Opinion
No. 50242-5-I.
Filed: March 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 01-1-00809-3. Judgment or order under review. Date filed: 03/26/2002. Judge signing: Hon. George Bowden
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish City Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
The right of an accused to confront witnesses at trial is not absolute; it does not embrace the right to compel a witness to answer questions that bear only on collateral matters, nor does it embrace the right to examine a witness on irrelevant matters. Here, defendant Indle King, Jr., sought to do both. Thus, the witness' refusal to answer the questions did not limit King's right of confrontation to any significant degree. We affirm.
FACTS
King was prosecuted for the murder of his wife, Anastasia. After his arrest, but before his trial, King offered to give false testimony for Dan Larson, the State's main witness against King, in Larson's indecent liberties case. King was jointly charged with first degree murder and witness tampering. The trial court denied King's motion to sever the two counts for trial.
During voir dire, the prosecutor asked potential jurors whether it would make a difference to them if a witness for the State had made a plea agreement with prosecutors. The trial court overruled King's objection that the question was argumentative.
At the conclusion of her opening statement, the prosecutor told the jury, `Don't let him victimize again.' The trial court denied King's motion for a mistrial, in which he argued that the statement was prejudicial.
On direct examination, Larson testified that King asked him whether the State could force King to take a polygraph examination. The trial court denied King's motion for a mistrial, in which he argued that the reference to a polygraph exam was prejudicial.
King cross-examined Larson on matters concerning his credibility and his physical strength. Larson invoked the Fifth Amendment in response to a total of eleven questions during cross-examination. The particular questions asked Larson to authenticate letters he had purportedly written, to admit statements he allegedly made about his fight with two corrections officers, and to discuss a confession he made about his indecent liberties offense. The trial judge denied King's motion to strike Larson's testimony in its entirety for his refusal to answer the questions.
King also moved to admit a toxicology report showing that Anastasia had tested positive for an illegal drug. King argued that the report might be relevant to rebut the State's theory about when Anastasia died. But the trial court excluded the report as being more prejudicial than probative after King admitted that the report could not accurately determine when Anastasia ingested the drug, except within a matter of weeks.
In her closing argument, the prosecutor called King a liar on three or perhaps four occasions. But King did not object to the argument, nor did he request a curative instruction.
The jury convicted King on both counts.
DECISION Motion to Sever Counts for Trial
The trial court denied King's motion to sever on the ground that he failed to show that the prejudice caused by a single trial outweighed the interest of judicial economy. King claims that the trial court erred in denying his motion to sever because it inadequately considered the prejudicial effect of a single trial. We review the denial of a motion to sever for abuse of discretion.
See State v. Watkins, 53 Wn. App. 264, 269, 766 P.2d 484 (1989).
A defendant seeking severance has the burden of demonstrating that a single trial of joined offenses will be so manifestly prejudicial as to outweigh the concern for judicial economy. When deciding a motion to sever, the trial court considers whether one or more factors mitigate the prejudice caused by joinder. Mitigating factors include: (1) the strength of the State's evidence on each count; (2) the clarity of the defenses to each count; (3) instructions to the jury to consider the evidence of each crime separately; and (4) the admissibility of evidence of one crime in the trial of the other crime, if they had been tried separately.
State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).
State v. Russell, 125 Wn.2d 24, 65, 882 P.2d 747 (1994). Three kinds of prejudice may result from a single trial of joined offenses. First, the defendant may be embarrassed or confounded in presenting separate defenses. Second, the jury may use evidence of one crime to infer a criminal disposition on the part of the defendant, and find the defendant guilty of the other crime based simply on that criminal disposition. Third, the jury may improperly cumulate the evidence of the various crimes charged to find guilt, where it would not if it considered the evidence of each crime separately.
State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992).
Before denying King's motion to sever, the trial court expressly considered three of the mitigating factors. As to the first factor, the trial court agreed with King that the State's evidence of witness tampering was stronger than its evidence of murder. The trial court nevertheless found that two other factors mitigated the prejudice caused by the joint trial, i.e., it found that the jury could follow instructions to consider each count separately, and it found that the evidence of witness tampering would be admissible in King's murder trial.
Washington law supports the trial court's findings with respect to the mitigating factors. The law is settled that evidence of witness tampering is admissible as evidence of consciousness of guilt in the trial of the charge to which the witness' testimony pertains.
E.g., State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994).
Sanders, 66 Wn. App. at 886.
King's argument on appeal largely repeats the argument he made to the trial court in his motion to sever. He fails to show that the trial court's ruling on the motion was manifestly unreasonable, or that the trial court exercised its discretion on untenable grounds or for untenable reasons. King therefore fails to show that the trial court abused its discretion.
