Opinion
No. 31494-1-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-1-05021-6. Judgment or order under review. Date filed: 02/20/2004. Judge signing: Hon. James R Orlando.
Counsel for Appellant(s), John Henry Browne, Law Offices of John Henry Browne PS, 2100 Exchange Bldg, Seattle, WA 98104-1578.
Counsel for Respondent(s), Sue L. Sholin, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Annette Cousineau-Porter appeals her first degree arson conviction. She argues that (1) testimonial hearsay evidence violated her right to confront witnesses; (2) an expert witness opined that she was guilty; (3) an improper witness statement about her first trial warranted a mistrial; (4) the trial court improperly admitted evidence from a second wire recording; (5) a police officer's testimony about a body wire implied that she was guilty; (6) the prosecutor's closing argument was improper and prejudicial; and (7) the cumulative effect of these errors requires reversal. Finding no reversible error, we affirm.
FACTS I. Arson
Responding to a residential fire on 194 North 4th Street in Buckley, fire fighters noticed significant fire and smoke on the left side of the house. After entering the home, they determined that no one was inside.
Based on their extensive training in using a systematic approach to determine a fire's origin, Enumclaw fire investigator Randy Fehr and Buckley Fire Chief Alan Predmore determined that the kitchen sustained the greatest damage, and opined that the fire had begun on the stove top's right rear burner.
Annette Cousineau-Porter and her brother, the last adults to leave the house, told the fire investigators that the fire was an accident. Cousineau-Porter told the investigators that she could not recall whether she had left the stove on before leaving the house.
Months later, Buckley police received a phone call from a person claiming he `had some information about a fire in town.' Report of Proceedings (RP) at 392-93. After meeting with this person, later identified as Kraig Mott, the police applied for authorization to put a body wire on Mott to record a conversation between him and residents of 194 North 4th Street, the site of the fire. After court approval of the intercept order, the police made two attempts to record conversations at this address.
The taped recordings were generally inaudible. But during the second attempt, police were able to overhear, from the body wire's speaker, a conversation between Cousineau-Porter and Mott that took place at Cousineau-Porter's residence on 194 North 4th Street. They heard Cousineau-Porter tell Mott that she had intentionally left a pan of grease on the stove and, because she was a mother, the police would not suspect her of having caused the fire.
Police then contacted Cousineau-Porter's brother. After having been advised of his rights, he agreed to help police contact Cousineau-Porter. Cousineau-Porter voluntarily waived her Miranda rights and provided oral and written statements detailing how, in order to collect insurance proceeds, she had intentionally caused the fire by leaving a pan of grease on the stove in her home at 194 North 4th Street.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
II. Procedure
The State charged Cousineau-Porter with first degree arson, based on having intentionally set the fire in order to collect insurance money. She moved to suppress the evidence from the second body wire, arguing that there was no probable cause to support the intercept order. The trial court denied her motion. Following her first jury conviction, the trial court granted her motion for a new trial based on juror misconduct.
Cousineau-Porter also moved to suppress her statements to police, but she does not challenge on appeal the trial court's denial of her CrR 3.5 motion.
At her retrial, experts Fehr and Predmore explained basic fire science to the jury. They testified about their investigation of the fire's origin, their evaluation of the debris in the kitchen, their initial belief that house fire was accidental, and their changed belief when they learned that Cousineau-Porter admitted to police that she had intentionally caused the fire.
Cousineau-Porter called two fire investigation experts, neither of whom had responded to the fire or visited the scene. They opined that the fire was caused by a malfunctioning electrical outlet near the stove. The State's experts testified that they had rejected this theory during their initial investigation.
A representative from Cousineau-Porter's insurance company testified that, two months after the fire, he had issued Cousineau-Porter a series of checks, totaling approximately $114,000, for claimed losses of personal property, house repairs, and living expenses. Cousineau-Porter had promptly cashed these checks.
Informant Mott's roommate, Gregory Pruitt, testified generally about his role in assisting with the police investigation, including his knowledge that Mott had called police with information about the fire. In response to Cousineau-Porter's cross examination regarding when Pruitt had last reviewed his statement to police, Pruitt answered that he had revisited it during the last trial. Cousineau-Porter asked for a sidebar and moved for a mistrial, which the trial court later denied.
Sergeant Timothy Personius testified how a judge had found `probable cause or reason' for law enforcement's application for a body wire, and explained generally about how he had become involved in the case as a result of a phone call with additional information about the fire on 194 North 4th Street.
