Opinion
No. 51223-4-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-04287-1. Judgment or order under review. Date filed: 09/23/2002. Judge signing: Hon. Douglass North.
Counsel for Appellant(s), Al Andre — Informational Only (Appearing Pro Se), Doc # 836275, Wa. State Penitentiary, 1313 North 13th Avenue, Walla Walla, WA 99362-1065.
Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Colby Peter Haase, Attorney at Law, 1611 E Republican St, Seattle, WA 98112-4628.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Timothy John Leary, Attorney at Law, W554 King Co Cthse, 516 3rd Ave, Seattle, WA 98104-2385.
Alan Andre contends his conviction for three counts of first degree child molestation should be reversed because the trial court abused its discretion by admitting parts, but not all, of the transcript of his interview with a police detective and by permitting a witness to testify about the victim's reputation in her classroom. Andre also argues he was deprived of a fair trial by prosecutorial and juror misconduct. We affirm his conviction.
Facts
Gina and Greg Levinson have two young daughters, H.L. and C.L. Gina and Greg separated in 1995 and their divorce became final in 1998. After they separated, Greg began dating and eventually married Lori Levinson. H.L. and C.L. lived with their mother but spent every other weekend and two months in the summer with their father.
Alan Andre and Gina met and began dating in 1997. They lived together in Renton and soon thereafter had a son. Between 1997 and 1999, Andre, Gina, and the three children moved to Oregon, Chicago, and Indiana because of Andre's employment. In the summer of 1999, Andre and Gina separated and Gina and the children moved back to Washington. About a year later, the couple reconciled and Andre moved in with Gina and the children on Mercer Island
On a Sunday afternoon in April 2001, when H.L. was eleven years old, she told her stepsister, and then her father and Lori, that Andre had inappropriately touched her.
A couple of days later, H.L. disclosed what had happened to her school counselor. She told the counselor that Andre would rub her back and snuggle with her at night and then he would touch her on her 'private'. The counselor called Gina and Child Protective Services (CPS).
Report of Proceedings (RP) (01/22/02) at 614.
Mercer Island Police Detective Meta Barden investigated H.L.'s allegations. Detective Barden, together with a CPS caseworker, interviewed H.L. at school.
A few days later, Andre agreed to meet with Detective Barden and discuss H.L.'s allegations. During the two-hour taped interview, Andre denied molesting H.L. but acknowledged that he had probably inadvertently touched her breasts and buttocks when he was with her at bedtime. He said that H.L. had Attention Deficit Disorder (ADD) and the medication she took caused her to have trouble falling asleep. Because of this, she often asked him to rub her back at night. He also said that at one point H.L. asked that he not lay so close to her. He was not sure why she made this request and said he tried from then on to stay further away from her body when he was with her at bedtime.
The State charged Andre with three counts of first degree child molestation alleging that Andre molested H.L. three times during the six month period between September 2000 and February 2001 when Andre lived with Gina and the children on Mercer Island
At trial, H.L. testified that Andre repeatedly touched her on her breasts, buttocks and vaginal area during a three-year period. She said that on one occasion she asked him to stop and he complied for awhile. H.L. also acknowledged that when she was six-years old and her father and Lori were first dating, she reported that Lori had inappropriately touched her. She later admitted that she made up these allegations because at the time she did not like Lori and did not want her father and Lori to be together.
At trial, Andre argued H.L. made up the allegations against him with the same motive as when she made up allegations against Lori in 1997. His defense also focused on the inconsistencies between H.L.'s testimony at trial and the statements she previously gave to the school counselor and Detective Barden.
The jury convicted Andre of first degree child molestation on all three counts. Andre requested a sex offender alternative sentence. The court denied his request and imposed a high end standard range sentence of 130 months on each count to run concurrently.
The standard range sentence for each count of molestation was 98 to 130 months.
Andre filed a motion for a new trial based on juror misconduct alleging the jury had improperly considered extrinsic information about H.L.'s ADD. The court held a hearing on Andre's motion and several jurors testified. The trial court decided the jury did not impermissibly rely on extrinsic evidence and entered written findings of fact and conclusions of law denying the motion for a new trial. Andre appeals.
Interview Transcript
Andre argues the trial court abused its discretion in admitting portions, but not all, of the 72-page transcript of his interview with Detective Barden. During her testimony, Detective Barden read some portions of the interview transcript. In the portions read to the jury, Andre described the routine of putting the children to bed and how he would sometimes lie down with H.L., snuggle with her, and rub her back to help her fall asleep. He said that he might have brushed her buttocks or breasts while snuggling or wrestling with her, but only accidentally. He also said that on one occasion, H.L. asked him not to snuggle so close to her. Detective Barden also read parts of the transcript where she asked Andre if he could have touched H.L. inappropriately while sleeping. Andre said that on occasion he had fallen asleep in H.L.'s bed, but could not say what happened while he was sleeping.