Right of Confrontation
King claims that he was denied his Sixth Amendment right of confrontation when Larson invoked his Fifth Amendment right to not answer some questions on cross-examination. King argues that the trial court erred when it refused to strike all of Larson's testimony as a remedy for Larson's refusal to answer a total of eleven questions. Although it appears that no Washington authority has stated the standard of review for this issue, we agree with the State's position that we should review the trial court's ruling for abuse of discretion.
King cites another question that Larson refused to answer, but the record shows that the prosecution asked this question on direct examination. King does not explain how Larson's refusal to answer a prosecutor's question denied him the right to confront Larson.
See United States v. Zapata, 871 F.2d 616, 624 (7th Cir. 1989) (`In determining whether the conflict between the defendant's confrontation right and the witness' privilege against self-incrimination should result in the striking of a witness' testimony or a declaration of mistrial, we recognize that the district court is in the best position to examine the particular circumstances of the case, and thus such decisions are committed to its discretion, and shall be reversed only upon a finding that the district court abused its discretion.'). Accord United States v. Norman, 402 F.2d 73, 76 (9th Cir. 1968).
Where a prosecution witness invokes his Fifth Amendment right against self-incrimination on cross-examination, the defendant's Sixth Amendment right of confrontation is necessarily impaired to some degree. The issue in such circumstances is whether the assertion of the privilege against self-incrimination so limited the defendant's right to cross-examination that the conviction should be reversed. If the witness invokes the privilege in response to questions that bear only on collateral matters, and not on matters about which the witness testified on direct examination, there is little danger of prejudice to the defendant and there is therefore no need to strike the witness' testimony.
See United States v. Cardillo, 316 F.2d 606, 610 (2d Cir. 1963), cited with approval in State v. Pickens, 27 Wn. App. 97, 101, 615 P.2d 537 (1980).
See Cardillo, 316 F.2d at 610.
Cardillo, 316 F.2d at 611; cf. Pickens, 27 Wn. App. at 101.
Here, Larson invoked his Fifth Amendment privilege to avoid answering questions about two incidents. The first incident concerned his sexual misconduct. With respect to this incident, Larson refused to answer five questions that asked him to authenticate a document and discuss his confession to the charge of indecent liberties.
King argues that Larson's refusal to answer these questions limited King's constitutional right of confrontation because it prevented him from directly assailing the truth of Larson's testimony. King claims that the questions did not pertain to a collateral matter, but pertained to the central issue in the case Larson's credibility. We disagree.
Larson's refusal to answer the questions at issue did not prevent King from directly assailing the truth of Larson's testimony on direct examination. The verbatim report of proceedings shows that King cross-examined Larson for more than a full day. Thus, King had ample opportunity to cross-examine Larson about his direct testimony. King does not identify a single instance where Larson refused to answer a question about a matter that Larson testified to on direct examination.
Furthermore, the case that King principally relies on, State v. Pickens, is distinguishable. In Pickens, the defendant attempted to cross-examine a witness concerning his possible culpability in the crime for which the defendant was charged. The witness invoked his Fifth Amendment privilege, and the trial court denied the defendant's motion to strike the witness' testimony. The court of appeals held that the trial court erred by denying the motion, `[s]ince the evidence sought by the defense was related to the crime charged and did not concern purely collateral criminal activity, and since there was no other basis in the record from which the defense could have argued the possible bias. . . .'
Pickens, 27 Wn. App. at 99.
Pickens, 27 Wn. App. at 101.
Here, in contrast to Pickens, the questions that Larson refused to answer did not relate to the crime for which King was charged, but related to Larson's indecent liberties offense, which was purely collateral criminal activity. Moreover, the verbatim report of proceedings shows that King cross-examined Larson extensively about his plea agreement with prosecutors, and about the evidence and allegations underlying his conviction for indecent liberties. Thus, there was a sufficient basis in the record upon which King could have argued Larson's bias.
The second incident about which Larson refused to answer questions involved a fight between Larson and two corrections officers. Larson refused to answer six questions that asked him to: (1) authenticate two documents; (2) admit that he bit one of the corrections officers; (3) admit that he had said that the officer tasted like `pig' or `bacon'; and (4) admit that he told another person to apologize, apparently on Larson's behalf, for implying that the officer tasted `just like bacon.'
King argues that the questions were relevant and probative to the issue of whether Larson was physically strong enough to have acted alone in murdering Anastasia and disposing of her body. King raised this issue in defense of the State's theory that Larson needed King's help to carry the body.
