Opinion
No. 34949-3-II.
August 7, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-02697-1, Frank E. Cuthbertson, J., entered June 2, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Hunt, JJ.
Keith Edward Berry appeals his conviction for second degree assault with a deadly weapon. He argues that (1) his constitutional confrontation rights under the Sixth Amendment were violated when the trial court permitted a police officer to testify about what the victim told her regarding the assault, even though the victim was called as a witness by the defense; (2) the trial court erred in admitting certain testimony and a 9-1-1 tape recording; (3) the State did not present sufficient evidence to convict him; and (4) the prosecutor committed misconduct. We affirm.
FACTS
I. Second Degree Assault
On June 1, 2005, Lukia Neal and Keith Berry argued before Neal left their home for work. Berry threatened Neal that if she took her truck to work, he might break the headlights or slash the tires. Neal, choosing not to drive the truck, left on foot with her daughter. Immediately after Neal and her daughter left, Berry chased them carrying a bat. Neal sent her daughter to the corner store, telling her to call Ethel Smith to ask for assistance and a ride. Meanwhile, Berry and Neal argued and Berry dragged Neal back home by her hair, swinging the bat he was carrying. Neal screamed, catching the attention of nearby school employees, Yuri Kosiuga and Ronald Surrett. Surrett observed the argument over a school fence and radioed to school security for help. Kosiuga observed the argument for a moment, let the school children into the building, locked it down, and called 9-1-1.
Berry and Neal resided together as a couple and co-parented Neal's child. The State charged all counts as domestic violence incidents, which Berry does not challenge on appeal.
They both testified that they also had argued the previous evening.
Smith is Neal's aunt and her daughter's great aunt. Her daughter calls Smith her grandmother.
Berry and Neal both dispute that he dragged her back to the house by her hair. They testified that Neal tripped and as Berry was trying to catch her, he grabbed her hair.
"The three-digit telephone number `9-1-1' has been designated as the `Universal Emergency Number,' for citizens throughout the United States to request emergency assistance. It is intended as a nationwide telephone number and gives the public fast and easy access to a Public Safety Answering Point (PSAP)." National Emergency Number Association, 9-1-1 Facts, http://www.nena.org (follow "9-1-1 Facts" hyperlink) (last visited July 24, 2007).
Tacoma Police Lieutenant Mark Fedderson quickly arrived on the scene. Fedderson told Berry to drop the bat and a confrontation ensued between Fedderson and Berry until Fedderson drew his gun and Berry dropped the bat. Tacoma Police Officer Barbara Salinas arrived in approximately five minutes and spoke with Neal. Neal was upset, crying, and fearful because her daughter had not returned home. After the police located her daughter, Neal and Salinas returned to the home and Salinas took a domestic violence report from Neal, who still was crying and upset. Neal told Salinas that Berry threatened to break the headlights or slash the truck tires, Berry chased after them when they left the home, and she told her daughter to run and call for help.
The State charged Berry with second degree assault while armed with a deadly weapon, fourth degree assault, and harassment, and also charged all counts as domestic violence incidents. The State dismissed the fourth degree assault charge before trial.
The jury found Berry guilty of second degree assault with a deadly weapon and harassment.
Berry does not appeal his harassment conviction.
II. Neal's Trial Testimony
The State did not expect Neal to appear for trial, even though it had subpoenaed her. According to the State, Neal showed up for an earlier trial date and told counsel that she was leaving, despite the prosecutor's instruction that she was required to stay. The State told the trial court that Neal's telephone had been disconnected and she had not made any contact with the prosecutor's office. Neal again failed to appear for trial on April 11, 2006. The State persuaded the trial court to admit Neal's statement's to Salinas under the excited utterance hearsay exception.
The appellate record does not contain Salinas' arrest report or Neal's Domestic Violence Statement.
Even though Neal was still technically under the State's subpoena to trial, the defense attempted to locate her as the trial progressed. Berry's counsel finally made phone contact with her:
I asked her if she would be coming, that we were in day three of the actual trial and that it would be beneficial for her to attend. And so I don't know if she will be showing or not. I asked her to please come down, told her we were in Department 21. She didn't sound too promising, but I'm hoping.
