Opinion
No. 61402-9-I.
February 22, 2010.
Appeal from a judgment of the Superior Court for King County, No. 05-1-13048-9, Palmer Robinson, J., entered March 13, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Lau, JJ.
A claim alleging a confrontation violation may not be raised for the first time on appeal when admission of the challenged statements does not violate a constitutional right and has no practical effect on the outcome. The statements at issue here were made in response to police questioning about an assailant who was still at large. Thus, they were "nontestimonial" and their admission did not violate the Sixth Amendment. Consequently, Willie McCoo fails to demonstrate a manifest constitutional error warranting review. Accordingly, we affirm.
FACTS
In the summer of 2005, Tammy Joiner was living with her boyfriend, Anthony Green, at the apartment of Green's grandfather, Charles Green (Charles). Also living at the apartment was Charles's nephew, Henry Green (Henry). Green and Joiner shared a bedroom and Charles and Henry slept on couches in the living room. In September 2005, Green was incarcerated, but Joiner continued living at the apartment. During this time, she became involved with Willie McCoo and would often sneak him into the apartment through the bedroom window.
On September 15, 2005, Joiner and McCoo took a bus to Pacific to visit McCoo's father. His father drove them back to Seattle later on that evening and on the way, they stopped for groceries. When Joiner was unloading the groceries from the trunk of the car, she accidentally broke something connected to the taillight, which enraged McCoo. Joiner then went into the apartment alone and took in the groceries.
A little later, she went back out to the corner store to buy some alcohol. McCoo was outside the corner store when she arrived and was "clicking" a switchblade knife, obviously upset about something. He and Joiner had an argument and Joiner told him she did not want to be involved with him anymore and said something hurtful about his dead mother. Joiner then went back to the apartment, drank more alcohol, ingested some cocaine, and fell asleep.
At 1:00 a.m., Joiner awoke to McCoo attacking her. She tried to fight him off, but he stabbed her in the neck, chest, face, ear, and arm. She tried to leave the room, but the door was blocked by furniture and other items piled up in front of it. As she tried to move the items away from the door, McCoo stabbed her one last time, twisting the knife in the back of her neck.
Charles was awakened by the noise of something banging in the bedroom. He tried to open the door, but had difficulty doing so because it was blocked. When he eventually got it open, Joiner collapsed in his arms, bleeding. The window in the bedroom was open and Charles thought he might have seen a leg going out the open window. Henry also awoke and called 911.
When the medics and responding police officers arrived, they found Joiner bleeding profusely. Joiner was unable to speak to the police and was sent to the hospital. Responding officers talked to witnesses who described a man that was just seen running away from the apartment building and identified him as McCoo. Initial police attempts to locate a suspect were unsuccessful. Police also searched the apartment for a weapon, but did not find one and did not collect any physical evidence. A few days later, on September 19, detectives visited Joiner at the hospital. They could not take a statement from her because of her medical condition, but had her view a montage and she identified McCoo as her assailant. They then tried to locate McCoo, but were initially unsuccessful.
After Joiner was released from the hospital, she went back to the apartment to collect some of her belongings. While she was there, she found a bloodstained patchwork jacket that she remembered McCoo wearing the night of the assault. She put the jacket into a bag and gave it to detectives when they took a formal statement from her on September 23. DNA (deoxyribonucleic acid) testing revealed that Joiner's blood was on the jacket, but testing of other samples from the jacket showed that Joiner and McCoo were possible donors, along with a third possible donor.
McCoo was eventually arrested and the State charged him with one count of first degree assault with a deadly weapon enhancement. Two trials ended in mistrials when the jury could not reach a unanimous verdict. After a third trial, the jury found him guilty as charged. The trial court sentenced him to 342 months' confinement.
ANALYSIS
I. Right to Confrontation
McCoo challenges the trial court's admission of statements made by one of the witnesses who spoke to officers the night of the stabbing but did not testify at trial. He contends that because the statements were testimonial and not subject to cross-examination, their admission violated his right to confrontation.
Under the Sixth Amendment, an accused has a right to confront witnesses bearing testimony against him. The confrontation clause prohibits admission of testimonial statements made by a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had a prior opportunity for cross examination. But "nontestimonial" hearsay is admissible under the Sixth Amendment subject only to the rules of evidence.
Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Crawford, 541 U.S. at 53-54.
State v. Pugh, No. 80850-3, 2009 WL 5155364, at *2 (Wash. Dec. 31, 2009) (citing Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)).
