Opinion
No. 47512-6-I c/w 47920-2-I.
Filed: November 25, 2002. As Amended and Publication Ordered in Part April 15, 2003.
Jeffrey E. Ellis (of The Public Defender Association), for appellant Musgrave.
Norm Maleng, Prosecuting Attorney, and Deborah A. Dwyer, Deputy, for respondent State.
Christine O. Gregoire, Attorney General, and Donna H. Mullen, Assistant, for petitioner State.
[As amended by order of the Court of Appeals April 15, 2003.]
Disparate sentences between codefendants satisfy rational basis analysis of equal protection where one defendant pleads guilty to a lesser crime and cooperates with police, while a second trail court erred in this case when it concluded that there was no rational basis for the differences in the sentences of Shelton Musgrave and Jay Stewart. Musgrave's conviction is affirmed; the case is remanded for resentencing.
FACTS
On August 9, 1999, Shelton Musgrave, Jay Stewart, and Michael Caffee were under a freeway overpass near Green Lake in Seattle when a homeless man named David Ballenger was killed. The State charged Musgrave, Stewart, and Caffee with second degree murder, but indicated it would amend the information to charge first degree murder with a deadly weapon if the defendants went to trial.
Stewart cooperated with police officers and pleaded guilty to second degree murder, receiving 204 months, within the standard range for second degree murder. Musgrave decided to go to trial and was charged with murder in the first degree with a deadly weapon enhancement, as well as the lesser included crimes of second degree murder, and first and second degree manslaughter. Caffee agreed to plead guilty to first degree manslaughter in return for his testimony at Musgrave's trial.
Caffee was the only eyewitness who testified at Musgrave's trial and provided the following version of events:
On August 9, 1999, Will Allison and Jay Stewart visited Shelton Musgrave at his apartment in Seattle. The three drank a case of beer. The young men then went to Green Lake where they joined up with Caffee.
David Ballenger, a homeless man known to both Caffee and Musgrave, arrived where the other men were located. Stewart started to argue with Ballenger. Both Allison and Stewart then struck Ballenger. Neither Musgrave nor Caffee participated in this initial assault. Allison left and attempted to lead Stewart away, but Stewart ran back to find Ballenger and began kicking and hitting Ballenger.
When a bystander who saw the assault picked up a nearby pay phone, Stewart, Caffee, and Musgrave all yelled at the bystander to hang up the phone. Caffee threatened to beat up the bystander, and Musgrave advised the bystander to leave. The man left, but by then Ballenger had escaped. Police officers arrived and asked the three individuals if they knew anything about a fight. Stewart, Caffee, and Musgrave denied knowledge or participation.
Stewart demanded to know where Ballenger was, and Musgrave eventually led Stewart and Caffee to the freeway overpass where Ballenger made his "camp." Stewart began choking and hitting Ballenger. Musgrave then began kicking Ballenger from behind. Stewart approached Caffee and demanded Caffee's knife. Caffee gave it to him only after repeated requests. Stewart used the knife to stab Ballenger and Musgrave used the knife to cut off Ballenger's sweater. Stewart set Ballenger's sweater on fire and threw it into Ballenger's bedding. Caffee testified Ballenger made a sound that Caffee described as lungs "deflating." Caffee stated he thought Ballenger was dead, but that Musgrave continued to stab Ballenger.
Throughout his testimony, Caffee described his role in Ballenger's death as a reluctant bystander. Caffee explained that during the events he was standing near a freeway support pillar and away from the others, who were under the overpass, watching as the events unfolded. Caffee also testified that he moved around during the events, from behind the pillar to a fence near the overpass, and that Stewart and Musgrave moved around as they attacked Ballenger. After the attack, Stewart returned the knife to Caffee, and Caffee placed the knife in his back pocket. Stewart, Musgrave, and Caffee then left and went back to Musgrave's apartment. Caffee testified that both Stewart and Musgrave threatened to kill anyone who told anyone what happened. Caffee said he watched the fire from a parking lot two blocks away from the overpass.
