Opinion
Nos. 29958-5-II, 30039-7-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 99-1-04723-2. Judgment or order under review. Date filed: 02/07/2003. Judge signing: Hon. Thomas J. Felnagle.
Counsel for Appellant(s), Linda J. King, Attorney at Law, 9 St Helens Ave, Tacoma, WA 98402-2600.
Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Office, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
In this consolidated case, Kimothy Wynn and Michael Rhem appeal convictions for two counts of first degree assault while armed with a deadly weapon and one count each of unlawful possession of a firearm. They argue (1) abuse of discretion by the trial court in admitting ER 404(b) evidence; (2) prosecutorial misconduct; (3) improper denial of their motions for severance and for mistrial; (4) defective chain of ballistics custody; and (5) ineffective assistance of counsel. Finding no reversible error, we affirm.
FACTS I. The Shooting
In the presence of his girlfriend, Kimberly Matthews, Michael Rollins was working on his car in the alley behind his aunt's house. Rollins noticed a blue Chevrolet Caprice in the alley, which he thought belonged to Maurice Wynn. He saw two men, Michael Rhem and a shorter black man, walking toward his car; a third person remained in the Caprice. The two men returned to the Caprice and drove off down the alley with the lights off. Rollins returned to working on his car.
Wynn drove a light blue two-door Caprice. The car in the alley was actually Latron Swearington's nearly identical, four-door Caprice.
While repairing wiring in the trunk of his car, Rollins heard about fifteen gunshots in rapid succession and dove to the ground. When the firing stopped, he got up and saw a person in a blue jersey running away from a bush. Rollins did not see the man's face, but he believed it was Rhem because earlier he had seen Rhem wearing the same type of blue jersey. Rollins did not see a firearm in Rhem's hand nor did he see who had fired the shots. Matthews also heard the shots, but she did not see anything or notice a car or any people in the alley.
After the alley shooting, Rhem and Wynn went to `Shawn's' house, where Rhem told Randall Henderson that he had shot at Rollins, and Wynn told Henderson that he had shot at Matthews. The next day, Rhem told Digno DeJesus that he and Wynn had shot at Rollins and Matthews.
According to Henderson and DeJesus, both Wynn and Rhem possessed 9 mm and .45 caliber handguns before and after the date of the alley shooting at Rollins and Matthews. Police found five .45 caliber casings and ten 9 mm casings at the scene of the alley shooting. Terry Franklin, a ballistics expert from the Washington State Patrol Crime Lab, later concluded that the casings were from rounds fired from three different guns, two 9 mm and one.45 caliber. Casings from one of these 9 mm handguns and the .45 matched casings found at other shootings in which Rhem and Wynn were also allegedly involved.
One shooting occurred at a barbecue that Rhem and Wynn were attending on August 21, 1999, before the charged alley shooting. Rodney Hebert fired at the barbecue in a retaliatory, gang-related drive-by shooting. There was conflicting witness testimony about whether Wynn returned fire at Hebert. Wynn admitted to DeJesus that he had returned fire, but a witness at the barbecue testified that Wynn did not have a gun and did not return fire.
The other shooting occurred approximately a month after the charged alley shooting: Rhem fired a .45 and Wynn fired a 10 mm at `Lump's' house.
When police arrested Rhem and Wynn, they denied involvement in the alley shooting and other uncharged shootings.
II. Procedure
The State charged both Rhem and Wynn with two counts of first degree assault (separate counts for victims Matthews and Rollins) and one count of first degree unlawful possession of a firearm (UPF).
A. First Trial and Reversal on Appeal
A jury convicted both Rhem and Wynn on all counts. On appeal, we reversed their assault convictions based on instructional error and erroneously admitted habit evidence that Rhem and Wynn were known to carry guns. We reversed the UPF convictions because of prejudicial firearm evidence.
B. Remand and Retrial
On remand, the State again charged both Rhem and Wynn with two counts of first degree assault with firearm enhancements and one count of UPF. The trial court denied Rhem and Wynn's motion to sever their trials. Rhem and Wynn stipulated that they each had a prior conviction for a serious offense, a necessary element of UPF.
