Opinion
No. 53996-5-I
Filed: April 18, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-09274-2. Judgment or order under review. Date filed: 02/20/2004. Judge signing: Hon. Cheryl B. Carey.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Sheila E. Weirth, Attorney at Law, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Timothy King appeals from a conviction for assault in the third degree. He contends that the prosecutor committed misconduct when she told the jury what medical professionals would have said, had they been called to testify. While the prosecutor's comments were inartfully phrased, they did not constitute misconduct. The conviction is affirmed.
FACTS
In the early morning hours of October 19, 2003, Eliseo Cruz-Villar encountered King at a bus stop. Both men had been drinking. Cruz-Villar testified that King offered him some of his beer, which he was carrying in a bag. Cruz-Villar declined. King then demanded some money from Cruz-Villar. Concerned by King's attitude, Cruz-Villar began to walk away. He testified that King approached him from behind and struck him on the head.
At about the same time, Seattle Police Officer Chris Johnson was driving by, on his way to another call, when he saw what appeared to be King following through from throwing a punch. He testified that he saw Cruz-Villar "kind of spin away as if he had just been hit," and that he saw King shaking his hand as he started walking away. Report of Proceedings (RP) (Jan. 27, 2004) at 31. He stopped and contacted Cruz-Villar, and saw that blood was just beginning to run down his face. In broken English, Cruz-Villar conveyed that King had struck him and he identified King at the scene. Cruz-Villar was taken to the hospital where, he testified, the wound on his head required four or five stitches. The injury was painful, he testified, and he returned to the hospital once because of dizziness. No medical professionals testified.
When officers contacted King, he immediately told them was that he could not have struck Cruz-Villar because there was no blood on him. Defense counsel elicited from Officer Johnson that he had not examined King for blood. On redirect examination, the prosecutor asked the officer why he had not done so, and he explained that the presence of blood is usually fairly obvious. The redirect examination continued as follows:
Q: Okay. Is it possible for someone to hit someone over the head, cause them to bleed, and not get blood on themselves?
Defense Counsel: Objection. It calls for speculation.
The Court: Overruled.
A: Yes. It takes time to bleed, it doesn't bleed instantaneously always.
Q: So, in your experience —
A: Yes. In my experience I have seen many wounds that — I've seen gunshots that didn't bleed at all, sometimes it takes a little bit, sometimes they don't bleed at all. Usually instantaneous, I've never seen something instantaneously bleed.
Q: Okay. So it wouldn't be unusual if there was no blood on Mr. King's hand even if he had hit Mr. Cruz-Villar?
A: That's correct.
Defense Counsel: Objection, that's leading, your honor.
The Court: Overruled.
RP (Jan. 27, 2004) at 39-40. The prosecutor emphasized the last part of this exchange in closing.
In his closing argument, defense counsel pointed out that the State had not called any medical professionals. Thus, Cruz-Villar's testimony about his stitches, pain, and dizziness was the only evidence that King had caused bodily harm accompanied by substantial pain that caused considerable suffering. RCW 9A.36.031(1)(f).
"A person is guilty of assault in the third degree if he or she. . . . [w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering."
In rebuttal, the prosecutor responded that defense counsel's argument suggested "that there should have been witnesses from the medical department who came in here to tell you how painful it was for Mr. Cruz-Villar, but actually what they would be saying is what Mr. Cruz-Villar said to them, that he was in pain." RP (Jan. 27, 2004) at 134. The court overruled an objection by defense counsel, and the prosecutor continued: "So the fact that we didn't traipse in here medical personnel who would say Mr. Villar came to us complaining of pain isn't surprising. The person to ask whether or not Mr. Cruz-Villar suffered any pain is Mr. Cruz-Villar, and he was credible in his statements about what happened." Id.
King was convicted of assault in the third degree. This appeal follows.
DECISION
King argues that the prosecution was allowed to elicit key damaging evidence against him when the trial court overruled his objection to the leading question: "So it wouldn't be unusual if there was no blood on Mr. King's hand even if he had hit Mr. Cruz-Villar?" He contends that it was error to allow this question because it violated ER 611. But, in context, this question summarized the officer's answers to questions on the topic of the onset of bleeding that had immediately preceded it. The question asked cannot be meaningfully distinguished from one inquiring whether the absence of blood in these circumstances would be unusual. The trial court did not abuse its discretion in overruling the objection.
"Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony."
King also contends that the prosecutor committed misconduct when she referred in rebuttal to what medical professionals would have said had they been called to testify. King mischaracterizes the prosecutor's remarks. The prosecutor was responding to defense counsel's argument that if medical testimony could have bolstered Cruz-Villar's credibility, the State would have presented it. Her point was not to tell the jury what the doctors would have said, but to explain that anything they could have said about Cruz-Villar's pain would have been based on his self-report anyway, so their testimony could not have added anything to what Cruz-Villar himself testified. While the prosecutor's remarks could have been more clear, viewed in context, they do not constitute misconduct. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). The trial court did not abuse its discretion when it overruled the objection to this line of argument. Affirmed.
COLEMAN, KENNEDY and COX, JJ.