Opinion
No. 35186-2-II.
October 21, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 04-1-01663-1, Robert L. Harris, J., entered July 27, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Hunt, J.
Robin T. Schreiber appeals his conviction of second degree murder, arguing that the trial judge should have recused himself because he attended the victim's funeral, erred in limiting his cross examination of a prosecution witness, and erred in excluding expert testimony on memory and perception. Finding no abuse of discretion in any of these decisions, we affirm.
FACTS
Over several days in June 2004, Robin Schreiber became increasingly upset over a child support dispute with his ex-wife, Debra Phares. Schreiber's girlfriend, Kim Mortenson, found Schreiber in his bedroom with a shotgun and a bag of ammunition. She took the shotgun from him and had her son call 911. She returned to the bedroom and tried to prevent Schreiber from reaching a rifle stored there, but he pushed her aside. After Mortenson told Schreiber the police had been called, she left the house.
Police officers responded to the call, including Clark County Sheriff's Sergeant Brad Crawford. The officers saw Schreiber moving from room to room inside the house, drinking beer, and knocking out the screens on the upstairs windows. Schreiber pointed a rifle out the window, aiming at the patrol cars and the officers below. Shortly after the police arrived, Schreiber called Phares and told her she did not have to worry about him anymore, that deputies were at his house, and that he had his gun with him.
Eventually, Schreiber came out of the house and crawled toward his truck, carrying the rifle and periodically scanning with it in the officers' direction. Because patrol cars blocked Schreiber's driveway, he drove across an adjoining field and over a barbed wire fence. The fence severed a brake line, leaving him with only 37 percent braking power. From the field, he turned onto a neighbor's driveway and followed it to the road in front of his house, 114th Street. He was traveling 19 m.p.h. as he turned onto 114th Street.
Meanwhile, Sergeant Crawford drove his patrol car on 114th Street to the point where the road turns 90 degrees to the left, becoming 124th Avenue. He stopped a civilian vehicle that was approaching the turn on 124th and backed his patrol car onto the shoulder at the corner. His car was approximately 473 feet from the driveway where Schreiber turned onto 114th Street.
Four other officers, including Vancouver Police Corporal Duane Boynton, followed Schreiber on 114th Street in their patrol cars with their lights and sirens on. None of them saw Schreiber's brake lights come on as he approached the 90-degree turn where Crawford had parked his patrol car. The three closest officers heard Schreiber's truck accelerating as it approached the turn and saw it steer straight into Crawford's car. Four civilian witnesses on 124th Avenue also saw or heard Schreiber's truck accelerate and drive straight into Crawford's patrol car. Schreiber's truck was traveling at 30 to 40 m.p.h. when it struck Crawford's car. Crawford died from multiple blunt force injuries.
The State charged Schreiber with first degree aggravated murder and, in the alternative, second degree felony murder, each with firearm allegations. The jury convicted Schreiber of second degree intentional murder and found that he was armed with a firearm at the time of the offense. The primary issues on appeal are whether the trial court erred in (1) denying Schreiber's recusal motion, (2) limiting cross examination of Officer Boynton, and (3) excluding Schreiber's proposed expert testimony on memory and perception.
ANALYSIS I. Recusal
Schreiber argues that because he attended Sergeant Crawford's funeral, Clark County Superior Court Judge Robert Harris should have recused himself from trying the case, thereby avoiding any appearance of unfairness.
Crawford's funeral was a public event that many public officials attended. The case was assigned to Judge Roger Bennett at the time of the funeral. He did not attend the funeral because he wanted to avoid any appearance of bias. However, Judge Harris did attend Crawford's funeral; he wore a badge identifying himself as the presiding judge for the Clark County Superior Court, and he sat in a section designated for elected officials. He did not know Crawford, did not believe Crawford had ever testified before him, and did not have any contact with Crawford's family at the funeral or any time thereafter.