Report of Proceedings (RP) at 286.
Neal subsequently appeared at trial after the State had rested. The trial court asked the defense if they planned on calling Neal in their case-in-chief. Berry's counsel replied:
Well, Your Honor, I certainly think we need to hear from her since she showed up, so yes, we will call her. And I thought that the State — in fact, I asked [the prosecutor]: Do you plan to reopen and call her before we resolve, because this would be — and he said, no, if you're going to call her, I'll use her at that point, so I wasn't — you know, when she showed up, I quite frankly was as surprised as everyone else[.]
RP at 363. The State responded that it "would end up calling [Neal], ask to reopen, if necessary [, but] just decided not to bother with that because counsel said they'd call her." RP at 366. The trial court was concerned with the jurors' time because the trial was running longer than expected, and allowed Berry to call Neal as a defense witness. Berry then questioned her extensively about the incident and his conduct.
III. Admission of 9-1-1 Tape Recording
Initially, the trial court ruled that the tape recording of Kosiuga's 9-1-1 call was inadmissible because it was cumulative and because Kosiuga testified about his eyewitness observations of the incident. But after Glenn Glover, Berry's private investigator, contradicted portions of Kosiuga's live testimony, the trial court allowed the State to play the 9-1-1 tape as rebuttal. During deliberations and at the jury's request, the trial court played the 9-1-1 tape again for the jury in the presence of counsel and the defendant.
Berry appeals.
ANALYSIS
I. Berry's Constitutional Confrontation Rights
Berry argues that the trial court violated his Sixth Amendment right to confront witnesses because it allowed Salinas to testify about what Neal had told her, even though Neal did not testify in the State's case-in-chief.
The trial court allowed Salinas to testify to Neal's statements under the excited utterance exception to the evidentiary hearsay rules and it declined to decide whether the statements were testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The Sixth Amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The United States Supreme Court has held that this procedural guarantee applies to both federal and state prosecutions. Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). "Significantly, prior statements must be excluded under the Crawford rule only if a witness is unavailable at trial for purposes of the confrontation clause." State v. Price, 158 Wn.2d 630, 639, 146 P.3d 1183 (2006). And "the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination." State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999).
Berry relies on State v. Rohrich, 132 Wn.2d 472, 478, 939 P.2d 697 (1997), rev'd on other grounds, 149 Wn.2d 647, 71 P.3d 638 (2003), contending that he was put in a "Catch-22" situation because he had to call Neal as a defense witness or otherwise waive his right to confrontation. In Rohrich, however, the State did not question the child victim about the alleged criminal acts, which prevented the defendant from cross-examining the victim about those acts. 132 Wn.2d at 474. The court held that "[t]he State's failure to adequately draw out testimony from the child witness before admitting the child's hearsay puts the defendant in `a constitutionally impermissible Catch-22' of calling the child for direct or waiving his confrontation rights." Rohrich, 132 Wn.2d at 478 (quoting Lowery v. Collins, 996 F.2d 770, 771-772 (5th Cir. 1993)).
Berry also argues that he would not have called her if the trial court had not allowed the State to present Neal's testimonial statements through Salinas.
Neal did not respond to subpoenas from the State and walked out of Berry's previously scheduled trial, to which she was required to attend. Berry's defense counsel expended significant time and resources attempting to locate her, and she eventually appeared at the trial. The State indicated that it was willing and able to reopen its case and call her, but was also amenable to defense counsel calling Neal as a defense witness. Berry's counsel questioned Neal about the event and her statements to Salinas. In this instance, Berry was not in a Catch-22 and had a full opportunity to confront Neal. See, e.g., State v. Williams, 137 Wn. App. 736, 745, 154 P.3d 322 (2007) (holding a victim's statements to a forensic nurse about an alleged rape were admissible because the victim testified and, unlike Rohrich, the State did not avoid asking the victim about the alleged acts, nor did it prevent the defendant from a full cross-examination of her). Therefore, we hold that Berry's Sixth Amendment rights were not violated.
Because we hold that Berry had an opportunity to confront Neal, we decline to consider whether her statements to Salinas were testimonial under Crawford.
II. Evidentiary Rulings
Berry argues that the trial court erred in allowing Salinas to testify about statements Neal made to her, in allowing Smith to testify about statements Neal's daughter made to her, and in admitting the 9-1-1 tape recording of the conversation between Kosiuga and the 9-1-1 operator.
We review a trial court's evidentiary ruling for an abuse of discretion, City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004), which occurs when its evidentiary ruling is "`manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). The appellant has the burden to prove an abuse of discretion. Williams, 137 Wn. App. at 743; see State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999) (a trial court's ruling is presumed correct absent affirmative showing of error). And we may uphold a trial court's evidentiary ruling on the grounds the trial court used or on any other proper grounds the record supports. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995).
A. Salinas's Testimony about Neal's Statements
Berry contends that the trial court erred in admitting Salinas's testimony about the statements Neal made to her as excited utterances under Evidence Rule (ER) 803(a)(2). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). ER 803(a)(2) allows admission of hearsay if it relates 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) provides: "`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."
Before the trial court may admit a statement as an excited utterance, the proponent must satisfy three closely-related requirements. "First, a startling event or condition must have occurred. Second, the statement must have been made while the declarant was under the stress of excitement caused by the event or condition. Third, the statement must relate to the startling event or condition." State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992). "The key determination is `whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.'" State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)); Chapin, 118 Wn.2d at 688 (key to second requirement is spontaneity).
The record readily establishes the first and third requirements. The case involves a startling event, second degree assault with a deadly weapon, and the victim's challenged statements relate directly to the event. Here, Berry contends only that the second requirement was not satisfied. He argues that Neal's statements were not spontaneous because Neal was waiting outside her home, the police approached and questioned her, and she was primarily concerned about her daughter's welfare and location, not the assault.
While Neal testified that she was crying only because she thought that Fedderson was going to shoot Berry, Salinas testified that Neal was upset and still crying while telling Salinas about Berry's attack on her, and Surrett also testified that he saw Neal crying. We are satisfied that the totality of the evidence establishes that the trial court did not abuse its discretion when it found that Neal was still under the influence of the event when she made the statements to Salinas.
B. Smith's Testimony about Neal's Daughter's Statements
Berry also argues that the trial court erred in allowing Smith to testify about what Neal's daughter told her because she was not still under the influence of the event because she could go to the store, call Smith and follow Smith's instructions.
The State responds that because Berry did not provide argument or authority in his brief to support his claim, we should decline to review the issue. "[W]hen an appellant fails to raise an issue in the assignments of error, in violation of RAP 10.3(a)(3), and fails to present any argument on the issue or provide any legal citation, an appellate court will not consider the merits of that issue." State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995). Here, Berry addresses Neal and her daughter's statements under the same section heading, "Ms. Neal's Hearsay Statements and [her daughter's] Hearsay Statements Were Not Admissible as Excited Utterances," in which his legal authority refers only to excited utterances in general. Br. of Appellant at 22. He also provides no legal argument in response to the State's argument. We agree with the State that, under these circumstances, Berry failed to adequately raise a specific challenge to Neal's daughter's statements in his assignments of error and failed to provide supporting argument or authority, in violation of RAP 10.3(a)(6), but because the record allows us to resolve this issue substantively, we consider it.
Berry fails to identify which of Neal's daughter's statements he believes are inadmissible. But the only plausible statement that Berry could argue was impermissibly admitted as an excited utterance is the statement that she made to Smith over the telephone, to which he objected. Smith testified that Neal's daughter was crying, was out of breath and sounded scared when she told her that Berry and Neal were fighting and that Neal and she needed a ride. She also testified that Neal's daughter was crying when she called Smith to request a ride. We are satisfied that the totality of the evidence establishes that the trial court did not abuse its discretion when it allowed Smith to testify about what Neal's daughter told her over the telephone.