During rebuttal closing argument, the prosecutor mentioned Cousineau-Porter's demeanor. After the trial court excused the jury, Cousineau-Porter objected that the prosecutor's argument was improper. But she declined the court's offer to give the jury a special limiting instruction. The trial court's general jury instructions, however, stated that the attorney's arguments were not evidence.
The prosecutor argued the jury could consider Cousineau-Porter's court room behavior as evidence, including `whether or not she seems like a concerned mother of five' and that she was perhaps `steely-eyed.' RP at 698.
The jury convicted Cousineau-Porter as charged. She appeals.
ANALYSIS I. Right of Confrontation
Cousineau-Porter argues that, although the State did not call her brother, Nathan, and informant Mott to testify at trial, the State nonetheless impliedly elicited their testimonial hearsay through other witnesses, thereby violating her constitutional right to confront the witnesses against her. We disagree.
U.S. Const. amend. VI; Wash. Const. art. 1, sec. 22.
A. Hearsay Rule
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted; absent an applicable exception, hearsay is generally inadmissible. ER 801(c); ER 802. `[A] court may admit a witness's out-of-court testimonial statements only if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.' State v. Mason, ___ Wn. App. ___, 110 P.3d 245, 248 (2005) (emphasis added).
Nonetheless, `[o]ut-of-court statements offered for a purpose other than the truth asserted do not qualify as hearsay and are not barred by the confrontation clause.' State v. Lillard, 122 Wn. App. 422, 437, 93 P.3d 969 (2004), review denied, 154 Wn.2d 1002 (2005). Thus, a police officer's testimony that describes the context and background of a criminal investigation can be admissible. See, e.g., Lillard, 122 Wn. App. at 437 (`the State did not offer Thomas' statements to prove what the cardholders had said, but to show how he conducted his investigation.'); State v. Post, 59 Wn. App. 389, 392, 797 P.2d 1160 (1990), affirmed, 118 Wn.2d 596 (1992) (officer's testimony about a phone call to police was admissible to explain why the police investigation had focused on the defendant).
We review a court's ruling on a hearsay objection for an abuse of discretion. State v. Strauss, 119 Wn.2d 401, 417, 832 P.2d 78 (1992). We find no abuse here.
B. No Inadmissible Hearsay Elicited
Cousineau-Porter acknowledges that the State did not elicit any statements from non-testifying witnesses, including Nathan and Mott. Instead, she contends that the State improperly elicited such witnesses' hearsay statements from testifying witnesses, which statements incriminated her. For example, she argues,
The state elicited from Sgt. Personius that after talking with Mott and Pruitt he decided to apply for a body wire. Detective Osborn testified that he began the arson investigation after speaking with Pruit and testified that he and Personius decided to pick up Nathan for questioning first because it did not appear that he was directly involved in the fire.
Appellant's Br. at 21-22 (citations omitted).
The State responds that this testimony merely provided context and background to the witnesses' actions in investigating the fire and, therefore, was neither hearsay nor testimonial hearsay that violated Cousineau-Porter's confrontation rights. We agree.
Cousineau-Porter focuses on three pieces of evidence that she contends revealed testimonial hearsay that implicitly incriminated her. The first challenge includes Detective Osborn's testimony about Cousineau-Porter's statements to him, statements admissible under ER 801(d)(2), and testimony that he had spoken with Cousineau-Porter's brother as part of his investigation of the fire. Osborn did not divulge the substance of his conversation with Nathan; therefore, his testimony included no inadmissible hearsay.
Cousineau-Porter's second and third evidentiary challenges involve the testimonies of two witnesses involved in the arson investigation: Pruitt, a witness who knew informant Mott, and Sgt. Personius. Pruitt testified that (1) he and Mott went to the police with `information [he] had about this fire'; and (2) he later listened to a police wire recording made at Cousineau-Porter's residence. As with Osborn, Pruitt did not testify about the substance of his statements to the police or what he had heard on the wire recording. Again, there was no hearsay offered in this testimony. And, understandably, Cousineau-Porter did not object to this portion of Pruitt's testimony on hearsay grounds.
Personius testified that the arson investigation started when a `gentleman' called him with `information about a fire in town that he wanted to talk to me about.' RP at 393. Personius first checked records to verify that a fire had occurred at Cousineau-Porter's residence, interviewed a few witnesses about the `gentleman's' information, and then applied for a body wire. As with the other State witnesses, Personius did not mention the specific content of what the informant had told him. Again, this testimony included no hearsay.
