Opinion
67249-5-I
10-15-2012
STATE OF WASHINGTON, Respondent, v. CRAIG ROWLAND, Appellant.
UNPUBLISHED OPINION
Ellington, J.
Craig Rowland appeals his conviction for assault in the second degree–domestic violence for choking his girlfriend, Chere Madill. He contends the court erred by admitting Madill's statements at the scene, that without those statements there is insufficient evidence to convict, and that prosecutorial misconduct deprived him of a fair trial. We disagree and affirm.
BACKGROUND
In August 2010, Seattle firefighters were responding to another call when they were approached by Chere Madill. Madill was in a state of great distress and was having difficulty breathing. Lieutenant Vance Anderson, an emergency medical technician (EMT), went to provide aid. She "couldn't sit in one spot because of breathing difficulties. She was rolling around a lot side to side, highly anxious, couldn't seem to catch her breath."
Report of Proceedings (RP) (Mar. 31, 2011) at 60.
Madill was able to communicate that she had asthma and no inhaler. Her respiratory and heart rate were significantly elevated, and she had mild red abrasions on both sides of her neck that "appear[ed] to be fresh." Anderson called paramedics for advanced life support.
Id. at 70.
After about 10 minutes of medical treatment and medication, Madill was able to tell Anderson "that her boyfriend had taken her inhaler and that she was asthmatic and that he had choked her." Anderson and the paramedics stayed with Madill for about 30 minutes until she was medically stable.
Id. at 61-62.
Meanwhile police were notified. When Officer David Simmons responded to the scene, he found Madill screaming and hysterical, fluctuating "from being hysterical to calm." She was in "a highly emotional state where it is difficult to communicate."Once Simmons started asking Madill about the incident, she became hysterical again. She repeatedly told Simmons that her boyfriend, Craig Rowland, "choked me until I passed out." Simmons observed scratches on Madill's neck and red marks around her collar bone. He considered these injuries consistent with strangulation.
Id. at 104.
Id. at 127.
Id. at 105. Simmons later took a written statement from Madill.
Simmons explained, "[T]he red marks showing on her neck, and the bruising are indication[s] of pressure being placed in the area of the jugular veins and the pressure would have to be applied to either both jugular veins or the carotid artery in order to cause the subject to pass out." Id. at 111-12.
Officer Kevin Stewart searched the area for Rowland, but did not find him. When officers escorted Madill to her car and followed her back to her apartment, Stewart saw a man matching Rowland's description approach Madill. When the man noticed the officers, he turned and ran. Madill confirmed the man was Rowland. Stewart gave chase, but was unable to catch Rowland, who was apprehended later.
The State charged Rowland with assault in the second degree–domestic violence.
In a pretrial hearing, the prosecutor advised the court that he was uncertain whether Madill would testify. Rowland objected to admission of any statements Madill made to firefighters or police as testimonial and therefore inadmissible under Crawford v. Washington. The prosecutor responded that Madill's statements to Anderson were admissible as statements for purposes of medical diagnosis and treatment, and suggested that her statements to Simmons, whom the prosecutor had not yet interviewed, might be admissible as excited utterances.
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The court ruled the statements to Anderson were admissible as statements for purposes of medical treatment. The court made no pretrial ruling about the statements to Simmons.
At trial, Simmons and Anderson gave detailed testimony about Madill's physical and emotional state at the scene. Over Rowland's objections, the court admitted their testimony that Madill said Rowland had choked her. The court later indicated Madill's statements to Simmons were admitted as excited utterances.
Madill did not appear for trial. She was located by police officers and brought to court on the last day of trial. She recanted her statements at the scene, and denied that Rowland assaulted her. She claimed she had been angry at Rowland for "cheating" and sought revenge. She variously attributed the red marks on her neck to a fight she had had four days earlier with Rowland's paramour and to clutching her neck during her asthma attack. She admitted she still loved Rowland and did not want anything bad to happen to him.
She "thought that by telling the officers that he had hit me, that would get him in trouble." RP (Apr. 4, 2011) at 22.
The jury found Rowland guilty as charged. He appeals.
DISCUSSION
Excited Utterance
We review evidentiary rulings for abuse of discretion, which occurs when the trial court's decision is manifestly unreasonable or based upon untenable grounds or reasons.
State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
Rowland contends the court abused its discretion by admitting Madill's statements to Lieutenant Anderson and Officer Simmons as excited utterances, because the evidence does not show, and the court did not expressly find, that Madill made the statements under the stress of a startling event. We disagree.
The excited utterance exception to the hearsay rule provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is not hearsay. The excited utterance exception is based on the notion that "'under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control.'" Thus, "[t]he crucial question is whether the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment." Courts look to the amount of time that passed between the startling event and the utterance, the declarant's emotional state at the time of the utterance, and "any other factors that indicate whether the witness had an opportunity to reflect on the event and fabricate a story about it."
