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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 )         No. 66726-2-I
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         UNPUBLISHED OPINION
ABDI HUSSEIN HILOW,                              )
                                                 )
                      Appellant.                           FILED: June 11, 2012
                                                 )
                                                 )

                                                 )

       Appelwick, J.  --  Hilow appeals his conviction for possession of cocaine 

with intent to deliver, arguing his Sixth Amendment right to confrontation was 

violated when the trial court excluded evidence that could have been used to

impeach Officer Lee's credibility.  He also argues the State violated his due 

process rights by failing to disclose that same allegedly material impeachment 

information before trial and committed prosecutorial misconduct during closing

argument.  Because the evidence sought was not probative of Officer Lee's 

truthfulness or bias, the trial court acted within its discretion in excluding it and 

the State thus did not withhold any material evidence.  The prosecutor did not 

commit prejudicial misconduct.  We affirm.

                                        FACTS

       Officer James Lee was working as the surveillance officer in a narcotics 

operation.  He was positioned on the seventh floor of a parking garage looking  

No. 66726-2-I/2

down at the street below when he observed Abdi Hilow and another man, Sadam 

Salah, as they approached a large group of people.  Officer Lee was 

approximately one block away from Hilow and Salah, and used binoculars to 

observe them.  Officer Lee watched as Salah reached into his pocket, pulled out 

a clear cellophane bag, and exchanged small items in the bag for money.  Salah 

conducted three such exchanges while Hilow stood beside him.  

       Several minutes later, after visiting a store in the middle of the block, 

Salah and Hilow repositioned themselves outside the store with their backs to 

the building, where Officer Lee observed two additional similar transactions.  In 

the first, an individual approached Salah, and after they spoke, Salah nodded to 

Hilow.  Hilow took a small item from his coat pocket and handed it to the 

individual.  After inspecting the item, the individual handed money to Salah.  In 

the last exchange Officer Lee observed, another individual approached the men

and Hilow handed him an item from his coat pocket.  The individual handed 

money directly to Hilow.  

       At that point, Officer Lee requested that the arrest team place Hilow and

Salah under arrest.  Officers Jason Diamond and Andrew West were the 

arresting officers.  They approached Hilow and Salah as they were entering a 

parked car.  Officer Lee had described Hilow and Salah's appearance and 

actions and, at the time of the arrest, he confirmed to the arrest team that they 

had contacted the correct individuals.  Officer Diamond contacted Hilow as he 

was entering the passenger side of the car, and after grabbing him, observed 

Hilow throw a rock of suspected crack cocaine onto the floor of the car.  The 

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No. 66726-2-I/3

rock weighed .11 grams and was confirmed by testing to contain cocaine.  Hilow 

also had $20 in cash on his person.  Officer West found 1.5 grams of crack 

cocaine in Salah's pants pockets, as well as $262 in cash.  

       The State charged Hilow with possession of a controlled substance with 

intent to deliver.  At trial, Hilow testified that he was with Salah on the night in 

question, but asserted he was minding his own business and was only there 

because Salah had offered to give him a ride later.  Hilow testified he had no 

cocaine on him and that he was not aware that Salah had any cocaine either.  A 

jury found Hilow guilty as charged, and he received a standard range sentence.  

He timely appeals.  

                                    DISCUSSION

   I.  Confrontation

       Hilow argues that the trial court violated his rights under the Confrontation 

Clause by preventing him from impeaching Officer Lee with two particular 

incidents Hilow sought to admit at trial.  A person accused of a crime has a 

constitutional right to confront his or her accuser.  U.S. Const. amend. VI; U.S. 

Const. amend. XIV; Wash. Const. art. 1, § 22; State v. Darden, 145 Wn.2d 612, 

620, 41 P.3d 1189 (2002).  The primary and most important component is the 

right to conduct a meaningful cross-examination of adverse witnesses.  State v. 

Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998).  ER 608(b) allows cross-

examination of a witness regarding specific instances of misconduct to impeach 

a witness's credibility, particularly concerning the witness's character for 

truthfulness or untruthfulness.  Adequate cross-examination includes the 

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No. 66726-2-I/4

opportunity to question witnesses to reveal "possible biases, prejudices, or 

ulterior motives of the witness as they may relate directly to issues or 

personalities in the case at hand."  Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 

1105, 39 L. Ed. 2d 47 (1974).       The more essential a witness is to the State's 

case, the more latitude the defendant should have to explore the motive, bias, 

and credibility of that witness.  Darden, 145 Wn.2d at 619. 

       The right to cross-examine an adverse witness is not absolute, however.  

Id. at 620.  The trial court maintains discretion to control the scope of cross-

examination and may reject lines of questions that only remotely tend to show 

bias or prejudice, or where the evidence is vague or merely speculative or 

argumentative.  State v. Kilgore, 107 Wn. App. 160, 185, 26 P.3d 308 (2001), 

aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002).  And,                 a  court's evidentiary 

determinations 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.  Even if the 

evidence is relevant, a defendant's right to introduce relevant evidence must 

also be balanced against the State's interest in precluding evidence so 

prejudicial as to disrupt the fairness of the trial.  Id. at 621.  We review a trial 

court's ruling on the admissibility of evidence for abuse of discretion.  Id. at 619.

       The first incident Hilow wanted to explore on cross-examination involved 

Officer Lee, in a drug case several years earlier, giving mistaken trial testimony 

that he had not used force against a suspect.  Later in the same day, after 

returning to the precinct and consulting a copy of his police report, Officer Lee

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No. 66726-2-I/5

realized that he had in fact used force, and that the testimony he had given at 

trial was mistaken.  He told the prosecutor about the mistake and presented a 

copy of the report on his use of force, and the prosecutor advised the judge of 

the error.  The guilty verdict was subsequently dismissed.  Personnel records 

from the police department reflect that Officer Lee was cautioned by his 

supervisors to carefully review reports before testifying in the future, but he 

received no disciplinary action or reprimand beyond that "supervisory 

intervention."  The trial court found this incident was not probative of Officer 

Lee's truthfulness, and concluded that the evidence was inadmissible:

       I don't find that there's any credible testimony to support any 
       suggestion or assertions that Officer Lee previously testified 
       dishonestly in another proceeding.  So I'm denying the motion.

       This ruling does not reflect an abuse of discretion.  No reviewing body 

found that Officer Lee had been dishonest, and the trial court properly concluded 

that the incident was not probative of his truthfulness or relevant to his 

credibility.  The fact that Officer Lee made a mistake testifying at trial and quickly 

alerted the prosecutor and the court of that mistake, actually reflects positively 

on his credibility.  The evidence shows that he made an error, but does not

demonstrate that he acted dishonestly.  The trial court did not abuse its 

discretion by denying Hilow the opportunity to impeach Officer Lee with this 

evidence.

       The second incident Hilow sought to impeach Officer Lee's credibility with 

arose from an encounter several months prior to Hillow's trial, when Officer Lee, 

working undercover, kicked a 17 year old African-American robbery suspect,

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No. 66726-2-I/6

located in a convenience store.  The events were captured on videotape and 

subsequently broadcast in the news.  Hilow's trial counsel explained the purpose 

for seeking admission of this evidence, arguing it pertained to Officer Lee's bias:

       [T]he consistent factor in these cases is that Officer Lee appears to 
       be in an undercover role . . . .  And the individuals who are effected 
       [sic]  by his behavior are young, African-American men; and it 
       would give the appearance that he may have a bias in that respect 
       in the manner of his enforcement and given the allegation of his 
       changed testimony, he may have a willingness to misstate the facts 
       in order to effect [sic] a successful prosecution.

       . . . .

       I would ask whether or not he's been placed in disciplinary 
       administrative leave or other disciplinary actions as a result of his 
       investigation for excessive use of force against an unarmed 
       suspect.

