Opinion
No. 33722-3-II.
December 12, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03219-1, John A. McCarthy, J., entered August 26, 2005.
Counsel for Appellant(s) Brett Andrews Purtzer Attorney at Law 1008 Yakima Ave Ste 302 Tacoma, WA, 98405-4850.
Counsel for Respondent(s) Kathleen Proctor Pierce County Prosecuting Atty Ofc 930 Tacoma Ave S Rm 946 Tacoma, WA, 98402-2171.
Authored by DAVID H. ARMSTRONG, Concurring: J. ROBIN HUNT, C. C. BRIDGEWATER.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Bridgewater and Hunt, JJ.
Rickie R. Riley appeals his conviction of one count of vehicular assault, arguing that the trial court erred in admitting his statement to the investigating officer that he had ingested vicodin and a muscle relaxant the morning of the accident, excluding an out-of-court statement by an unavailable witness, and admitting expert testimony by the State's toxicologist. He also argues that the prosecutor wrongfully attempted to shift the burden of proof to him by commenting on his silence and that the State presented insufficient evidence to support his conviction. Finding no reversible error, we affirm.
FACTS
Near noon on March 1, 2004, Michael Tillman and Marcus Hayett were surveying at a construction site in Pierce County. Their work van was parked on a gravel shoulder, facing oncoming traffic. Hayett was sitting in the front passenger seat, and Tillman was standing at the open driver's door doing some calculations.
Hayett noticed that an approaching truck began to veer off the road into the gravel shoulder. The truck was not slowing and when it was approximately 150 feet from the van, Hayett saw that the truck's driver was "slumped over all the way toward the middle of the vehicle." Report of Proceedings (RP) at 109-10. Hayett yelled at Tillman to run.
Tillman had first noticed the truck as it was traveling toward them in its lane. When Hayett said something, he looked again and saw that the truck was halfway onto the shoulder and that it was not slowing. The driver had his eyes closed and appeared to have either passed out or fallen asleep. Tillman turned and ran toward the back of the van.
The truck hit the front driver's side of the van, hitting and pinning Tillman against the van. When Tillman fell under the truck, it dragged him about 30 feet without slowing. Hayett saw the truck's brake lights come on after Tillman was free of it; the truck stopped some 200 feet past the van. Tillman suffered a broken back and three ruptured vertebrae as a result of the accident.
Rickie Riley, the truck's driver, got out of the truck and walked back toward the van, passing Tillman. He asked Hayett what happened. Hayett thought he detected the smell of marijuana on Riley, but he admitted on cross-examination that he was not sure what the odor was. Riley became visibly upset when Hayett told him what had happened. Riley walked back to Tillman and attempted unsuccessfully to lift him up.
When Deputy Jeffrey Fleig arrived at the scene, he asked Riley what had happened. Riley responded, "I don't know what happened. . . . I was on 152nd Street one minute and the next thing I know I am here," and, "I said [sic] must have fallen asleep." RP at 151. Riley appeared dazed and his speech was slow.
Fleig asked Riley if he had had anything to drink or taken any medications. Riley said that he had taken only 300 milligrams of vicodin and 400 milligrams of a muscle relaxant between 7:00 and 7:30 that morning. Riley declined to perform a one-leg stand sobriety test because of a sore back, but he agreed to perform a heel-toe test. He completed the first steps as instructed but failed to turn or complete the return steps as instructed. Fleig also had to remind Riley of the instructions three times during a gaze nystagmus test. Fleig thought Riley's pupils were dilated to 1.5 millimeters. Fleig then transported Riley to a hospital where a technician drew his blood approximately two hours after the accident.
When Riley's boss, William Collison, arrived at the accident scene, he told Fleig that Riley had been at work all morning and had not consumed any alcohol. Fleig wrote the statement in his report and later testified that he accurately reported Collison's statement and that Collison did not object to the report's content. Fleig also testified that he was unable to verify the information in Collison's statement. Collison unexpectedly died before trial.
The State's toxicologist, Asa Louis, testified that he detected two nanograms per milliliter of tetrahydrocannabinol (THC), the active ingredient in marijuana, and twelve nanograms per milliliter of carboxy THC, the metabolized product of THC, in Riley's blood. He explained that THC levels peak within ten to thirty minutes of ingesting marijuana, and then decline so that most THC is metabolized within three to five hours of consumption. He further testified that where a sample shows active THC, he would expect a sample taken two hours earlier to have higher levels of THC.