In a pre-trial hearing, the State informed the court that the parties had agreed to adhere to the orders from the previous trial, with one exception: The State would move under ER 404(b) to introduce evidence of other uncharged incidents, different from the evidence it had offered at the first trial. The trial court granted the State's request to admit a number of retaliatory incidents, both before and after the alley shooting, as `res gestae' evidence and to prove the defendants' identities and motive for the charged crimes.
The State also moved to introduce gang evidence, alleging that Rollins and Rhem were Crips, and Rollins had stood by without intervening while Hebert, a Blood, beat another Crip, DeJesus. The State's theory of the case was that (1) the alley shooting was one incident in a series of retaliatory events arising out of the AM/PM gang fight in which Rollins failed to show loyalty to his gang; and (2) Rollins' lack of gang loyalty motivated Rhem and Wynn to shoot at him. Both Rhem and Wynn objected, but the trial court admitted the gang evidence as `not incidental, but . . . central to what was going on.' Report of Proceedings (RP) at 233.
To comply with our earlier decision reversing Rhem's and Wynn's original convictions, the State said it would not introduce habit evidence that Rhem and Wynn were known generally to carry guns. Over the defendants' objections that the State was attempting to admit habit evidence through the `back door,' the trial court allowed into evidence observations and admissions that Rhem and Wynn had possessed 9 mm and .45 caliber handguns on specific occasions before and after the charged August 21, 1999 alley shooting at Matthews and Rollins.
Rhem objected during the State's closing argument that the prosecutor had improperly vouched for the credibility of State witnesses with whom the State had made deals in exchange for their trial testimonies. The trial court held a sidebar and directed the State either to discontinue or to sum up its vouching line of argument.
The record on appeal does not show whether Rhem and Wynn requested a curative instruction at the sidebar.
After closing arguments and the noon recess, Rhem and Wynn moved for a mistrial, arguing that a curative instruction about the vouching would be ineffective at that point. The trial court denied the motion, ruling that (1) defense counsel had waived the objection by requesting a sidebar during the State's closing argument, thus precluding the effectiveness of a timely curative instruction; and (2) even if defendants had not waived the issue, the State's argument was proper.
The trial court had previously informed counsel that (1) it wanted to hear only the bases for objections, without additional argument; (2) any sidebar discussions would not be on the record; and (3) it was counsel's responsibility to request a hearing outside the jury's presence if counsel wanted such discussions on the record.
The jury convicted Rhem and Wynn on all counts, with special firearm enhancement verdicts applicable to the assaults. Rhem and Wynn appeal.
ANALYSIS I. Motion to Sever
Rhem and Wynn first argue that the trial court erred in denying their motion to sever under CrR 4.4(c)(2). The trial court denied their severance motion for reasons of judicial economy, the need to present the whole picture to the jury rather than `bits and pieces,' and the lack of prejudice to the defendants flowing from a joint trial.
CrR 4.4(c)(2) provides:
(2) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (i), should grant a severance of defendants whenever:
(i) if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial, or it is deemed appropriate to promote a fair determination of the guilt or innocence of a defendant; or
(ii) if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.
We review a trial court's denial of severance for manifest abuse of discretion. State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). Our state does not favor separate trials. Thus, the party seeking severance has `the burden of demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy.' Hoffman, 116 Wn.2d at 74. See also State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994).
Defendants must point to specific prejudice to support their severance motion. State v. Canedo-Astorga, 79 Wn. App. 518, 527, 903 P.2d 500 (1995), review denied, 128 Wn.2d 1025 (1996). This demonstration may show: (1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; (4) or gross disparity in the weight of the evidence against the defendants.
Canedo-Astorga, 79 Wn. App. at 528 (quoting United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)).
Mutually antagonistic defenses alone, however, are insufficient to warrant separate trials. Hoffman, 116 Wn.2d at 74. Rather, the moving party must demonstrate `that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' Hoffman, 116 Wn.2d at 74. Wynn and Rhem have failed to demonstrate such prejudice here.
We previously addressed defendants' motion to sever in their first appeal, where we held that they failed to show specific prejudice arising from a gross disparity of evidence admissible against Rhem but not against Wynn. State v. Rhem and Wynn, 2002 WL 1481272, at 11(Wash.Ct.App.). We see no substantial change in the evidence adduced at the second trial that would indicate a gross disparity of evidence warranting severance of their trials. Accordingly, we apply the `law of the case' and adhere to our previous ruling upholding denial of severance on that ground.
Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988): Where there has been a determination of the applicable law in a prior appeal, the law of the case doctrine ordinarily precludes re-deciding the same legal issues in a subsequent appeal.
It is also the rule that questions determined on appeal . . . will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause. (Citations omitted.) `Reconsideration of an identical legal issue in a subsequent appeal of the same case will be granted where the holding of the prior appeal is clearly erroneous and the application of the doctrine would result in manifest injustice.' Folsom, 111 Wn.2d at 264. The doctrine promotes judicial efficiency by not disturbing settled issues. State v. Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104 (2003). Here, we find both no substantial change in the evidence below and no clear error in our previous decision.
Thus, we address only the remaining severance argument that Wynn's and Rhem's defenses are antagonistic. Rhem and Wynn assert that Wynn's alibi defense is so antagonistic to Rhem's general denial that their two defenses are irreconcilable. But as the State argues, `Wynn fails to explain how a defense of `I was somewhere else' is antagonistic with another's . . . claim that `the prosecution has not proved its case." Br. of Respondent at 18. We agree with the State that it is reasonably possible for a jury to accept one of these defenses and to reject the other.
Rhem and Wynn also assert that there was a massive and complex quantity of evidence, making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt. In support, they cite to `identical verdicts of guilt for identical counts, despite a gross disparity of evidence against Rhem, which demonstrates that the jury was unable to compartmentalize the evidence.' Br. of Appellant Wynn at 47. This circular argument is little more than the reiteration the fourth factor of the Canedo-Astorga test that this court resolved in the first appeal of this case. 79 Wn. App. 518.
Thus, Rhem's and Wynn's defenses are not sufficiently antagonistic. Moreover, as we noted earlier, both Rhem and Wynn admitted to having fired shots in the charged alley shooting. Wynn's defense, therefore, is `antagonistic' to his own admitted complicity in the crime.
Rhem and Wynn have failed to demonstrate `the conflict is so prejudicial that defenses are irreconcilable, and the jury [would] unjustifiably infer that this conflict alone demonstrate[d] that both are guilty.' Hoffman, 116 Wn.2d at 74. Accordingly, we hold that the trial court did not abuse its discretion in denying their motion to sever their trials.
II. ER 404(b) Evidence
Rhem and Wynn next argue that the trial court abused its discretion in admitting (1) unduly prejudicial evidence of uncharged crimes and other misconduct as res gestae evidence, (2) evidence that they were known to carry firearms, and (3) highly inflammatory gang evidence. We disagree.
A. Standard of Review
Admission of evidence is within the trial court's sound discretion; we will not disturb its decision on review absent a showing of abuse. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). Abuse occurs when the trial court's discretion is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wn.2d 538 (1983).
Erroneously admitted evidence is not grounds for reversal unless it unfairly prejudices the defendant. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Evidentiary error is not prejudicial `unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.' Bourgeois, 133 Wn.2d at 403 (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). We find no abuse of discretion or erroneously admitted evidence here.
B. Other Misconduct 1. ER 404(B)
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
This list of purposes is not exclusive. State v. Goebel, 40 Wn.2d 18, 21, 240 P.2d 251 (1952), overruled by State v. Louch, 125 Wn.2d 847, 889 P.2d 487 (1995).
Before admitting evidence of other crimes or wrongs under ER 404(b), the trial court must (1) establish by a preponderance of the evidence that the misconduct occurred; (2) identify the purpose for which the evidence is sought to be introduced; (3) determine that the evidence is relevant; and (4) find that its probative value outweighs its prejudicial effect. State v. Hernandez, 99 Wn. App. 312, 321-22, 997 P.2d 923 (1999), review denied, 140 Wn.2d 1015 (2000).
The State has the burden of establishing that evidence of other offenses is not only relevant but `necessary to prove an essential ingredient of the crime charged.' Goebel, 40 Wn.2d at 21. Evidence is relevant and necessary if the purpose in admitting the evidence is of consequence to the action and makes the existence of the identified act more or less probable. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990); ER 401.
A trial court's failure to articulate the balance between the probative value and prejudice of ER 404(b) evidence, however, does not necessarily require reversal. State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996). Such error is harmless when (1) the record is sufficient for the reviewing court to determine that, if the trial court had balanced probative value and prejudice, it would have admitted the evidence; and (2) upon consideration of the untainted evidence, the reviewing court concludes that the result would have been the same had the trial court never admitted the evidence. Carleton, 82 Wn. App. at 686-87.