McCoo contends that officers improperly testified about statements made by Sonja Otis, one of three witnesses contacted at the scene. The other witnesses were Sweetie Eshmon, and Senshay Hollingsworth. Only Eshmon testified at trial.
Otis also told officers that her first name was "McKiva."
The State obtained a material witness warrant for Hollingsworth, but it was never served. Otis was in jail on an unrelated matter.
Officer Steven Villanueva testified that both Otis and Eshmon gave him a description of the suspect, including the suspect's gender, clothing, hair, and first name, and that Hollingsworth gave him a first and last name. He did not testify to the actual description or name they gave him, but stated that the information Eshmon gave was substantially the same as that given by Otis. He also testified that he had contact with McCoo and Joiner the previous week at the same apartment.
Officer Cameron Probst testified that he contacted witnesses at the bus stop whose names he did not recall. He testified that these witnesses gave a description of the suspect and identified him with a first name. Officer Probst did not testify to the specific name the witnesses gave him, but stated that he recognized the name as that of a person he contacted a week earlier at the same apartment who was also with Joiner at the time, and that he broadcasted that name on the police radio along with his last known direction.
Officer David Bauer testified that he was present when Otis, Eshmon, and Hollingsworth gave descriptions of the suspect to Villanueva. He testified that Otis and Eshmon gave descriptions that included clothing, hair, and a first name, and that both descriptions were consistent with each other. He also testified that he had seen McCoo at the apartment with Joiner a week earlier and that he was wearing a denim jacket at the time. On cross-examination, McCoo asked him about the specific description that was broadcast and he testified that it included a blue and white denim jacket, a 6 feet 3 inches thin build, a down jacket with no shirt, blue jeans, and braids. He also testified that the only difference between the two witness descriptions was that one included footwear and the other did not.
Eshmon testified that she was outside the apartment building the night of the stabbing. She also testified that she knew Joiner, had met McCoo before that night, and had seen the two of them together previously. She said that earlier in the night before the assault, she saw Joiner and McCoo on the stairs of the apartment and then later at the corner store. She testified that she did not see them again that evening, but saw McCoo run past her early on in the morning.
Because McCoo failed to object to the statements he now challenges and the claimed error is not a manifest error affecting a constitutional right, he may not raise it for the first time on appeal. This court generally does not consider issues raised for the first time on appeal unless the claimed error is a "`manifest error affecting a constitutional right.'" This exception "is not intended to afford criminal defendants a means for obtaining new trials whenever they can identify some constitutional issue not raised before the trial court." The defendant must demonstrate that the alleged error was "manifest" and that, in the context of the trial, the alleged error actually affected the defendant's rights. Our courts have reviewed claims alleging confrontation violations raised for first time on appeal only when they amount to manifest constitutional error.
State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3)).
McFarland, 127 Wn.2d at 333.
McFarland, 127 Wn.2d at 333.
State v. Kronich, 160 Wn.2d 893, 900-901, 161 P.3d 982 (2007).
McCoo concedes that he did not object during the trial, but contends he did not do so because he thought Otis was going to testify. He notes that he filed a motion for mistrial alleging a Crawford violation in the trial court and argues that this properly preserved the issue for appeal. But to challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. "To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent." McCoo did not file his mistrial motion until after sentencing, which was well after he knew that Otis would not be testifying. It was therefore untimely and he waives any claim that the evidence was erroneously admitted.
State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007).
Gray, 134 Wn. App. at 557 (citing State v. Jones, 70 Wn.2d 591, 597, 424 P.2d 665 (1967)).
ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).
McCoo also fails to show that admission of this testimony was a manifest constitutional error he may raise for the first time on appeal. First, as discussed below, there was no confrontation violation because the statement was not testimonial. And even if these statements were admitted in violation of his confrontation rights, McCoo fails to show that this evidence had any practical or identifiable effect on the outcome. Even without this testimony, there was still sufficient evidence linking McCoo to the assault: another testifying eyewitness corroborated Otis' description and identified him, and the victim identified him.
The United States Supreme Court has not provided a comprehensive definition of "testimonial" evidence. But in Davis v. Washington, the Court ruled that statements were not testimonial because they were made to assist the police in responding to an emergency, not to assist in a later court proceeding. As the Court explained:
Crawford, 541 U.S. at 68.
547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis, 547 U.S. at 822.
Similarly, in State v. Ohlson, our state Supreme Court concluded that an assault victim's statements made to the first officer on the scene were not testimonial despite the victim's failure to testify at trial. The court found significant that the assailant was still at large when the statements were made and the threat posed was thus great. More recently, in State v. Pugh, the court held that a domestic violence victim's statements to the police about her husband beating her up were not testimonial, because they were made when her assailant still remained a danger and to help resolve a present emergency. The court so held despite the fact that the statements appeared to describe past events ("[m]y husband was beating me up really bad") and the victim indicated that her assailant was walking away from her when she reported the incident.