Judge Harris traveled to the funeral with Clark County District Court Judge Richard Melnick; Clark County's elected prosecutor, Arthur Curtis; and the County's chief deputy prosecutor, Curt Wyrick. They traveled together because of the large turnout, limited parking, and distance from the courthouse. They did not discuss the details of the criminal case, but they did discuss how sad and emotional the ceremony was.
For various reasons, no other superior court judge could take Crawford's case to trial; thus, Judge Harris assigned it to himself. More than one year after the funeral, Judge Harris denied Schreiber's motion for recusal. Trial commenced more than two years after the funeral.
A judicial proceeding must appear to be fair and "`is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing.'" State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992), abrogated on other grounds in State v. Finch, 137 Wn.2d 792, 975 P.2d 967 (1999)). Accordingly, the Code of Judicial Conduct (CJC) provides that judges "should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned." CJC 3(D)(1). The test is objective and "`assumes that a reasonable person knows and understands all the relevant facts.'" State v. Graham, 91 Wn. App. 663, 669, 960 P.2d 457 (1998) (quoting Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). A trial court exercises its discretion in ruling on a motion to recuse; a decision we will overturn only for an abuse of that discretion. In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997).
Judge Harris attended Crawford's funeral in his official capacity only, before he became involved in the case. He wore a badge identifying his role, sat in a section designated for elected officials, and had no contact with Crawford's family. A reasonable person is capable of understanding the difference between a person attending a function, even an emotional one, in his or her official capacity, and doing so for personal reasons.
That Judge Harris traveled to the funeral with the elected prosecutor and another member of that office raises other issues; specifically, whether Judge Harris may have inadvertently obtained information about the case. See Sherman, 128 Wn.2d at 206. In Sherman, a physician challenged his termination from a residency program due to his chemical dependency. Sherman, 128 Wn.2d at 168-69. The trial judge reviewed the physician's treatment records in camera to determine whether to release them to the opposing parties. Sherman, 128 Wn.2d at 203-04. He then directed his extern to contact the program that was monitoring the physician for general information about the monitoring process. Sherman, 128 Wn.2d at 203-04. The judge later denied the physician's recusal motion. Sherman, 128 Wn.2d at 204. The Supreme Court reversed, reasoning that the judge may have inadvertently obtained information critical to a central issue in the case (namely, whether participation in the monitoring program was a reasonable accommodation) and that a reasonable person might therefore question his impartiality. Sherman, 128 Wn.2d at 206.
In the instant case, the members of the travel group assert that they discussed the sadness of the funeral and Crawford's death, but they did not talk about the criminal case. And unlike the judge in Sherman, there is no evidence that Judge Harris used the funeral trip to investigate the circumstances of Crawford's death. Rather, the group traveled together only because of the distance and lack of parking at the service, reasons that do not involve the charges against Schreiber or even suggest a close social relationship between the parties. The major dispute at trial was whether Schreiber intended (possibly with premeditation) to hit Crawford's patrol car. Schreiber points to nothing in the record suggesting that Judge Harris obtained information relevant to this issue at the funeral or during the car ride to it.
The State analogizes this case to United States v. Cherry, 330 F.3d 658 (4th Cir. 2003). In Cherry, the government charged the defendant with bank embezzlement, money laundering, and fraud, all involving the same bank. Cherry, 330 F.3d at 662-63. The trial judge had written a letter to the bank's president expressing his gratitude for support the president provided in the judge's nomination and appointment to the federal bench. Cherry, 330 F.3d at 663. The Fourth Circuit upheld the trial judge's denial of the defendant's disqualification motion, finding that the letter was "no more than a perfunctory letter of appreciation." Cherry, 330 F.3d at 666. The court found it common for citizens to support judicial nominees and appropriate for judges to acknowledge such support. Cherry, 330 F.3d at 666. The court reasoned that "`the more common a potentially biasing circumstance and the less easily avoidable it seems, the less that circumstance will appear to a knowledgeable observer as a sign of partiality.'" Cherry, 330 F.3d at 666 (quoting United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)).
Federal law, like Washington law, requires that a judge recuse himself in "any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).
