Opinion
No. 26179-1-II c/w 26184-7-I
Filed: December 31, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County Docket No: 00-1-00396-7 Judgment or order under review Date filed: 07/06/2000
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Michael H Evans, Attorney at Law, 312 S.W. 1st Ave, Kelso, WA 98626-1739.
In a consolidated appeal, Robert John Connelly and Donald D. Dowell II appeal their convictions for first degree robbery. We affirm. On May 1, 2000, Randal Meirndorf stopped by a friend's house while on his way home from a convenience store. Meirndorf expected to see several people at the home, including Robert Connelly, Kendra Connelly (Robert Connelly's wife and Meirndorf's his ex-girlfriend), and Donald Dowell. Meirndorf had heard that Connelly and Dowell were recently released from incarceration. When Meirndorf arrived at the residence, he shared the beer he had purchased with Connelly and Dowell.
After consuming some of the alcohol, the group decided that it needed more beer, and Meirndorf volunteered his $50 to achieve that end. After Dowell became aware that Meirndorf had $50, Dowell began asking Meirndorf to purchase some marijuana from him. Dowell repeated his request eight or nine times during the evening. Although Meirndorf declined to purchase any marijuana, he did accept a ride to the store from Dowell in order to purchase more cigarettes. Dowell drove, despite not having a valid driver's license, and Connelly rode along.
On the way to the store, Meirndorf asked to stop at his home so that he could drop off a burrito for his fiance. Connelly and Dowell both responded that, since the trip to the store would only take a few minutes, they would not stop at Meirndorf's home. At the store, Meirndorf went in while Connelly and Dowell waited in the car. Meirndorf became leery that Connelly and Dowell had ulterior motives for driving him to the store, so he hid his remaining money in his sock so that Connelly and Dowell would not find it if they tried to rob him.
After leaving the store, Connelly and Dowell, contrary to Meirndorf's expectations, took Meirndorf up to an isolated location on the outskirts of town to visit a friend. As Dowell drove up a dark, winding road, he put on a "red beanie," which Meirndorf interpreted as a sign of gang affiliation and impending aggression. 2 Report of Proceedings (RP) at 118.
Fearing for his safety, Meirndorf jumped out of the car as it slowly rounded a bend, stating that he wanted to smoke a cigarette. Seeing Meirndorf escaping toward a well lit house, Dowell shouted, "Let's get him[,]"and Connelly tackled Meirndorf as he ran away. 4 RP at 347. Connelly and Dowell kicked and punched Meirndorf while he lay in the roadside ditch. Connelly continued the beating while Dowell took Meirndorf's wallet. Finding Meirndorf's wallet empty due to Meirndorf's earlier foresight, Dowell demanded the rest of Meirndorf's money. Fearing for his life, Meirndorf informed his assailants that the money was in his sock.
After the robbery, Meirndorf ran to the nearest home and informed the residents that he had been robbed. Dowell and Connelly returned to their car and found it stuck in the mud. They left the scene walking. Mierndorf was taken by ambulance to the hospital where a doctor examined him and found extensive injuries. Dowell was apprehended a short time later while walking down the street a few miles from the scene of the crime. Connelly was located and arrested at his home.
Connelly and Dowell were charged with first degree robbery. Initially, the case was tried jointly. But, Dowell moved for and was granted a new trial after the arresting officer testified that Dowell demanded an attorney when he was arrested. The trial continued for Connelly; Dowell was tried later. Both were convicted of first degree robbery.
ANALYSIS CONNELLY I.
A trial court should grant a mistrial "only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). "Only errors affecting the outcome of the trial will be deemed prejudicial." State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986). We review a decision denying a motion for mistrial under an abuse of discretion standard. Lewis, 130 Wn.2d at 707.
A. The first trial flaw that Connelly asserts was grounds for a mistrial concerns Meirndorf's testimony that "[the defendants] were out of prison." 2 RP at 101. Connelly asserts that evidence of his incarceration was inadmissible under ER 404(b). Connelly's argument that the court erred in admitting the statement as a prior bad act under ER 404(b) fails because the trial court did not admit the evidence. Rather, the trial court explicitly cautioned the jury not to consider the fact of Connelly's incarceration and struck the comment from the record. A jury is presumed to follow the trial court's jury instructions. State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557, review denied, 138 Wn.2d 1007 (1999). Thus, Connelly cannot claim any prejudice from Meirndorf's prison statement. As the statement did not prejudice Connelly, the trial court did not abuse its discretion in denying his motion for a mistrial on this ground.