Caffee testified that he pretended to discover Ballenger's body the next day. Police officers were called, and when they arrived Caffee denied any participation in the crime. Caffee was later interviewed and he again denied participation in the crime. Caffee later admitted to police officers that he was present when Ballenger was killed, but stated that Stewart and Musgrave were the primary aggressors.
At trial, a medical examiner testified that Ballenger had suffered 18 stab wounds as well as 5 rib fractures that could have been inflicted by a forceful kick with a heavy boot. The State also introduced into evidence Musgrave's steel-toed boots, which had blood matching Ballenger's DNA (deoxyribonucleic acid) profile on them. Musgrave's left boot exhibited an airborne pattern of droplets, while his right boot contained a blood stain diffused over a large area that was consistent with a contact transfer. The patterns of blood on the boots suggested that the right boot forcefully came into contact with the blood source and that the left boot was close to the vicinity where the impact with the blood source occurred. Blood consistent with Ballenger's DNA profile was also found on Caffee's left rear pants pocket.
In pretrial motions, Musgrave moved to suppress evidence seized from his apartment pursuant to a search warrant. The search was conducted August 12, 1999. The affidavit in support of the search warrant was dated August 12, 1999, but the warrant was dated August 13, 1999. The State maintained that the warrant had been signed by the judge in his chambers on August 12, 1999, along with the affidavit, prior to the search. Because the judge who signed and dated the warrant and affidavit was then deceased, the court agreed to hear testimony from detectives and the deputy prosecuting attorney.
King County Senior Deputy Prosecuting Attorney Barbara Flemming and Detective Kilburg testified they prepared the search warrant and accompanying affidavit and that the judge signed the warrant and affidavit in their presence on the afternoon of August 12, 1999. Detective Kilburg and Detective Ninomiya testified that the warrant was served and the search was conducted on the afternoon of August 12, 1999. The court concluded the affidavit indicated a date that was "probably most persuasive" and that the warrant and subsequent search were valid. The court entered findings of fact and conclusions of law that although the warrant was dated August 13, 1999, it was actually signed by the judge on August 12, 1999.
Also prior to trial, both State and defense attorneys noted that neither Musgrave nor Caffee had prior criminal convictions and agreed not to introduce evidence of either of the defendants' "teenage history" of "potentially illegal or inappropriate" acts under ER 404(b). Musgrave's attorney stated that if Caffee opened the door in some obvious way, such as stating, "I've never had contact with the police" or "I've never been in trouble before," she would seek to introduce such evidence of inappropriate acts on the issue of Caffee's credibility. The State commented that it was unaware of any acts by Caffee other than smoking cigarettes at school; possibly writing his name in cement; or bragging with Musgrave about "macing bums," and asked for an offer of proof about other acts. Defense counsel replied that it was premature and the court agreed.
During the course of Caffee's direct examination, after he testified about how he had initially lied to police officers, the prosecutor asked Caffee how he felt about talking to police officers about the murder. Caffee responded:
I was still pretty scared. I don't know, I've never had any real, like, connection with the law before. I've never made any — done anything seriously legal [sic] to get me in trouble, so I've never dealt with the police in a situation like this. And I was, like, kind of scared of what could happen.
Caffee then admitted that he also lied to police officers when they interviewed him at the police station, stating several times that he was trying to be "loyal" to his friend Musgrave.
Four days after Caffee's comments, Musgrave's counsel argued that Caffee's testimony was a "material misrepresentation," and that Caffee had opened the door to impeach the impression that he was a naive, frightened young man who didn't have the experience to lie to police officers. Defense counsel stated that Caffee had been arrested and questioned for prowling around bikes; stealing bike parts; graffiti; possession of illegal fireworks; and smoking marijuana in public. The State countered that Caffee qualified his testimony and noted that the State did not have any record of Caffee's alleged prior contacts with law enforcement. The court did not allow admission of evidence of prior conduct, stating that the defense had "full and adequate opportunity" to impeach Caffee regarding his fabrications and would continue to have opportunities to impeach Caffee about his misrepresentations to police officers.
