Opinion
No. 26671-1-III.
February 19, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-00048-2, Rebecca M. Baker, J. Pro. Tem., entered November 30, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
A jury of Mary Gray's peers concluded that she murdered her husband. She appeals the judgment entered on a verdict and assigns error to two of the trial judge's discretionary rulings — refusing to order a mistrial based on prosecutorial misconduct and refusing to discharge an inattentive juror. We conclude the trial judge did not abuse her discretion by either ruling. Ms. Gray also claims that her lawyer ineffectively represented her because he did not request a specific instruction (regarding the reception of accomplice testimony) and did not object to the court's instruction on voluntary confessions. We conclude the instructions were appropriate. And, moreover, we conclude that the evidence of guilt here was overwhelming. And so there is no showing on this record that the outcome here would have been any different. We therefore affirm the conviction.
FACTS
Factual Background
Police unearthed Robert Gray's dead body from underneath an excavated dump site in rural Pend Oreille County on May 31, 2006. Mr. Gray was married to Mary Gray. Ms. Gray's daughter and son-in-law, Jennifer and Dave Holden, owned the site. The Grays also lived on the property. Mr. Gray was last seen alive by someone other than Ms. Gray on the evening of May 21, 2006, when the Holdens saw him at the Grays' home. Ms. Gray telephoned Ms. Holden on the morning of May 22 and told her that she and Mr. Gray were taking a trip together to try to salvage their marriage. The Holdens were away from the property until after six in the evening of that day.
Glen Sharp rented a mobile home on the Holdens' property. He saw Ms. Gray driving a backhoe toward a trash dump site on the property that same morning. Some time later, he heard three gun shots. Soon after, he saw Ms. Gray walk out of the woods, retrieve a tractor with a scraper blade attachment, and drive across the property back toward the dump site. Ms. Gray told Mr. Sharp at that time that she was putting down Mr. Gray's dog. Shortly thereafter, Mr. Sharp saw Ms. Gray return the tractor to his yard, return to the woods, and emerge from the woods in her Jeep followed by John Pate. Mr. Pate was Ms. Gray's friend and ex-boyfriend. He followed in the backhoe. They drove away together after Mr. Pate parked the backhoe at the Holdens' home.
Mr. Pate testified that when Ms. Gray picked him up at his cabin on the May morning that Mr. Sharp saw the pair, Ms. Gray asked him to help her bury a dog deep enough so that wild animals would not dig it up. Ms. Gray also asked Mr. Pate to leave town with her for a couple of weeks. She said she was upset after Mr. Gray had been taken away and hospitalized at a Veterans Affairs facility for threatening police who came to serve him with a restraining order. Mr. Pate testified he saw only mud and trash in the area where Ms. Gray claimed she buried the dog. Ms. Gray and Mr. Pate left the Newport area until May 26, 2006. Ms. Gray talked to Ms. Holden during that absence and told her that she was traveling with Mr. Gray but that she would return to Newport without him.
Ms. Gray returned to Newport. She told Ms. Holden, Anthony Tangeman-Pardi (Ms. Gray's adopted son/biological grandson), and Ms. Gray's former employer, Roger Tompkins, conflicting stories about Mr. Gray's whereabouts. The Holdens became suspicious. They called the Newport Police Department and prepared a statement on May 29, 2006, about their concerns over Mr. Gray's absence.
That same day, Pend Oreille County Detective Jon Carman began to investigate. He interviewed Ms. Gray at her home. Ms. Gray told the detective yet another account of Mr. Gray's location and expressed no concern about his absence. The detective left. Ms. Gray then told Mr. Pate and Mr. Tangeman-Pardi that she killed Mr. Gray and buried him on the Holdens' property. She gave Mr. Pate her pistol to hide. And the two then went to Montana. Ms. Gray again confessed in phone conversations with her friends, Margaret Luke and Mr. Tompkins, that she had killed Mr. Gray on May 22. Police arrested Ms. Gray and Mr. Pate at a Missoula motel on May 31. And later that day, police uncovered Mr. Gray's body in the pit on the Holdens' property. He died from a gunshot wound through the heart. Procedural History
The State charged Ms. Gray on June 2, 2006, with first degree murder, or, in the alternative, second degree murder. The State later added a firearms enhancement. The trial court ordered Eastern State Hospital to evaluate Ms. Gray's mental health, and the mental health experts filed their report in February 2007. The court found Ms. Gray competent to stand trial.
The case was tried to a jury over the course of five days. The jury found Ms. Gray guilty of first degree murder on October 24, 2007, and entered a special verdict finding that she was armed with a firearm. The trial court denied Ms. Gray's motion for a new trial and her pro se motions for dismissal of her attorneys.
DISCUSSION
Prejudice
Each of Ms. Gray's assignments of error requires some showing of prejudice. See State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987); State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986). That is, even assuming some error, the error must have made a difference in the outcome of the trial. Hopson, 113 Wn.2d at 284. And this is a threshold problem for Ms. Gray because the evidence of guilt here is, in a word, overwhelming. The circumstances that support the conviction for murder are all supported by a number of witnesses. And all those circumstances suggest rather clearly that Ms. Gray shot Mr. Gray and then buried him.
And, if that were not enough, she also confessed that she murdered Mr. Gray and related the details of how she murdered him to a number of witnesses, all of whom testified against her at trial. So, even a cursory review of this record supports the notion that short of some error that would require a new trial as a matter of law, we should affirm Ms. Gray's conviction. We, nonetheless, review the merits of her assignments of error.
Discretionary Decisions
Inattentive Juror
Ms. Gray argues that the trial judge abused her discretion by failing to rule on a motion to dismiss a juror for inattention and ultimately for failing to dismiss the juror.
Whether Ms. Gray was prejudiced by a juror's inattentiveness is a matter addressed to the trial court's discretion and so we review for abuse of discretion. Hughes, 106 Wn.2d at 204. A trial court is obligated to excuse any juror who is unfit and unable to perform the duties of a juror. State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000). The trial court retains discretion, however, "to hear and resolve the misconduct issue in a way that avoids tainting the juror and, thus, avoids creating prejudice against either party." Id. at 229.
Here, the judge questioned juror 10 when the judge first became concerned about the juror's apparent drowsiness. The judge said she would carefully observe the juror. The next morning, the court inquired more extensively into the juror's attentiveness outside the presence of the rest of the jury panel. The juror explained that he had a sinus headache the previous day but remained "fully alert and awake" throughout the proceedings. Report of Proceedings at 1564. Ms. Gray also expressed concern about two other jurors. And the judge questioned them. Both insisted they were alert and paying attention to the proceedings, although one juror expressed mild concern about being slightly hazy during one brief moment of the first day's proceedings. The defense did not argue or object further on this matter.
The court's inquiry and approach to addressing the juror-related concerns was timely, appropriate, and certainly not an abuse of discretion.
Prosecutorial Misconduct — Lie Detector
The prosecutor asked Detective Carman whether Ms. Gray had offered to take a lie detector test. The trial judge immediately sustained an objection to the question and later gave an appropriate curative instruction but refused to grant a mistrial. Ms. Gray assigns error to the court's refusal to grant a mistrial.
The question was, of course, improper. State v. Agren, 28 Wn. App. 1, 7-8, 622 P.2d 388 (1980). The prosecutor admits the question was improper but argues there was no prejudice given the court's handling of the matter. The prosecutor's attempt to improperly inject this issue into the case appears both unnecessary, given the strength of the evidence here, and bad trial tactics given, at least, the potential for a mistrial and the attendant cost to the taxpayers of Pend Oreille County. But, more than that, it reflects a fundamental misunderstanding of the role of a government prosecutor when prosecuting a criminal defendant. The prosecuting attorney is not just an advocate; he is a quasi-judicial officer of the court. He is responsible for assuring that the defendant receives a fair trial. State v. Torres, 16 Wn. App. 254, 256, 554 P.2d 1069 (1976). This is just the kind of misconduct that sanctions were intended to address. See, e.g., State v. Beliz, 104 Wn. App. 206, 211-12, 15 P.3d 683 (2001).
That said, we review a court's decision to deny a mistrial for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A trial court "`should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" Hopson, 113 Wn.2d at 284 (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)).
We consider three factors in determining the effect of trial irregularity: "(1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it." Id. Here, the detective never answered the question. The court immediately sustained the defense's objection and granted the defense motion to strike. But even more significantly, as we have already noted, the evidence here is overwhelming. So we are hard pressed to conclude that this one question, no matter how improper, made a difference here. See State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983). Accomplice Testimony Instruction
Ms. Gray asserts that her attorney performed deficiently when he failed to request an instruction modeled on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.05 (3d ed. 2008) (WPIC) advising caution when assessing the credibility of accomplice testimony.
Ms. Gray must first show that her counsel's performance was deficient and, second, that she was prejudiced by that deficient performance. Thomas, 109 Wn.2d at 225-26. A defense attorney performs deficiently when his representation falls below an "objective standard of reasonableness based on consideration of all the circumstances." State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Ms. Gray relies on State v. Carothers. There, the court held that this cautionary instruction is necessary when the State's case is supported primarily by an accomplice's testimony. Carothers, 84 Wn.2d at 269. But State v. Harris disapproved Carothers "to the extent that Carothers implies that it is error not to give a cautionary instruction in cases where accomplice testimony is substantially corroborated."
84 Wn.2d 256, 525 P.2d 731 (1974).
102 Wn.2d 148, 153-54, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988).
Harris held that, while it is "always the better practice for a trial court to give the cautionary instruction" when the State introduces accomplice testimony, the court's decision not to instruct the jury on the special nature of accomplice testimony is reversible error only if the accomplice testimony is not substantially corroborated by testimonial, documentary, or circumstantial evidence. 102 Wn.2d at 155.
And here the State supported Mr. Pate's accomplice testimony with substantial corroborating evidence. Mr. Pate testified that he did not know Mr. Gray was buried in the pit on the Holdens' property when he helped Ms. Gray fill the hole. That testimony was corroborated by the testimony of Ms. Luke, Mr. Tompkins, and Mr. Tangeman-Pardi. All testified that Ms. Gray told them that she killed Mr. Gray.