The trial court granted Hilow the opportunity to question Officer Lee outside the 

presence of the jury.  He testified that he had not been suspended but was 

reassigned to a different unit.  He also testified that the matter was the subject of 

an internal investigation within the Seattle Police Department, but that he was 

not aware of any pending criminal investigation.  Officer Lee went on to state 

that, if asked about his use of force in that incident, he would assert his Fifth 

Amendment right to silence.  The trial court ruled that cross-examination on this 

issue was inadmissible, finding that it would not be probative of any issue 

coming before the jury, and was thus entirely irrelevant to the proceeding.  

       On appeal, Hilow's argument shifts its focus away from the previously 

asserted matter of Officer Lee's potential bias against young African-American 

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No. 66726-2-I/7

men.  Instead, Hilow asserts that the investigation of Officer Lee that was

pending at the time of his trial was not just an internal one, but a criminal one.  

And, he argues that the existence of such a pending criminal investigation (and 

possible resulting criminal charges) gave Officer Lee a reason to give false 

testimony in support of the State's case against Hilow, in an effort to curry favor 

with the prosecution.  This is the central issue before us: whether, by virtue of 

this incident and the resulting criminal investigation, Officer Lee had a personal 

stake in the prosecution of Hilow's case, or some bias, prejudice, or ulterior 

motive to give dishonest testimony that was favorable to the prosecution.

       We reject Hilow's argument.  In order to conclude that Officer Lee's 

testimony was biased based on the pending criminal investigation, we must first 

conclude that he was in fact aware of that criminal investigation.  But, the only 

evidence in the record at the time of trial was the unrefuted testimony of Officer 

Lee that he was aware of the internal Seattle Police Department investigation, 

but was unaware of any pending criminal investigation or charges against him.  

Because Officer Lee was unaware, there can be no support for Hilow's argument 

that such an investigation would have biased Officer Lee or supplied him any 

incentive to testify falsely to curry favor with the prosecution.  

       Moreover,  Hilow's argument presupposes that a criminal investigation 

against Officer Lee would give him added incentive              to be helpful to the 

prosecution.  But, this argument suggests the prosecutor in Hilow's case was 

interested in eliciting fabricated or dishonest testimony from Officer Lee, rather 

than a truthful recounting of his observations.  There is no evidence that the 

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No. 66726-2-I/8

prosecution would have preferred such dishonest testimony or that Officer Lee 

could have curried favor by providing it.  And, as the State points out, it is a 

fundamental part of Officer Lee's job, as a police officer, to provide helpful 

testimony as a State witness in criminal cases.  Officer Lee testified he had been 

on the police force since 1999 and had worked on hundreds of similar narcotics 

operations.  There is no indication that this particular case was of special 

importance to him or to the prosecution generally.  Finally, Hilow does not 

dispute that the testimony that Officer Lee provided at trial was consistent with 

the report that he filed in December 2009, at the time of Hilow's arrest.  That 

report was written long before the incident in question and the resulting 

investigation.  Thus, its content is plainly unaffected by whatever bias or ulterior 

motive that Hilow now alleges exists.

       Hilow has the right, under the confrontation clause, to question witnesses 

to reveal possible biases, prejudices, or ulterior motives.  Davis, 415 U.S. at 316.  

But, the trial court maintains broad discretion to control the scope of cross-

examination and may reject lines of questions that only remotely tend to show 

bias or prejudice, or where the evidence is vague or merely speculative or 

argumentative.  Kilgore, 107 Wn. App. at 185.  We reject Hilow's argument, and 

hold that the trial court did not abuse its discretion when it found that the incident 

in question was not relevant or probative of Officer Lee's truthfulness.

