Opinion
No. 22639-5-III
Filed: March 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County. Docket No: 03-1-00344-9. Judgment or order under review. Date filed: 12/08/2003. Judge signing: Hon. Robert L. Zagelow.
Counsel for Appellant(s), William David McCool, Attorney at Law, PO Box 514, Walla Walla, WA 99362-0014.
Counsel for Respondent(s), Gabriel Eliud Acosta, Attorney at Law, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
The decision to grant or deny a mistrial is one generally left to the discretion of the trial judge. In this criminal case, the State charged possession of methamphetamine and the defense asserted unwitting possession. During the trial, a witness, the security guard, blurted out that the defendant had reported being convicted under similar circumstances before. The trial judge nonetheless denied a mistrial. We conclude that was an abuse of discretion and reverse and remand for a new trial.
FACTS
John Archer concealed a package of Band-Aids and left a store without paying for them. Security guards saw him do it and stopped him. They searched him and found the Band-Aids and a plastic baggie with white powder. The powder tested positive for methamphetamine. Mr. Archer told the security guards he did not know what the substance was. The State arrested Mr. Archer and charged him with two counts of possession of methamphetamine.
A store security guard testified that Mr. Archer told him he had been convicted of something before where drugs had been planted on him. Mr. Archer moved for a mistrial. The court denied the motion for a mistrial and instead read a stipulation to the jury: `Before we resume our testimony, I want to make a statement: The parties have stipulated that the defendant, Mr. Archer, has not been convicted of any drug offense or any other offense. Okay. They have agreed he hasn't been convicted of any drug offense or any other offense.' Report of Proceedings (RP) at 71. Mr. Archer testified that he found the drugs just below the front steps of his porch. He picked the packet up and put it in his pocket. He intended to get rid of the substance but forgot. He requested that the court instruct the jury on `unwitting possession.' The court did, but modified the instruction. A jury found Mr. Archer guilty of one count of possession of methamphetamine.
DISCUSSION Mistrial
Mr. Archer argues that the trial court abused its discretion when it denied the motion for a mistrial. The evidence of a prior conviction was false. He had not previously been convicted of a similar crime. The State responds that the statement was vague and not prejudicial anyway.
We review the trial court's denial of a motion for mistrial for an abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). A court's exercise of discretion must be based upon tenable grounds and tenable reasons and must then fall within a range of acceptable choices given the facts and the law. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). The question here is whether the court's denial of the motion for mistrial falls within a range of acceptable choices. The court's decision to read the stipulation certainly rests on tenable grounds factually and tenable reasons legally given the court's discretionary authority. But in some cases we conclude that the exercise of discretion simply cannot be accommodated even by this deferential standard given the facts and the law. Id. And this is one such case.
First, we guarantee criminal defendants the right to a fair trial, not a perfect trial. State v. Miles, 73 Wn.2d 67, 70, 436 P.2d 198 (1968). But irrelevant, inflammatory and, in this case, false evidence denies the defendant that fair trial. Next, the court must consider a number of factors when deciding whether to grant a new trial: `(1) the seriousness of the irregularity, (2) whether the statement in question was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the remark, an instruction which a jury is presumed to follow.' State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987); State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983). We do not find consideration of those factors here.
Unsolicited testimony of past criminal conduct of the same nature as the crime charged is an `extremely serious' trial irregularity. Escalona, 49 Wn. App. at 255. And we doubt that any curative instruction would help; a jury would `undoubtedly' view the defendant in a different light. Id. at 253-56; Miles, 73 Wn.2d at 68-71.
The State charged Mr. Archer with possession of methamphetamine. The State had no evidence that Mr. Archer had ever been convicted of a similar crime. Reading a stipulation is simply not enough in these circumstances. We hold therefore that the trial court abused its discretion by denying the motion for mistrial here.
Unwitting Possession Instruction
The defense of unwitting possession has two prongs. The first would be supported by a factual showing that this defendant did not know the substance was in his pocket. 11 Washington Pattern Jury Instructions: Criminal 52.01, at 679 (2d ed. 1994) (WPIC) (knowledge of possession). The second would be supported by a factual showing that he knew something was in his pocket but he did not know the nature of the substance. WPIC 52.01 (knowledge of the nature of the substance). The court instructed on the second, but not the first. Mr. Archer contends the court should have instructed on both.
We review the trial court's refusal to give a requested jury instruction for an abuse of discretion where the refusal is based on factual reasons. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). Where the refusal is based on a ruling of law, our review is de novo. Id. at 772. Jury instructions must accommodate the defendant's theory of the case, but only if the evidence is sufficient to support that theory. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003). Unwitting possession requires a showing that the defendant `[did not know that the substance was in his possession] [or] [did not know the nature of the substance].' WPIC 52.01 (emphasis added); State v. Buford, 93 Wn. App. 149, 152, 967 P.2d 548 (1998).
A defendant's knowledge that he possessed a substance but that the possession was momentary or intended to be momentary is different from a claim of unwitting possession. See State v. Staley, 123 Wn.2d 794, 802, 872 P.2d 502 (1994). The claim of unwitting possession is appropriate where the element of possession may be proven but the defendant is unaware of how it ended up in his possession. See id. at 798-802; Buford, 93 Wn. App. at 151-52. It is not intended to apply to cases where the defendant forgot he possessed the substance. See Staley, 123 Wn.2d at 798-802.
Mr. Archer knew the substance was in his pocket. At trial he said he picked up the substance while cleaning outside his house, put it in his pocket to dispose of it, and forgot about it. The court then refused Mr. Archer's proposed instruction that possession of a controlled substance may be unwitting if a person `did not know that the substance was in his possession.' Clerk's Papers (CP) at 5. Instead the court instructed the jury that `[p]ossession of a controlled substance is unwitting if a person did not know the nature of the substance.' CP at 16.
The evidence here then does not support any inference that he `did not know the substance was in his possession.' WPIC 52.01. And the trial court correctly refused to instruct the jury on the first prong of the `unwitting possession' instruction.
We reverse and remand for a new trial.
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.
KATO, C.J. and BROWN, J., Concur.