The State also offered other independent evidence to support the proposition that Ms. Gray murdered Mr. Gray. Mr. Sharp, a tenant on the Holdens' property, saw Ms. Gray drive a backhoe across the Holdens' property down a seldom used road. He later heard gun shots. Mr. Sharp also testified that Ms. Gray told him shortly after he heard the gun shots that she had killed Mr. Gray's pit bull. He then watched her drive a tractor in the same direction she had earlier driven the backhoe, toward the dump site. And he watched her return the tractor by herself and then leave with Mr. Pate, who had arrived on the property without Mr. Sharp noticing.
Ms. Gray also told various family members, acquaintances, and the police different accounts of Mr. Gray's whereabouts after May 21. And on May 19, 2006, someone recorded a quitclaim deed, executed by Mr. Gray on May 17, 2006, transferring title of Mr. Gray's Newport house (in which the couple lived) to Ms. Gray. Weeks earlier, Ms. Gray had changed her name from "Gray" back to her previous last name, "Tangeman," on her driver's license.
Many witnesses corroborated Mr. Pate's testimony. It is not at all clear that the instruction would have, or should have, been given even if requested. And so we cannot say, then, that it was a failure on counsel's part not to request it. Failure to Object to Instruction on Voluntary Confession
Ms. Gray also claims that her lawyer's efforts fell short of the mark because he failed to object to the court's instruction on confessions. Essentially, the instruction invites the jury to consider whether the defendant's out-of-court statements were voluntary. She argues that instructing the jury according to WPIC 6.41 (instructing jurors to accord out-of-court statements the weight they see fit) but not instructing the jury on accomplice testimony (WPIC 6.05) amounted to a comment on the evidence by the court.
Again, we review this claim of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). A defendant is entitled to a WPIC 6.41 instruction upon request when he or she raises the issue of the voluntariness of the statement made to law enforcement during trial, such as after the court rules against the defendant's earlier CrR 3.5 motion to exclude the statement. State v. Smith, 36 Wn. App. 133, 141, 672 P.2d 759 (1983). WPIC 6.41 instructs jurors that they "may give such weight and credibility to any alleged out-of-court statements of the defendant as [they] see fit, taking into consideration the surrounding circumstances." The trial court's instruction 13 repeats verbatim WPIC 6.41. Clerk's Papers at 209.
Most of the case law on this instruction addresses not whether it was error to give or object to the instruction, but whether it was error not to give or request the instruction. See State v. Booth, 75 Wn.2d 92, 449 P.2d 107 (1968); State v. Taplin, 66 Wn.2d 687, 691, 404 P.2d 469 (1965). Smith provides minimal further guidance by stating that the WPIC 6.41 instruction is "inapposite" when the prosecution offers an alleged statement made by the defendant to a private person. 36 Wn. App. at 141. Ms. Gray relies on this statement in Smith to support her contention that the WPIC 6.41-based instruction was improper. Ms. Gray does not offer a case that holds for the corresponding proposition that a WPIC 6.41 instruction is prohibited where the defendant made a statement to a private person. And we see no reason to craft such a rule.
Ms. Gray made statements to both private persons and police. The trial court suppressed Ms. Gray's interview with Pend Oreille County Detective Carman on May 31, 2006, conducted in Montana after she and Mr. Pate were arrested there. The court refused to suppress Ms. Gray's May 29, 2006, statement to Detective Carman, and Ms. Gray did not challenge its voluntariness at trial. Ms. Gray also made statements to several other private citizens that the State offered through testimony at trial. There was no error in giving the instruction and then no failure on her lawyer's part for not excepting to the instruction.
Moreover, her right to a WPIC 6.41 instruction is procedural and not constitutionally mandated. Taplin, 66 Wn.2d at 691. Any error in including instruction 13 in the jury instructions when it was not legally required is, therefore, also procedural. A nonconstitutional error warrants reversal only if this court finds that, within a reasonable probability, the outcome would have been different but for the error. State v. Aamold, 60 Wn. App. 175, 181, 803 P.2d 20 (1991).
And, finally, as with her other assignments of error, any conceivable error by the trial court in giving the instruction was harmless. Statement of Additional Grounds
Ms. Gray raises several additional grounds for appeal. Ms. Gray contends that her counsel failed to advise her of the consequences of rejecting a plea agreement, that the trial court committed judicial misconduct, that a juror was biased against her, that she was mistreated and denied medical treatment in jail, and that the court was mismanaged. There is nothing in the record to support these claims, and thus we cannot address them. Where a claim of error involves matters outside of the record, the claim must be brought in a personal restraint petition. See McFarland, 127 Wn.2d at 338 n. 5.
Ms. Gray also contends that she was denied her constitutional due process rights on several grounds related to her arrest and subsequent interview by police. However, the court suppressed the May 31, 2006, interview to which Ms. Gray refers in a pretrial CrR 3.5 hearing.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and BROWN, J., concur.