Opinion
No. 64874-8-I.
Filed: July 25, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-1-02388-0, Mary E. Roberts, J., entered January 27, 2010.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Ellington and Schindler, JJ.
David Fendich appeals his conviction for third degree assault, arguing that the trial court violated his right to be present at trial by allowing the jury to listen to a 911 tape during deliberations. Because Fendich fails to establish error in the trial court's acceptance of defense counsel's express waiver of Fendich's presence in the event the jury requested a replay and because the State can demonstrate that any error was harmless beyond a reasonable doubt, we affirm.
I
On February 2, 2009, Romana Lakotiy answered a knock at her apartment door to find David Fendich with her 17-year-old son Vitaliy. Fendich claimed Vitaliy owed him $50 and asked Lakotiy to pay him. Vitaliy denied the debt. When Fendich would not leave, Lakotiy called 911. As Lakotiy was speaking to the operator, Fendich took a can of beer out of his jacket and threw it at Lakotiy, hitting her in the chin and causing bleeding and pain. Then Fendich ran away.
The State charged Fendich with assault in the third degree. Over Fendich's hearsay objection, the trial court allowed the State to play the 911 tape, finding it admissible as either an excited utterance or a present sense impression. After resting, the State moved to reopen its case in order to have the 911 tape admitted as evidence. After discussing the possibility that the jury would ask to hear the 911 tape again during deliberations, the trial court granted the motion and stated:
And then, before you leave, after closings, let's have a brief conversation about what to do if the jury does request the tape. Because if we can agree ahead of time that I don't need to reconvene counsel to discuss it on something we anticipate they might ask that question, that's helpful.
Report of Proceedings (RP) (Aug. 12, 2009) at 40.
After closing argument, the jury retired to deliberate. The trial court asked the attorneys to advise the bailiff of their contact information and then stated:
With regard to the 911 tape, if they ask to hear it, my proposal would be that I have them come into the courtroom and that [the bailiff] play it once for them, and that I indicate in writing in response to their question whether they can hear it, . . . that's what we're going to do.
And I want to hear from counsel about whether that's acceptable as sort of an anticipation so [that] we don't have to gather you to discuss this issue later.
RP (Aug. 12. 2009) at 80.
The prosecutor and defense counsel agreed to the trial court's proposal and agreed to verify that the tape contained nothing more than the recording played during trial. During deliberations, the jury submitted a written request to listen to the 911 tape. The trial court responded in writing, indicating that the bailiff would escort the jury into the courtroom and play the tape once, and instructing the jury not to discuss the case in the bailiff's presence. The bailiff escorted the jury into the empty courtroom, played the tape once, and returned the jury to the jury room. Thereafter, the jury found Fendich guilty of assault in the third degree. Fendich appeals.
II
Fendich contends that the trial court violated his constitutional rights by replaying the 911 tape for the jury during deliberations outside his presence. "[T]here should be no communication between the court and the jury in the absence of the defendant." State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983) ("highly improper" for trial court to allow FBI agent to replay recordings for jury during deliberations in courtroom in judge's presence without prior notice to defendant). Such error only requires reversal if prejudice results. Caliguri, 99 Wn.2d at 508. The State bears the burden of proving the error harmless beyond a reasonable doubt provided the defendant first raises the possibility of prejudice. State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997).
Relying on State v. Garza, 150 Wn.2d 360, 77 P.3d 347 (2003), Fendich claims that his attorney's agreement to the procedure proposed by the trial court is not sufficient to constitute a voluntary and knowing waiver of his constitutional right to be present at trial. Garza involved an implied waiver based on the defendant's unexplained absence from trial. 150 Wn.2d at 367; CrR 3.4(b). Under Garza, the trial court considers the totality of the circumstances, indulging in every reasonable presumption against waiver, when determining whether the defendant's absence from trial is voluntary and therefore operates as an implied waiver. 150 Wn.2d at 367.
But here, while Fendich was present, defense counsel expressly waived Fendich's right to be present should the jury request replay of the 911 tape and Fendich did not object. Fendich fails to provide any authority to support his claim that the record must include some additional indication of his particular knowledge of his right to be present. Instead, the "right to be present is also safeguarded by the requirement that the defendant be present when trial begins, which serves to assure that any waiver is indeed knowing." State v. Thomson, 123 Wn.2d 877, 883, 872 P.2d 1097 (1994) (internal quotation marks omitted).
Even assuming that Fendich could establish error in the trial court's acceptance of counsel's waiver of his presence, the State persuasively argues that any error in replaying the tape outside of his presence was harmless beyond a reasonable doubt. CrR 6.15(f)(1) provides:
In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence.
Fendich claims that the replay of the 911 tape unduly emphasized testimony directed at a central issue in the case, citing State v. Koontz, 145 Wn.2d 650, 660, 41 P.3d 475 (2002). In Koontz, the trial court allowed the jury to view videotape recordings of the complete trial testimony of three witnesses, including the defendant. 145 Wn.2d at 651. The videotapes consisted of various camera perspectives focusing on the different trial participants and allowing the jurors a different view of the trial than each had experienced in the courtroom, effectively allowing "an improper repetition of the complete trial testimony of three critical witnesses." Koontz, 145 Wn.2d at 659. Because the jury's determination of the defendant's credibility was the central issue of the case and viewing the videotape allowed the jury to consider additional material that each juror could not have observed at trial, the error was prejudicial, requiring reversal. Koontz, 145 Wn.2d at 660.
Here, on the 911 recording, Lakotiy gave her name and address and started to describe her situation when she was interrupted by muffled noises. Then Lakotiy repeatedly shouted something that sounded like "he beat me" and that "he" was running away. Fendich claims that the replay of the 911 tape emphasized Lakotiy's in-court testimony describing Fendich's actions as well as the State's argument that the tape showed Fenich's guilty conscience when he ran away. But as the State points out, the critical questions at trial were whether Fendich used the beer can in a manner likely to produce bodily harm and whether he did so with criminal negligence. The recording does not provide any evidence as to these questions. And the replay of the 911 tape did not give the jury any additional evidence or information that had not been presented at trial. Under these circumstances, any error was harmless beyond a reasonable doubt. See Caliguri, 99 Wn.2d at 509 (because even most prejudicial comment revealed to jury for the first time during "highly improper" replay of recordings did not provide any information of which jury was not already aware, error was harmless beyond a reasonable doubt).
Affirmed.
We concur: