Opinion
No. 31331-6-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No. 03-1-00208-8. Judgment or order under review. Date filed: 01/16/2004. Judge signing: Hon. Kenneth Day Williams.
Counsel for Appellant(s), Craig Andrew Ritchie Attorney at Law, 212 E 5th St Port Angeles, WA 98362-3008.
Counsel for Respondent(s), Timothy F Davis, Clallam County Prosecutor, 223 E 4th St Port Angeles, WA 98362-3015.
En route to aid his diabetic mother at her residence, Harry Q. Findley hit a fire chief's marked vehicle who was responding to the same medical emergency. A jury found Findley guilty of third degree assault and reckless driving. Findley appeals, arguing that the trial court erred when it (1) denied his Knapstad motion regarding the second degree assault charge; (2) denied his CrR 8.3(b) motion alleging that government officials tampered with evidence; (3) admitted his pre-arrest statements; (4) admitted an expert's testimony under ER 702; (5) denied his proposed necessity instruction; and (6) refused to dismiss an alternative count of third degree assault. He also contends that prosecutorial misconduct during closing argument and the cumulative error doctrine require a new trial. Finding no error, we affirm.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
FACTS
On May 29, 2003, Findley's mother experienced a medical emergency. Unable to reach Findley, she called 911 which dispatched emergency personnel to her residence. The dispatch center also contacted Findley and informed him of the situation.
Findley believed that he was expected to respond to his mother's need. Findley traveled at a high rate of speed to his mother's residence, which was approximately 10 miles away from his home. Findley passed an ambulance, which briefly pulled over to the side of the road because his vehicle whipped up dust and rocks that obstructed the ambulance driver's view.
Findley is not an emergency responder.
As Findley reached his mother's narrow driveway, he approached a marked fire department vehicle driven by Fire Chief John Bugher and moving slowly. According to Findley, he flashed his lights and honked his horn to urge the fire department vehicle to increase its speed. Findley believed that the two vehicles may have touched, but they did not suffer any damage. According to Findley, the fire department vehicle pulled over, allowing Findley to pass and drive to his mother's residence.
According to Chief Bugher, Findley's truck abruptly struck him twice from behind. Chief Bugher testified that Findley attempted to use his truck to push the fire department vehicle off the road. After these events, Chief Bugher moved to the side of the road and allowed Findley's truck to pass. Chief Bugher briefly notified the dispatch center of the incident, that he was not hurt, and he continued up the driveway to assist Findley's mother. Chief Bugher then noticed that his vehicle had been damaged; the trunk lid had released and it was no longer latched.
The dispatch center sent Deputy Stacy Sampson to the scene. Deputy Sampson understood that a vehicle had rammed into Chief Bugher's vehicle and when dispatch called the residence of the medical emergency, Findley hung up on them. Deputy Sampson did not know the welfare of the firemen at the residence.
Deputy Sampson knocked on the door and one of the fire personnel invited her in. Fire personnel identified Findley and Deputy Sampson asked him basic questions about the accident as he moved between rooms of the house. Based on his answers to these questions, Findley was arrested.
The State initially charged Findley with one count of second degree assault under former RCW 9A.36.021 (2001) and one count of reckless driving under RCW 46.61.500; however, the amended information included an alternative count of third degree assault under RCW 9A.36.031(1)(e). Findley filed a Knapstad motion to dismiss the second degree assault charge, which the trial court denied.
After a CrR 3.5 hearing, the court admitted Findley's pre-arrest statements to Deputy Sampson. The court also denied Findley's CrR 8.3(b) motion that alleged government officials tampered with the rear bumper of Chief Bugher's vehicle and Findley's motion to strike two affidavits by State expert witnesses who observed the rear bumper.
During Findley's jury trial, his expert testified about the marks on the rear bumper shock absorbers of Chief Bugher's vehicle. Findley's expert believed that Chief Bugher's vehicle did not sustain damage caused by a high speed collision. The expert also testified that marks on the shock absorbers were unrelated to a collision. Chief Bugher and Deputy Sampson testified for the State. And Bobby Yaun, a State witness, testified about his personal observations and opinion as a mechanic regarding the rear bumper shock absorbers of Chief Bugher's vehicle. Findley also testified at his trial.
After the defense rested, Findley proposed a necessity defense instruction, which the court rejected. Before instructing the jury, the trial court dismissed the count of second degree assault because the State had not proven beyond a reasonable doubt that Findley's vehicle was readily capable of causing substantial injury to Chief Bugher. But the court emphasized that, 'assault third degree, the statute which the alternate is charged in this case does much more specifically fit the facts of this case.' Report of Proceedings (RP) (Dec. 11, 2003) at 86. During closing argument, Findley objected to a portion of the prosecutor's rebuttal argument. The court gave the jury a curative instruction.