After Caffee finished testifying, defense counsel also sought to introduce testimony and photographs by a defense investigator. Defense argued the purpose of the testimony and photographs was to impeach Caffee's testimony regarding his version of events by showing that Caffee could not have seen what he claimed to have seen from his vantage point. The trial court stated that it would not allow the testimony or photographs, but offered to allow the defense an opportunity to lay a foundation for the introduction of the photographs by recalling Caffee to the stand to determine if they were accurate representations of where he was standing and what he saw. Defense counsel declined to do so and did not further discuss the issue.
At the conclusion of the trial, the court submitted the following jury instruction for accomplice liability:
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing the crime.
The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.
Jury instruction 10.
The court denied the following jury instructions proposed by Musgrave, finding that the first was `a restatement' of the last sentence of the given jury instruction and that the second was `very confusing':
No. _____
It is not enough that the defendant merely associated with the person(s) committing the crime, or unknowingly or unintentionally did things that were helpful to that person(s), or was present at the scene of the crime.
No. _____
In order to find the defendant guilty of Murder in the First Degree, the evidence must show beyond a reasonable doubt that the defendant knowingly helped another person(s) commit Murder in the First Degree.
After the State's closing argument, the defense renewed its request for its proposed jury instructions arguing that the prosecutor's comments had confused the jury and that the proposed instructions would clarify the law of accomplice liability. The court denied the request.
Musgrave was convicted of first decree murder with a deadly weapon enhancement. The defense recognized that the conviction carried a mandatory standard sentencing range of 264 months, but urged the court to depart from the sentence to protect Musgrave's equal protection rights. The sentencing judge concluded that all defendants were equally culpable in the crime. Thus, the judge determined that sentencing Musgrave to 264 months while Stewart only received 204 months would deny Musgrave equal protection of the law because the disparate sentence was based solely on the fact that Musgrave exercised his right to trial while Stewart pleaded guilty. The court held that this result was required not only by constitutional considerations, but also by the provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Musgrave received 199 months in prison.
Musgrave appeals the trial court's accomplice liability instruction and the denial of his proposed instructions, as well as other issues regarding the scope of cross examination, exclusion of testimony and photographic evidence, and the validity of the initial search warrant. The State appeals Musgrave's sentence as below the statutory minimum. The appeal is timely.
DISCUSSION
1. Musgrave's Sentence Below Statutory Minimum.
Under the equal protection clause of the fourteenth amendment of the United States Constitution, and article I, section 12 of the Washington Constitution, "persons similarly situated with respect to the legitimate purpose of the law must receive like treatment." Where codefendants have received different sentences, a court will exercise equal protection analysis only after a defendant "can establish that he or she is similarly situated with another defendant by virtue of near identical participation in the same set of criminal circumstances[.]" "Then, only if there is no rational basis for the differentiation among the various class members will a reviewing court find an equal protection violation."
State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996) (citation omitted).
State v. Handley, 115 Wn.2d 275, 290, 796 P.2d 1266 (1990) (an equal protection class of codefendants is established in the rare case where the co-defendants were at the scene of the offense and were charged with many of the same crimes).
Handley, 115 Wn.2d at 290.
Because the State argued at the sentencing hearing that equal protection was not violated by treating Musgrave and Stewart differently in sentencing, it has not waived the right to contest the trial court's findings. Further, the State concedes, and State v. Handley establishes, that Stewart and Musgrave are similarly situated for purposes of the first step in equal protection analysis, i.e., they are members of the same class. However, the court erred in finding that no rational basis existed for the difference in treatment between Musgrave and Stewart.
State v. Brush, 32 Wn. App. 445, 648 P.2d 897 (1982).
Handley, 115 Wn.2d at 291.