Similar considerations are present here. Public officials commonly attend the funerals of police officers killed in the line of duty, as evidenced by the hundreds of public officials who attended Crawford's funeral. As the presiding judge for the superior court of the county where Crawford was a sheriff's sergeant, it was appropriate for Judge Harris to attend the funeral as a representative of that court. And while Judge Harris's attendance at Crawford's funeral may have been more than "perfunctory," that does not take it out of the realm of an official act. See Cherry, 330 F.3d at 666. A reasonable person would not view Judge Harris's attendance as a sign of partiality.
United States ex rel. Perry v. Cuyler, 584 F.2d 644 (3rd Cir. 1978), is even more on point. There, Pennsylvania charged the defendant with the murder of a police officer. Perry, 584 F.2d at 646. The trial judge informed the parties that he was acquainted with the officer as a witness who had frequently appeared before him and that he had attended the officer's funeral.
Perry, 584 F.2d at 646. The Third Circuit denied the defendant's habeas corpus petition based on the trial judge's failure to recuse himself. Perry, 584 F.2d at 645. After concluding that there was no actual prejudice, the court considered the possibility that the trial judge's fairness might be reasonably questioned. Perry, 584 F.2d at 646-47. The court noted that the judge's acquaintance with the victim was not close or personal and that the funeral took place more than two years before the trial:
If a judge's relationship with the victim of a crime is not such a close one as to require disqualification, we believe it unlikely that attendance at a funeral two years before would, by itself, result in such an increased level of emotional involvement as to make prejudice likely and disqualification necessary.
Perry, 584 F.2d at 647. The court found that "under these circumstances, the mere attendance at the funeral does not necessarily suggest an antagonism or bias toward the perpetrator of the act, but rather it is . . . respect for a police officer killed in the line of duty." Perry, 584 F.2d at 647.
Similarly, Judge Harris considered Schreiber's recusal motion more than one year after the funeral, and the trial took place two years after it. Judge Harris's attendance at Crawford's funeral was a sign of respect on behalf of his court for an officer killed in the line of duty. Moreover, unlike the trial judge in Perry, Judge Harris was not acquainted with Crawford and could not recall Crawford appearing before him in court. These circumstances do not suggest that Judge Harris was emotionally involved in the case such that prejudice was likely. The trial court did not abuse its discretion in denying Schreiber's recusal motion.
Schreiber cites to the dissent in Perry as support for his position. But the dissenting judge explained:
The conclusion I espouse is limited to the facts here: where a judge has attended the funeral of a murder victim who had been known to him, then presides over the trial of the accused murderer, despite a specific request made before trial that he recuse himself, and in the absence of any explanation for not calling in another judge.
Perry, 584 F.2d at 652 (Adams, J., dissenting). Judge Harris did not know Crawford, and he explained why no other Clark County judge could preside over the case.
II. Cross Examination
Schreiber next assigns error to the trial court's order limiting his cross examination of Corporal Boynton, who witnessed the collision as he followed Schreiber in his patrol car. Schreiber maintains that the limitation was unreasonable and violated his right to confrontation. He also argues that the psychologist-client privilege should yield to Schreiber's confrontation right because Boynton was a crucial witness for the State and information about the incident's psychological impact on Boynton was relevant to his reliability and credibility as a witness.
Corporal Boynton, a trained negotiator, was preparing to negotiate when Schreiber came out of the house and got into his truck. Schreiber drove across the field and entered 114th Street, where Boynton had joined two other patrol cars in pursuit. Boynton saw the truck's brake lights come on as it straightened out on 114th Street. As Boynton followed the truck and the two other patrol cars, he saw Crawford's patrol car stopped at the 90 degree turn at the end of 114th Street. Boynton saw Crawford inside the patrol car trying to put the car in gear as the truck approached. He heard the truck's engine accelerate and saw Schreiber steer it straight into the driver's side of Crawford's patrol car. Crawford turned away just before impact. Boynton testified that he was about 50 yards away at the time of the collision and that he did not see the truck's brake lights come on again after it straightened out on 114th Street.