2. Specific incidents of firearm possession and shooting
Wynn and Rehm argue that the trial court erred in allowing the following instances of other shootings and gun possession before and after the charged incident. They contend this evidence was essentially improper gun-carrying habit evidence, which we held to be reversible error in their previous appeal:
Gang Evidence/Misconduct Grounds for Admission 7/27/99 AM/PM fight. ER 404(b) motive; limiting instruction for Wynn
8/21/99, afternoon street ER 404(b) res gestae (Rhem shooting acquitted of this incident in first trial)
8/21/99, 9:25 p.m. barbecue ER 404(b) res gestae, shooting identity (Wynn); no request for limiting instruction; 9 mm casings ballistics match charged alley shooting
8/21/99, 11:15 p.m. charged Two counts of assault and one alley shooting at Rollins and count UPF charged against both Matthews Wynn and Rhem
8/22/99, 1:52 a.m. AM/PM ER 404(b) res gestae shooting at Rhem and Wynn retaliation incident 9/28/99 shooting at Lump's ER 404(b) res gestae, identity house (Wynn and Rhem); .45 caliber casings matched casings found in alley where charged shooting occurred
a. Other firearm possession
In defendants' first appeal, we held that, under the circumstances, it was unlikely the jury would have been able to comply with a limiting instruction, even had one been requested and given. We determined, therefore, that there was a reasonable probability that the trial outcome on the UPF charges would have differed if the error had not occurred. Rhem and Wynn, 2002 WL 1481272 at 8. See also State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). We further held (1) the error was not harmless, even though the jury found Rhem and Wynn, charged as accomplices, guilty of assault in the alley shooting; because (2) the jury did not need to find that both men were armed.
The first trial court instructed the jury: `Testimony that either defendant generally was in possession of a firearm cannot be considered as proof that either defendant possessed a firearm specifically on or about the 21st day of August, 1999, for the purposes of the unlawful possession of a firearm in the first degree charges.' Wynn's Clerk's Papers at 32 (emphasis added).
In the second trial, Rhem and Wynn both stipulated that they were convicted felons prohibited from possessing firearms. They repeatedly objected to testimony that they were known to possess .45 caliber and 9 mm handguns at unspecified times; they argued the State was attempting to admit inadmissible habit evidence, which we had previously held to be reversible error in their earlier appeal from their UPF convictions. The retrial court overruled these objections, distinguishing the newly proffered evidence as referencing specific guns, rather than the general habit of carrying unnamed types of guns.
Because of this critical distinction, we hold that the `law of the case' doctrine neither applies here nor precludes the trial court's admitting this non-habit evidence.
We hold that (1) the trial court did not commit reversible error in admitting evidence of specific other close-in-time instances when Rhem and Wynn possessed firearms of the same caliber used in the charged alley shooting; (2) there is sufficient evidence to support the convictions; and (3) in light of defendants' admissions to others about having shot at Matthews and Rollins in the alley, any error in admitting evidence of other times when defendants possessed the same caliber guns would not have materially affected the trial outcome. Bourgeois, 133 Wn.2d at 403.
b. Gang affiliation
Rhem and Wynn next argue the trial court (1) abused its discretion in admitting highly inflammatory gang evidence, which lacked a sufficient nexus with the charged crimes; and (2) erred in admitting multiple incidents of uncharged crimes and other misconduct as res gestae evidence. In addition to the non-alley shooting incidents listed in the chart above, the State adduced evidence of gang affiliation and gang names of the defendants, witnesses, and other people referenced in testimony. The so-called `res gestae' exception to ER 404(b) allows evidence of other bad acts `[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980), affirmed, 96 Wn.2d 591 (1981) (quoting Cleary, Edward, W., McCormick on Evidence sec. 190, 451-52 (2d ed. 1972)). Like other ER 404(b) evidence, such evidence must be relevant for a purpose other than showing propensity, and it must not be unduly prejudicial. State v. Lane, 125 Wn.2d 825, 834, 889 P.2d 929 (1995). It is an abuse of discretion for the trial court to fail to conduct the required balancing of probative value versus prejudicial effect before admitting evidence of other bad acts. State v. Trickler, 106 Wn. App. 727, 732, 25 P.3d 445 (2001).