C. Admission of the 9-1-1 Tape
Berry next argues that the trial court erred in admitting the tape recording of Kosiuga's 9-1-1 call because he did not "open the door" to its admission; instead, the State first attacked Kosiuga's credibility during its cross-examination. Br. of Appellant at 31. To "open the door" means that "when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced." State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). "The trial court has considerable discretion in administering this open-door rule." Ang v. Martin, 118 Wn. App. 553, 562, 76 P.3d 787 (2003), aff'd, 154 Wn.2d 477, 479, 114 P.3d 637 (2005).
Berry offered Glover's testimony to attack Kosiuga's testimony about his observations of the assault and to illustrate inconsistencies between Kosiuga's trial testimony and what Glover testified that Kosiuga told him in an interview some months after the incident. By doing so, Berry put at issue Kosiuga's ability to recall the events. The State then asked the trial court to admit the previously excluded 9-1-1 tape to rebut Glover's testimony. We hold that the trial court did not abuse its discretion in ruling that Berry opened the door to the State's introduction of the 9-1-1 tape.
Berry also argues that the 9-1-1 tape was inadmissible as Kosiuga's prior consistent statement under ER 801(d)(1)(ii) or ER 613. Berry misconstrues the trial court's ruling. The trial court ruled that the tape was admissible under ER 613 to rehabilitate Kosiuga, and that his prior consistent statement went to his credibility. The trial court also initially ruled that the tape was not hearsay under ER 801(d)(1), but then corrected itself, finding that the tape was admissible under the hearsay exception for a present sense impression, ER 803(a)(1).
The State argues that the trial court's ruling was proper under ER 801(d)(1). We interpret the trial court's ruling to properly admit the tape under the hearsay exception found in ER 803(a)(1).
ER 803(a)(1) provides: " (a) Specific Exceptions. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."
"Present sense impression statements must grow out of the event reported and in some way characterize that event." State v. Martinez, 105 Wn. App. 775, 783, 20 P.3d 1062 (2001), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 499 n. 1, 81 P.3d 157 (2003). "The statement must be a `spontaneous or instinctive utterance of thought,' evoked by the occurrence itself, unembellished by premeditation, reflection, or design. It is not a statement of memory or belief." Martinez, 105 Wn. App. at 783 (quoting Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113 (1939)).
We may uphold a trial court's evidentiary ruling on the grounds the trial used or on other proper grounds. See Powell, 126 Wn.2d at 259. Here, Kosiuga testified that he described the events to the 9-1-1 operator as they occurred and we hold that the trial court did not abuse its discretion in ruling that the 9-1-1 tape was admissible as a present sense impression. But the 9-1-1 tape was also admissible under ER 613. The 9-1-1 tape was properly used as rebuttal evidence after Berry opened the door by attacking Kosiuga's memory of what he had told the 9-1-1 operator.
ER 613(b) provides in relevant part: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible, unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interest of justice otherwise require."
III. Sufficiency of the Evidence
Berry contends that the State's evidence was insufficient to prove that he committed second degree assault because it did not prove that he placed Neal in apprehension of harm by swinging the bat.
RCW 9A.36.021(1)(c) provides: "(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:. . . . (c) Assaults another with a deadly weapon."
Berry does not challenge the sufficiency of the evidence on the jury's special finding that he was armed with a deadly weapon at the time he committed the second degree assault.
The evidence is sufficient to support the defendant's conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant claiming insufficiency of the evidence "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We view both circumstantial and direct evidence as equally reliable and do not review credibility determinations on appeal because we defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75.
The term assault itself is not statutorily defined so Washington courts apply the common law definition. Washington recognizes three common law definitions of assault: (1) an attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is incapable of inflicting that harm.
State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817 (2006).