It is immaterial that the court did not distinguish between jail and prison; the instruction clearly dealt with incarceration.
B. Connelly's second asserted ground for a mistrial concerns Meirndorf's testimony that co-defendant Dowell drove without a license. Connelly argues that this evidence was improperly admitted under ER 404(b) and so prejudicial as to warrant a new trial.
Once again, Connelly cannot challenge the evidence under ER 404(b) because the trial court did not admit the evidence and cautioned the jury not to consider it. Because a jury is presumed to follow a trial court's cautionary instruction, Connelly cannot claim that the driver's license testimony prejudiced his trial.
Additionally, that Dowell, not Connelly, drove without a license militates against a finding of prejudice. For the jury to have allowed the evidence to affect its determination of Connelly's guilt, it would have had to infer that, because Connelly associated with someone who drove without a license, he was more likely to have robbed Meirndorf. That would have been an absurd inference. As such, the trial court did not abuse its discretion in denying Connelly's mistrial motion on this ground.
C. Connelly's third asserted ground for mistrial concerns Meirndorf's testimony that he was afraid that Connelly and Dowell were going to rob him. Connelly asserts that Meirndorf's fear resulted solely from his knowledge of Connelly's prior incarceration and therefore, that Meirndorf's testimony was inadmissible.
"ER 103 requires all objections to be timely and specific. Failure to raise an objection at the trial court precludes a party from raising it on appeal." DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149, review denied, 105 Wn.2d 1015 (1986). Even if an objection is made at trial, a party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976). Here, Connelly's objection at trial merely addressed a leading question; it was not based on the admissibility of Meirndorf's fear. Thus, the asserted error was not preserved.
Even if we reviewed the admissibility of Meirndorf's testimony, we would find no error in the trial court's decision to admit it. Connelly asserts no real argument on the admissibility of the testimony, arguing instead that Meirndorf's fear of robbery was improper evidence because his fear was based on knowledge of Connelly's incarceration, which was inadmissible evidence. Connelly's argument fails. Meirndorf's fear of robbery could have originated from the fact that Connelly and Dowell knew that he had money; from Dowell repeatedly attempting to sell Meirndorff marijuana, showing that Dowell needed money; and from Dowell refusing to stop at Meirndorff's house after they had purchased cigarettes. Meirndorf's fear likely flowed from these circumstances rather than his knowledge of Connelly's and Dowell's incarceration.
Even if Connelly's argument is valid, he must still demonstrate prejudice affecting the outcome of his trial. Connelly fails to assert how Meirndorf's testimony prejudiced him. In light of the State's evidence against him (which included testimony from the victim, who knew Connelly personally and identified him as one involved in the robbery), Connelly cannot establish that evidence of Meirndorf's fear prejudiced him or had any bearing on the jury's decision. As such, the trial court did not abuse its discretion in denying Connelly's mistrial motion on this ground.
D. Connelly's fourth ground for mistrial is the admission of evidence of Dowell's gang affiliation. Specifically, Connelly asserts that the trial court erred when it (1) denied his mistrial motion on the grounds that the gang reference prejudiced his trial and (2) denied his mistrial motion after allowing testimony that Dowell put on a red beanie. The State responds that the trial court properly allowed the red beanie testimony as evidence of Dowell's "motive or plan to get money." Br. of Resp't at 7. fn1
At trial, during the State's direct examination of Meirndorf, the following colloquy occurred:
[Meirndorf]: Well, I seen [Dowell]. He started putting on a beanie and like a red beanie. I know he used to hang out with the gang members —
[Connelly's counsel]: Objection.
[Dowell's counsel]: Objection.
[The court]: Sustained. Strike that.
[Dowell's counsel]: May I approach.
[The Court]: Strike the answer, not the beanie part, but the part about the prior conduct.
[Meirndorf]: It reminded me of —
[Connelly's counsel]: We are objecting to —
[The Court]: We will take care of it later.