In addition, Louis also testified that marijuana causes slowed reactions and impaired motor skills, inability to focus on divided tasks, sleepiness and fatigue, bloodshot eyes, and increased appetite. He could not say that a person with two nanograms per milliliter of THC would be driving impaired because no scientific studies correlate THC levels with levels of impairment comparable to blood alcohol level. Louis found no evidence of vicodin or a muscle relaxant in Riley's blood.
The jury convicted Riley of vehicular assault.
ANALYSIS I. Evidentiary Rulings
We review a trial court's evidence rulings for an abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 482 P.2d 775 (1971)).
A. Admission of Riley's Statement about Ingesting Vicodin and Muscle Relaxants
Riley argues that Fleig's testimony that he admitted taking vicodin and a muscle relaxant the morning of the accident was not relevant. We disagree.
Evidence is relevant if it has any tendency to make any fact at issue more or less probable than it would be without the evidence. ER 401. To prove Riley committed vehicular assault, the State had to prove that he drove a motor vehicle while he was under the influence of drugs and thereby caused substantial bodily injury to another person. See RCW 46.61.522(b). To show that he was under the influence of drugs, the State had to prove that Riley's ability to drive a motor vehicle was "lessened in any appreciable degree." Clerk's Papers (CP) at 125.
Riley's statement about taking vicodin and a muscle relaxant is relevant to whether Riley was under the influence of drugs. The jury could have concluded that although the toxicologist found neither drug in Riley's blood, he had taken the drugs, which alone or in combination with marijuana caused him to fall asleep. Or the jury could have reasoned that the absence of vicodin or a muscle relaxant in Riley's blood screen suggests that he was trying to hide his marijuana use by admitting to using other legal drugs. Thus, the trial court did not abuse its discretion by admitting the evidence.
B. Exclusion of Collison's Statement
Hearsay is an out-of-court statement offered for the truth of the matter asserted and is inadmissible unless an exception applies. ER 801, 802. Riley argues that Collison's statement, recorded in Fleig's accident report, was admissible (1) as a past recollection recorded, (2) as a present sense impression, or (3) under the doctrine of completeness. Again, we disagree.
1. Recorded Recollection
Riley first argues that Collison's statement should have been admitted as a past recollection recorded under ER 803(a)(5).
That rule provides an exception for:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
ER 803(a)(5).
A hearsay statement may be admitted under ER 803(a)(5) if (1) the statement pertains to a matter about which the witness once had knowledge, (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony, (3) the witness made or adopted the statement when the matter was fresh in the witness's memory, and (4) the statement reflects the witness's prior knowledge accurately. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998) (citing State v. Mathes, 47 Wn. App. 863, 867-68, 737 P.2d 700 (1987)). A past recollection may be admissible even if the declarant is unavailable to testify at trial and, thus, cannot vouch for the statement's accuracy. Alvarado, 89 Wn. App. at 551. Where the declarant does not testify, the court may evaluate the statement's accuracy by considering all the circumstances pertaining to the making of the statement, including: (1) whether the witness disavows accuracy, (2) whether the witness averred accuracy at the time of making the statement, (3) whether the recording process was reliable, and (4) whether other indicia of reliability establish the trustworthiness of the statement. Alvarado, 89 Wn. App. at 551-52.
In Alvarado, the witness never recanted the statement or suggested that the tapes of his statements were not accurate. Alvarado, 89 Wn. App. at 552. Rather, at the time he made the statement, the witness asserted that they were accurate. Alvarado, 89 Wn. App. at 552. In addition, the witness gave the two statements on the same day, only eight days after the murder, and the statements were consistent and reflected a "detailed and fairly comprehensive knowledge of the crime." Alvarado, 89 Wn. App. at 552. Here, Collison gave the statement shortly after the accident, but Fleig did not complete his report until later in the day. And there is no evidence that Collison ever reviewed Fleig's report. Nor do we have several statements to compare as in Alvarado. In short, we have none of the verifying factors present in Alvarado, and Collison was not available in court to testify that the statement was accurate as Fleig wrote it in his report.