The jury found Findley guilty of third degree assault and reckless driving.
The record before us does not include Findley's judgment and sentence; however, the parties neither challenge nor dispute these issues.
ANALYSIS I. Knapstad Motion
Findley argues that the trial court erred in denying his Knapstad motion that sought to dismiss the State's charge of second degree assault.
But Findley ignores the well-settled principle that, 'after proceeding to trial, a defendant cannot appeal the denial of a Knapstad motion, which is a pretrial challenge to the sufficiency of the evidence.' State v. Cannon, 120 Wn. App. 86, 90, 84 P.3d 283 (2004) (citing State v. Richards, 109 Wn. App. 648, 653, 36 P.3d 1119 (2001)). And Findley cannot assert a sufficiency of the evidence challenge because the trial court ultimately dismissed the second degree assault charge. Thus, Findley has waived this challenge.
But we note that the trial court properly denied Findley's Knapstad motion. For Findley to prevail, he must allege that 'there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.' Knapstad, 107 Wn.2d at 356 (emphasis added). Thus, '[i]f material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory.' Knapstad, 107 Wn.2d at 356.
Here, the trial court denied Findley's pre-trial motion because, 'the State disputes [Findley's facts] and states the speed was higher and the contact more great than [Findley's counsel] says, for purposes of Napstad [sic] that is what I have to accept.' RP (Jul. 18, 2003) at 21. Thus, the trial court did not err.
II. CrR 8.3(b)
Findley argues that the trial court erred in denying his CrR 8.3(b) motion that asserted government officials tampered with the rear bumper shock absorbers of Chief Bugher's vehicle in order to bolster evidence that Findley 'rammed' into it. He asserts that the alleged tampered evidence severely prejudiced his defense.
CrR 8.3(b) provides, 'The court, in furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.'
Findley's trial motions combined his tampering assertions with alleged discovery violations; however, the record indicates discovery issues were resolved before trial and Findley does not meaningfully appeal discovery issues. Thus, we focus on Findley's arguments under CrR 8.3(b).
For example, Findley asserted that his expert did not have access to Chief Bugher's vehicle; however, his expert inspected the vehicle before trial.
To obtain a dismissal of charges under CrR 8.3(b), the defendant must show by a preponderance of the evidence both (1) arbitrary action or governmental misconduct and (2) actual, rather than speculative, prejudice affecting the defendant's right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). Alleged governmental misconduct can involve prosecutorial mismanagement. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). The alleged prejudice to a defendant's trial must be actual, not speculative. Rohrich, 149 Wn.2d at 657-58.
But 'dismissal under CrR 8.3 is an extraordinary remedy, one to which a trial court should turn only as a last resort.' State v. Wilson, 149 Wn.2d 1, 12, 65 P.3d 657 (2003). We review the trial court's decision on a CrR 8.3(b) motion to dismiss for manifest abuse of discretion. Rohrich, 149 Wn.2d at 654.
Here, Findley demonstrates neither a preponderance of evidence that government officials tampered with Chief Bugher's vehicle nor any prejudice to his trial. Findley's assertions of government misconduct rely primarily on one expert's assertion that marks on the shock absorbers of Chief Bugher's vehicle were unrelated to the accident. The expert's written statement states that the marks were made by 'human hands with an implement of some sort . . . not marks made during compression of the absorber.' Clerk's Papers (CP) at 108 (emphasis omitted). Consistent with this statement, the expert testified that the rear bumper's marks were 'made by a narrow implement like a pen or screw driver' that was 'absolutely' unrelated to compression marks on the bumper caused by a high speed collision. RP (Dec. 9, 2003) at 158. The expert also testified that he did not believe that dust caused the shock absorber's marks.
The trial court instructed that Findley's expert should not opine about tampering allegations, in part because the expert did not personally view the alleged misconduct. Thus, the expert did not expressly discuss tampering allegations to the jury; however, the expert provided detailed testimony, without objection, about how the shock absorber's marks were inconsistent with a high speed automobile collision.
But the State proffered two affidavits from mechanics who inspected Chief Bugher's vehicle that asserted dust or impact at an angle could create the shock absorber's marks. One of these experts, Yaun, testified about the shock absorber's marks. And Chief Bugher testified that he did not tamper with his fire department vehicle and that he was unaware of others creating marks on the shock absorbers.