[State's question]: Let me lead you, help you through this part. He put a red beanie on, correct?
[Meirndorf]: Yes
[State's question]: And he started to — you started to get worried?
[Meirndorf]: Yes.
2 RP at 118.
Denial of Connelly's mistrial motion on his fourth ground was proper for several reasons. First, the trial court clearly instructed the jury not to consider the objectionable testimony. Juries are presumed to follow the trial court's cautionary instructions, and the presumption applies when the court grants a motion and strikes an answer. Second, the objectionable evidence pertained to Dowell, not Connelly, which makes any prejudicial inference unlikely. Finally, the State's evidence against Connelly was substantial. Meirndorf testified that, during the robbery, Connelly (1) had him in a choke hold, (2) hit him, and (3) said "[w]here did you put the f'ing money." 2 RP at 127. In light of the evidence against Connelly, that he was not directly implicated by Meirndorf's statement, and that the court struck the gang reference, Meirndorf's testimony was not grounds for a new trial. The trial court did not abuse its discretion in denying Connelly's mistrial motion.
Without the gang reference, the fact that Dowell put a red beanie on his head is of no import. It only assumes importance when coupled with prior or current gang affiliation. That matter was stricken.
II.
Connelly next contends that the trial court violated his right to silence because (1) the arresting officer testified that Connelly appeared nervous and confirmed that he was Robert Connelly, and (2) Dowell's arresting officer testified that Dowell demanded to speak to an attorney.
The Fifth Amendment to the United States Constitution states, in part, no person "shall be compelled in any criminal case to be a witness against himself." This provision applies to states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Article I, section 9 of the Washington Constitution states: "[n]o person shall be compelled in any criminal case to give evidence against himself." We interpret the two provisions equivalently. State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211 (1991); State v. Foster, 91 Wn.2d 466, 473, 589 P.2d 789 (1979); State v. Mecca Twin Theater Film Exch., Inc., 82 Wn.2d 87, 507 P.2d 1165 (1973). "[T]he State may not elicit comments from witnesses or make closing arguments relating to a defendant's silence to infer guilt from such silence." State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996).
Connelly asserts that the following testimony from Officer Gower was a comment on his right to silence: "When I walked in the door, he looked very nervous as I walked in the door . . . His eyes seemed to be big and he obviously didn't want me to be there. He seemed very nervous . . . I asked if he was Robert Connelly, and he said, `Yes'." 1 RP at 76-77. This testimony was not an improper comment on Connelly's right. Officer Gower never stated, as Connelly contends, "that the defendants [sic] only comment was to acknowledge who he was." Br. of Connolly at 31. While it may be true that Connelly said nothing more, Officer Gower did not say or imply that Connelly chose not to speak to him. As Officer Gower did not comment on Connelly's silence, Connelly's claim must fail.
Connelly also contends that Officer Chambers' statement that Dowell invoked his Fifth Amendment right to counsel was a comment on Connelly's right to silence. At trial, Officer Chambers testified that when he read Dowell his Miranda rights, "he told me he didn't want me to read him his damn rights. He wanted to talk to a lawyer." 3 RP at 220. Chambers said nothing further regarding Dowell's rights; in fact, at this point, the trial court granted Dowell's mistrial motion due to the cumulative affect of various trial flaws.
Connelly's argument fails for several reasons. First, no comment was made about Connelly's silence. Second, Connelly and Dowell were not together when Dowell spoke. Given that the subject rights were vested in two different people arrested at two different times, there is no prejudicial inference. Lastly, the trial court instructed the jury to "[d]isregard the comment about what the defendant [Dowell] said." 3 RP at 220. Therefore, Chambers' statement did not prejudice Connelly.
III.
Connelly's third assignment of error alleges ineffective assistance of counsel. Connelly argues that his trial counsel's failure to object to improper opinion evidence constituted ineffective assistance. The State responds that the disputed evidence was not improper, and that, even if it was, Connelly was not prejudiced by his counsel's failure.
Washington courts presume that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). To overcome this presumption, a defendant must show that the record lacks legitimate strategic or tactical reasons supporting counsel's conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Thus, to establish ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499 (2001). Deficient performance is shown if counsel's conduct fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice is shown if, but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have differed. In re Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). If either element of ineffective assistance of counsel has not been established, the court need not address the other element. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996); State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (citing Strickland v. Wash., 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), review denied, 115 Wn.2d 1010 (1990)).