The circumstances here also differ from those in State v. Derouin, 116 Wn. App. 38, 64 P.3d 35 (2003), where the police officer wrote the declarant's statement and warned her that signing an untrue statement was the same as lying while testifying; the declarant then signed the statement. Derouin, 116 Wn. App. at 40-41.
We conclude that the trial court did not err in rejecting the statement as a past recollection recorded.
2. Present Sense Impression
Riley next argues that Collison's statement should have been admitted as a present sense impression under ER 803(a)(1).
A present sense impression is a statement "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." ER 803(a)(1). Present sense impressions 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) (citing Beck v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113 (1939)), overruled on other grounds by State v. Rangel-Reyes, 119 Wn. App. 494, 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, 200 Wash. at 9-10). Although a present sense impression need not be contemporaneous, a statement made several hours after an event may be inadmissible. See State v. Hieb, 39 Wn. App. 273, 278, 693 P.2d 145 (1984), rev'd on other grounds, 107 Wn.2d 97 (1986). An answer to a question is not a present sense impression. Martinez, 105 Wn. App. at 783 (citing Hieb, 39 Wn. App. at 278).
Collison was not stating a present sense impression when he described what Riley did at work the morning of the accident. Rather, he was simply stating what he remembered of the morning's events in response to Fleig's questioning. Thus, the statement was not a "spontaneous or instinctive utterance of thought" evoked by the accident and does not qualify as a present sense impression.
3. Doctrine of Completeness
Finally, Riley argues that the trial court should have admitted Collison's statement under the doctrine of completeness.
ER 106 provides that when a party introduces a writing or recorded statement, "an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it." This rule permits a trial court to admit portions of a statement that are needed to clarify or explain the portion already received or to avoid misleading the jury. See State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001). This rule does not help Riley because the court did not admit Fleig's police report.
Riley also relies on ER 612 for his "completeness" argument. That rule provides that when a testifying witness uses a writing to refresh his memory, "an adverse party is entitled to . . . introduce in evidence those portions which relate to the testimony of the witness." But ER 612 allows the court to admit the evidence only to impeach the testimony to which the writing relates. State v. Savaria, 82 Wn. App. 832, 842-43, 919 P.2d 1263 (1996) (citing 5A K. Tegland, Washington Practice, Evidence Acirc § 6183, at 455-56 (1989)), overruled on other grounds by State v. C.G., 150 Wn.2d 604 (2003).
Riley's argument fails for several reasons. First, Riley does not show that Fleig relied on Collison's statement in his testimony about Riley's appearance and performance on the field tests. Still, Riley contends that the trial court should have admitted Collison's statement because it contradicts the observations of the officers at the scene, including Riley's performance on the sobriety tests. Collison's statement, however, does not contradict Fleig's testimony. Fleig did not testify that Riley smoked marijuana or drank alcohol at work. In fact, Fleig testified that he did not detect an odor of intoxicants on Riley; nor did he say that Riley had bloodshot or watery eyes. And he never said that Riley appeared to be under the influence of marijuana, alcohol, or any drug; he simply described Riley's appearance and his performance on the field sobriety tests. Nothing in Collison's statement contradicts this testimony. The trial court did not err in rejecting evidence of Collison's statement under the "completeness" doctrine.
C. Admission of State Toxicologist's Testimony
Riley next contends that the trial court should not have allowed the State's toxicologist, Louis, to testify about marijuana's effects. Specifically, he argues that Louis's testimony as to a "laundry list" of potential physical effects of marijuana was irrelevant and caused the jury to speculate as to the marijuana's effects on Riley. Br. of Appellant at 29-30.
Expert testimony is admissible if the expert is qualified and the testimony is helpful to the trier of fact. ER 702. It must also be based on theories generally accepted in the relevant scientific community. State v. Baity, 140 Wn.2d 1, 10, 991 P.2d 1151 (2000) (citing State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984)).
Louis's testimony as to the general effects of THC was relevant. The jury could have found that Riley drove off the road because he fell asleep. If so, the jury then had to decide, if it could, what caused Riley to fall asleep. Fleig's testimony about marijuana's effects connected Riley's marijuana use to his sleepiness and his appearance at the scene — slowed speech and some difficulty performing the field tests. Thus, Louis's testimony about marijuana's effects tended to make it more likely that Riley's sleep-impaired driving was the result of using marijuana — an element of the charged crime. The trial court did not err in admitting this testimony.