The record shows that the trial court heard argument and balanced the necessary factors before admitting the gang evidence challenged here. The State's theory was that (1) Rollins' want of gang loyalty motivated Rhem and Wynn to shoot at him; and (2) evidence of other fights and retaliatory gang shootings surrounding the charged August 21, 1999 alley shooting showed motive, intent, and identity of the defendants.
The one potentially questionable incident, because of its remoteness in time, was the shooting at `Lump's' house, a month after the charged alley shooting. But this shooting was probative of the defendants' identities: It linked ballistics evidence from `Lump's' house to the charged shooting in the alley because .45 caliber casings recovered from Lump's house matched .45 caliber casings recovered from the alley shooting scene. Because witnesses identified Wynn and Rhem as the shooters at Lump's, the matching .45 casings tending to prove that Wynn and Rhem were also the shooters in the charged alley shooting.
Although Wynn and Rhem were the targeted victims of the August 22, 2 a.m. shooting at the AM/PM, any error in admitting this incident was harmless because it was not evidence of a prior bad act by either defendant.
We hold that the trial court did not abuse its discretion in admitting this evidence of specific other shootings and gun possession involving the same type of weapons used in the charged alley shooting.
Even assuming, without deciding, that the trial court erred in admitting this evidence, any error was harmless. The defendants' independent admissions, elicited through Hendersons and DeJesus's testimonies, sufficiently support the assault convictions; thus, it is unlikely that any error in admitting this evidence materially affected the trial's outcome. Bourgeois, 133 Wn.2d at 403.
III. Prosecutorial Misconduct A. Standard of Review
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). The defendant bears the burden of showing both prongs of prosecutorial misconduct. Hughes, 118 Wn. App. at 727. If a defendant does not object or request a curative instruction, he waives the error unless the remark is `so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' State v. Binkin, 79 Wn. App. 284, 294, 902 P.2d 673 (1995), review denied, 128 Wn.2d 1015 (1996) (quoting Hoffman, 116 Wn.2d at 93).
It is improper for a prosecutor to introduce evidence of a witness's experiences that are not probative of truthfulness or expertise in an attempt to bolster the witness's credibility by appealing to a jury's passions or prejudices. State v. Smith, 67 Wn. App. 838, 842-44, 841 P.2d 76 (1992). `Opinion testimony' is based on one's belief or idea rather than on direct knowledge of facts at issue. State v. Demery, 144 Wn.2d 753, 757-60, 30 P.3d 1278 (2001). Because no witness may give an opinion about another witnesss's credibility, it is improper to adduce such evidence. State v. Jerrels, 83 Wn. App. 503, 507, 925 P.2d 209 (1996).
We review allegedly improper prosecutorial comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999). A prosecutor's remarks are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel's statements. State v. Russel, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). Moreover, in closing argument, a prosecutor may comment on a witness's veracity as long as he does not express it as a personal opinion and does not argue facts beyond the record. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983).
B. Improper Questioning
Rhem and Wynn argue that the prosecutor questioned Henderson and DeJesus in a manner that improperly bolstered their credibility. We disagree.
On direct examination of Henderson, the State asked without objection, `Let me just ask you straight out. Truthful testimony is what the agreement required, correct?' RP at 588-89. The prosecutor then asked, `And if you gave testimony that, for instance, hurt the State in the sense of, `These guys said they were not there,' would you be complying with the agreement if that was truthful?' RP at 589. The trial court sustained an objection to the form of the question. The prosecutor rephrased the question as follows: `The agreement, itself, required that, no matter what your testimony was, that it must be truthful, correct?' RP at 589. The court then sustained an objection that the question had been asked and answered.
The defense cross-examined DeJesus about what he had to lose if he testified differently at the retrial compared to his previous testimony at the first trial. In response, on re-direct the State asked DeJesus several questions about the truthfulness of his testimony, whether he had complied with his agreement to testify truthfully, whether he understood that perjury meant he was not telling the truth under oath, and whether he believed that if he said something different in his current testimony, he would be committing perjury and could be charged with a crime.
Defense counsel and DeJesus had the following exchange:
Q: And in this instance, today, your testimony means that you won't lose all the things that you have, your family, your house, your job; isn't that correct?