Rather, Pruitt's and Personius' testimonies merely explained the progress of the fire investigation based on their own personal experiences and the context of their involvement in this investigation. Personius' mention of his having checked police records to verify the informant's knowledge of the fire divulged nothing about the substance of the information and, thus, no hearsay. Moreover, Cousineau-Porter never disputed that a fire had occurred at her home. None of the challenged testimony recites or refers to any statement by Cousineau-Porter's brother Nathan or informant Mott.
Having found no actual or `implied' hearsay in the challenged testimony, we are not persuaded by Cousineau-Porter's argument that the State used such testimony as a `backdoor' to implicate her guilt and to violate her right to confront Mott and her brother Nathan. Furthermore, the case law she relies on is distinguishable. On the contrary, as we previously discussed, the challenged testimony provided useful context for Pruitt's and Personius' relationship to the arson investigation, unlike the double hearsay in State v. Johnson, 61 Wn. App. 539, 545, 811 P.2d 687 (1991). And unlike here, in State v. Martinez, the State intentionally rephrased questions to elicit improper testimony from a police officer about specific incriminating statements from an unavailable informant. 105 Wn. App. 775, 780, 20 P.3d 1062 (2001).
For example, Cousineau-Porter asserts that the testimony here is akin to the improper hearsay in State v. Johnson, 61 Wn. App. 539, 811 P.2d 687 (1991). In Johnson, a police officer improperly recounted the contents of an affidavit supporting a search warrant, including facts an informant provided that supported the affidavit. 61 Wn. App. at 545. But in Johnson, the disputed testimony . . . went beyond merely establishing that officers came to the scene because of `information received', and pointed to the defendant with information connecting her to a crime. It would have been sufficient to explain police presence at the scene for Lieutenant Barker to testify that police had a search warrant for the residence. There was no need to further testify that the defendant was expected to be at the residence and was suspected of involvement in criminal activity there. These latter statements were simply hearsay. 61 Wn. App. at 547 (emphases added).
We hold, therefore, that the State did not elicit improper hearsay testimony directly or indirectly, there was no violation of Cousineau-Porter's right to confront the witnesses against her, and the trial court did not abuse its discretion in admitting the challenged testimony.
II. Opinion Testimony
Cousineau-Porter next argues that expert witnesses Predmore and Fehr improperly offered their opinion of her guilt, which was outside the scope of their expert fire investigation testimony. The State responds that, as part of these two fire investigation experts' determination and analysis of the fire's origin, they properly relied on Cousineau-Porter's admissible confession to having intentionally caused the fire.
Cousineau-Porter objected to this expert testimony as hearsay, not as improper opinion testimony. An alleged evidentiary error can be raised for the first time on appeal when the error `suggests a constitutional issue' and is manifest because it has a `practical and identifiable consequence in the trial.' State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Opinion testimony raises a constitutional issue because it states or implies that a defendant is guilty, which can deny a defendant's constitutional right to an impartial jury trial. State v. Dolan, 118 Wn. App. 323, 330, 73 P.3d 1011 (2003). Thus, we review Cousineau-Porter's challenge. We note at the outset that the challenged testimony here, however, is neither opinion testimony nor manifest error.
A. Opinion
Generally, no witness may provide an opinion that directly comments or implies that the defendant is guilty. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Courts must carefully consider the circumstances and facts of the case as well as the challenged testimony. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Further, `testimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.' City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994).
ER 702 allows an expert to testify about `technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.' See, e.g., State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993). An expert can base an opinion on `facts or data' that are `reasonably relied upon by experts in the particular field.' ER 703.
Here, Cousineau-Porter fails to identify specific erroneous opinion testimony. Instead, she generally asserts that the fire investigation experts opined about Cousineau-Porter's guilt and were not helpful to the jury. But both experts testified that their specific field's professional standards allowed reliance on witnesses' statements in analyzing a fire's origin. And it is undisputed that Predmore and Fehr were well qualified as fire investigation experts.
B. Hearsay
In addition, Cousineau-Porter's admission to police that she had caused the fire was not inadmissible hearsay. Rather, her statement was expressly admissible under ER 801(d)(2) as a non-hearsay, party-opponent's admission.
Cousineau-Porter has failed to show how the fire investigators' consideration of Cousineau-Porter's admissible statements to police about having started the fire and the other objective facts about the fire's causes was outside the scope of their expert testimony or an opinion about Cousineau-Porter's guilt.