First, Musgrave's situation is factually different from many of the cases that address disparate sentences between codefendants; these cases involve individuals who are charged with and convicted of the same offense, but nonetheless receive different sentences. For example, the court in State v. Clinton remanded the matter for resentencing where two defendants who were charged and convicted of the same crimes were nonetheless sentenced differently. Here, Stewart was convicted of murder in the second degree while Musgrave was convicted of murder in the first degree.
State v. Clinton, 48 Wn. App. 671, 741 P.2d 52 (1987); State v. Portnoy, 43 Wn. App. 455, 718 P.2d 805 (1986); State v. Bresolin, 13 Wn. App. 386, 534 P.2d 1394 (1975).
Clinton, 48 Wn. App. at 672-73.
RCW 9.94A.120(4), .310(1), .310(4)(a), .320.
Second, even where codefendants are convicted of the same or similar crimes, a trial court is justified in imposing disparate sentences based on relative culpability, criminal record, rehabilitation potential, cooperation with law enforcement, and differences in pleas. "Relevant distinctions need not pertain only to the codefendants' relative culpability or to the pleas to which they agreed, but may pertain to anything which provides a rational basis for the disparate sentences." Thus, in State v. Turner, where one defendant in a robbery received only a suspended sentence of one year in jail and the second defendant received multiple consecutive 25-year terms, a rational basis for the difference in treatment was supported by the facts that the first defendant pleaded guilty to charges in exchange for trial testimony and the other was convicted of more serious offenses by a jury, had previous convictions, and was found to have acted more aggressively during the robbery.
State v. Conners, 90 Wn. App. 48, 52, 950 P.2d 519 (1998) (citing Handley, 115 Wn.2d at 292).
Handley, 115 Wn.2d at 292 (quoting Clinton, 48 Wn. App. at 680) (emphasis added).
State v. Turner, 31 Wn. App. 843, 846-48, 644 P.2d 1224 (1982). See also, State v. Hurst, 5 Wn. App. 146, 149, 486 P.2d 1136 (1971) (prior felony conviction furnishes a rational basis for differentiation in the maximum sentences).
Here, there is a rational basis for the different treatment between Musgrave and Stewart. The difference in treatment was not based solely on Musgrave's choice to exercise his right to trial. Stewart chose to plead guilty for a reduced sentence, thus agreeing to cooperate with police officers. Musgrave was convicted by a jury of a higher crime than Stewart. The jury could have found him guilty of lesser included offenses or not guilty. The fact that the jury found Musgrave guilty of first degree murder is, by itself, a rational basis to justify imposition of a higher statutory penalty on him.
Further, Musgrave's different sentence conforms to the purposes of the SRA because he received a sentence commensurate with the punishment of others who are convicted of the crime of murder in the first degree. The SRA is designed to "[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history[,]" and to ensure that sentences are "commensurate with the punishment imposed on others committing similar offenses[.]" The purposes of the SRA reveal a rational basis for different sentences for conviction of different crimes.
RCW 9.94A.010(1), (3).
See also, State v. Skillman, 60 Wn. App. 837, 838-39, 809 P.2d 756 (1991) (trial court's sentencing authority is limited to that expressed in the SRA, citing In re Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980)).
Because there is a rational basis for the differing treatment of Musgrave and Stewart, the trial court erred in finding that imposing a mandatory sentence violated Musgrave's equal protection rights. Since the trial court abused its discretion in imposing a sentence below the statutory range, this case should be remanded for sentencing consistent with RCW 9.94A.120, RCW 9.94A.310, and RCW 9.94A.320.
The remaninder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.
COLEMAN and BAKER, JJ., concur.