162 Wn.2d 1, 16-19, 168 P.3d 1273 (2007).
Ohlson, 162 Wn.2d at 16-19.
No. 80850-3, 2009 WL 5155364, at *4.
2009 WL 5155364, at *3-4.
Likewise here, Otis' statements to police were made while the assailant was still at large and provided only enough information for the police to resolve the emergency. The officers did not take any formal statements at that time and their interaction with Otis and the other witnesses was brief. The need for the information provided was also great: the assault was a brutal stabbing, the victim was unable to provide a description of her assailant at the time, and the at-large assailant was likely armed. Thus, the statements were not testimonial and their admission did not amount to a Crawford confrontation violation. McCoo therefore fails to demonstrate a manifest constitutional error warranting review for the first time on appeal.
We further note that because McCoo elicited and invited the statements, he cannot now claim that their admission was error regardless of whether they were testimonial. The invited error doctrine bars claims that impact a constitutional right, including claims arising under the confrontation clause. As the State contends, McCoo elicited these statements to discredit the eyewitness testimony. Thus, their admission was invited by McCoo and he is therefore barred from now claiming it as error. Nor can he challenge the statements the State elicited on redirect examination. By eliciting Otis' statements about her description of the suspect and attempting to discredit those statements, McCoo opened the door to testimony about whether Otis' description was credible and permitted the State to elicit other testimony about her statements. II. Challenge to Juror
City of Seattle v. Patu, 147 Wn.2d 717, 720-21, 58 P.3d 273 (2002); see United States v. Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir.) (nontestifying codefendant's statements elicited by defendant cannot be basis for claim on appeal), cert. denied, 506 U.S. 890 (1992).
In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995); State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990).
State v. Price, 126 Wn. App. 617, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005); State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (when a party opens up a subject of inquiry, that party "contemplates that the rules will permit cross-examination or redirect examination . . . within the scope of the examination in which the subject matter was first introduced.").
McCoo next contends that the trial court erred by denying his challenge to a juror for cause when the juror stated that she does not "do well with violent outbursts" after McCoo was admonished for verbal outbursts in open court. We disagree.
A trial judge must excuse any juror who "has manifested unfitness as a juror by reason of bias [or] prejudice." The burden of proving bias is on the party challenging the juror. Because the trial court is in the best position to determine a juror's impartiality, we will not reverse a trial court's denial of a challenge to a juror for actual bias unless it is a manifest abuse of discretion. Even equivocal answers do not require removal of a juror; rather, "the question is whether a juror with preconceived ideas can set them aside."
RCW 2.36.110.
State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991).
Noltie, 116 Wn.2d at 838.
Noltie, 116 Wn.2d at 839; see also State v. David, 118 Wn. App. 61, 70, 74 P.3d 686 (2003), modified on other grounds, 130 Wn. App. 232 (2005) (juror initially said she formed opinion that defendant was guilty based on newspaper accounts, but said it would be her goal to decide the case based on evidence presented).
Here, after McCoo had a verbal outburst with his attorney in front of the jury, the court questioned the jurors individually about their ability to remain impartial. Juror number 4 admitted that she did not "do well with violent outbursts," but she also stated that she had "to think about it" and needed to "step back," indicating that she understood that she had to set aside any preconceived ideas she might have held as a result of the outburst. She then confirmed that she could do so, stating that since she would not be deliberating until tomorrow, she would "be fine" and could listen to the testimony. Thus, McCoo fails to demonstrate actual bias. The trial court did not abuse its discretion by denying his challenge to the juror.
III. Prosecutor Misconduct
McCoo next challenges the prosecutor's comments in rebuttal closing argument as impermissibly commenting on the exercise of his Fifth Amendment rights and improperly shifting the burden to the defense. Specifically, he challenges the following remarks:
[PROSECUTOR]: Once again, ladies and gentlemen, where was the defendant? Defense counsel never mentioned anything about that at any point in the game. Is that if you —
[DEFENSE COUNSEL]: Objection your Honor. Shift the burden.
THE COURT: Overruled.
[PROSECUTOR]: — if you were with somebody for two weeks and this happened to them — and they were with each other for two weeks, they were sexually intimate. They either had a relationship or they were forming one. Something like that happens, you bet you would contact them, you would call them, you would see what they were doing, or you would at least go back to the place. The defendant did nothing, and that is entirely consistent with somebody who committed this crime.
