Opinion
No. 26992-2-III.
March 17, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-00960-5, Robert D. Austin, J., entered February 29, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Kulik, JJ.
UNPUBLISHED OPINION
Norman L. Roberts appeals his convictions for first degree murder and first degree assault. He contends the trial court erred in admitting hearsay evidence and lay testimony. He also contends that the State failed to establish the expert qualifications of its forensic toxicologist. We reject his contentions and affirm.
FACTS
On March 6, 2007, at about 6:00 p.m., a group of Mr. Roberts' friends and acquaintances visited him at his home. The group included Mr. Roberts' best friend Joe Harrington, Mr. Harrington's daughter Tiffany Darco, her husband Thomas Darco, Mr. Darco's mother Kate Lindsey, and Ms. Lindsey's boyfriend Ken Conklin. Within an hour, Mr. Roberts shot and killed Mr. Conklin. Mr. Roberts also shot Mr. Darco in the abdomen, resulting in life-threatening injuries. Mr. Roberts was subsequently charged with first degree murder while armed with a deadly weapon and first degree assault while armed with a deadly weapon.
At trial, Mr. Harrington testified that upon arrival at Mr. Roberts' home, the group was drinking and visiting. After about a half hour, Mr. Harrington left for four to five minutes to check on a nearby property. When he returned, he heard what sounded like a firecracker. Upon entry, Mr. Harrington saw Mr. Conklin holding his right eye and shouting that he had been shot in the eye. Mr. Harrington stated that Mr. Roberts appeared angry and was holding a gun with his arm "straight out." Report of Proceedings (RP) at 105. Mr. Harrington asked Mr. Roberts to put the gun down, but Mr. Roberts told him to stay out of it. Mr. Harrington stated that he had not seen Mr. Conklin threaten Mr. Roberts and that Mr. Conklin looked "scared and shocked." RP at 108.
When Mr. Harrington turned his attention to his daughter, he heard another shot and saw Mr. Conklin on the floor. Mr. Harrington then saw Mr. Darco head toward Mr. Roberts and heard him ask Mr. Roberts to hand over the gun. When Mr. Harrington looked at his daughter again, he heard another shot. Mr. Darco stated that Mr. Roberts had shot him in the abdomen. While Mr. Harrington helped Mr. Darco leave the room, he heard a fourth gunshot. Mr. Harrington left the premises and telephoned for help.
Mr. Darco testified that he did not see Mr. Roberts fire the first shot, but saw Mr. Conklin fall to the ground "like a board" after one of the shots. RP at 157. He stated that he tried to defuse the situation by asking Mr. Roberts to put down the gun. As he approached Mr. Roberts, Mr. Roberts looked straight at Mr. Darco and shot him in the abdomen. Mr. Darco testified that as Mr. Harrington helped him leave the room, he heard a gunshot. Mr. Darco managed to crawl outside and waited for help to arrive. His treating surgeon testified that Mr. Darco was 20 minutes from death when he arrived at the hospital.
Ms. Darco testified that she did not hear the first gunshot, but saw Mr. Conklin holding his eye and stating he had been shot in the eye. At that point, she hid in a closet where she heard three or four gunshots within a minute and a half.
Ms. Lindsey testified that when she heard the first gunshot she took cover under a table. After the second gunshot she saw Mr. Conklin fall to the floor in front of her. She did not see him move again.
Police officers testified that Mr. Roberts admitted that he had shot Mr. Conklin. Officer Tramell Taylor testified that Mr. Roberts told him "'I'm the shooter. I shot that son-of-a-bitch and he deserved it.'" RP at 245. Officer Michael McNab testified that Mr. Roberts told him "'Someone came into my house, so I shot the bastard.'" RP at 285.
Prior to Detective Mark Burbridge's testimony, the defense moved to prevent him from testifying as a ballistics expert about the order in which the shots were fired. Defense counsel also argued that it would be improper to allow the detective to give a lay opinion because the sequence of shots was a question of fact for the jury to determine. The court allowed Detective Burbridge to give his opinion of the sequence of shots as a lay person under ER 701 based upon his personal investigation of the crime scene.
ER 701 provides, "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness [and] (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."
Detective Burbridge explained his investigation. He testified that he first walked through the crime scene and met with forensic personnel, directing them to take photographs. He also explained that by using trigonometry he was able to determine the angles at which the bullets had been fired. He testified that he had been present at Mr. Conklin's autopsy and that the forensic pathologist explained the path of bullets through Mr. Conklin's body.