2. Validity of Search Warrant.
An appellate court examines a search warrant de novo, evaluates it in a "commonsense, practical manner, rather than hypertechnically" and will resolve any doubts in favor of the validity of the warrant. Although extrinsic evidence will not cure a warrant's major defects, such as an overbroad description of things to be seized, such evidence is permitted to cure "minor, technical defects' in a warrant, such as an incorrect address. Further, while testimony of an interested party alone is insufficient to reconstruct the content of an affidavit in support of a search warrant, a warrant that has incorrect or information due to a typographical or clerical mistake may be cured by extrinsic evidence of an officers' personal knowledge.
State v. Perez, 92 Wn. App. 1, 4, 963 P.2d 881 (1998) (citing State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992); State v. O'Neil, 74 Wn. App. 820, 823, 879 P.2d 950 (1994)).
State v. Riley, 121 Wn.2d 22, 28-29, 846 P.2d 1365 (1993).
State v. Myers, 117 Wn.2d 332, 343, 815 P.2d 761 (1991).
State v. Fisher, 96 Wn.2d 962, 967, 639 P.2d 743 (1982); State v. Smith, 39 Wn. App. 642, 648-49, 694 P.2d 660 (1984); State v. Bohan, 72 Wn. App. 335, 864 P.2d 26 (1993).
The date on the warrant, if it is an erroneous date, is typographical or clerical in nature. Thus, extrinsic evidence is permitted to cure the defect here and personal knowledge of officers and the deputy prosecuting attorney is admissible to establish the date of the warrant was an error and the actual date the warrant was issued.
After taking testimony from the witnesses, the parties argued their respective positions to the court and the court recognized the bias interest of the witnesses. Although these were interested parties, they were the only witnesses available to testify since the judge was deceased at the time of trial. The fact that the affidavit was signed the day of the search further supports the testimony of the detectives and prosecuting attorney. Viewing the warrant in a commonsense practical manner, and with the extrinsic evidence supplied by three witnesses, it is clear that the warrant was signed the same day and at the same time as the affidavit in support of the warrant, prior to the search of Musgrave's apartment. The technical error was cured by the testimony of witnesses and the content of the affidavit. The trial court did not err in allowing testimony from interested parties regarding the date both the warrant and affidavit were prepared and signed, and the date the warrant was executed where the only disinterested witness was deceased. Neither the warrant nor the search was invalid. The trial court properly included the evidence from the search.
3. Accomplice Liability Jury Instructions.
RCW 9A.08.020 states in part:
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he
(i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it[.]
(Emphasis added.) The jury instruction on accomplice liability in the present case essentially mirrored the statute. Nevertheless, Musgrave asserts that his first proposed instruction would have clarified for the jury that mere association, presence at the scene, or unknowing or unintentional acts are not enough to prove accomplice liability. Jury instructions are to be read as a whole and each instruction must be read in the context of all others given. "[A] specific instruction need not be given when a more general instruction adequately explains the law and enables the parties to argue their theories of the case." The court need not give a party's proposed instruction if it is repetitious or collateral to instructions already given. Here, the given instructions explained that a person must act "with knowledge that it will promote or facilitate the commission of the crime" and that "more than mere presence and knowledge" of the crime was required to prove accomplice liability. Thus, Musgrave's first proposed jury instruction was a restatement of portions of the given jury instruction on accomplice liability. The court did not err in refusing to give Musgrave's first instruction. Musgrave also argues that his second proposed instruction would have clarified for the jury that in order to be convicted of first degree murder, the State needed to prove Musgrave knowingly helped another commit first degree murder. Musgrave argues that the use of the phrase "the crime" throughout the instruction is ambiguous where the jury is instructed on lesser crimes or where the evidence establishes that other crimes were committed.
State v. Brown, 132 Wn.2d 529, 605, 940 P.2d 546 (1997) (citing State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29 (1995); State v. Gentry, 125 Wn.2d 570, 613, 888 P.2d 1105 (1995)).
Brown, 132 Wn.2d at 605 (quoting State v. Rice, 110 Wn.2d 577, 603, 757 P.2d 889 (1988)). See also, Havens v. CD Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994).
State v. Benn, 120 Wn.2d 631, 655, 845 P.2d 289 (1993).