.II. Sufficiency of the Evidence
Riley argues that the State failed to prove that he was under the influence of marijuana and, thus, failed to prove vehicular assault.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In testing the sufficiency of the evidence, we draw all reasonable inferences from the evidence in favor of the State. Salinas, 119 Wn.2d at 201. We defer to the jury to resolve conflicts in testimony, evaluate the credibility of witnesses, and weigh the persuasiveness of the evidence. State v. Rodriguez, 121 Wn. App. 180, 187, 87 P.3d 1201 (2004). Circumstantial and direct evidence carry equal weight. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
Riley argues that the State's case fails because it never proved that his THC level impaired his ability to drive a motor vehicle. Viewing the evidence in favor of the State, it proved that Riley had ingested marijuana; that his THC level was higher at the time of the accident than when his blood was drawn; that he caused the accident by falling asleep; that marijuana can cause sleepiness; that he lied about using vicodin and a muscle relaxant to cover up his marijuana use; and that his appearance and behavior immediately after the accident showed that he was still affected by the marijuana. This evidence was sufficient for a jury to find that at the time of the accident, Riley's ability to drive was impaired in an appreciable degree by his marijuana use.
III. Prosecutorial Misconduct
Riley contends that the prosecutor committed misconduct during the State's rebuttal closing argument. He asserts that the prosecutor improperly attempted to shift the burden of proof to him by suggesting that he had an affirmative obligation to present evidence that he was not impaired. In addition, he maintains that the remark was an improper comment on his right to remain silent. Riley assigned error to the following argument:
[Prosecutor]: [Defense counsel] told you that the jury instructions tell you that the defendant does not have to put on any evidence whatsoever, and that's true. He is presumed innocent until all of the evidence is brought forth.
But in this case, this defendant — the defendant decided to put on a case, so not only do you look at the testimony, but you also look at what the evidence is that they presented, evidence and lack of evidence.
And what is the lack of evidence that they presented to you? Any specific information about the defendant. Here, we have got an expert who has done analyses and research and read literature and knows all about the effects of marijuana on human beings and he said even on animals. And do they present any evidence to you about the effects of the one person we are interested in in this case? Did he tell you anything about Mr. Riley?
[Defense counsel]: Your Honor, I am sorry. But I do need to object. That is not the standard in this case or any criminal case.
RP at 321. After the jury began deliberating, Riley's counsel asked to make an additional record of his objection. The court noted that counsel had not requested a remedy, and counsel responded that he simply wanted to make a record at that point.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727. Prejudice exists if there is a substantial likelihood that the prosecutorial misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). If a defendant does not object or request a curative instruction, the defendant has waived the error unless we find the remark "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997); State v. Binkin, 79 Wn. App. 284, 293-94, 902 P.2d 673 (1995), overruled on other grounds by State v. Kilgore, 147 Wn.2d 288, 53 P.3d 974 (2002).
We question whether the prosecutor's argument was improper. The prosecutor did not comment on Riley's failure to testify or present evidence. Cf. State v. Belgarde, 110 Wn.2d 504, 510, 755 P.2d 174 (1988) (reversing conviction where prosecutor commented that defendant "doesn't say anything," that there was "no talking" from the defendant, and that defendant did not tell police his trial defense). Rather, the prosecutor's comment simply addressed the defense's failure to ask its expert about the effects of marijuana on Riley. See State v. Borboa, 157 Wn.2d 108, 123, 135 P.3d 469 (2006) (citing State v. Pavelich, 150 Wash. 411, 420, 273 P. 182 (1928)) (holding that a prosecuting attorney may comment on a lack of defense evidence "so long as the prosecuting attorney does not directly refer to the defendant's decision not to testify"). Having chosen to call an expert on marijuana's effects, the defense cannot complain when the prosecutor points out that the expert failed to address all the issues.
Moreover, even if we assume that the prosecutor's argument was improper, Riley has not shown that the remarks were so flagrant and ill-intentioned that a curative instruction could not have neutralized any possible prejudice. See Brown, 132 Wn.2d at 561.
In conclusion, we find no error in the trial court's evidence rulings, the evidence was sufficient to support Riley's conviction, and the prosecutor's comments during closing, even if improper, were not so flagrant and ill-intentioned as to be incurable by an instruction.
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.
We concur:
Armstrong, J.
Bridgewater, P.J.
Hunt, J.