All together, the admitted portions comprise about 11 pages.
Andre did not testify at trial. He asked the court to admit the transcript in its entirety. Andre argued that if excerpts were admitted, it would allow the State to focus on only the 'damaging' parts of the interview and it would not convey the 'logical flow' of the interview. The court denied Andre's request to admit the entire transcript:
RP (01/15/02) at 112-113. Andre made this argument numerous times before and during trial. He also argued that instead of the transcript being read to the jury, the tape of the interview should be played. He does not pursue this argument on appeal.
[I]n general, the prosecution is entitled to introduce the portions of the interview that it finds to be relevant, and the reason is because they are admissions of a party opponent. And the defendant shouldn't be able to put on his own hearsay statements of denial and thereby avoid taking the stand Now, that doesn't mean, of course, that [the defendant isn't] entitled under Rule 106 to address issues of completeness.
RP (01/15/02) at 113-4.
The court noted Andre could fully explore the statements Detective Barden testified to in cross examination and was entitled to request additional statements be read to the jury under ER 106. The court required the State to specifically identify the sections of the transcript it intended to admit to allow Andre the opportunity to argue for admission of additional portions under ER 106.
On appeal, Andre contends the trial court should have admitted the entire transcript and its decision under ER 106 to exclude portions of the transcript that provided context, that were exculpatory, and that showed H.L. had not originally alleged penetration, was an abuse of discretion. The State was entitled to admit statements made by Andre in the interview and Andre was not entitled to admission of the entire transcript. However, ER 106 requires the court to admit other parts of the transcript that are necessary to prevent the jury from misinterpreting the admitted statements. ER 106 provides that when a 'recorded statement . . . is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.' The purpose of the ER 106 rule of completeness is to protect against creating a 'misleading impression.' 5 Karl B. Tegland, Washington Practice: Evidence, sec. 106.1 at 115 (4th ed. 1999). To satisfy ER 106, the trial court must admit only the 'remaining portions of the statement which are needed to clarify or explain the portion already received.' State v. Larry, 108 Wn. App. 894, 910, 34 P.3d 241 (2001), rev. denied, 146 Wn.2d 1022 (2002). Additional portions of a statement are necessary under ER 106 if they (1) explain the admitted evidence, (2) place the admitted portions in context, (3) avoid misleading the trier of fact, and (4) insure fair and impartial understanding of the evidence. Larry, 108 Wn. App. at 910 (quoting U.S. v. Haddad, 10 F.3d 1252 (7th Cir. 1993)).
A statement is not hearsay if, among other things, it is 'offered against a party and is the party's own statement, in either an individual or a representative capacity . . .' ER 801(d)(2). Andre cited no evidentiary basis that allows admission of the other portions of the transcript.
This court engages in a highly fact specific inquiry to evaluate the application of the rule of completeness, and is deferential to the trial court. Tegland sec. 106.1, 106.3; Larry, 108 Wn. App. at 910. We will not disturb the trial court's decision regarding a rule of completeness issue absent an abuse of discretion. Larry, 108 Wn. App. at 910.
Andre challenges the trial court's exclusion of a portion of the interview in which Detective Barden asked him what he believed prompted H.L.'s allegations and his response that he could not think of 'any reason' why she would accuse him. Andre asked the court to admit this part of the transcript but made no specific argument about why these statements should be admitted under ER 106. The trial court's decision to deny Andre's request was not an abuse of discretion. Andre's speculation about H.L.'s possible motives was not necessary to explain the evidence and did not provide context to the portion of the transcript read to the jury in which he said he might have touched H.L. accidentally when playing or wrestling with her.
Clerk's Papers (CP) at 60.