To decide whether counsel's performance was deficient, we must first determine whether Connelly's counsel should have objected. Connelly's argument as to what was objectionable can be summed up as follows: the jury was allowed to take evidence bags into the jury room; on the bags, police officers had applied stickers that stated various pieces of identifying information, including the officer's signature, the crime charged, and the defendant's name. Connelly contends that these stickers constituted improper opinion testimony.
In State v. Velasquez, 67 Wn.2d 138, 406 P.2d 772 (1965), cert. denied, 384 U.S. 989 (1966), the court made the following statement: "The practice of leaving anything on the exhibit except the court's identifying marker is not recommended; and the better practice in this case would have been to remove the sheriff's identification tags." Velasquez, 67 Wn.2d at 143.
We believe that the trial court erred in allowing the jury to view the stickers. For the error to warrant a new trial, however, Connelly must show that the outcome of his trial would have differed had the bags been admitted without the stickers. Connelly cannot meet this burden. The State produced substantial evidence of an extensive beating (which Connelly did not contest) and robbery: an investigating officer found a $10 bill that belonged to Meirndorf on the front floorboard of the car that Dowell drove on the night of the robbery; and, articles of Meirndorf's clothes and his cigarettes were found in a ditch close to the car, and were bloodied. As Connelly cannot demonstrate the required prejudice, his ineffective assistance claim fails.
IV.
Connelly's final assignment of error asserts that the cumulative effect of trial errors prevented his fair trial. The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. In re Personal Restraint Petition of Lord, 123 Wn.2d 296, 332, 123 Wn.2d 737, cert. denied, 513 U.S. 849 (1994). Where no prejudicial error is shown to have occurred, cumulative error cannot be said to have deprived the defendant of a fair trial. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990). Connelly's cumulative error argument fails because only one error occurred — the stickers on the evidence bags — and that error was not prejudicial.
DOWELL I.
Dowell's first assignment of error asserts that the trial court denied him his right to a fair trial by erring under ER 404(b). Specifically, Dowell contests evidence that he repeatedly attempted to sell marijuana to Meirndorf and evidence that he drove without a license.
Whether evidence of a defendant's prior "bad acts" is admissible under ER 404(b) is largely within the trial court's sound discretion. The court's ruling will not be reversed absent a showing of abuse of discretion. State v. Lynch, 58 Wn. App. 83, 87, 792 P.2d 167, review denied, 115 Wn.2d 1020 (1990).
At Dowell's trial, Meirndorf testified that he told Dowell that he had $40 on his person on the night of the robbery. The subject of money arose when Meirndorf suggested that somebody buy more beer for the group that consisted of Meirndorf, Connelly, Connelly's wife, Dowell, and Dowell's mother. After Meirndorf told the group that he had $40, Dowell asked whether Meirndorf would buy some marijuana from him. Meirndorf testified that Dowell tried to sell him marijuana nine or ten times that evening, beginning after Meirndorf disclosed his financial status.
Where prior bad act evidence indicates a motive to rob, and motive is actually at issue, courts have allowed the evidence. See State v. Suttle, 61 Wn. App. 703, 711-12, 812 P.2d 119 (1991) (The court held that where a robbery defendant's motive is at issue, evidence of prison escape was admissible to demonstrate that the defendant needed to leave the state to avoid detection and therefore had a compelling need for money.)
Here, Dowell argued in closing that, while he assaulted Meirndorf, he did not commit a robbery. Dowell placed the blame for the robbery on Connelly, asserting that Connelly had a greater motive than he did. Although evidence of Dowell's attempted sales does not establish, dispositively, a "need" for money as in Suttle, the evidence does indicate a "desire" to obtain Meirndorf's money. That Dowell had an obvious desire to make a sale, and thus obtain money, indicates a motive for the robbery.
Because motive was at issue, and because the evidence of attempted marijuana sales indicates that Dowell did, in fact, have a motive, the court did not abuse its discretion in admitting the evidence.
With respect to the driver's license evidence, the State contends that it was relevant and admissible under ER 404(b) to show a plan for the robbery. The evidence was not relevant to prove a plan to rob Meirndorf because it does not make the existence of a plan any more or less probable.