Boynton later sought counseling to deal with the trauma of the incident. Schreiber moved to disclose the psychologist's identity and the counseling records. He stated that he "would not be opposed" to the trial court conducting an in camera review of the records to determine whether Schreiber could review them and use them in his cross examination. 1 Report of Proceedings (RP) at 17. The trial court ordered an in camera review to determine the nature of the communications and whether they were privileged. After reviewing the records, the trial court stated that they were sealed and that it appeared that Boynton would not waive the privilege.
Outside the jury's presence, Boynton reasserted the privilege. The trial court allowed Schreiber to ask outside the jury's presence about the number of times Boynton had seen a psychologist, whether the doctor had reached a diagnosis, whether the doctor had prescribed medication, and whether Boynton was still receiving treatment related to the incident. Boynton testified that he saw the psychologist four times in the month after the incident, that the doctor had reached a diagnosis but had not prescribed medication, and that he was no longer under treatment. The trial court did not permit Schreiber to inquire about the name of the treating doctor or the specifics of the diagnosis. It ruled that Schreiber could not question Boynton about a diagnosis before the jury, noting that it was "questionable" whether the doctor had made a diagnosis. 5 RP at 1035, 1038. Boynton testified on cross examination that the incident was "[v]ery traumatic" for him, that he took advantage of the city's counseling program for traumatic incidents, and that he went three or four times. 6 RP at 1127.
Schreiber does not argue that the trial court erred in concluding that Boynton's treatment records are privileged. Rather, he contends that the trial court's limitations on his cross examination of Boynton deprived him of his confrontation rights because it denied him meaningful cross examination of a key prosecution witness. He asserts that his need to cross examine Boynton outweighs the interests supporting the psychologist-client privilege.
Both the state and federal constitutions protect the right to confrontation, including the right to conduct a meaningful cross examination of adverse witnesses. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). The purpose of cross examination is to test the witness's perception, memory, and credibility. Darden, 145 Wn.2d at 620. But the right to cross examination is not absolute. Darden, 145 Wn.2d at 620. A trial court may deny cross examination if the evidence sought is vague, argumentative, speculative, or simply irrelevant. Darden, 145 Wn.2d at 620-21. The scope of cross examination lies within the trial court's sound discretion, and we will not disturb a trial court's decision absent a manifest abuse of that discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984).
Schreiber cites Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974), a case in which the United States Supreme Court reversed a conviction because the trial court did not permit the defense to inquire about a witness's status as a juvenile offender on probation. The defense maintained that the witness, who identified the defendant as the person he had seen with a stolen safe, could have made the identification out of concern for protecting his own probation status. Davis, 415 U.S. at 310-11. The Court concluded that the defense was entitled to present the facts supporting its theory to the jury and that the right of confrontation prevailed over the State's interest in protecting the identity of a juvenile offender. Davis, 415 U.S. at 317-19.
Schreiber argues that Boynton's testimony, like the testimony in Davis, was crucial to the State's case, and that he should have been able to present evidence of the nature and extent of the psychological impact of the incident on Boynton. But Davis is distinguishable for two reasons. First, the juvenile witness in Davis provided the sole eyewitness identification of the defendant. Davis, 415 U.S. at 310. Here, numerous law enforcement officers and civilian witnesses identified Schreiber as the driver of the truck that hit Crawford's patrol car and described Schreiber's actions leading up to and after the collision. Significantly, Schreiber did not deny that he was the driver; his defense was that he did not intentionally hit Crawford's car.
Second, the defense in Davis asked the witness whether he was biased, but without evidence of the witness's probationary status, the jury may have thought the question was speculative or a baseless attack on an apparently blameless witness. Davis, 415 U.S. at 313, 318. Here, Schreiber was able to thoroughly cross examine Boynton on the accuracy of his memory and the discrepancies between his earlier statements and his testimony. For example, Boynton stated that he could not remember the path he took from the top of Schreiber's driveway back down to 114th Street or whether he obtained Schreiber's phone number from Schreiber's family members. Schreiber also had Boynton read from two different pretrial interviews to undermine his testimony at trial that he was about 50 yards away from the collision. During one interview he stated that he was 100 to 200 yards away from Crawford's patrol car at the time of the collision, and during another he stated that he was 200 to 250 yards away. Schreiber was able to thoroughly explore Boynton's memory and credibility, even without reference to Boynton's counseling records.
