Appeal from Superior Court, Okanogan County. 93-1-00060-8. Honorable Evan E. Sperline, Judge.
As Corrected May 28, 1997.
Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge.
The opinion of the court was delivered by: Sanders
SANDERS, J. The trial court allowed the jury unrestricted access to audio tapes of a drug buy and a playback machine during deliberations. The defendant was convicted, the Court of Appeals affirmed, and so do we.
A jury convicted Edelmira Castellanos of two counts of delivery of a controlled substance (marijuana) in violation of RCW 69.50.401. She was sentenced accordingly by the trial court. The facts are straightforward.
On February 5, 1993 a confidential informant working for the North Central Washington Narcotics Task Force purchased one ounce of marijuana from defendant and her son, Roberto Barrera. The confidential informant wore a body wire, enabling a task force officer to record the conversation. On February 9, 1993 the informant again purchased nine one-eighth ounce bags of marijuana from defendant and Barrera. The informant again wore a body wire. The Task Force again recorded the transaction. Police later arrested both defendant and her son, charging each with delivery of a controlled substance.
Castellanos claimed at trial that, although she was with her son on both dates, she did not engage the informant in a drug transaction. The trial court admitted the body wire tapes into evidence without objection. The State played the tapes for the jury in open court as the informant testified what transpired. The sound quality of the recording was poor. In addition to the informants narrative, the jury followed transcripts of the tape; however, these transcripts were not offered into evidence. Castellanos did not object to the jury's use of the transcripts. Neither the tapes nor the transcripts are part of the record before this court.
The defendant objected to the submission of the audio tapes and tape player to the jury during deliberations. She argued the jury's potential repeated review of the audio tapes could cause it to unduly emphasize the taped material. However the trial court disagreed, allowing unrestricted jury access to the tapes and playback machine during its deliberations. The court reasoned, because the taped material was nontestimonial, the jury could review the tapes at its discretion like any other piece of evidence. The Court of Appeals affirmed, finding the trial court did not abuse its discretion. State v. Castellanos, 82 Wash. App. 204, 208, 916 P.2d 983 (1996). We granted review. State v. Castellanos, 130 Wash. 2d 1008, 928 P.2d 415 (1996).
The sole issue on review is whether the trial court abused its discretion by allowing the jury to take audio tapes of the drug transaction with a playback machine into the jury room during deliberations.