When the State asked Detective Burbridge about the sequence of shots, defense counsel objected based on the lack of foundation. The court overruled the objection. The detective then testified that based on his investigation, he believed that the first shot struck the wall behind Mr. Conklin. The second shot struck Mr. Conklin, the third shot hit Mr. Darco, and the fourth shot hit Mr. Conklin. During cross-examination, the detective stated that he based his opinion in part on interviews with other detectives as well as a videotaped interview of Mr. Roberts.
Detective Donald Giese testified that Mr. Roberts admitted that he shot a person who had broken into his house. Mr. Roberts told the detective that after he fired the second shot, Mr. Conklin was alive and trying to stand.
Mr. Roberts could not recall shooting Mr. Darco. He admitted shooting Mr. Conklin, but claimed self-defense. He testified that during the evening of March 6, Mr. Darco and Mr. Conklin were arguing and that he ordered them to leave. He stated that as Mr. Conklin started walking toward him he went to his room to get his pistol. When Mr. Conklin continued to head toward him, he fired the first shot. According to Mr. Roberts, the first shot did not scare Mr. Conklin, who continued to head toward him, so he shot him. He stated that Mr. Conklin fell to the floor after the second shot. Mr. Roberts claimed that Mr. Conklin tried to get up so "I shot him again." RP at 467. When asked why he shot Mr. Conklin, Mr. Roberts explained, "Because — he's young. He's younger than me. . . . He's big. And I can't fight with a young husky anymore. That's it. And I — was about half, half-assed afraid of him." RP at 468.
The State called Asa Louis, a forensic toxicologist with the Washington State Patrol. He testified that he reviewed Mr. Roberts' toxicology report and after conducting a regression analysis, determined that Mr. Roberts' blood alcohol level at the time of the shootings was about 0.16. Mr. Louis also reviewed the interview between Detective Giese and Mr. Roberts that occurred just after the shooting and concluded that Mr. Roberts did not have any problems forming short-term memory after the incident.
Mr. Roberts was convicted on both counts. This appeal followed.
ANALYSIS
Mr. Roberts first challenges the trial court's decision to allow Detective Burbridge to testify about the sequence of gunshots. He contends that this testimony was improper double hearsay, pointing out that it was based on information from other detectives, who in turn acquired their information from witnesses at the scene.
The admissibility of evidence is within the discretion of the trial court, and the reviewing court will reverse only when the trial court abuses its discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). At the outset we note that no hearsay objection was made below. Generally, we do not consider issues raised for the first time on appeal unless the claimed error is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). We find no such error here.
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). We have noted that a police officer may explain how he conducted his or her investigation, including testimony that he spoke with witnesses. State v. Lillard, 122 Wn. App. 422, 437, 93 P.3d 969 (2004). Such testimony is not hearsay so long as the testimony does not include out-of-court statements. Id.
Here, Detective Burbridge testified about his opinion of the sequence of gunshots based on his investigation. He did not repeat any specific out-of-court statements — he simply pieced together events based on information he received from other investigators, as well as his personal observations of the crime scene and the autopsy.
But even if we were to conclude that the detective conveyed hearsay information to the jury, the error was not of constitutional magnitude. "An error in admitting evidence is nonconstitutional if the hearsay declarant and recipient testify and are cross-examined." State v. Floreck, 111 Wn. App. 135, 140, 43 P.3d 1264 (2002); see also State v. Leavitt, 111 Wn.2d 66, 71, 758 P.2d 982 (1988) (failure to comply with child victim hearsay statute was nonconstitutional error because both child declarant and hearsay recipients had testified at trial and were available for cross-examination).
Nonconstitutional error in admitting a hearsay statement requires reversal only if it is reasonably probable that the error materially affected the trial's outcome. State v. Hancock, 46 Wn. App. 672, 678-79, 731 P.2d 1133 (1987), aff'd, 109 Wn.2d 760, 748 P.2d 611 (1988). In Hancock, at 679, for example, the court found no reversible error where improperly admitted hearsay testimony was "essentially a repetition of [the declarant's] own testimony, and add[ed] little or nothing." See also State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970) ("The admission of evidence which is merely cumulative is not prejudicial error.").
Here, investigating officers, other detectives, and the eyewitnesses to the March 6 shootings testified under oath at trial. They were subject to extensive cross-examination of their perceptions of events. Their testimony was consistent with the detective's testimony. As such, the detective's testimony was merely cumulative and added little, if anything, to the State's case.