A: Well, I feel that, you know, if I — if I said anything different than what I said before, which was, you know, I gave a true, like, testimony, that I would be perjuring myself, and therefore, I'd be losing everything that I worked so hard to get, to have right at this moment, that I have. RP at 720-21.
We find no impropriety in the prosecutor's questions to either Henderson or DeJesus. First, the prosecutor merely questioned the witnesses about whether they were being truthful in the present and whether they had testified truthfully in the past. At most, each witness was testifying about his own veracity, which the jury could evaluate. Neither witness was testifying about another witness's veracity. Nor was the prosecutor attempting to bolster the witnesses' credibility by appealing to the jury's passions or prejudices.
Second, the prosecutor's questions were appropriate in light of the defense cross-examination, which suggested that Henderson and DeJesus conspired to give the same story in order to obtain favorable plea agreements from the State. The defense specifically questioned DeJesus about what he had to lose if he changed his story. Thus, defendants cannot foreclose the State's attempt to rehabilitate the witness concerning the truthfulness of his current and prior testimonies.
We find no prosecutorial misconduct based on improper questioning.
C. Vouching
Rhem and Wynn next argue that the prosecutor improperly vouched for State witness credibility in closing argument by rebutting defendants' position that the State acted as a witness credibility evaluator when it offered plea bargains in exchange for witnesses' testimonies. Specifically, defendants challenge the propriety of the following portion of the State's closing argument:
Of course, the State, the Prosecutor's Office, those entities have the authority to enter into deals with criminal defendants. They have a job to do, and part of doing the job, they have to deal, at times, to get information. The nature of the game.
Now, in the process, there has to be a process of determining, before you are going to give somebody a deal, obviously, whether what they are saying is credible. You are not just going to give a deal to somebody who says, `Hey, I have some information here. Here it is. Give me — I saw so-and-so get murdered. I was an eyewitness.' `Okay, here's your deal.' You're going to verify. You are going to cross-check. You are going to look at all the other evidence you have. You are going to match it all together. Of course, logic says, after that is all done, you make a calculated decision. You risk that you are going to put a witness on who very easily and will be attacked because of the deal you are giving them. You know that going into it.
RP at 1554-55.
Defendants objected to this State argument at side bar; later they put their objection on the record and moved for a mistrial outside the jury's presence. The trial court denied the motion, ruling that (1) defendants had waived the objection by requesting a sidebar during closing argument and failing to request a timely curative instruction, and (2) even if defendants had not waived the issue, the State did not overstep the bounds of propriety. The trial court noted that any unfairness was balanced `because what the defense does is attempt to intimate to the jury that the agreement that was made between the State and the witness was one where the State would totally decide who was telling the truth and who wasn't.' RP at 1583.
We agree with the trial court. The prosecutor presented a legitimate response to the defense implication that the State was the judge of who would testify truthfully. A prosecutor's remarks are not grounds for reversal where they are invited, provoked, or occasioned by defense counsel's statements. Russel, 125 Wn.2d at 86. Nor did the prosecutor render a personal opinion as to veracity or comment on facts outside the record. Papadopoulos, 34 Wn. App. at 400.
During the cross examination of Henderson the defense started this exchange:
Q: And is the judge of who was going to decide if you were credible in your testimony is the State; is that correct?'
A: Excuse me? I don't understand what you asked?
Q: You testified earlier today that part of the deal was you had to testify truthfully.
A: Correct.
Q: And the judge of who decided whether you testified truthfully was the State; is that correct?
A: Well, I would guess the jury or the judge would.
Q: Who's the one that recommended time served?
A: The prosecution.
RP at 615-16.
We find no prosecutorial misconduct arising from allegedly improper argument vouching for witness credibility.
D. Violations of Prior Rulings In Limine.
Rhem and Wynn next argue that the prosecutor committed misconduct by violating the following orders in limine: (1) exclusion of Wynn's custodial statement to the police, and (2) limiting inquiry into the circumstances of Wynn's arrest in Oregon. Although a prosecutor's violation of a ruling in limine may constitute misconduct warranting a mistrial, State v. Clemons, 56 Wn. App. 57, 62, 782 P.2d 219 (1989), review denied, 114 Wn.2d 1005 (1990), such is not the case here.