III. Mistrial
Cousineau-Porter next argues that the trial court erred in failing to grant a mistrial based on one sentence of lay witness testimony. During her cross-examination of Pruitt, she asked when he had last reviewed his written statement to police. Pruitt replied, `Since the last trial.' In denying Cousineau-Porter's mistrial motion, the court noted, This witness's answer, I think, was sufficiently ambiguous so that the jury could really not draw a conclusion that they are talking about a prior trial with Miss Cousineau-Porter. They could be talking about [a] prior trial with her brother or other individuals that they may not even know about [at] this point.
RP at 310.
`We review the denial of a mistrial motion for abuse of discretion, giving great deference to the trial court because it is in the best position to discern prejudice.' State v. Smith, 124 Wn. App. 417, 420, 102 P.3d 158, 167 (2004). We reverse only when, in light of all the evidence, the error so tainted the trial that the defendant did not receive a fair trial. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992). In addition, here, we review Pruitt's statement in the context of trial testimony in which Cousineau-Porter sought to impeach several witnesses with reference to a prior hearing or proceeding. Thus, Cousineau-Porter herself arguably introduced and repeatedly underscored that there had been a previous proceeding. State v. Barnett, 104 Wn. App. 191, 200, 16 P.3d 74 (2001) (discussing how the invited error doctrine precludes appellate review).
Furthermore, Pruitt's response to Cousineau-Porter's cross examination appears to have been the result of an inadvertent mistake that did not materially prejudice her. Given the isolated and ambiguous nature of Pruitt's statement in the context of the entire trial proceedings, coupled with our deference to the trial court's broad discretion, we hold that the trial court did not err in denying the mistrial motion.
IV. Intercept Order A. Statements From Second Body Wire Recording
Cousineau-Porter next argues that the trial court erred in failing to suppress the statements from the police's second body wire recording. She focuses on the intercept order's address, but fails to discuss the applicable legal standards. Nonetheless, we consider her arguments.
RCW 9.73.090(2) allows law enforcement to intercept conversations with one person's consent. The police's application for an intercept order must make a particularized showing of need under RCW 9.73.130(3). State v. Porter, 98 Wn. App. 631, 635, 990 P.2d 460 (1999), review denied, 140 Wn.2d 1024 (2000). A trial court has `considerable discretion' to determine whether an intercept order satisfies the relevant statutes. Porter, 98 Wn. App. at 634. We affirm an application for an intercept order where the facts are minimally adequate to justify the need for the recording. Porter, 98 Wn. App. at 634. Accordingly, courts interpret this need requirement in a common sense fashion and do not apply the more stringent probable cause standard required in the search warrant context. Porter, 98 Wn. App. at 635; State v. D.J.W., 76 Wn. App. 135, 142, 882 P.2d 1199 (1994), aff'd sub nom, State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996).
Cousineau-Porter contends that the second conversation was erroneously allowed because it occurred in an alley next to her residence, not directly inside her residence. She speculates that `if the address does not limit the scope of the order, then the order would authorize the police to intercept any conversation between Mott and any other persons.' Reply Br. at 14. Cousineau-Porter's argument ignores our common sense interpretation and application of an intercept order. And she fails to recognize that the police application for the intercept order need be only minimally adequate to support probable cause.
Here, the trial court's findings of fact from the CrR 3.6 hearing state that the intercept order provided for `in person conversation(s) between the informant, KRAI[G] E. MOTT and others who may be present at 194 North 4th Street in Buckley, Pierce County, Washington.' Clerk's Papers at 118. This unchallenged finding meets the minimal test for authorizing a body wire, which is not in issue on appeal.
Given the trial court's broad discretion and the minimal standard for approving an intercept order, we find no abuse of discretion in the trial court's authorization of the body wire recording.
B. Court's Finding of Probable Cause in Approving the Intercept
Cousineau-Porter argues that Personius' testimony that the judge had already authorized the body wire improperly communicated her guilt to the jury. We agree. Nonetheless, in light of the other overwhelming evidence of Cousineau-Porter's guilt, especially her own confession, this error is harmless.
Cousineau-Porter timely objected to the State's introduction of Personius' testimony about a `thumbnail sketch' of how police apply for permission to obtain a body wire. Personius testified that (1) police create an affidavit consisting of `the facts that you believe prove or show that, you know, necessity [for the body wire] is there'; and (2) `the [body wire] order will be issued, if the judge determines there is sufficient probable cause or reason for the wire.' RP at 396. The State then asked Personius, `[A]re you aware of whether or not that process was completed before you placed this wire on the witness?' RP at 396-97. He replied, `Yes, I am. It was.' RP at 397.