But the specific questions Larson refused to answer had nothing to do with his physical strength and therefore were not relevant to the defense's theory that Larson could have acted alone. Because the Sixth Amendment right of confrontation does not embrace the right to examine a witness on irrelevant matters, Larson's refusal to answer these questions did not limit King's right of confrontation.
State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
We also note that Larson did respond to several questions on cross-examination that related to his physical strength. Moreover, King introduced evidence detailing Larson's fight with the officers through the testimony of one of the officers involved. Thus, there was a sufficient basis in the record upon which King could have argued his theory about Larson's strength. King was not prejudiced by Larson's refusal to answer these questions.
In sum, King fails to show how Larson's refusal to answer these eleven questions so limited his right to cross-examination that the trial court should have stricken Larson's testimony from the record. King therefore fails to show that the trial court abused its discretion when it refused to strike Larson's testimony.
Motions for Mistrial
King argues that the trial court erred by denying a motion for mistrial that he made following the prosecutor's opening statement. King based his motion on the opening statement's final sentence, which commanded the jury: `Don't let [King] victimize again.' The State concedes that the remark was improper, but argues that the trial court did not err by denying the motion for mistrial. This court reviews the denial of a motion for mistrial for abuse of discretion.
King's opening brief refers to additional improper remarks in the prosecutor's opening statement, but King did not mention them while arguing his motion for mistrial. These other remarks are therefore irrelevant to our review of the trial court's ruling on the motion.
Russell, 125 Wn.2d at 86.
A trial court should grant a mistrial only when a defendant has been so prejudiced that nothing short of a new trial can insure he will receive a fair trial. Here, the trial court immediately instructed the jury to disregard the remark about which King complained. After hearing King's argument on the motion for mistrial, but before denying his motion, the trial court reasoned, `I have told the jury to disregard the remark. I trust that they will follow that admonition.' Indeed, juries are presumed to follow such instructions.
State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986).
State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).
In light of the court's immediate admonition to the jury, and the fact that the misconduct King complained of was only one improper remark at the beginning of what everyone expected would be a lengthy trial, we are not persuaded that the trial court abused its discretion when it denied the motion for mistrial. King fails to show how the trial court's ruling was manifestly unreasonable, or that the trial court exercised its discretion for untenable reasons or on untenable grounds.
In his pro se brief, King argues that the trial court also erred by denying a motion for mistrial that he made after Larson referred to a polygraph examination. King made the motion after nonresponsive testimony by Larson that King asked him whether the State could force King to take a polygraph examination. The trial court denied King's motion for mistrial on the ground that Larson's remark was inadvertent and harmless since it did not suggest that the State actually asked King to take a polygraph examination, or that King either had taken or had declined to take a polygraph.
We concur that Larson's reference to a hypothetical polygraph examination did not invite the jury to speculate about King's consciousness of guilt. Larson's remark implied neither that King had refused to submit to a polygraph, nor that the State had even asked him to take one. King fails to show how the reference so prejudiced him that only a new trial could cure that prejudice. Thus, he fails to show that the trial court abused its discretion by denying his motion for mistrial. Voir Dire Questions
King argues that the trial court erred by overruling his objections to some of the prosecutor's voir dire questions. He contends that the prosecutor's questions amounted to improper vouching for a prosecution witness, which prejudicially affected the verdict.
A prosecutor's remarks constitute improper vouching for the credibility of a witness if the remarks clearly and unmistakably express the prosecutor's opinion about the truthfulness of the witness or his expected testimony. But even where vouching occurs, it does not warrant reversal unless the defendant shows a substantial likelihood that it affected the verdict.
State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
One of the prosecutor's voir dire questions asked: `Is it going to make a difference to you whether this person told this story before they had a deal or whether a person who comes forward and says, hey, I will tell you what really happened if you make me this deal[?]' King objected that the question was argumentative, but the trial court overruled this objection.
King again objected to a similar line of questioning later during voir dire, on the ground that the questions included unnecessary information. But King did not identify what information in the questions was unnecessary, or how that unnecessary information was objectionable. Although the trial court did not rule on this objection, the prosecutor continued the line of questioning.
In his pro se brief, King identifies other instances in voir dire where the prosecutor stated that the prosecution and the defense have a responsibility to bring in credible witnesses, that `[p]urchased testimony is not necessarily perjured testimony,' and that the State often has to procure testimony by plea bargaining.
