Opinion
No. 33455-1-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-00230-0, Jay B. Roof, J., entered June 22, 2005.
Counsel for Appellant(s), Roger A. Hunko, Attorney at Law, Attorney At Law, Port Orchard, WA.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, JJ.
Adam Nichols Smith appeals his convictions of first degree burglary and violation of a protection order, arguing evidentiary error. We affirm.
FACTS
Kyleen Campbell and Smith began dating in 1997 and had two children together. In February 2005, Campbell obtained a protection order against Smith. Feeling she would not be safe in her own home, Campbell stayed at the home of her friend, Angel Bedrosian.
During the afternoon of February 17, Campbell and Bedrosian returned home from running errands to find Smith in his car pulling away from Bedrosian's home. Campbell and Bedrosian drove away and Smith followed them for a couple of blocks. Eventually Campbell and Bedrosian returned to Bedrosian's home.
Shortly after midnight the same night, Bedrosian's dog began to bark. Bedrosian got up to look around and noticed the living room window had been slightly opened. Suspecting that somebody outside was trying to get in, Bedrosian let her dog out, saying, "Get him, Cain." III Report of Proceedings (RP) at 161. When Bedrosian opened the door to check on her dog, she saw Smith outside. According to Bedrosian, at some point, Smith got his arm and "maybe a foot" inside. III RP at 198. Smith tried to push the door open and Bedrosian and her husband, Louis Gaulden, held the door closed.
Campbell woke to hear Bedrosian shouting at the dog. She opened her door and saw Bedrosian and Gaulden holding the door, which was bent inward at the top. Campbell heard somebody outside say, "I just want to talk to Kyleen," and recognized Smith's voice. II RP at 65. Campbell ran to the back of the house and called 911 dispatch.
Police arrived and found Smith's car parked on the street. They also saw that the front door had been kicked in, splintering the casing on the inside and breaking the entry lock and dead bolt. Police also found a gray sweatshirt with keys to a Honda-type vehicle in the pocket. Campbell identified the items as belonging to Smith.
When they gave statements to the police and later to the prosecutor, Bedrosian and Campbell did not mention Gaulden's presence. They withheld the information because Bedrosian had a protection order against Gaulden and feared that he would be arrested for violating the order. Four days before the trial, Campbell told the prosecutor that Gaulden had been present.
When Bedrosian learned Campbell had spoken to the prosecutor, she threatened to kill Campbell and the two stopped being friends. Bedrosian also confronted Smith's brother, Alan, at the courthouse and threatened to have his daughter raped.
Because the defendant and his brother share the last name, Smith, for clarity we refer to the defendant's brother by his first name, Alan.
The State charged Smith with first degree burglary, RCW 9A.52.020; second degree assault, RCW 9A.36.021(1)(c); and violation of a court order, RCW 26.50.110(1). All three charges carried domestic violence enhancements under RCW 10.99.020, and the burglary and assault charges also carried firearm enhancements under RCW 9.94A.602. A jury heard the matter.
During Campbell's redirect testimony, she testified that Bedrosian had threatened her life. Before Bedrosian testified, Smith called Alan to testify and attempted to question him about Bedrosian's threat to have his daughter raped. The trial court sustained the State's objection, finding the testimony was not relevant because Bedrosian had not yet testified. The trial court did not preclude Smith from calling Alan in rebuttal after Bedrosian's testimony.
Bedrosian testified out of order because she was unavailable at the close of the State's case.
The State granted Bedrosian immunity from prosecution for misleading the police, but did not grant her immunity as to the threats. Knowing that Smith intended to question Bedrosian about the threats and her failure to tell authorities about her husband's presence, the State asked the trial court to appoint counsel for Bedrosian to advise her on her Fifth Amendment right to refuse to incriminate herself. Smith's attorney agreed that her testimony could be self-incriminating and that appointment of counsel was appropriate.
The trial court appointed an attorney, who advised Bedrosian to invoke the Fifth Amendment in response to questions concerning the two threats.
During direct examination and in response to the State's admission that she had been granted immunity, Bedrosian conceded that Gaulden was present during the incident. The State also asked her about the threats to Alan and to Campbell, and Bedrosian invoked her privilege against self-incrimination in response.
On cross-examination, Smith asked Bedrosian whether she had ever threatened to have the daughter of a witness in the case raped and killed. The State objected on the grounds the question was asked and answered, and the trial court sustained the objection.
Smith then questioned Bedrosian about the grant of immunity, asking, "Why did they give that to you?" III RP at 173. The trial court sustained the State's objection on grounds of relevance.