"[A]n accomplice need not have specific knowledge of every element of the crime committed by the principal, provided he has general knowledge of that specific crime." However, this general premise is only true if the jury instructions state that accomplice liability involves facilitating or assisting in "the crime," not "a crime." The distinction is slight, but significant. The use of the phrase "a crime" in jury instructions instead of "the crime" as used in RCW 9A.08.020 impermissibly establishes strict liability for any crime committed by the principal. In contrast, where the jury instruction properly states "the crime," the premise applies that only general knowledge of the crime is required.
State v. Roberts, 142 Wn.2d 471, 512, 14 P.3d 713 (2000); State v. Davis, 101 Wn.2d 654, 657-59, 682 P.2d 883 (1984). See also, State v. Cronin, 142 Wn.2d 568, 581-82, 14 P.3d 752 (2000) (companion case to Roberts).
Roberts, 142 Wn.2d at 511-12 (citing Davis, 101 Wn.2d at 656-57).
State v. Stein, 144 Wn.2d 236, 245, 27 P.3d 184 (2001) (citing Roberts, 142 Wn.2d at 510-11).
Thus, where jury instructions state "the crime," the court in In the Matter of the Personal Restraint of Sarausad held that even if the charged crime is aggravated, premeditated first degree murder, case law established that "the crime" for purposes of accomplice liability is murder, regardless of degree:
[W]e conclude that the law of accomplice liability in Washington requires the State to prove that an accused who is charged as an accomplice with murder in the first degree, second degree or manslaughter knew generally that he was facilitating a homicide, but need not have known that the principal had the kind of culpability required for any particular degree of murder.
In re Personal Restraint of Sarausad, 109 Wn. App. 824, 836, 39 P.3d 308 (2001) (emphasis added).
Although Musgrave argues that Sarausad was incorrectly decided, we disagree. Sarausad properly examined the case law of accomplice liability jury instructions and concluded that where the jury instruction mirrors a properly structured statute on accomplice liability, the rule applies that only general knowledge of the crime is required. Thus, Sarausad applies here were the instructions here informed the jury it had to find Musgrave guilty of "the crime" to find accomplice liability. Under Sarausad, "the crime" was murder, regardless of degree, and Musgrave was charged with first and second degree murder as well as first and second degree manslaughter. Thus, Musgrave's second proposed jury instruction, that the State needed to prove Musgrave knowingly helped another commit first degree murder in order to convict him of first degree murder, was an improper statement of the law.
Musgrave's additional argument that the jury could have improperly found him guilty as an accomplice of first degree murder if it found him guilty of other acts that did not meet the elements of first degree murder is similarly without support. The instructions set forth the elements of murder in the first degree and informed the jury that if it could not find all elements, its duty would be to find him not guilty of first degree murder. The instructions also set forth the elements of each of the lesser included crimes. Nevertheless, the jury specifically found Musgrave guilty of murder in the first degree, not one of the lesser crimes. The jury is presumed to follow the court's instructions. There is no indication that the jury instructions here, as complete and explanatory as they were, mislead the jury in the law of accomplice liability.
State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).
Finally, although Musgrave claims otherwise, it appears that the prosecutor's closing argument actually emphasized the importance of the accomplice liability instruction and the distinction between assisting in the crime and merely being present at the crime. These statements did not require a clarification of the law of accomplice liability, as Musgrave argues. Musgrave's proposed instructions would have been repetitive, confusing, and an improper statement of the law. In sum, the court's jury instruction on accomplice liability was proper and the court did not err in initially denying Musgrave's instructions nor did it err in denying the instructions after the State's closing argument.
4. Cross Examination of State's Witness. During cross examination, Caffee stated that he had not had any "real" prior connections with law enforcement. Musgrave argued that this statement was false, highly relevant to Caffee's credibility, and thus opened the door to cross examination on his prior police contacts. The trial court disagreed, and did not allow Musgrave to cross-examine Caffee on this issue.
