State v. Pogue

104 Wash. App. 981
CourtCourt of Appeals of Washington
DecidedFebruary 20, 2001
DocketNo. 45204-5-I
StatusPublished
Cited by4 cases

This text of 104 Wash. App. 981 (State v. Pogue) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pogue, 104 Wash. App. 981 (Wash. Ct. App. 2001).

Opinion

Becker, A.C.J.

This appeal arises from appellant Dionte Pogue’s conviction for possession of cocaine. His [982]*982defense was that he did not know there were any drugs in the car he was driving when police stopped him for a traffic violation. The trial court allowed the State to elicit Pogue’s admission that he had possessed cocaine in the past. The court ruled the evidence was relevant to rebut Pogue’s unwitting possession defense and the suggestion that the police might have planted the drugs. Because the evidence had no relevancy apart from propensity, it was inadmissible under ER 404(b). As the error was not harmless, the conviction must be reversed.

On an afternoon in March of 1999, Dionte Pogue was driving his sister’s Cadillac after dropping her off at work. Pogue drove by two parked police cars. Officer Traverso, who was sitting in one of the cars with a student officer, said Pogue caught his attention because he put his hand up as if to shield his face. According to the officer, Pogue then turned without signaling.

The officer, pulling out to pursue Pogue, activated his lights first, and when Pogue did not pull over, his siren. After being followed by the police for a few blocks, Pogue turned into the driveway of his grandmother’s house where he was living at the time, and got out of the car.

Officer Traverso got out of his car and frisked Pogue for weapons. Pogue told the officer that he did not stop immediately because his license was suspended and also because he did not want to get his sister’s car impounded. After confirming that Pogue’s license was suspended, Officer Traverso placed him under arrest for driving with a suspended license and refusal to stop. After waiving his Miranda rights, Pogue repeated that his reason for not stopping was that the car was not his and he wanted to avoid impound.

While Pogue was in the police car, Officer Traverso searched the Cadillac. Officer Traverso testified that the car was cluttered with fast food bags, and while conducting the search he got some food on his hands. He went back to his car to wipe his hands and told his student officer, McCann, to have a look through the car. Searching between the front [983]*983seat cushions, McCann found a clear plastic bag containing what appeared to be crack cocaine. Several papers bearing Pogue’s name were also found in the car. The substance in the bag tested positive for cocaine and weighed approximately 13 grams.

The State charged Pogue with possession of cocaine. At trial, Pogue testified in his own defense. He said the cocaine was not his and that he had no idea that it was in his sister’s car. He also said that he had $500 cash in his pocket for his rent at the time of his arrest. He said Officer Traverso removed the money from his pocket when he searched him, but when he was released from jail he got back only $24 that had been in another pocket.

On cross-examination, Pogue said that he had previously been in the car as a passenger, but had not driven the car before the day he was arrested. He reiterated that he had never seen the cocaine that was found in the car before the officers located it. This testimony followed:

Q Okay. Now, you are not suggesting that it belongs to your sister?
A No, it’s not—that wasn’t in the car when he first searched me. He was through with his search. The second time when that other officer went in there, all of a sudden it came up out of that car.
Q How do you know this wasn’t in the car before it was searched?
A Because he would have had it the first time he searched the car.
Q But you don’t really know that, do you? Let me ask you this. A He said it, and I am saying it.
Q Had you searched the car that day?
A No, I didn’t.
Q This isn’t your car?
A Right.
Q So you don’t really know what’s in the car, do you?
A No, I don’t.
[984]*984Q Did you see the officer put the drugs in the car?
A No, I didn’t.

Later, outside of the presence of the jury, the State sought permission to admit Pogue’s 1992 conviction for delivery of cocaine. According to the State, the prior conviction, while otherwise inadmissible under ER 404(b), was admissible to rebut the implied material assertion that the evidence was planted by the police. Over Pogue’s objection, the court ruled that the evidence met the threshold of relevancy: “whether he has prior involvement with cocaine particularly is certainly relevant to whether it’s probable that the cocaine is his.”

The court also agreed with the State that the evidence was relevant to rebut Pogue’s insinuation that the police planted the drugs: “I think I would be less inclined to admit it if unwitting possession wasn’t an issue here, and if there hadn’t been testimony with regard to the way in which the cocaine ended up in the car and the alleged misconduct of Officer Traverso.” The court decided to limit the prejudice of the evidence by allowing the State to ask only whether Pogue had experience with cocaine and whether he had possessed it in the past.

After the jury returned, on recross, the prosecutor asked Pogue: “it’s true that you have had cocaine in your possession in the past, isn’t it?” Pogue answered, “yes.”

The jury found Pogue guilty and he was sentenced to five months of incarceration.

Pogue argues the trial court erred in allowing the State to inquire into his past possession of cocaine. At oral argument, the State conceded that the admission of the evidence was error and that the error was not harmless. For the reasons stated in this opinion, we accept the State’s concession as well taken.

Evidentiary rulings will not be disturbed on appeal absent an abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). Evidence Rule 404(b) governs the admission of prior bad acts. The rule prohibits evidence of [985]*985prior acts for the purpose of showing a propensity to commit such acts, but allows its admission for other limited purposes:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ER 404(b).

If the only relevancy is to show propensity to commit similar acts, admission of prior acts may be reversible error. For example, in State v. Wade, 98 Wn. App. 328, 989 P.2d 576 (1999), in Wade’s trial for possession with intent to deliver, the court allowed the State to introduce evidence of two prior instances of drug dealing to show Wade’s intent. The conviction was reversed.

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Bluebook (online)
104 Wash. App. 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pogue-washctapp-2001.