The parties generally agreed to honor the first trial court's order in limine. That order provided in pertinent part:
IT IS HEREBY ORDERED that defendant Wynn's motion to exclude the following portion of his statements to police is granted: `WYNN then asked what we wanted, what it would take for him to go home. We told WYNN all we wanted was the truth and that he had only been partially truthful. WYNN said that if we dropped the charges he would tell us everything.'
Wynn's Clerk's Papers at 268 (emphasis added).
1. Wynn's custodial statement
At an evidentiary hearing before the retrial, the prosecutor brought to the court and defense counsel's attention the first trial court's order redacting Wynn's statement. Attached to the order was a redacted version of the police reports, indicating necessary changes and omissions to Wynn's custodial statements. This version included the above statement, but with the following phrase redacted (as noted by italics above): `and that he had only been partially truthful.' Wynn's Clerk's Papers at 280. The defense reviewed the redacted statement, the trial court inquired whether counsel had any concerns about the proposed redaction, and defense counsel responded, `Assuming that this is the same that's in the court file and we can check later before it's presented, then I think it's correct.' RP (1/10/03) at 52. The prosecutor later confirmed that his copy of the redacted statement matched the one in the court file.
During Detective Davidson's testimony, the parties and the court discussed Wynn's redacted statement outside the jury's presence. The State notified defense counsel and the trial court that it wanted to offer the following statement by Detective Davidson, which it had redacted: `Wynn then asked what we wanted, what it would take for him to go home. We told Wynn all we wanted was the truth. Wynn said, if we dropped the charges, he would tell us everything.' RP at 1142-43. Defendants did not object to admission of the proposed redacted statement. Finding the redactions reasonable, the trial allowed the statement. Detective Davidson then testified about Wynn's custodial statement in its redacted form.
`ER 103 requires all objections to be timely and specific. Failure to raise an objection in the trial court precludes a party from raising it on appeal.' Dehaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 (1986), review denied, 105 Wn.2d 1015 (1986). Although the statement had been the subject of the first trial court's order in limine, at the retrial, the State gave the defense ample opportunity to review and to object to the statement before adducing Detective Davidson's testimony.
But even assuming that defendants did not waive their objection below, we find no prejudice from the trial court's admission of Wynn's redacted statement, especially in the context of the entire record and circumstances at the retrial. Hughes, 118 Wn. App. at 727. Defendants argue that the statement created a damaging implication that Wynn was not allowed to return home because he did not tell the truth to the police. We disagree. On the contrary, a reasonable inference from this statement is that the police simply did not drop the charges, not that Wynn was lying to the police as defendants contend. Such inference would not have been prejudicial because Wynn was on trial before a jury with no illusions that the police had dropped the charges. Hughes, 118 Wn. App. at 727.
2. Wynn's Oregon arrest
Wynn and Rhem also argue that the prosecutor engaged in misconduct (1) by eliciting, in violation of an order in limine, extensive testimony about Wynn's arrest in Portland, Oregon; and (2) in referring to Wynn's having been in custody since his arrest. Again, we disagree.
During cross examination of defense witness Alisha Rorie, the State asked:
Q: Do you know that, on that date, he was arrested and charged with shooting at Michael Rollins and Kimberly Matthews?
A: I don't know nothing about that. I know we both were arrested in Portland, if that's what you are talking about, but I don't know nothing about no shooting.
. . . .
Q: You know that, on this case, he's in custody pending a determination, a trial, of whether, in fact, he shot at Mr. Rollins and Ms. Matthews, right?
A: Only thing I know is, when we were in Portland, we both got pulled over and we both went to jail. And I thought that's what he was going to jail for. I don't know nothing about what you are talking about.
RP at 1356-58.
To some extent, Rorie volunteered information about Wynn's arrest in Oregon. The State did not specifically question Rorie about the location and circumstances of Wynn's arrest. Rather, the State alluded to Wynn's custodial status with such questions as: (1) `[H]e's been charged and he's sitting here and this jury is listening to evidence'; (2) `[H]e's been in custody waiting on trial'; (3) `You know that he's in custody for a period of time'; (4) `You know that, on this case, he's in custody pending a determination, a trial, of whether, in fact, he shot at [Rollins and Matthews]'; and (5) `[H]e's been in custody since [they were pulled over in Portland and went to jail].' RP at 1356-58. Wynn objected repeatedly to this line of questioning, and the trial court denied his request for an immediate hearing.