Next, Mr. Roberts argues that the trial court erred in allowing Detective Burbridge to give his opinion about the sequence of shots because his opinion was not based on his own perceptions and therefore invaded the province of the jury. The trial court concluded that the detective's opinion was proper under ER 701 so long as his testimony was confined to his own observations.
In order to offer an opinion, a lay witness must have personal knowledge of the matter that forms the basis of the opinion, the testimony must be based rationally upon his perception, and the opinion must be helpful to the trier of fact. ER 701; State v. Ortiz, 119 Wn.2d 294, 308-09, 831 P.2d 1060 (1992). A lay person's observation of intoxication is an example of a permissible lay opinion. City of Seattle v. Heatley, 70 Wn. App. 573, 580, 854 P.2d 658 (1993). However, opinions as to the guilt of the accused, the intent of the accused, or the veracity of witnesses are "clearly inappropriate" opinion testimony. State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008).
Here, Detective Burbridge's opinion pertaining to the sequence of shots was collectively based on his personal investigation of the crime scene, his observations of Mr. Conklin's autopsy, and his consultations with other detectives and witnesses. To the extent the detective relied on information other than his own observations, his testimony is problematic under ER 701. However, even if the testimony was improperly admitted, it was not prejudicial.
Evidentiary error is grounds for reversal only if it results in prejudice. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). An error is prejudicial if, "'within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole. Thieu Lenh Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994).
Mr. Roberts contends that the error was not harmless because the sequence of shots was critical to establishing first degree murder. He contends, "If Mr. Roberts had shot Mr. Conklin with two consecutive shots, the State would have much more difficulty proving premeditation." Br. of Appellant at 16-17. He also argues that if the State could establish that Mr. Roberts first shot Mr. Conklin, then Mr. Darco, and then Mr. Conklin again, it would have a stronger case for premeditation between shots. His argument is not persuasive.
At trial, Mr. Roberts claimed that his only intent was to defend himself and therefore there was no premeditation. However, his defense was undermined by his own taped statement in which he admitted that no one swung at him, no one threatened him, and that he shot Mr. Conklin because he did not like him. Additionally, none of the eyewitnesses saw Mr. Conklin threaten Mr. Roberts.
Further, the detective's testimony was cumulative of properly admitted evidence. Mr. Harrington testified to the sequence of shots, stating that after the first shot he begged Mr. Roberts to put down the gun, and that despite his interference, Mr. Roberts shot Mr. Conklin again. Additionally, Mr. Darco testified that after the second shot, he tried to persuade Mr. Roberts to put down the gun, but that he was shot as he tried to intervene. In an interview with Detective Giese, Mr. Roberts admitted that the first shot just missed Mr. Conklin's head, the second shot hit his chest, and the last shot hit him in the abdomen. Thus, excluding the detective's testimony, there was sufficient evidence of premeditation. If the court erred in admitting Detective Burbridge's opinion as to the sequence of shots, any error was harmless.
Finally, Mr. Roberts contends that "the State failed to introduce sufficient evidence that Mr. Louis had adequate foundation to offer an expert opinion that Mr. Roberts had no trouble with his memory related to the night of the incident." Br. of Appellant at 19-20. However, at trial, defense counsel did not object to Mr. Louis' qualifications, the foundation of his testimony, or challenge Mr. Louis' opinion through cross-examination. Because this issue is being raised for the first time on appeal and is not of constitutional magnitude, we need not address it. RAP 2.5(a); State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986).
But even if we address the issue, Mr. Roberts' argument fails. An expert's opinion is admissible if the witness qualifies as an expert and the testimony would be helpful to the trier of fact. State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993). Mr. Louis testified that he was a forensic toxicologist with 11 years of experience, a bachelor's degree in biochemistry, and a graduate degree in environmental toxicology. He explained that he had taken classes pertaining to the impact of drugs on human performance, and participated in experiments where he personally observed individuals under the influence of known doses of alcohol. Mr. Louis was qualified to testify as to the effects of alcohol on human behavior.
Statement of Additional Grounds for Review
Mr. Roberts raises two additional grounds for our review. In his first statement, he notes that his trial attorneys worked hard for him. In the second, he contends that only the Harringtons were welcome in his home on March 6. Neither of these statements "inform the court of the nature and occurrence of the alleged errors." RAP 10.10(c). Accordingly, we do not consider his additional statements.
Mr. Roberts' convictions are affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.