ER 803(a)(2).
State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992) (quoting 6 John Henry Wigmore, Evidence § 1747, at 195 (James H. Chadbourn ed., 1976)).
State v. Briscoeray, 95 Wn.App. 167, 173, 974 P.2d 912 (1999).
Id. at 174.
Here, the evidence about Madill's demeanor preceding and during her statements demonstrates spontaneity. When Lieutenant Anderson found her, Madill could not breathe or speak. She was "highly anxious" and her pulse and respiration were elevated to the point that Anderson summoned paramedics. It took 10 minutes for her to calm down enough to make herself understood, at which point she told Anderson her boyfriend had choked her and taken her inhaler. It took 30 minutes before she was medically stable.
RP (Mar. 31, 2011) at 60.
When Officer Simmons arrived, Madill was still "hysterical, " screaming and hyperventilating. She fluctuated between calm and hysterics and became extremely upset when asked about the incident. "[S]he . . . was concerned. She was worried. She seemed frightened." "She was unable to speak. She was crying and sobbing. She was looking around. She was worried that someone was going to show up while we were talking to her." At one point, Simmons considered calling the fire department back "because she was so upset to the point where I was concerned that she was going to harm herself by causing herself to have [another] asthmatic attack."
Id. at 127.
Id.
Id. at 129.
Id. at 128.
Despite this evidence, Rowland argues Madill's recantation testimony demonstrates she had sufficient opportunity to reflect and fabricate a story. He relies on State v. Brown. There, the declarant, T.G., called 911 to report she had been raped. She told the officer that she had been abducted, forced into her neighbor's apartment, and then raped by four men. The trial court admitted the statement as an excited utterance. When she testified, however, T.G. stated that she had actually gone to the neighbor's apartment willingly to exchange sex for drugs, whereupon she was raped. Believing the police would do nothing in that situation, she decided to fabricate the abduction. Our Supreme Court held that T.G.'s statements were not excited utterances because although the rape was a surely a startling event, her testimony showed she had the opportunity to reflect upon and fabricate part of her story.
127 Wn.2d 749, 903 P.2d 459 (1995).
Id. at 751.
Id.
Id. at 752.
Id. at 753.
Id. at 759.
Rowland argues that like T.G., Madill "had enough time . . . to fabricate her story, " and like T.G., she testified she had done so. But Brown did not involve a recantation, and a court is not required "to exclude evidence that otherwise qualifies as an excited utterance, merely because a witness later recants." When there is substantial evidence that the witness lacked the time or opportunity to fabricate a story before making the statements, but the witness later recants, "the trial court does not err by weighing the witness's credibility against the evidence indicating the statements were spontaneous and reliable." Here, substantial evidence shows that Madill's statements were made while she was in extreme distress and had no time or opportunity to fabricate.
Appellant's Br. at 11.
Briscoeray, 95 Wn.App. at 174.
Id. at 173.
Rowland also makes much of Anderson's and Simmons' statements that Madill had "calmed down" before reporting she had been choked. In context, however, the evidence does not show the sort of calm associated with reflection. Rather, it is clear that Anderson and SImmons used the term "calm" as a relative description, contrasted with Madill's panicked inability to breathe and her bouts of hysteria. And this "calm" disappeared altogether when Officer Simmons asked her what had happened. Further, Madill's testimony about her neck injuries suffered from internal inconsistencies and was at odds with Anderson's observations. The court did not err by admitting Madill's statements to Anderson and Simmons as excited utterances.
Rowland also contends the court erred by not entering an "explicit" finding that Madill was still under the stress of the startling event when she made the statements to Anderson and Simmons. The authority he cites for this proposition indicates that a court must find by a preponderance of the evidence that the declarant was under stress, but says nothing of "explicit" findings. See ER 104(a); State v. Ramires, 109 Wn.App. 749, 757-58, 37 P.3d 343 (2002); State v. Williamson, 100 Wn.App. 248, 257, 996 P.2d 1097 (2000). Here, the finding is implicit in the ruling. There was no error.
We therefore do not reach Rowland's argument that the court erred in admitting the statements to Anderson under the exception for statements in furtherance of medical diagnosis and treatment. Nor do we address Rowland's argument that absent Madill's excited utterances, the evidence was insufficient to support his conviction.
State v. Williams, 137 Wn.App. 736, 743, 154 P.3d 322 (2007) (appellate court may uphold evidentiary ruling on any proper grounds the record supports).
Prosecutorial Misconduct
Rowland argues the prosecutor made three improper comments during closing argument, which, considered separately or together, warrant reversal. Specifically, Rowland contends the prosecutor urged the jury to "find the truth" and to overlook weaknesses in the State's evidence, and that he shifted the burden by suggesting that Rowland should have presented a defense. These arguments are without merit.