Although the jury was instructed on all three definitions of assault, Berry challenges only the third assault definition. Relying on State v. Bland, Berry claims that the jury could not have found that he assaulted Neal with a deadly weapon because Neal testified that she was not fearful that he would hit her with the bat. 71 Wn. App. 345, 355, 860 P.2d 1046 (1993), overruled on other grounds by State v. Smith, 159 Wn.2d 778, 787, 154 P.3d 873 (2007) (disapproving of Bland and other cases to the extent they "can be read as endorsing a hard and fast rule that the common law definitions of assault constitute alternative means of committing assault"). We disagree.
Neal testified that she did not perceive Berry's statement that he would hit her upside the head with the bat if the police were coming, as a threat. Neither counsel ever directed this line of questioning to any other actions by Berry. This statement, by Berry's own admission, is the statement the State used to convict him of harassment, not second degree assault. And on appeal, Berry does not argue that there was insufficient evidence to convict of him of harassment.
While there is no direct testimony that Neal was apprehensive or fearful that Berry would injure her, we view both circumstantial and direct evidence as equally reliable. See Thomas, 150 Wn.2d at 874. Surrett testified that (1) he saw Berry pulling Neal by her hair and swinging a bat, (2) he saw Neal attempting to get away from Berry, (3) he feared that Berry would hit Neal with the bat, and (4) Neal looked fearful of being hit. During the 9-1-1 call, Kosiuga stated that Berry was swinging the bat around. And like Surrett, Kosiuga feared for Neal's safety and, given the tone of Neal's scream, he believed that Neal also feared for her safety. Salinas also testified that Neal was still upset and crying when she told her about the attack.
Neal requested and received a no contact order against Berry, although at trial she disputed requesting one. She also testified that she wrote a domestic violence statement about the incident in her own handwriting in which she admitted in that statement that Berry grabbed her and made her return to the house.
Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence to convict Berry of second degree assault against Neal.
IV. Prosecutorial Misconduct
Berry next contends that the prosecuting attorney's conduct was improper because the prosecuting attorney induced him to comment on the credibility of the State's witnesses. "To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney's conduct was both improper and prejudicial." State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006), cert. denied, 127 S. Ct. 2986 (2007).
A prosecuting attorney commits misconduct when his cross-examination seeks to compel a witness to opine whether another witness is telling the truth. State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993). Such questioning invades the jury's province and is unfair and misleading. State v. Castaneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74 (1991).
The State:. . . . So [Kosiuga] couldn't have seen what he believes he saw?
Defendant: I didn't say — I can't tell you what [Kosiuga] saw?
The State: Well, you heard what [Kosiuga] testified to?
Defendant: I heard [Kosiuga] lie too.
The State: [Kosiuga] lied?
Defendant: Yeah. When he said he saw me swinging the bat, that was a lie.
The State: Did [Kosiuga] testify that he also told the 9-1-1 operator that he saw you swinging the bat?
Defendant: Yeah, on the 9-1-1 tape.
The State: And so then and nine months later, and there's no reason for him to do it, is there?
Defendant: There's no reason for him to do what? The State: For him to lie?
Defendant: I guess — I guess not. I don't know. I don't know what his motive [sic].
RP at 310-311. The prosecutor questioned Berry about other witnesses' testimony, but Berry never again stated that any other witnesses lied.
Here, although the prosecutor's conduct may have been improper, because Berry did not object to alleged misconduct at trial, he waives the issue of prosecutorial misconduct on appeal unless the misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
Berry argues that the prosecuting attorney's conduct was of a type that has long been established as improper and we should deem it flagrant and ill-intentioned.
The prosecutor asked Berry if Kosiuga was lying only after Berry testified that Kosiuga had lied. In addition, the prosecution only elicited the objectionable testimony once. Surrett corroborated the majority of Kosiuga's testimony and Neal's written statement corroborated Salinas's testimony. If Berry had objected to this line of questioning, an admonition to the jury could have neutralized any resulting prejudice. We find no evidence of prosecutorial misconduct requiring reversal.
We affirm Berry's conviction and sentence.
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.
BRIDGEWATER, J., HUNT, J., concur.