Then, referring to Bedrosian's claim to have spoken to Campbell the day before, Smith asked, "Was that the day that you threatened her that you are not going to testify about?" III RP at 193. The trial court sustained the State's objection on the grounds the question was asked and answered.
After concluding his cross-examination of Bedrosian, Smith rested his case. Smith did not call any witnesses in rebuttal. The jury convicted Smith of first degree burglary and violation of a court order, acquitting him on the charge of second degree assault. On the enhancements, the jury did not find that Smith was armed with a firearm during the commission of the crime but did find that the criminal violation of a court order was committed against a family or household member. Smith appeals.
ANALYSIS
Smith first contends that the trial court erred in sustaining the State's objections to his cross-examination of Bedrosian. He asserts that the rulings violated his Sixth Amendment right to confront adverse witnesses.
Both the federal and state constitutions protect a criminal defendant's right to confront the witnesses against him. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10); State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1994). "`The essential purpose of confrontation is cross-examination.'" Pettit v. Rhay, 62 Wn.2d 515, 521, 383 P.2d 889 (1963) (quoting Brown v. United States, 234 F.2d 140, 141 (6th Cir. 1956)).
Notwithstanding the defendant's Sixth Amendment right to confrontation, a witness's valid assertion of the Fifth Amendment justifies the witness's refusal to testify. State v. Levy, 156 Wn.2d 709, 731, 132 P.3d 1076 (2006). The Fifth Amendment's privilege against self-incrimination protects the rights of witnesses to refuse to give incriminatory answers in any official proceeding. U.S. Const. amend. V; State v. Lougin, 50 Wn. App. 376, 380, 749 P.2d 173 (1988).
The privilege against self-incrimination applies when the witness reasonably apprehends danger resulting from a direct answer. Levy, 156 Wn.2d at 731-32. But the witness may not make a blanket assertion of the privilege. Levy, 156 Wn.2d at 732; Lougin, 50 Wn. App. at 381. Rather, the witness may invoke the Fifth Amendment only in response to specific questions, unless the trial court can conclude, based on its knowledge of the case and the anticipated testimony, that the witness could legitimately refuse to answer all relevant questions. State v. Delgado, 105 Wn. App. 839, 845, 18 P.3d 1141 (2001); Lougin, 50 Wn. App. at 381.
But the trial court must require the witness to answer if, based on the particular facts of the case, it clearly appears that silence is not warranted. Lougin, 50 Wn. App. at 382. The court need not speculate whether the witness's answer would provide the State with information essential for prosecution, or even whether the State would take steps to prosecute the witness. See State v. Fish, 99 Wn. App. 86, 93, 992 P.2d 505 (1999).
Determining the scope of the witness's privilege is within the sound discretion of the trial court. Lougin, 50 Wn. App. at 382. A court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Here, Smith sought Bedrosian's testimony concerning threats she made to Campbell and Alan, knowing that an honest answer would incriminate her. The trial court inquired extensively into the scope of questioning on cross-examination and appointed counsel to advise Bedrosian whether to answer specific questions. Although the State granted Bedrosian immunity for misleading the police about her husband's presence in her home, the State refused to grant her immunity for threatening Campbell and Alan.
Accordingly, in her testimony Bedrosian admitted to her husband's presence but refused to answer questions about the alleged threats. Because she could reasonably anticipate danger from directly answering questions about the threats, the trial court did not err in allowing her to invoke her Fifth Amendment rights in response to that line of questioning.
We recognize, as do the parties, that the usual practice is to take the evidence outside the jury's presence and, potentially, to strike the witness's testimony, rather than having the witness invoke the Fifth Amendment before the jury. Because this standard practice was not followed here, it allowed defense counsel to highlight Bedrosian's possible crime, casting doubt on her credibility.
Smith additionally complains that when he attempted to question Bedrosian further about the alleged threats, the trial court sustained the State's objection on the ground that the questions were asked and answered. Because the State had already asked Bedrosian whether she had threatened Campbell or Alan and Bedrosian had invoked the Fifth Amendment, further questioning about the incidents would have been cumulative and a waste of time. The trial court did not abuse its discretion when it refused to allow Smith to question Bedrosian on matters as to which she had already invoked her Fifth Amendment right not to answer.
Finally, Smith contends that the ruling deprived him of the opportunity to impeach Bedrosian's credibility because "the jury never heard the testimony of Alan . . . as to the threats against him and his family." Appellant's Br. at 13. But such omission is clearly attributable to Smith, who never attempted to recall Alan after Bedrosian refused to testify about the threats. Smith's argument that he was deprived of the opportunity to explore Bedrosian's motive to lie likewise fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT and DEREN, JJ., concur.