   II. Due Process

       Hilow next raises an argument, under State v. Brady, that the prosecution 

violated his due process rights by failing to disclose that Officer Lee was being 

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No. 66726-2-I/9

criminally investigated.  373 U.S. 83, 87,  83 S. Ct. 1194, 10 L. Ed. 2d 215 

(1963).  When the matter of Officer Lee's incident and the resulting media 

coverage arose, the prosecutor stated he was aware of the news reports, but did 

not believe anything warranted Brady disclosure.  He did not state he was aware 

of a pending criminal investigation of Officer Lee, nor did he say anything when 

Officer Lee gave his own testimony that he was not, to his knowledge, being 

criminally investigated.  Hilow now asserts that although the State did not 

publically announce it had filed criminal charges against Officer Lee until after 

Hilow's trial, the police department had announced, before Hilow's trial, that it 

was conducting a criminal investigation of Officer Lee.  He cites to Seattle Times 

articles from November and December 2010 (before his February 2011 trial), as 

evidence that the existence of the criminal investigation was publically 

announced, known by the media, and thus knowable by both Officer Lee and the 

prosecutor in Hilow's case.  

       In  Brady, the U.S. Supreme Court held that due process requires the 

State to disclose evidence that is favorable to the defendant and material either 

to guilt or punishment.  373 U.S. at 87.  This includes material impeachment 

evidence.  State v. Gregory, 158 Wn.2d 759, 797, 147 P.3d 1201 (2006).  

Evidence is material if there is a "'reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been 

different,'" or if the information "'probably would have changed the outcome of 

[the] trial.'"  Id. (alteration in original) (internal quotation marks omitted) (quoting 

State v. Knutson, 121 Wn.2d 766, 772, 854 P.2d 617 (1993)).  "'Wrapped up in 

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No. 66726-2-I/10

this standard of materiality are issues of admissibility; if evidence is neither 

admissible nor likely to lead to admissible evidence[,] it is unlikely that disclosure 

of the evidence could affect the outcome of a proceeding.'"  Id. (alteration in 

original) (quoting Knutson, 121 Wn.2d at 773).  

       Hilow echoes his argument that evidence of the pending criminal 

investigation was relevant to Officer Lee's credibility, should have been 

admissible, and thus should have been disclosed by the prosecutor.  But, in light 

of the trial court's ruling of inadmissibility and in light of our reasoning above 

affirming that ruling, which applies with equal force here, that argument fails.  

Evidence of Officer Lee's altercation in the convenience store and of the criminal 

investigation does not amount to material impeachment evidence, because 

disclosing that evidence to Hilow would not likely have changed the outcome of 

the trial.  This is because disclosure of the evidence to the defendant would not 

have altered the fact of its inadmissibility.  We hold that Hilow's due process 

rights under Brady were not violated.

   III. Prosecutorial Misconduct

       Lastly, Hilow argues the prosecutor committed misconduct during closing 

argument by urging the jury to convict based on the credibility of the police 

officers and the fact that they had no personal interest in the outcome of the trial, 

while Hilow had a very strong personal interest, affecting his credibility.  At trial, 

defense counsel did not raise an objection to these statements.

       Prosecutorial misconduct is grounds for reversal if the prosecuting 

attorney's conduct was both improper and prejudicial.  State v. Monday, 171 

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No. 66726-2-I/11

Wn.2d 667, 675, 257 P.3d 551 (2011).  We evaluate a prosecutor's conduct by 

examining it in the full trial context, including the evidence presented, the total 

argument, the issues in the case, and evidence addressed in the argument, and 

the jury instructions.  Id.  A defendant suffers prejudice only where there is a 

substantial likelihood that the prosecutor's misconduct affected the jury's verdict.  

Id. Where, as here, a defendant does not raise a timely objection, the error is 

waived unless it is so flagrant and ill-intentioned that it caused an enduring and 

resulting prejudice that could not have been neutralized by a curative jury 

instruction.  State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008).  A 

prosecutor has wide latitude during closing argument to draw reasonable 

inferences from the evidence.  State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 

937 (2009).

       The prosecutor's statements during closing simply contended the State's 

witnesses were credible.  They did not refer to facts outside the record or ask 

the jury to draw improper inferences.         Hilow has not demonstrated that the 

State's comments were flagrant or ill-intentioned misconduct.  His prosecutorial 

misconduct argument was thus waived by the failure to object below.

       We affirm.

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No. 66726-2-I/12

WE CONCUR:

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