King's argument is not persuasive. He fails to show how the prosecutor's questions and other remarks `clearly and unmistakably' expressed her personal opinion about a witness or any expected testimony. The questions to which King objected were proper for the purpose of identifying any potential juror who would dismiss a convicted criminal's testimony out of hand, or would dismiss the testimony of a witness who agreed to testify as part of a plea bargain. Thus, King fails to show that the prosecutor's questions and remarks were improper.
Closing Argument
In his pro se brief, King argues that the prosecutor repeatedly called him a liar during her rebuttal argument, and that this misconduct was prejudicial. Misconduct occurs during argument if the prosecutor gives her personal opinion on the credibility of witnesses. However, prejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion. Prosecutors are allowed to argue inferences from the evidence, including inferences as to why the jury should not believe that defendant.
State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996).
Copeland, 130 Wn.2d at 290.
See Copeland, 130 Wn.2d at 290-91.
Here, King identifies four instances where the prosecutor called him a liar during her closing argument: (1) `He lied repeatedly on the stand.' (2) `Perhaps his best lie was his unsolicited explanation for calling Dan Larson his best friend two weeks before the murder of Anastasia King.' (3) `We know that they are all lies and so was his testimony. Can't say it was persuasive or convincing, but can say it was all lies.' (4) `Who squeaks like a dog toy when he lies?' The first remark summarized what the prosecutor argued were inconsistencies in King's trial testimony from day to day, and even question to question. The second remark actually refers to a lie that King admitted making before trial. The third remark also drew an inference that King lied because his testimony on several issues conflicted with that of other witnesses. Finally, the fourth remark, although it tends toward ad hominem, may also be interpreted as an argument that the jury should disbelieve King because of his demeanor on the witness stand.
Copeland, 130 Wn.2d at 292.
Thus, while the prosecutor used the words `lie' and `lied' forcefully and perhaps inartfully, when viewed in the context of her broader arguments and the evidence, her remarks did not clearly and unmistakably express her personal opinion. King thus fails to show that these remarks were improper.
See Copeland, 130 Wn.2d at 290.
Exclusion of Toxicology Report
In his pro se brief, King claims that the trial court erred by excluding a toxicology report showing that his wife tested positive for cannabinoids. He argues that the exclusion of this evidence denied him of his right to present a defense theory concerning the timing of the murder. Whether to admit or refuse evidence is a decision for the trial court, which will not be reversed on appeal absent an abuse of discretion.
State v. Thomas, 68 Wn. App. 268, 273, 843 P.2d 540 (1992).
King moved to admit the report into evidence, but the prosecutor objected that it was irrelevant and more prejudicial than probative. King argued that the report might be relevant because the defense could argue the inference that the victim smoked a marijuana cigarette prior to her murder, which would have refuted Larson's testimony about the timing of the murder. But King then admitted that the medical examiner would be unable to determine when the victim consumed the marijuana, except within a matter of weeks.
Although King argues in his pro se brief that there were other defense theories to which the report might have been relevant, King did not raise these relevance grounds with the trial court before it ruled on the motion.
Based on this admission, the trial court found that the evidence would be too speculative on the issue of when the victim might have consumed marijuana. Moreover, the court found that the evidence would introduce a `note of prejudice' by raising the issue of the victim's drug use. The trial court excluded the evidence on the ground that the prejudice outweighed the probative value. King fails to show that the trial court abused its discretion by excluding the toxicology report.
Additional Claims of Error
King raises a number of other claims of error in his pro se brief: (1) The prosecutor argued facts not in evidence; (2) the trial court erred by excluding evidence that Larson had strangled his little brother; (3) the trial court gave a prejudicial limiting instruction, at the prosecution's request, to inform the jury that a hearsay statement offered through a defense witness was not offered for the truth of the matter asserted; (4) the prosecutor impaired King's right to testify in his own defense when she laughed in response to some of King's testimony, referred to a prior incident of perjury, and referred to a third person as `Officer,' instead of `Mr.'; (5) the State used an excessive number of plea bargains to procure testimony, which denied King his right of due process; (6) the prosecutor suborned perjury by putting Larson on the witness stand; (7) there was insufficient evidence to support King's conviction.
We have considered King's arguments regarding these claims of error. We conclude that they all fail, because (1) King failed to object on the record or bring a timely motion, (2) he fails to show that these claimed errors prejudiced the verdict, or (3) either the law, the facts, or the record does not support his arguments.
Finally, we address King's assignment of error to the trial court's failure to enter written findings of fact and conclusions of law on his motions to suppress. After King filed his opening brief, the State supplemented the clerk's papers with written findings and conclusions, which the trial court entered on August 27, 2003. This issue is therefore moot.
We affirm.
COX and AGID, JJ., concur.