The State's questioning was unnecessary and it improperly implied to the jury that Cousineau-Porter was guilty of arson by introducing the fact that a judge had determined there was sufficient reason for the body wire to record her conversations about the fire. See State v. Stith, 71 Wn. App. 14, 22, 856 P.2d 415 (1993) (holding that a prosecutor's comment that `probable cause had already been determined' was `tantamount to arguing that guilt had already been determined.'). Thus, we disagree with the State's characterization of Personius' testimony as merely a description of the law enforcement body wire application process. And although Stith involved substantially more improper errors than here, the State's improper probable cause questioning are nonetheless error, even if less egregious than the comments in Stith.
Nevertheless, we hold that the challenged portion of Personius' testimony is harmless error. A constitutional error is harmless `if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error.' State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002). Thus, we will not reverse a conviction if the untainted evidence is `so overwhelming that it necessarily leads to a finding of guilt.' Smith, 148 Wn.2d at 139.
Here, Cousineau-Porter does not challenge the validity of her oral and written statements confessing that she had committed the arson. In addition, the jury heard extensive testimony from fire investigation experts about the fire's origin that matched Cousineau-Porter's confession. Moreover, Personius' improper comments were very brief and negligible, in light of this other evidence.
Thus, although we agree with Cousineau-Porter that the State improperly elicited Personius' testimony about a judge's prior authorization of the body wire, we hold that this brief testimony was harmless.
V. Prosecutorial Misconduct
Cousineau-Porter next argues that the prosecutor's misconduct during closing argument was so prejudicial that it denied her a fair trial. We agree that the prosecutor's comments were improper but we disagree that they denied her a fair trial.
A. Standard of Review
Generally, a prosecutor should not comment on or invite the jury to make a negative inference about the defendant's demeanor. State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245 (2001), review denied, 39 P.3d 294 (2002). Nonetheless, if she properly objected below, a defendant arguing prosecutorial misconduct must show that the alleged error was `both improper and prejudicial,' including `a substantial likelihood [that] the misconduct affected the jury's verdict.' State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999) (emphasis added). We analyze a prosecutor's allegedly improper comment or argument `in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.' State v. Brown, 132 Wn.2d 529, 564, 940 P.2d 546 (1997) (emphases added); see also State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
Defense counsel waives alleged prosecutorial misconduct by failing to object unless the misconduct is `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.' Finch, 137 Wn.2d at 839 (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).
B. Harmless Error
During closing argument, the prosecutor commented on Cousineau-Porter's demeanor as follows:
You have had an opportunity to see the defendant and her reactions to some of the testimony in this case. I won't fill in the blank for you, but if you have watched her at all, you may have noticed some of her interesting behaviors as certain evidence comes out and some of the witnesses testified.
Her behavior in this courtroom is also evidence that you can factor, consider whether or not she seems like a concerned mother of five who's on the edge, concerned about herself or if she's actually pretty comfortable being in the courtroom and — and well, steely-eyed, perhaps. You make your own judgment. You have had a chance to look at her.
RP at 698 (emphases added). We agree that these comments were an improper invitation to the jury to make a negative inference about Cousineau-Porter's demeanor. Smith, 144 Wn.2d at 679.
But Cousineau-Porter untimely objected to this argument, after the court had excused two alternate jurors. Even then, she raised the objection `for the record,' indicating that she `not asking for any action to be taken.' RP at 701. And when, in response to Cousineau-Porter's co-counsel's request for a limiting instruction, the trial court agreed to provide one, Cousineau-Porter's counsel did not think the proposed instruction was necessary and declined the court's offer to give it.
Cousineau-Porter also argued that the prosecutor's comment required a mistrial. But the trial court denied this request, and she does not challenge this ruling on appeal.
Thus, although the prosecutor's closing comment about Cousineau-Porter was improper, it was not so prejudicial as to justify reversal, especially given the prosecutor's total argument, which was otherwise proper, and defense counsel's belief that a curative instruction was unnecessary. Futhermore, the trial court's general jury instruction stated that an attorney's arguments are not evidence. We hold, therefore, that this prosecutorial misconduct did not prejudice Cousineau-Porter and, therefore, does not warrant reversal of her conviction.
VI. Cumulative Error
Finally, Cousineau-Porter asserts that the cumulative error doctrine requires reversal. 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 none of Cousineau-Porter's claimed errors are prejudicial and egregious, the cumulative error doctrine is inapplicable, and this argument fails.
Affirmed.
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, P.J. and VAN DEREN, J., concur.