The State does not explain how Dowell's legal capacity to operate a vehicle was probative of a plan to rob Meirndorf; and, the record provides no insight on this point. While Dowell's offer to drive, or the fact that he drove, may have been relevant to establish a general plan, the license information is not logically related to that plan.
The State also argues that the driver's license evidence was properly admitted under the "same transaction" exception to ER 404(b). Br. of Resp't at 10. The State's logic is untenable because the evidence that Dowell lacked a license provides no additional, proper context to the jury on which to determine Dowell's guilt or innocence. As the driver's license evidence was not admissible for either asserted purpose, the trial court abused its discretion.
To determine whether this error requires reversal, we must decide whether, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). Although a certain stigma or prejudice may have attached when Meirndorf disclosed that Dowell drove without a license, it borders on the ridiculous to say that Dowell would have been acquitted if not for the fact of his driving without a license.
The evidence against Dowell was substantial: Meirndorf identified Dowell in court; evidence indicated that Dowell said, "Let's get him" when Meirndorf fled from Dowell and Connelly; Dowell conceded assaulting Meirndorf in closing; Meirndorf stated that Dowell took his wallet during the assault; and although Dowell denied knowing that money had been taken from Meirndorf, money from Meirndorf's wallet was found on the floorboards near the driver's seat of the car Dowell drove. 4 RP at 347. In light of the evidence against Dowell, any prejudice engendered by his driving without a license did not affect the trial outcome.
II.
Dowell's next assignment of error alleges that the trial court erred in admitting evidence of his demeanor toward the arresting officer. The State argues that the evidence established an attempted flight from arrest and that it was thus admissible and relevant to show consciousness of guilt.
Although the parties cite no directly controlling law on whether an arrestee's demeanor is admissible, we consider whether Dowell's conduct was relevant for any purpose other than propensity. See State v. Perrett, 86 Wn. App. 312, 319, 320, 936 P.2d 426, review denied, 133 Wn.2d 1019 (1997). Evidence of flight must be substantial and sufficient so as to create a reasonable and substantive inference that defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution. State v. Bruton, 66 Wn.2d 111, 112-13, 401 P.2d 340 (1965).
The State elicited, over Dowell's objection, the following testimony from Officer Chambers:
[Prosecutor]: . . . did you try to put him in your patrol car?
[Officer]: I did.
[Prosecutor]: How did he react?
. . . .
[Officer]: He tried to get away from me. It became a struggle. He got up in my face and tried to start a fight with me.
[Prosecutor]: What do you mean he tried to start a fight with you? [Officer]: Cussed at me and got up in my face and asked me if I wanted to go, asked me if I wanted to fight.
[Prosecutor]: What kind of struggle did he put up? [Officer]: His hands were handcuffed behind his back, and he was trying to struggle back and forth trying to get my hands off of him.
4 RP at 396-97.
Although Dowell never left the scene, his actions suggest a deliberate effort to escape the officer's grasp, which allows for the reasonable inference that Dowell tried to escape arrest and prosecution. Because Dowell's demeanor was relevant to show a consciousness of guilt, the trial court did not abuse its discretion in allowing the evidence.
III.
Dowell's third assignment of error is precisely the same as Connelly's: that his counsel's failure to object to the stickers on the evidence bags constituted ineffective assistance of counsel. Our above analysis controls. There was no prejudice.
IV.
Dowell contends that the cumulative effect of evidentiary errors denied him a fair trial.
In addition to the claimed errors discussed above, Dowell's cumulative error argument asserts that the trial court erred in allowing testimony that he acted crudely when an officer photographed cuts and bruises on his body. The subject testimony came from Dowell himself, and Dowell's counsel did not object. Counsel did not object to the evidence until later when the State examined the photographing officer. As failure to make a timely and specific objection precludes a party from raising the issue on appeal, we decline review of this alleged error. DeHaven, 42 Wn. App. at 669.
Because only two errors occurred — admission of evidence that Dowell drove without a license and evidence with identification stickers on it — and because those errors did not prejudice Dowell's right to a fair trial, Dowell's cumulative error argument 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.
HOUGHTON and MORGAN, JJ., concur.