The scope of cross examination to impeach a witness's credibility is a decision within the trial court's discretion. "An appellate court will not reverse a trial court's rulings on the scope of cross examination absent a manifest abuse of discretion." The challenging party must show the trial court's decision was manifestly unreasonable, or exercised on untenable grounds or for untenable reasons.
State v. Russell, 125 Wn.2d 24, 92, 882 P.2d 747 (1994) (citing State v. Robbins, 35 Wn.2d 389, 396, 213 P.2d 310 (1950); State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980)).
State v. McDaniel, 83 Wn. App. 179, 184-85, 920 P.2d 1218 (1996) (citing State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984)).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971); McDaniel, 83 Wn. App. at 185.
The sixth amendment to the United States Constitution and article I, section 22 of Washington's Constitution guarantee criminal defendants the right to confront and cross-examine adverse witnesses. This right is subject to the limitations that the evidence (1) must be relevant; and (2) the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial that it disrupts the fairness of the fact-finding process. Relevant evidence is that which tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Musgrave argues that Caffee lied regarding his prior police contacts, thus these false statements were relevant to Caffee's credibility. However, it is not clear that Caffee's testimony was untruthful, thus relevant. The record reflects that Caffee's statement, taken in its entirety, was not a blanket statement or a sweeping assertion of fact that he had no connection with police:
McDaniel, 83 Wn. App. at 185 (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Russell, 125 Wn.2d at 73).
McDaniel, 83 Wn. App. at 185 (citing State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)).
ER 401.
McDaniel, 83 Wn. App. at 186-87 (where witness has previously given false testimony under oath, the fact of the lie and motivation for the lie are clearly relevant to future proceedings).
I've never had any real, like, connection with the law before. I've never . . . done anything seriously legal [sic] . . . so I've never dealt with the police in a situation like this.
Since Caffee did not deny he had contacts with law enforcement, then his statement was true.
Additionally, although Musgrave claimed that impeachment with prior police contacts would disprove the impression that Caffee was a young naive man unable to lie to police officers, Caffee admitted that he had lied to police officers in the present case. He had given false testimony to police officers about the facts surrounding the murder and the defense had cross-examined him on his fabrications, lies, and half-truths. The jury was aware that Caffee could, and did, lie to police officers. Thus, his truthful statement that he had never been involved in a law enforcement matter as serious as the present issue was not relevant to the issue of whether he was either unacquainted with law enforcement or could lie to police officers.
Musgrave also argues that Caffee "opened the door" to cross examination on police contacts by bringing up the subject. A witness "opens the door" to otherwise inadmissible evidence when he testifies about the subject matter on direct, but the evidence must also be relevant to some issue at trial. Further, "a passing reference to a prohibited topic during direct does not open the door for cross-examination about prior misconduct."
State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998).
Stockton, 91 Wn. App. at 40 (citing State v. Avendano-Lopez, 79 Wn. App. 706, 715, 904 P.2d 324 (1995)). See also, State v. Gefeller, 76 Wn.2d 449, 454-55, 458 P.2d 17 (1969) (defendant may open the door to testimony about his credibility by bringing up and then discussing on the stand the prohibited topic of his lie-detector test).
The State asked Caffee how he felt about remaining at the murder scene to wait for police officers and Caffee responded that he was scared, that he had never had any contacts with police officers in a situation like this before, and that he wanted to protect Musgrave. At most, his comments were a passing reference to the prohibited topic of prior acts both Caffee and Musgrave had participated in. Further, even if Caffee's comments can be deemed testifying about his prior police contacts, he truthfully stated that his previous contacts had not been as serious as this one. Thus, he did not lie and the evidence was irrelevant. It was not an abuse of discretion for the trial court to deny introduction of the evidence.