McCoo fails to establish that this was improper argument. In State v. Russell, the court held that it is proper argument to note that the defendant's acquaintances who testified at trial did not know where the defendant was at the time of the charged crime. As the court explained, "While the remarks point to absence of alibi, they do not refer to Russell's failure to testify. These comments did not violate his right to remain silent or shift the burden of proof."
125 Wn.2d 24, 91, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
Russell, 125 Wn.2d at 91.
Similarly here, the prosecutor's question, "[W]here was the defendant?" did not refer to McCoo's failure to testify, but referred to the fact that he was not seen after the crime, which was testified to at trial. Indeed, before making these comments in rebuttal argument, the prosecutor clarified that the State was not asking the jury to make any inferences from McCoo's failure to testify and the court instructed the jury to that effect. Rather, the prosecutor pointed out that witnesses testified that they saw him with Joiner daily and even in the hours before the assault, but never saw him afterwards. In State v. Barker, the court held that similar comments were an appropriate summation of the evidence and did not comment on the right to remain silent. There, the prosecutor noted testimony that the defendant had been in the store that was robbed many times before the robbery, but not after the robbery, and argued that this was circumstantial evidence that the defendant committed the robbery.
103 Wn. App. 893, 903, 14 P.3d 863 (2003).
Barker, 103 Wn. App. at 903.
McCoo's reliance on State v. Reed and State v. Fiallo-Lopez is misplaced. Unlike here, the prosecutor's comments in those cases demanded an explanation from the defendant and directly commented on his right not to testify. But here, the prosecutor's comment, "[W]here was the defendant?" did not demand an explanation from McCoo or allude to his right not to testify. Rather, it referred to the evidence that he was suspiciously absent after the stabbing and raised an inference from that evidence that he committed the crime. As recognized in Russell and Barker, this was proper argument.
25 Wn. App. 46, 604 P.2d 1330 (1979).
78 Wn. App. 717, 899 P.2d 1294 (1995).
In Reed, the evidence showed that the defendant lived at the victim's farm before the murder, but could not be found afterward and apparently left without being paid and the prosecutor argued, "Nobody has said, `Yes I was paid.' No one has said that. But the evidence in this case has to be that he was not paid, because there was nothing to rebut that." 25 Wn. App. at 49. In Fiallo-Lopez, the prosecutor argued that there was absolutely no evidence to explain why the defendant was present at two locations precisely when drug dealers were there to conduct drug transactions or why the defendant contacted a drug dealer at both places. 78 Wn. App. at 729.
IV. Other Evidentiary Issues
McCoo contends that the trial court improperly admitted evidence of the bloody patchwork jacket Joiner later found in the apartment because the State failed to establish that it was not altered during the period of time between the assault and the trial. We review a trial court's evidentiary rulings for an abuse of discretion. Before evidence of a physical object connected with the commission of a crime may be admitted, it must be sufficiently identified and shown to be in substantially the same condition as when the crime was committed. But a sufficient foundation can be established even without proof of an unbroken chain of custody. Nor must the party offering the evidence identify the evidence with absolute certainty and eliminate every possibility of alteration or substitution. Deficiencies in the chain of custody, minor discrepancies, or a witness's uncertainty affect only the weight of the evidence and not its admissibility.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984).
State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336 (1998).
State v. Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002).
Campbell, 103 Wn.2d at 21.
Here, Joiner's testimony provided sufficient foundation for the jacket's admissibility. She identified it as McCoo's jacket and testified that he wore it the night she was stabbed. She also testified that it was in substantially the same condition as when she recovered it from the apartment. Additional evidence also supports this testimony. Police photographs taken of the crime scene on the night of the stabbing show the blood stained jacket and forensic evidence established that Joiner's blood was contained in a large stain on the jacket and that the blood patterns on the jacket were consistent with it being in the apartment at the time of the stabbing or soon after. Any gaps in the chain of custody bore on the weight of the evidence, not its admissibility. The trial court did not abuse its discretion by admitting evidence of the jacket.
McCoo also contends that the trial court abused its discretion by admitting Joiner's testimony that McCoo always carried three knives because the State failed to establish that Joiner knew McCoo long enough to testify to the regularity of his acts. But because McCoo did not object to the testimony after the court made a conditional ruling on his motion in limine, he waived any challenge to the admissibility of the evidence on the basis that she did not have sufficient knowledge of his habits. V. Statement of Additional Grounds
When McCoo moved in limine to exclude this testimony based on Joiner's lack of sufficient knowledge of his habits, the trial court made a conditional ruling that it was admissible, depending on Joiner's actual testimony. At trial, Joiner testified that she knew McCoo only for a few weeks, but McCoo did not object.
