Opinion
No. 61053-8-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 01-2-18458-0, Sharon S. Armstrong, J., entered December 14, 2007.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Cox and Ellington, JJ.
Ricardo Capello appeals his civil commitment under the sexually violent predator (SVP) statute, chapter 71.09 RCW. He contends that he was denied an open, public trial. Because Capello has failed to show that any part of his second, and most recent, trial was closed to the public, we reject his claim.
Capello also argues that the trial court erred when it admitted certain statements under the excited utterance exception to the hearsay rule and allowed the State's expert to give victim impact testimony. Finding no abuse of discretion in the admission of this evidence, we affirm.
FACTS
In 1991, the State charged Ricardo Capello with first degree rape and first degree kidnapping with sexual motivation. Pursuant to a plea agreement, Capello entered an Alford plea to the kidnapping charge, and the State dismissed the rape charge. The court sentenced Capello to 144 months of confinement and 12 months of community placement. In 2001, the prosecuting attorney filed a petition under RCW 71.09.030, alleging that Capello was an SVP as defined in RCW 71.09.020(1), and sought a determination of the existence of probable cause. The trial court found probable cause and remanded Capello to the Special Commitment Center for evaluation pending trial.
In re Det. of Capello, 114 Wn. App. 739, 741, 60 P.3d 620 (2002).
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Capello, 114 Wn. App. at 741.
Capello, 114 Wn. App. at 741.
Capello, 114 Wn. App. at 742.
Capello, 114 Wn. App. at 743-44.
Capello sought discretionary review in this court. He argued his probable cause hearing was untimely and the State breached its plea agreement by seeking his civil commitment. We granted review and affirmed.
Capello, 114 Wn. App. at 744.
Capello, 114 Wn. App. at 741.
Capello, 114 Wn. App. at 741.
Capello's first trial in October 2007 ended in mistrial when the jury could not reach a unanimous verdict. A second trial immediately followed, and the jury found that Capello met the criteria for indefinite commitment under chapter 71.09 RCW. Capello appeals.
ANALYSIS
Capello first claims a violation of the requirements for open and public trials under article I, sections 10 and 22 of the Washington State Constitution. We reject this claim. RAP 10.3(a)(5) and (6) require an appellant to support his arguments and factual statements with reference to the record. Here, Capello supports his claim that constitutional violations occurred in the second trial with citations to the record from his first trial, showing that the trial court held a conference in chambers on motions in limine. Without explanation, he claims that "carried over into the second trial." Yet, the relief he requests is a new trial, a proceeding he already received following the hung jury in his first trial. Capello therefore fails to meet his initial burden to show that the trial court denied him an open, public trial. Because Capello has not presented us with any evidence of a closure in his second trial, we do not reach his arguments regarding standing or the application of article I, sections 10 and 22 of the Washington State Constitution.
See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (argument unsupported by citation to the record or authority will not be considered).
Next, Capello argues that evidentiary errors deprived him of the right to a fair trial. We review a trial court's evidentiary rulings for an abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. An error in admitting evidence that does not prejudice the defendant is not grounds for reversal. "[W]e apply the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole."
In re Det. of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009).
Duncan, 167 Wn.2d at 402.
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).
State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); accord State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
First, Capello claims that the trial court erred when it admitted the hearsay statements of one of Capello's victims, J.B. At Capello's trial, the State introduced the deposition testimony of Danny Teller, a retired Honolulu police officer. He testified that in March 1982, he responded to a 911 call reporting a woman's screams. Teller drove to the location of the call and saw J.B. run out of the sugar cane fields lining the road. Teller found J.B. half-clothed, crying, and extremely upset, screaming, "Thank God, I'm saved. Help me, help me." Teller testified that he "tried to calm her down to find out what happened." He identified himself as a police officer, and after that "she felt safe, then she wasn't as emotional as she was prior." Teller stated that after J.B. discovered he was a police officer, "Basically, she said she was raped. She kept saying that [Capello] was sick and needed to be locked up."
The trial court admitted J.B.'s statements under ER 803(a)(2), the excited utterance exception to the hearsay rule. Capello argues that the trial court abused its discretion because Teller's testimony demonstrated that J.B. was calm when she stated that Capello was "sick" and "needed to be locked up." We disagree.
Capello also claims for the first time on appeal that J.B.'s statements constituted impermissible opinion testimony. He failed to preserve this issue for our review. To preserve an evidentiary issue for appellate review, the specific objection made at trial must be the basis of a party's assignment of error on appeal. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). At trial, Capello objected to J.B.'s statements only on the basis that they did not meet the requirements of the excited utterance exception. Therefore, the issue of whether her statements were inadmissible opinion testimony has not been properly preserved for appellate review.
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible unless an exception applies. ER 803(a)(2) provides an exception for excited utterances. An "excited utterance" is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."