5. Exclusion of Testimony of Defense Investigator. After Caffee finished testifying, Musgrave attempted to call a defense investigator to introduce testimony and photographs to show that Caffee could not have seen what he claimed from where he testified he was standing. The trial court ruled that the defense could only recall Caffee, stating:
[I]t occurs to me the only foundation that can be laid for whether these [pictures] are accurate or inaccurate is were these points where he was crouching or standing or looking?
And, absent that, these can only be in a very general way representative of his testimony or the inaccuracy or accuracy of it. So, I'm not going to allow this testimony through [the defense investigator] as to what she thinks Mr. Caffee could or could not see . . . .
The defense did not recall Caffee and now argues that it was error for the trial court to exclude the defense investigator's testimony and the photographs in this manner.
"A defendant in a criminal case has a constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible." Nonetheless, the admission or refusal of evidence lies within the discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion. "An abuse of discretion exists only where no reasonable person would take the position adopted by the trial court." Evidence that Caffee could not see what he claimed he saw from his position was necessarily relevant to his credibility. A defendant may contradict eyewitness testimony with other testimony that shows that something or some object prevented the eyewitness from obtaining a clear view of the events to which he testified. Therefore, we disagree with the trial court that the defense investigator could not testify as to what could be viewed from the vantage points Caffee claims he occupied. Further, although a trial court has discretion in choosing to admit or exclude photographs, we also disagree with the court's conclusion that the only way the defense could establish a proper foundation for admission of the photos was to recall Caffee. "The use of demonstrative evidence is encouraged when it accurately illustrates facts sought to be proved." This evidence was demonstrative in nature, and could be admitted if Musgrave could show it accurately illustrated Caffee's viewpoint and depicted substantially similar conditions as the event in question. It could be admitted through the testimony of other witnesses who later went to the scene and took photographs based on Caffee's prior testimony. Therefore, the trial court may have erred by requiring the defense to set a foundation by recalling Caffee, rather than by calling the defense investigator, prior to introduction of the photos. However, although it may have been error for the trial court to exclude the testimony of the defense investigator and photographs in this manner, an evidentiary error is grounds for reversal only if it results in prejudice. An evidentiary error "is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." It is unclear on the record that this evidence, had it been admitted, would have changed the outcome of the trial. Caffee testified that the altercation moved around from location to location and that he stood, at times, both at the support column and at the fence near the overpass. Defense counsel rigorously cross-examined Caffee about where he was standing and what he could see from his vantage points during the murder and afterward. The trial court admitted other photos of the highway overpass and Caffee gave testimony regarding his location in these photos. The jury heard the theory that Caffee could not have seen what he stated he saw from his various vantage points. Because it appears the error would not have affected the outcome of the trial, no prejudice to Musgrave resulted and the error is not reversible.
State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992) (citing State v. Austin, 59 Wn. App. 186, 194, 796 P.2d 746 (1990)).
State v. McDonald, 138 Wn.2d 680, 693, 981 P.2d 443 (1999) (citing State v. Myers, 133 Wn.2d 26, 34, 941 P.2d 1102 (1997)).
Rehak, 67 Wn. App. at 162 (citing State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)).
See, e.g., State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002) (citing McDaniel, 83 Wn. App. at 186).
State v. Hussey, 188 Wn. 454, 460, 62 P.2d 1350 (1936).
State v. Finch, 137 Wn.2d 792, 812, 975 P.2d 967 (1999) (citing State v. Lord, 117 Wn.2d 829, 870, 822 P.2d 177 (1991)).
Finch, 137 Wn.2d at 816 (citing Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 107, 713 P.2d 79 (1986)).
Finch, 137 Wn.2d 792 at 816 (citing Jenkins, 105 Wn.2d at 107).
Finch, 137 Wn.2d 792 at 813-14 (video and supplemental testimony of lighting conditions at murder scene properly admitted where lighting based in part on testimony of prior witness and conditions substantially similar to event in question).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); Bourgeois, 133 Wn.2d at 403.
Musgrave's conviction is affirmed; the case is remanded for resentencing.
BAKER and COLEMAN, JJ., concur.