After the State completed its questioning, the trial court held a hearing outside the jury's presence. The State made clear that it had questioned Rorie about Wynn's custodial status only to establish that she had never contacted the police even though she had information relevant to Wynn's alibi. The prosecutor conceded his questioning was inartful because he was unable to organize his thoughts while being interrupted repeatedly by defense objections.
The trial court found that, although the State's line of questioning was not improper, the State had gone too far in referencing Wynn's continual custody. The trial court further noted, however, that (1) the transgression was not entirely the State's fault because the witness's evasive responses were partly to blame; and (2) because the jury already knew that Wynn and Rhem had been in custody, there was no prejudice. The trial court denied the defendants' motion for a mistrial and offered to give a curative instruction at either defendant's request. Neither defendant requested a curative instruction, so none was given.
Rhem and Wynn having failed to show prejudice, Hughes, 118 Wn. App. at 727, we hold they have failed to show prosecutorial misconduct based on violations of orders in limine or improper questioning.
E. Mistrial
Rhem and Wynn further argue that the trial court abused its discretion in denying their motions for a mistrial based on (1) improper State argument vouching for the credibility of witnesses; and (2) violations of orders in limine and improper questioning about Wynn's custodial status.
A court should grant a mistrial only when `nothing the trial court could have said or done would have remedied the harm done to the defendant.' State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) quoting State v. Swenson, 62 Wash.2d 259, 382 P.2d 614 (1963). The trial court is in the best position to evaluate the prejudicial effect the error has on the jury. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). The grant or denial of a motion for new trial is within the trial court's sound discretion, and we will reverse it only for abuse of that discretion. State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996). Abuse occurs when the trial court's discretion is `manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Defendants having failed to prove prosecutorial misconduct, we hold that the trial court did not abuse its discretion in denying their motions for mistrial based on alleged prosecutorial misconduct. Nor does the record reveal multiple incidents of prosecutorial misconduct creating a cumulative prejudicial effect warranting a new trial. State v. Henderson, 100 Wn. App. 794, 804-05, 998 P.2d 907 (2000).
IV. Ballistics Evidence and Chain of Custody
Wynn next argues that the prosecution failed to establish the proper chain of custody for the shell casings recovered at the barbecue shooting. Statement of Additional Grounds for Review (SAG) at 1; see n. 2 supra and the chart showing other shooting incidents on page 11, supra. Wynn contends Officer Wales' police report and property sheet show that Wales turned in six 9 mm F.C. brand shells, whereas at trial, the State admitted five F.C. brand shells and one Spier brand shell. Defense counsel extensively cross-examined Officer Wales and elicited his admission that one of the casings in the evidence envelope was not one of the casings picked up at the scene of the barbecue shooting. Rhem and Wynn both objected to this discrepancy during Officer Wales' testimony. Wynn argues that this discrepancy undermines the State's theory that Wynn returned a single shot at the barbecue shooting, which shot was forensically matched to the shots fired at the charged alley shooting. We disagree.
First, the State never charged Wynn with any crime for the barbecue shooting. Rather, the State used evidence that Wynn returned one shot at the barbecue to establish his identity as one of the shooters in the charged alley shooting because the ballistics evidence matched.
Second, even if there were error in admitting Officer Wales' testimony and the related ballistics evidence, it was harmless. Erroneous admission of evidence is not grounds for reversal unless it prejudices the defendant. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Evidentiary error is not prejudicial unless, within reasonable probabilities, the trial outcome would have been materially affected had the error not occurred. Bourgeois, 133 Wn.2d at 403. As we have previously noted, the defendants' admissions of their complicity in the alley shooting independently support their assault firearm convictions. Thus, we cannot say that this challenged ballistics evidence materially affected the trial outcome. Bourgeois, 133 Wn.2d at 403.
V. Ineffective Assistance of Counsel
Finally, Rhem and Wynn next argue that if we hold that counsel's failure to raise certain issues below precludes raising them on appeal, they received ineffective assistance of trial counsel. Because we have not refused to address any appellate issues for failure to preserve error below, we need not consider this contingent, ineffective assistance of counsel argument.
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.
MORGAN, A.C.J. and ARMSTRONG, J., JJ., concur.