Andre contends that when the court admitted the excerpt that he had probably touched H.L.'s breasts and bottom 'by accident', it should have admitted the discussion that followed where he clarified he never rubbed H.L.'s bottom and said he might have brushed H.L.'s breasts accidentally when moving his arm. Although Andre argues the portion admitted by the State was misleading, this is not the case. Andre said essentially the same thing in both the section of the transcript read to the jury and the portion that was not. The part of the transcript he argues should have been admitted was cumulative and not necessary to provide context. Andre also argues the court abused its discretion by omitting favorable statements and Detective Barden's statements that H.L.'s only allegation was that Andre touched her. While Andre argued below that the entire transcript should be admitted, he did not identify or argue these particular portions of the transcript should be admitted. Andre identifies these parts of the transcript and makes this argument for the first time on appeal. Consequently, we may decline to address this argument. RAP 2.5(a); State v. Aaron, 95 Wn. App. 298, 303, 974 P.2d 1284 (1999). Nevertheless, Andre was not prejudiced by the omission of these parts of the transcript. The statements read to the jury by Detective Barden conveyed Andre's consistent denial of any deliberate touching. Other statements to the same effect are cumulative. And through his cross examination of both H.L. and Detective Barden, Andre highlighted the fact that until trial, H.L.'s only allegation was that Andre touched her. The trial court did not abuse its discretion in denying Andre's request to admit the entire transcript, admitting Andre's statements and denying his request to admit parts of the transcript under ER 106.
CP at 72.
Reputation Testimony
H.L.'s teacher, Diana Low, testified that H.L. had a 'fine or good' reputation for truthfulness in her fifth-grade class.
RP (01/22/02) at 650.
Before the trial court allowed Low to testify, the parties examined her outside the presence of the jury and the court ruled her testimony was admissible. Andre claims the court abused its discretion because Low admitted she had no knowledge of H.L.'s reputation in the school at large and because Low had been H.L.'s teacher for only five months and had not spent sufficient time with H.L. to know her reputation.
ER 608(a) permits a party to introduce evidence attacking or supporting a witness's reputation for truthfulness or untruthfulness. This evidence must conform to five requirements:
The first element is the foundation for the testimony — the knowledge of the reputation of the witness attacked. Second, the impeaching testimony must be limited to the witness's reputation for truth and veracity and may not relate to the witness's general, overall reputation. Third, the questions must be confined to the reputation of the witness in his community . . . Fourth, the reputation at issue must not be remote in time from the time of the trial. Finally, the belief of the witness must be based upon the reputation to which he has testified and not upon his individual opinion.
State v. Lord, 117 Wn.2d 829, 873, 822 P.2d 177 (1991) (quoting 5A Karl B. Tegland, Wash. Prac., Evidence, sec. 231 at 202-04 (3d ed. 1989)).
Relevant factors in deciding whether a witness can testify about a party's reputation for truth and veracity in the community are: the frequency of contact between members, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). The determination that there is a community is within the discretion of the trial court. Land, 121 Wn.2d at 500.
Andre points to a statement made by Low that she was 'not aware' of whether H.L. had a reputation in the larger community of 'the school.' However, the only testimony that was admitted, and the only reputation that Low testified to, was H.L.'s reputation within Low's classroom. Andre also asserts that because Low had been H.L.'s teacher for only five months at the time of trial and H.L. spent a part of everyday in a special education class, Low could not testify about her reputation. Andre did not make either of these arguments below. We generally do not consider arguments not raised below. RAP 2.5(a); Aaron, 95 Wn. App. at 303.
RP (01/22/02) at 579. This testimony was elicited on cross examination in the hearing outside the presence of the jury.
The defense questioned Low about her knowledge of H.L.'s reputation outside her classroom to show the limits of her testimony.
He argued that the Low's opinion was inadmissible because she admitted having no conversations with students or teachers about H.L.'s veracity and because the class of 24 students was too small to constitute a community.
Nevertheless, Low testified that during the previous five months she interacted with each of the 24 students in her class on a daily basis. She said she had developed a rapport with her students and spent as much time with H.L. as with the other students in her class. Considering the frequency of contact between the students and Low, the amount of time H.L. was in the classroom and her role as a student in the classroom, the trial court did not abuse its discretion in admitting Low's testimony about H.L.'s reputation for truthfulness in her classroom.
Prosecutorial Misconduct
Andre claims the trial court should have granted a mistrial based on the following comments made by the prosecutor in rebuttal during closing argument:
When this lawyer, a criminal defense lawyer, took a twelve-year old girl, accusing her of lying, my memory is that she stood up in that chair and said it's the truth. That's what I recall happening.
I will rest on your collective memories on this point. But, I believe the facts and evidence in this case show that that is what her response was. It's a colossal mismatch of a kid versus a criminal defense lawyer. Where did that kid go? She acted like a normal kid. And in the end, did she not stand up and tell him it's the truth? That's what I heard.
RP (01/23/02) at 744.
Andre argues these comments were an improper personal attack on defense counsel and were a comment on his right to legal representation. Andre did not object below.