Thus, Findley fails to satisfy the necessary government misconduct requirement. Instead, Findley makes conclusionary assertions of government tampering such as, 'it appears that an obvious but incompetent attempt may have been made to make the marks seem to be marks from the absorbers' and 'the State used evidence that obviously had been tampered with.' CP at 104; Reply Br. of Appellant at 4. And Findley ignores that it is the jury's role to resolve the credibility of the witnesses regarding disputed evidence. Rohrich, 149 Wn.2d at 659. Consequently, Findley cannot show actual prejudice to his trial because he failed to demonstrate government misconduct and the jury heard significant testimony from both parties' experts regarding the shock absorber's marks.
Thus, the court did not abuse its broad discretion when it denied Findley's CrR 8.3(b) motion.
III. Findley's Pre-Arrest Statements
Findley alleges that the trial court erred in refusing to suppress his pre-arrest statements to Deputy Sampson made at his mother's house. He argues that his statements occurred during custodial interrogation that required Deputy Sampson provide a Miranda warning.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Following a CrR 3.5 hearing, a trial court's findings of fact are verities on appeal if supported by substantial evidence in the record. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). We review de novo whether the trial court derived the proper conclusions of law from its findings of fact. State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wn.2d 1025 (2003).
Although the trial court did not enter written findings of fact, this omission is harmless because 'the trial court's oral opinion is clear and comprehensive and written findings would be just a formality.' State v. Trout, 125 Wn. App. 403, 415, 105 P.3d 69 (2005).
Miranda warnings only apply when 'the interview or examination is (1) custodial (2) interrogation [and] (3) by a state agent.' State v. Post, 118 Wn.2d 596, 605, 826 P.2d 172, 837 P.2d 599 (1992).
A defendant is in custody when 'a reasonable person in a suspect's position would have felt that his or her freedom was curtailed to the degree associated with a formal arrest.' State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004). A court's custody determination is not based on a defendant's subjective impressions, but is an objective inquiry that considers 'how a reasonable person in the same circumstances would have perceived the situation.' State v. Cunningham, 116 Wn. App. 219, 228, 65 P.3d 325 (2003).
A law enforcement officer's investigative questioning of an individual soon after an automobile accident is not a formal arrest that triggers Miranda warnings. See, e.g., State v. Ferguson, 76 Wn. App. 560, 567-68, 886 P.2d 1164 (1995). And interrogation is when an officer's questioning of an individual requires a degree of compulsion. State v. Birnel, 89 Wn. App. 459, 467, 949 P.2d 433 (1998). Thus, interrogation occurs when the officer's questions 'were reasonably likely to elicit an incriminating response' and 'reflect a measure of compulsion above and beyond that inherent in custody.' Birnel, 89 Wn. App. at 467.
Here, Deputy Sampson testified that Findley walked to different rooms in the house while she initially questioned him and Findley made the challenged pre-arrest statements. After reviewing the evidence presented at the CrR 3.5 hearing, the trial court concluded that during Deputy Sampson's questioning of Findley, 'he was moving from room to room without being told to stay in a central place. . . . [H]e had not been directed by [Deputy Sampson] to go to any particular location.' RP (Dec. 8, 2003) at 103. Findley did not present evidence at the CrR 3.5 hearing to dispute these events. Indeed, during trial, Findley testified that he was moving freely within the house when answering Deputy Sampson's initial questions.
Thus, a reasonable person in Findley's position would have felt free to leave and not under a formal arrest. And an officer's brief investigatory questioning after an automobile accident is not a situation requiring a Miranda warning. Because Findley was not in custody, the trial court properly admitted his pre-arrest statements. Although the lack of custody is fatal to Findley's challenge under CrR 3.5, we note that Deputy Sampson's pre-arrest questions to Findley were also primarily investigatory and were straightforward, non-deceptive, and sought to determine the circumstances of the reported accident between Findley and Chief Bugher.
The trial court did not err in admitting Findley's pre-arrest statements to Deputy Sampson.
IV. Expert Witness Testimony
Findley argues that the trial court improperly admitted Yaun's testimony about his observations of the rear bumper shock absorbers of Chief Bugher's vehicle because he was not an expert and his opinion was mere speculation. Findley also asserts that the prosecution failed to list Yaun as a trial witness.
Findley does not meaningfully challenge the trial court's finding that the 'scientific principles involved are relatively straight forward' and that an inquiry was unnecessary under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). CP at 57. Thus, we do not review this issue.
