense counsel objected on the grounds that there was no testimony from Officer Boling describing the circumstances under which he had obtained the buy money. The trial court admitted the exhibit, ruling that defense counsel's argument went to the weight to be accorded the evidence. Officer Boling failed to appear for trial, even though he had been subpoenaed.
The only foundation evidence for exhibit 3 was provided by Officer Brooks. Contrary to the deputy prosecutor's representation to the trial court, however, Officer Brooks did not testify that the photocopy depicted the "buy money" that Officer Boling had recovered from Rios. Rather, when asked to identify exhibit 3, Officer Brooks merely read the handwritten notation that he had placed on the exhibit envelope upon receiving the photocopy: "Photocopy of buy money returned to me by Officer Boling."
The State presented no evidence indicating that Officer Boling had arrested Rios or had recovered the buy money. Although several of the State's witnesses had observed Rios's arrest, no one identified the arresting officers or reported observing the recovery of any currency. When asked, Officer Bowers was unable identify the officer who had arrested Rios. Indeed, because Officer Brooks indicated that all of the officers received photocopies of the buy money prior ...