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In re the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998). In determining whether a prosecutor's remarks require a new trial, this court must view them in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). If the defendant did not object to the comments at trial, the issue of prosecutorial misconduct is waived unless the misconduct was so 'flagrant and ill-intentioned that it evinces enduring and resulting prejudice that could not have been neutralized by admonition to the jury.' State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).
The context of the prosecutor's rebuttal argument shows that the challenged remarks were in response to Andre's closing argument, rather than a personal attack on defense counsel or a comment on Andre's right to legal representation. During Andre's closing argument, he asserted that H.L. admitted she made up the allegations against him. This argument was based on H.L.'s 'it's true' response to the following question on cross examination:
'[i]sn't it true that you are making up these allegations, these lies about Alan Andre, is because you do not want him living with your mom?'
RP (01/17/02) at 420-1.
During redirect, H.L. clarified that she was referring to the allegations when she said 'it's true'.
The prosecutor argued in rebuttal that H.L. told the jury she was telling the truth about Andre's molestation and she did not waver about what happened even in the face of his lawyer's attempt to elicit an admission from her that she was lying. The prosecutor also asserted that H.L.'s answer was initially confusing because of the way the question was posed to her by Andre's lawyer. The State's remarks in rebuttal focused on how to interpret H.L.'s testimony, not on Andre's counsel or his tactics. Aside from this comment, there was no other reference to Andre's lawyer in closing argument. Andre cannot show these comments were so 'flagrant and ill-intentioned' that a prompt objection could not have cured any prejudice.
Andre also contends that the prosecutor engaged in misconduct during opening statement. But opening statements were not transcribed and it is unclear exactly what the prosecutor said. In the absence of an adequate record, this court is unable to review the alleged misconduct. See Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (insufficient record on appeal precludes review of the alleged errors).
Juror Misconduct
Andre argues he was denied a fair trial because of juror misconduct. He claims that during deliberations the jury impermissibly relied on extrinsic evidence about their experience and knowledge of ADD. The evidence established that H.L. had ADD. Evidence of H.L.'s ADD came up in the context of Andre's routine of putting H.L. to bed at night and H.L.'s special education class because of her ADD.
A jury commits misconduct when it considers "information that is outside all the evidence admitted at trial, either orally or by document." State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994) (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990)). It is jury misconduct for jurors to interject extrinsic evidence into the jury deliberations, as such evidence is not subject to objection, cross examination, explanation, or rebuttal. Balisok, 123 Wn.2d at 118. Jurors may, however, rely on their personal life experience to evaluate the evidence presented at trial during the deliberations. Richards, 59 Wn. App. at 274. And jurors are expected to bring opinions, insights, common sense, and everyday life experiences into deliberations. State v. Carlson, 61 Wn. App. 865, 878, 812 P.2d 536 (1991). In determining whether a juror's comments constitute extrinsic evidence rather than personal life experience, courts examine whether the comments impart the kind of specialized knowledge that is provided by experts at trial. See Carlson, 61 Wn. App. at 878; State v. Briggs, 55 Wn. App. 44, 58, 776 P.2d 1347 (1989).
Appellate courts are generally reluctant to inquire into the manner in which a jury reaches its verdict. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 897, 1 P.3d 587 (2000). 'A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.' DeYoung, 100 Wn. App. at 897 (quoting Balisok, 123 Wn.2d at 117-18).
The granting of a new trial for juror misconduct is a matter within the trial court's sound discretion. Balisok, 123 Wn.2d at 117-18. Accordingly, this court reviews such decisions for an abuse of discretion. Balisok, 123 Wn.2d at 117.
After the jury returned its verdict, Andre's investigator conducted telephone interviews with the jurors. In these interviews, some jurors said the jury had discussed ADD during deliberations. Based on information from these interviews, Andre moved for a new trial because of juror misconduct. The court held an evidentiary hearing. Five jurors testified about the jury's discussions during deliberations concerning H.L.'s ADD. The court ruled that the jurors had not impermissibly relied on extrinsic evidence and entered written findings of fact and conclusions of law denying the motion for a new trial.
On appeal, Andre focuses on the testimony of three jurors, Reinhart Schaefer, Kimberly Thomas, and Philip McBeth.
Juror Reinhart Schaefer testified that he worked with someone for about 17 years whose son had ADD. During deliberations, he told the jury that his co-worker described his son as 'literal-minded' and said he 'needed to have exact questions put to him.' Schaefer said this came up in the context of talking about a 'difficult question by the defense attorney to the girl.' He also said that during deliberations there was 'not a lot of concentration on ADD.'
He and his coworker had about a dozen conversations about his son's condition over the years.
RP (01/23/02) at 757.
RP (01/23/02) at 758.