Finally, McCoo raises several issues in a statement of additional grounds, none of which have merit. He first contends that dismissal is warranted because the police acted in bad faith by failing to preserve exculpatory evidence. McCoo fails to substantiate his claims of bad faith and simply cites to the officers' testimony about what they did and did not collect and photograph at the scene and why, none of which evidenced the bad faith he alleges. Rather, the failure to collect additional blood samples and take more photographs at the scene went to the weight and credibility of their testimony and the strength of the State's evidence, which are issues for the jury's determination and will not be disturbed on appeal.
McCoo next argues that the prosecutor knowingly allowed the police officers and the victim to testify falsely. He points to Joiner's testimony that he carried three knives with him at all times, to the officers' testimony about their collection of evidence at the crime scene, and Eshmon's testimony that she saw him running from the apartments wearing the same jacket that Joiner said she found bloodied in the apartment. But again, he fails to substantiate his claims that these witnesses in fact lied. Rather, he raises credibility issues about the testimony, which are jury determinations that will not be reviewed on appeal.
McCoo also argues that the trial court erred by failing to excuse a juror who became ill during some of the medical testimony. According to the record, the court excused the rest of the jury, asked the juror if he was okay, and questioned him on the record. The juror admitted that he sometimes gets "queasy around blood, arteries, medical things," but that he was not otherwise ill. The court then stated that it was inclined to continue and the juror agreed, but the court told the juror that he had to alert the court if he felt queasy again. McCoo did not object to the court's decision to keep the juror on and testimony then resumed, apparently with no further episodes. McCoo fails to show that the trial court abused its discretion by allowing the juror to remain on the panel. He failed to object and he points to nothing in the record to suggest that the juror's reaction resulted in prejudice.
McCoo further contends that he was denied a fair trial when Joiner had improper communication with jurors in the presence of the victim advocate. According to the record, one of the jurors reported that the victim advocate, Joiner, and Joiner's friend Mr. Cranston, rode on the elevator with some jurors. McCoo fails to show that there was any communication between the jurors and Joiner, much less any improper communication. The record shows only that Cranston and Joiner had a conversation and that it did not relate at all to the case. When the court and defense counsel questioned the victim advocate about the incident, she reported that Joiner and Cranston had a conversation unrelated to the case and did not interact with any of the jurors. Thus, McCoo fails to show he was denied a fair trial based on this incident.
Nor is there any merit to his argument that the relationship between the victim advocate and Joiner prejudiced the jury against him and warranted a new trial. As a representative for the victim, the victim advocate was no more "prejudiced" against him than the victim, any of the State's witnesses, or the prosecutor, for that matter. McCoo fails to show how the relationship between the victim advocate and Joiner resulted in actual prejudice warranting a new trial.
McCoo further contends he was denied effective assistance of counsel because his attorney intentionally failed to impeach the police officer's testimony about the "staged" photograph containing the jacket. But defense counsel cross-examined the officers about the placement of the jacket and argued in closing that this was inconsistent with the allegation that he had it on during the stabbing. McCoo's assertion that the photograph was staged was not substantiated by the evidence and was at most, an arguable inference. He fails to show that defense counsel's decision not to argue this speculative inference was not tactical and fell below an objective standard of reasonableness.
McCoo also contends that counsel failed to impeach Dr. Eileen Bulger's testimony by pointing out that the stab wound was actually a scalpel wound. But defense counsel did ask Dr. Ted Kohler, the other doctor who treated Joiner, if the type of injury could have been caused by a straight edge instrument like a scalpel and he replied that it could. Thus, counsel brought this out for the jury's consideration and McCoo fails to show that by not questioning both doctors about it counsel's conduct fell below an objective standard of reasonableness. McCoo also contends that his attorney failed to impeach testimony by the police officers about their collection of evidence, but the record indicates that these issues were explored by defense counsel on cross-examination. McCoo fails to show that this cross-examination fell below an objective standard of reasonableness.
McCoo further contends that his attorney prejudiced him when he "abandoned his composure and raised his voice," in front of the jury and failed to retrieve his medical records, but fails to substantiate these claims. He also asserts that his attorneys in the two previous trials denied him effective assistance, but those trials are not the subject of this appeal (and in fact ended in mistrials) and are therefore not reviewable.
But the record does indicate that McCoo disparaged defense counsel in front of the jury and had an outburst in court that required the court to excuse the jury and admonish him.
We affirm.