Schreiber did not make Boynton's counseling records part of the record on appeal. Thus, we are unable to independently review the records. An appellant has the burden of providing the record necessary to support his assignment of error. RAP 9.2(b).
In any event, any error in limiting Schreiber's cross examination of Boynton was harmless. A confrontation clause violation is harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error. See State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002). Here, the State presented the testimony of the three other officers who followed Schreiber in their patrol cars and four civilians who witnessed the collision from 124th Avenue. They all testified, like Boynton, that they did not see Schreiber's brake lights come on as he approached the turn and that Schreiber accelerated and drove straight into Crawford's car. Although Boynton was the only officer who testified that he saw Crawford inside the patrol car before impact, civilian witness Adam Wright also testified that he saw Crawford inside the vehicle and that Crawford moved away from the door just before impact. We are satisfied that even if Boynton's testimony had been excluded entirely, the jury would have reached the same result.
III. Expert Testimony
Finally, Schreiber contends that the trial court erred in excluding his proposed expert testimony on memory and perception, arguing that exclusion of the testimony prevented him from presenting a complete defense. He points to differences among the witnesses' testimony about the events and discrepancies between the statements some witnesses made shortly after the event and their testimony at trial as the reason the expert testimony was necessary.
Schreiber offered expert testimony on human memory and perception by psychologist, Geoffrey Loftus. Schreiber submitted a report in which Loftus detailed his proposed testimony, which included an explanation of the effects on memory and perception depending on (1) environmental factors, including lighting and distance; (2) the state of the observer at the time of the observation, including attention and stress levels; (3) the interval between the event and the time the person recalls it; and (4) external information introduced after the observation, including inferences and post-event information. The trial court granted the State's motion to exclude the proposed testimony, finding that it was within the jury's common experience and therefore would not help the jury.
The trial court also denied Schreiber's motion to reconsider this decision at the close of the State's evidence and his motion for a new trial based in part on the exclusion of Loftus's testimony.
Under ER 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." To admit scientific testimony, (1) "the expert? must qualify as an expert, (2) the expert's opinion must be based upon a theory generally accepted in the relevant scientific community, and (3) the testimony must be helpful to the trier of fact." State v. Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830 (2003). "Admissibility of expert testimony under ER 702 is within the trial court's discretion." Cheatam, 150 Wn.2d at 645.
The trial court found that Loftus was an expert in his field and that his theory was accepted in the scientific community. But it found that his proposed testimony was well within the jury's common experience and that excluding the testimony would not prevent Schreiber from arguing issues of memory and perception to the jury. It also found that the testimony would invade the jury's province to determine witness credibility.
The average juror can understand that poor lighting conditions or a long distance may affect a witness's perception. A juror is also able to understand that a person under stress or whose attention is focused on one thing may not pay close attention to other things. A juror can understand that a person who recalls an event two years after it occurs is less likely to remember details from the event. And a juror can understand that a witness may make inferences about what he has seen from information he receives after the event. In fact, Schreiber elicited testimony from many other witnesses about these very issues, and he argued extensively about them in his closing.
For example, in discussing the testimony of the officers who were driving behind Schreiber's truck, Schreiber argued: "Memory's a real problem here. They're filling it in, they're putting it somewhere. Not to say necessarily they're doing it intentionally, but that's one of the problems of memory, that's one of the problems of just being human." 18 RP at 3368.
The trial court recognized that in some areas, such as cross-racial identification, Loftus's expertise might be helpful to the jury. But because identification was not an issue in the case, it found that his testimony fell "more in the general realm of common experience," and that Schreiber would be able to explore these issues in his cross examination. 3 RP at 425-26. The trial court did not abuse its discretion in so ruling.
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.
HUNT, J. and PENOYAR, A.C.J., concur.