RP (01/23/02) at 761.
Juror Kimberly Thomas, a school teacher, said the issue of ADD came up in the context of discussing H.L.'s 'credibility.' She said ADD was an 'element' of that credibility, in addition to H.L.'s age and the pressure of testifying. Thomas said she had no expertise in ADD, it was her first year of teaching, and she had no experience teaching children with ADD. Thomas told the jury that another teacher who suffered from ADD told her 'how seemingly innocuous things to us could be a distraction such that a person with ADD could not focus on anything but that distraction.' Juror Phillip McBeth testified that during deliberations some jurors related their experiences with ADD including the fact that children with ADD may need to have 'repeated' and 'specific' instructions.
RP (04/05/02) at 802.
RP (04/05/02) at 804.
RP (04/05/02) at 807.
RP (04/05/02) at 792.
In denying Andre's motion for a mistrial, the court found that the jurors' comments did not represent specialized knowledge, but rather were the type of 'comments and information that we expect them to bring to jury service.' The court pointed out that ADD is a 'common diagnosis' and therefore any jury is likely to contain jurors with direct or indirect experience with it. The court also concluded that even if the information considered by the jury was extrinsic evidence, it did not affect the verdict. The court noted that the crux of the case was whether the jury believed H.L., not ADD.
RP(04/19/02) at 91.
RP (04/19/02) at 92.
Andre relies on and analogizes to Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973), and State v. Briggs, 55 Wn. App. 44, 59, 776 P.2d 1347 (1989). In Halverson, a minor who was injured in a car accident brought an action claiming future wage loss. At trial, the minor testified that he wanted to be an airline pilot, but because of his injuries, decided to pursue a career as a surveyor. The jury did not have evidence of wages for pilots or surveyors. During deliberations, a juror told the others what the salaries were for airline pilots and surveyors. The Supreme Court affirmed the trial court's order for a new trial because the wage information introduced into deliberations was akin to expert testimony and should have been subject to objection, cross examination, explanation and rebuttal. Halverson, 82 Wn.2d at 747.
In Briggs, the central issue at trial was whether the defendant, who had a profound stutter, could control or refrain from stuttering. In voir dire, a juror intentionally withheld information about his speech disorder. During deliberations, the juror discussed his own history and knowledge of speech disorders. This court held that the information imparted by the juror was outside the realm of common life experience and the juror's misconduct required a new trial. Briggs, 55 Wn. App. at 59.
Counsel did not question the jurors about their knowledge of or experience with ADD in this case.
Unlike Halverson and Briggs, the information imparted by jurors Schaefer, Thomas and McBeth was not highly specialized, technical or specific. None of the jurors had ADD or particular knowledge about ADD. The information they had was based on their common life experience. In addition, the jurors' information was very similar to the evidence about ADD presented at trial. A Special Education teaching assistant testified that H.L.'s medication helped her to 'focus' and 'understand directions.' She also said that young students with ADD are 'easily distracted' by 'sound' and 'visual things.' Both H.L.'s father and mother testified that her medication for ADD helped her to concentrate. And in contrast to Briggs, ADD was not the central issue in the case. As indicated by the trial court, the central issue was whether H.L. was telling the truth about her allegations against Andre. H.L.'s age, her testimony, her demeanor, her prior false allegation, and her ADD were all part of the jury's assessment of her credibility. The court did not abuse its discretion in concluding that the information shared by the jurors was not extrinsic evidence, but rather common life experience, and that there was no prejudice to Andre.
RP (01/22/02) at 638-39.
RP (01/22/02) at 173, 262.
We also conclude the jurors' statements Andre relies on inhere in the verdict. Statements reflecting the thought processes that led the jury to reach its verdict inhere in the verdict and may not be used to impeach it. Breckenridge v. Valley General Hospital, 150 Wn.2d 197, 204-05, 75 P.3d 944 (2003).
Cumulative Error
Andre contends that the combination of errors in admitting portions of the interview transcript, admitting reputation testimony, and denying of his motion for a new trial require reversal of his conviction under the cumulative error doctrine. The cumulative error doctrine protects a criminal defendant's right to a fair trial and applies only when a trial contains numerous prejudicial and egregious errors. See, e.g., State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). Andre has not shown that any errors occurred, so the doctrine does not apply.
Conclusion
The trial court did not abuse its discretion in admitting portions of the transcript of Andre's interview or allowing H.L.'s teacher to testify about her reputation for truthfulness. Andre was not denied a fair trial because of prosecutorial or juror misconduct. We affirm Andre's conviction.
GROSSE and AGID, JJ., concur.