To prevail on a claim of prosecutorial misconduct, a defendant must show the conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. Courts will find prejudice only if there is a substantial likelihood that the misconduct affected the jury's verdict. Failure to make a timely objection waives the issue unless the conduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." Rowland failed to object to any of the alleged misconduct, so the latter test applies.
State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).
Id. at 718-19.
Id. at 719.
Overlooking Weaknesses.
Rowland points to the following passage, which he quotes selectively, to argue the prosecutor urged the jury to disregard weaknesses in the State's case:
The evidence is important. Domestic violence cases, it's not like a burglary. You're not going to get a videotape, you're not going to get a million different witnesses all pointing to the same individual, all pointing to the same kind of crime. It's happened, by definition, in an intimate surrounding, an intimate area. For motivation why people do things is important. But, again, look at your jury instructions. Look and see what the State must prove to find Mr. Rowland guilty of the crime of assault [in] the second degree by strangulation. Again, there's nothing in there about drugs. There's nothing in there about motivation. There's nothing in there about calling every witness who again would say a darn thing. All we need to show is that on August 24, the defendant put his hands around Ms. Madill and choked her, strangled her intending to cut off the air that she breathes, intending to cut off the blood that's coursing through her veins.
RP (Apr. 4, 2011) at 85-86.
Rowland analogizes this argument to that given in State v. Evans, where the prosecutor argued, "[Y]our instruction doesn't tell you to say, 'Well, I wish I had more.' Because let me tell you what, you are always going to wish you had more. Always going [to] be questions." Division Two of this court held that argument aggravated the prosecutor's improper assertion that the jury's role was "to get to the truth" by suggesting that the jury disregard weaknesses in the State's case.
163 Wn.App. 635, 642, 260 P.3d 934 (2011) (alteration in original).
Id. at 644-45.
The argument here is not similar. The prosecutor did not argue the jury should overlook gaps in the evidence. Rather, he explained why he did not present certain types of evidence. He then accurately described the elements to be proven and properly attributed the burden of proof to the State. There was no misconduct.
Find the Truth.
Immediately after the argument quoted above, the prosecutor remarked, "Look at all of that evidence, do not leave your common sense at the door, please use it, and you will find that the only true verdict in this case. Find the defendant guilty of assault in the second degree." Rowland contends this argument is akin to those in which the prosecutor tells the jury to "find the truth." Our courts have held that such arguments are improper because the jury's duty is not to solve the case, but to determine whether the State proved each element of the crime beyond a reasonable doubt.
RP (Apr. 4, 2011) at 86.
Evans, 163 Wn.App. at 644; State v. Anderson, 153 Wn.App. 417, 429, 220 P.3d 1273 (2009).
But the prosecutor here did not argue the jury was to "find the truth." Rather, he argued that if the jury evaluated the evidence with common sense, it would conclude Rowland was guilty. His remarks could not have caused any prejudice. And even if the comment was improper, Rowland made no objection. A curative instruction reminding the jury of its duty would have obviated any prejudice.
Burden Shifting.
In another part of the argument, the prosecutor remarked, "There's a couple other folks present at the scene, according to Ms. Madill. We've never seen them. We never heard their statements." Rowland contends this reference to missing witnesses implied that Rowland should have called witnesses to corroborate Madill's testimony.
RP (Apr. 4, 2011) at 70.
Rowland relies on State v. Fleming, in which the prosecutor argued, "if the defendants are suggesting there is reasonable doubt, [you would expect that] they would explain some fundamental evidence" and State v. Cleveland, in which the prosecutor argued the defendant "was given a chance to present any and all evidence" and "has a good defense attorney [who] would not have overlooked any opportunity to present admissible, helpful evidence to you."
83 Wn.App. 209, 214, 921 P.2d 1076 (1996).
58 Wn.App. 634, 647, 794 P.2d 546 (1990).
But here, the prosecutor did not argue that the defense should have offered favorable evidence. Rather, the remark was presented in the context of highlighting inconsistencies within Madill's recantation testimony and discrepancies between her testimony and the evidence from other witnesses. Again, Rowland made no objection. Any prejudice that might have resulted from the argument could easily have been ameliorated by a curative instruction.
See RP (Apr. 4, 2011) at 68 (regarding Madill's testimony recanting her prior statement that Rowland broke her mobile phone by presenting to the jury an intact but obviously different phone); 69-70 (regarding Madill's various explanations for the marks on her neck vis-à-vis Anderson's observation that the marks were fresh); 70 (contrasting Madill's testimony that her two roommates were present when the police did a protective sweep of her house with officer's failure to mention seeing anyone in the house); 71-72 (contrasting Madill's purported decision to fabricate the story with Anderson's and Simmons' testimony about her demeanor).
Affirmed.