A. ER 702
Expert testimony must satisfy the standards of ER 702. Admissible testimony under ER 702 requires that the witness is qualified as an expert and that the testimony helps the jury understand the evidence and determine factual questions. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). An expert need not have academic credentials; practical experience may suffice. State v. Baity, 140 Wn.2d 1, 18, 991 P.2d 1151 (2000). We review a trial court's admission of testimony under ER 702 for an abuse of discretion. Willis, 151 Wn.2d at 262.
ER 702 provides, 'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.'
In a pre-trial memorandum, the trial court rejected Findley's motion to strike Yaun's affidavit because the shock absorbers' marks helped determine the force of the impact between Findley and Chief Bugher's vehicle. Thus, Yaun's experience as an auto mechanic and his observations of Chief Bugher's vehicle would be 'valuable' and 'sufficient to allow [him] to express an opinion.' CP at 57.
Later, on the fourth day of trial and after the State's offer of proof of Yaun's testimony, the trial court reaffirmed that Yaun's experience qualified him as an expert witness. The trial court then limited Yaun's testimony to his personal observations of Chief Bugher's rear bumper shock absorbers, stating that Yaun could 'testify as to his opinion that the scratches on the bumper indicated the bumper overroad [sic] another [,] . . . how the shock absorbers operated[,] and he may testify as to what he observed on the shock absorbers at the time of his investigation.' RP (Dec. 11, 2003) at 56. But Yaun could not testify on whether the marks were the direct result of compression of the shock absorbers.
Consistent with the trial court's rulings, Yaun testified about his qualifications and his observations of the rear bumper shock absorbers, including his opinion that the marks on the bumper 'looked like something hit it or either hit it at an angle or was a little higher and actually came up over the bumper where it scraped across the top.' RP (Dec. 11, 2003) at 70.
The trial court properly concluded that Yaun was qualified as an expert and that his testimony would be helpful to the jury in understanding important facts regarding the rear bumper. Findley fails to show that the trial court's decision to admit Yaun's limited expert testimony under ER 702 was a manifest abuse of discretion.
B. Witness List and Rebuttal Testimony
Findley argues that the State failed to list Yaun as a trial witness. But the State listed Yaun as a witness five days before trial. Thus, this argument fails.
Findley next argues that the trial court erred in allowing the State to present Yaun's testimony as an expert witness as rebuttal to Findley's expert witness because this evidence should have been admitted as part of the State's case-in-chief. But his argument fails to cite to the record or relevant legal authority. Instead, Findley primarily repeats his arguments that Yaun's testimony was inadmissible.
We do not review appellate arguments unsupported by legal authority, meaningful analysis, or citations to the record and we decline to do so here. RAP 10.3(a)(5); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
V. Necessity Instructions
Findley argues that the trial court erred when it refused Findley's proposed necessity instructions.
A necessity defense is available:
when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law. The defense is not applicable where the compelling circumstances have been brought about by the accused or where a legal alternative is available to the accused.
State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994) (quoting State v. Diana, 24 Wn. App. 908, 913-14, 604 P.2d 1312 (1979)); see also State v. Parker, No. 31413-4-II, 2005 WL 1021383, at *1 (Wash.Ct.App. Apr. 5, 2005) (relying on Gallegos in necessity instruction discussion). 'The 'pressure' must come from the physical forces of nature, not from other human beings, for a defendant to argue the necessity defense.' Gallegos, 73 Wn. App. at 650-51 (citing State v. Turner, 42 Wn. App. 242, 247, 711 P.2d 353 (1985); William R. LaFave Austin W. Scott, Criminal Law sec. 50, at 381 (1972)).
To obtain a necessity instruction, 'the defendant must prove by a preponderance of the evidence that: (1) he or she reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, and (3) no legal alternative existed.' Gallegos, 73 Wn. App. at 651. Here, as in Gallegos, Findley acted from the alleged circumstantial pressure of his mother's personal need for assistance, not from the physical force of nature. Consequently, the necessity defense is not legally available. Gallegos, 73 Wn. App. at 651.
But even if the defense of necessity had been available, Findley failed to present sufficient evidence to raise it as a defense to the State's charges for three independent reasons.
First, Findley argues that he 'reasonably believed that driving too fast, and perhaps recklessly as a matter of law . . . was necessary to avoid or minimize the harm.' Br. of Appellant at 12. Yet, as pointed out by the trial court,
The Court finds no evidence in this case that that would be a reasonable belief of the defendant under the circumstances being some — no more than 400, 350 feet from the residence following a marked fire department vehicle with its lights going. Any reasonable person would assume that that person had EMT training . . . and would be able certainly to be there immediately and that the defendant would be there within seconds to do what the defendant needed to do.
RP (Dec. 11, 2003) at 95-96.
Second, Findley did not admit the crime of third degree assault. The trial court accurately stated that Findley's 'defense is denial, not necessity. You don't get both. Because to get necessity he has to say that he had reason to believe the commission of the crime was necessary. Your client doesn't believe the crime was committed.' RP (Dec. 11, 2003) at 91-92.
Third, Findley cannot argue that no legal alternative existed. As the trial court found,
[The reasonable] legal alternative was to take the extra five or six seconds to get there and in the Court's opinion that is absolutely a reasonably effective alternative and therefore one did at that point exist and therefore necessity is not going to be given.
RP (Dec. 11, 2003) at 96.
The trial court did not err in refusing Findley's proposed necessity instruction.
VI. Dismissal of the Alternative Count
Findley contends that the trial court erred in failing to dismiss the alternative count of third degree assault. Citing the dissent in Milanovich v. United States, 365 U.S. 551, 558, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), Findley asserts, 'It is clear that when there are alternative counts, the jury must be instructed that a guilty verdict cannot be returned on both alternates.' Br. of Appellant at 13.
Findley's reliance on Milanovich is misplaced. In Milanovich, the government charged the defendant with (1) theft of government property and (2) receiving stolen property with an intent to convert it for personal use. 365 U.S. at 552. The trial court allowed both counts to go to the jury, which found the defendant guilty on each count. Milanovich, 365 U.S. at 552. The Supreme Court held 'that the trial judge erred in not charging that the jury could convict of either larceny or receiving, but not of both.' Milanovich, 365 U.S. at 555.
Here, both counts did not go to the jury because the trial court dismissed the charge of second degree assault. Further, although second and third degree assault both contain the element of 'assault,' the evidence underlying each conviction is different. Second degree assault requires proof of assault with a deadly weapon, but the third degree assault charge here requires proof that the defendant assaulted 'a fire fighter or other employee of a fire department or fire protection district who was performing his or her official duties at the time of the assault.' CP at 34.
The trial court did not err in refusing to dismiss the third degree assault charge.
VII. Prosecutorial Misconduct
Findley argues that he was denied a fair trial because of a portion of the prosecutor's closing argument that asserts defense counsel implied that the police officers' testimony was untruthful.
A defendant arguing prosecutorial misconduct must show that the alleged error was 'both improper and prejudicial.' State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999) (emphasis added). If a proper objection occurred below, there must be 'a substantial likelihood [that] the misconduct affected the jury's verdict.' Finch, 137 Wn.2d at 839. We analyze a prosecutor's alleged improper comment or argument in the context of all the issues and arguments in the case, including the court's curative instructions to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (emphasis added). Finally, '[l]iar questions and comments are held to be harmless if they 'were not so egregious as to be incapable of cure by an objection and an appropriate instruction to the jury.'' State v. Neidigh, 78 Wn. App. 71, 77, 895 P.2d 423 (1995) (citation omitted).
During the State's rebuttal during closing argument, the prosecutor stated, 'Counsel has tried to suggest to you that because the people who testified to what the defendant said spontaneously are all [police] officers that they have a motive to lie under oath.' RP (Dec. 11, 2003) at 141.
Defense counsel objected and the trial court cautioned the jury, stating,
Again I will remind the jury that the purpose of argument is to help you understand the evidence and apply the Court's instructions on the law to it. It is not proper for attorneys to comment on the credibility of any witness, that is solely for you to decide.
RP (Dec. 11, 2003) at 141-42.
The prosecutor was likely responding to a portion of defense counsel's closing argument that stated police officers 'all have some motive. They like to see a particular outcome.' RP (Dec. 11, 2003) at 128. Nonetheless, the prosecutor's brief comment was improper, but the trial court's instruction to the jury cured any prejudice to Findley. State v. Rice, 120 Wn.2d 549, 573, 844 P.2d 416 (1993). And we presume that juries follow the court's instructions to disregard improper testimony. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994); State v. Pastrana, 94 Wn. App. 463, 479-80, 972 P.2d 557 (1999).
Given the isolated nature of the prosecutor's remark and the court's curative instruction, Findley has not established a substantial likelihood that the remark affected the jury's verdict. Thus, Findley's prosecutorial misconduct argument fails.
VIII. Cumulative Error
Findley seeks relief under the cumulative error doctrine. This doctrine protects a criminal defendant's right to a fair trial and applies only when a trial contains numerous prejudicial and egregious errors. See, e.g., State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). The defendant bears the burden of proving these significant errors. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994).
Because we find no prejudicial error in Findley's assignments of error, he is not entitled to relief under the cumulative error doctrine
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and HUNT, J. Concur.