ER 801(c).
ER 802.
A court may admit a hearsay statement as an excited utterance if the following requirements are met: (1) a startling event or condition occurred, (2) the statement was made while the declarant was still under the stress of the startling event, and (3) the statement related to the startling event. A statement that is the product of reflection or deliberation is not an excited utterance. Spontaneity, the passage of time, and the declarant's state of mind are factors courts consider to determine whether a statement is a product of reflex or instinct rather than a deliberate assertion.
State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997).
See State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001).
State v. Palomo, 113 Wn.2d 793, 791, 783 P.2d 575 (1989).
Capello argues that the second requirement was not met based on Teller's testimony that "[a]fter she realized I was a police officer and she felt safe, then she wasn't as emotional as she was prior." But our review of the record satisfies us that a reasonable trial judge could have concluded that J.B.'s statements were not the product of conscious reflection. J.B. made the statements just minutes after escaping Capello and encountering Teller, giving her no opportunity to deliberate or fabricate. Her statements were spontaneous and not in response to Teller's questioning. And, Teller's impression that J.B. wasn't "as emotional" necessarily implies that J.B. was still emotional when she told him that Capello was "sick" and "needed to be locked up." We therefore conclude that the trial court did not abuse its discretion.
Even if the statements were admitted in error, Capello must also demonstrate prejudice. Our review of the record satisfies us that J.B.'s statements did not influence the outcome of his case. The State's primary witness was Dr. Dennis Doren, an expert in forensic psychology. Dr. Doren diagnosed Capello with sexual sadism. His testimony spanned two days and included details about Capello's prior sexually violent crimes. In addition, Dr. Doren recounted several incidents from Capello's past relationships to support his diagnosis. Considering this lengthy expert testimony regarding Capello's mental state, it is unlikely that J.B.'s statements made a difference.
Second, Capello claims that the trial court erred when it overruled Capello's objection to a portion of Dr. Doren's testimony. Before trial, the court granted Capello's motion to exclude victim impact testimony. To support his sexual sadism diagnosis, however, Dr. Doren discussed the humiliation that one of Capello's victims, L.W., experienced:
A: Yes, in the report she talked about particularly strong —
Mr. Gaer: Objection; relevance, ER 403, impact evidence.
Ms. Burbank: Your Honor, [inaudible].
The Court: The objection is overruled.
A: She described the very strong feelings of humiliation that she experienced, terror that she experienced, believing that her life was going to end because of the knife in her throat as well as other lasting effects. That these are the kinds of experiences that mirror what the sexual sadist was trying to develop in the victim.
Q: You mentioned lasting effects. What lasting effects?
A: Oh —
Mr. Gaer: Same objections.
Q: Let me ask you in another way. Does that go — is this significant for you [sic] assessment of sexual sadism?
A: The last [sic] effects? It can be. The effects of sadists are among all sex offenders are probably among the most severe.
Q: Let me stop you right there.
The Court: I'm going to sustain this objection.
Capello argues that the court erred when it overruled his first objection. The State counters that the evidence was highly probative to determining the commitment criteria. RCW 71.09.060(1) requires a jury to determine beyond a reasonable doubt that a respondent is an SVP. One of the elements of the definition of "SVP" is that the respondent suffers from a mental abnormality or personality disorder. An expert testifying as to whether an SVP respondent meets these criteria may disclose the facts or data providing the basis for the expert's opinion, even if the facts or data are not independently admissible, as long as it is the type reasonably relied upon by experts in the field.
ER 703.
Here, Dr. Doren diagnosed Capello as a sexual sadist, which he defined as "someone who is specifically turned on sexually by the infliction of physical or psychological pain to someone else. So physical pain, including injury, and/or psychological pain usually described as humiliation." In reaching this opinion, he relied in part on L.W.'s police report. Capello does not dispute Dr. Doren's reliance on the report. Rather, he claims that Dr. Doren should not have been able to use certain information from that report to explain the basis for his diagnosis. But Capello's pattern of humiliating his victims was an essential component of Dr. Doren's determination that Capello was a sexual sadist. Even if testimony regarding the effect that Capello's act had on L.W. was not independently admissible, it was admissible in the context of Dr. Doren's expert testimony. We find no abuse of the trial court's discretion.
And again, even if the trial court did err, Capello cannot demonstrate prejudice. Before Dr. Doren testified, the court instructed the jury that it could consider his testimony "only in deciding what credibility and weight should be given to the opinions of Dr. Doren. You may not consider it as evidence that the information relied upon by the witness is true or that the events described actually occurred." We presume that the jury followed the trial court's instructions.
State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994).
Finally, Capello contends that the trial court's cumulative errors denied him a fair trial. Because the court did not err, we reject this claim.
We affirm.