Opinion
42434-7-II
02-21-2013
STATE OF WASHINGTON, Respondent, v. DANIEL WAYNE BURGESS, Appellant.
UNPUBLISHED OPINION
QUINN-BRINTNALL, P.J.
Around 1:00 am on August 5, 2010, security cameras recorded two men breaking into a Tacoma gas station to steal beer and cigarettes. On July 13, 2011, a jury found Daniel Wayne Burgess guilty of second degree burglary for his involvement in the incident. On appeal, Burgess argues that the trial court abused its discretion in denying his motion for a mistrial. We affirm.
FACTS
High school friends Natasha Kieszling and Ana-Maria Hourigan had a slumber party at the Kieszling home on August 5, 2010. Around midnight, unable to fall asleep, Kieszling called Burgess, a MySpace.com acquaintance that she had gone out with once before. Burgess invited Kieszling and Hourigan to meet him and two other young men at a nearby park. After spending about 15 minutes at the park, the girls agreed to drive Burgess and his friends to a nearby gas station so that they could use a restroom. Hourigan parked in an alley near the gas station and Burgess and one of his friends headed toward the station. Although Kieszling and Hourigan could not see what happened at the station, both related that Burgess and his friend ran back to the car carrying beer and cigarettes. The men yelled at Hourigan to drive away quickly. After driving a short distance from the scene, Burgess and his friends got out of the car, taking the stolen merchandise with them.
A 911 call alerted police to the burglary; the caller provided responding officers with a plate number and vehicle description for Hourigan's car. Shortly after dropping off Burgess and his friends, and about 15 minutes after the incident at the gas station, officers stopped Hourigan's vehicle. Hourigan and Kieszling cooperated with officers. Officers later found and arrested Burgess, and the State charged him with second degree burglary. RCW 9A.52.030(1). Burgess pleaded not guilty to the second degree burglary charge.
At trial, Hourigan testified generally to the events that occurred that night but was unsure if Burgess was the "Daniel" that helped commit the burglary as she had only met him that night and had not seen him since. Kieszling, however, immediately identified Burgess. She related that the police had her call Burgess while she was being questioned and, further, that she gave the police Burgess's phone number. Both Hourigan and Kieszling testified that the "Daniel" with them that night was wearing a bright orange shirt. The State presented surveillance footage from the store, showing one of the perpetrator's stealing a large quantity of cigarettes while covering part of his face with a bright orange shirt.
In his statement of additional grounds (SAG), RAP 10.10, Burgess argues that a discovery violation occurred because he and his lawyer were unaware of the existence of two different surveillance videos. However, at trial, Burgess's attorney conceded that the State did not conceal the video and, instead, that he simply failed to read the police reports closely enough to recognize that two separate cameras captured footage of the incident.
Gas station owner Sharbell Karout testified about the damage resulting from the incident and about his store's surveillance system. Without objection from defense counsel, Karout also testified on direct examination that he recognized Burgess in the video footage from that night, stating, "I've never seen him myself but my cashiers alerted me and many customers did." Report of Proceedings (RP) (July 12, 2011) at 64. On cross-examination, Burgess's counsel attempted to flesh out whether Karout could identify Burgess:
[Burgess's attorney] Do you know this man [Burgess] personally?
A. Never talked to him but I seen him on the video.
Q. Okay. And you've seen him on the video. This video?
A. No.
Q. That you gave to the police?
A. No. Many times [my cashiers] point at like say 9 o'clock [Burgess] came in with another person, and he bragged about breaking in, and then I look and I see it .RP (July 12, 2011) at 70. Burgess's counsel objected to this answer and after the jury was excused, moved for a mistrial. The trial court denied the motion but following the return of the jury struck the nonresponsive portion of Karout's answer and admonished the jury to ignore it. Burgess's counsel renewed the motion for a mistrial later that day. The court decided to reserve ruling on the mistrial until the next morning so that both parties could "present and . . . do some discovery on this matter." RP (July 12, 2011) at 82.
The State finished the day with the testimony of a number of police officers involved in the investigation. Tacoma Police Officer Patricia Song testified that on the night of the incident, Karout showed her the surveillance camera footage. She stated that the day after the incident, Karout-after taking time to view the video footage closely-identified Burgess as one of the perpetrators. Tacoma Police Detective Al Calitis testified that he spoke with Hourigan and Kieszling after the incident, as well as Karout. Kieszling and Karout both identified Burgess as one of the burglars. Calitis also testified that he was able to trace a phone number from Kieszling's phone to a phone registered to Burgess.
The next morning, the trial court heard argument on Burgess's motion for a mistrial. After clarifying that the court's curative instruction told the jury to ignore Karout's comments about Burgess's bragging, the trial court denied the motion. Following this, both parties rested and, shortly thereafter, the jury found Burgess guilty of second degree burglary. Burgess timely appeals.
DISCUSSION
Burgess argues that Karout's testimony concerning his knowledge of Burgess constituted a serious trial irregularity that could not be cured and that the trial court abused its discretion in denying Burgess's second motion for a mistrial. Because there is not a substantial likelihood that Karout's statements affected the jury's verdict, we disagree.
Burgess lists "violation of speedy trial rights" as a second additional ground for review in his SAG. SAG at 1. But Burgess fails to "inform the court of the nature and occurrence" of this alleged error. RAP 10.10(c). Accordingly, we do not address this issue. Burgess also argues that he was denied the right to a fair trial because of the prejudicial nature of Karout's testimony. But the motion for mistrial solely concerned Karout's testimony; addressing whether the trial court erred in denying the motion necessarily raises this issue and requires no additional analysis.
When determining the effect of an irregular occurrence at trial, we examine (1) the seriousness of the irregularity, (2) whether it involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard the irregularity. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). A trial court should grant a mistrial "'only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'" Johnson, 124 Wn.2d at 76 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). Accordingly, we review a trial court's denial of a motion for mistrial for an abuse of discretion and will only find such abuse "'when no reasonable judge would have reached the same conclusion.'" Johnson, 124 Wn.2d at 76 (internal quotation marks omitted) (quoting Hopson, 113 Wn.2d at 284). We will overturn a trial court's denial of a motion for mistrial only when there is a substantial likelihood that the error prompting the request for a mistrial affected the jury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002); Johnson, 124 Wn.2d at 76 ("'Only errors affecting the outcome of the trial will be deemed prejudicial.'" (quoting Hopson, 113 Wn.2d at 284)).
Here, Karout's testimony concerning Burgess's bragging about breaking in was both serious and highly irregular. Nevertheless, Burgess fails to establish that there is a substantial likelihood that the error affected the jury's verdict because the State presented other overwhelming, uncontroverted evidence linking him to the crime. See, e.g., State v. Watt, 160 Wn.2d 626, 636, 160 P.3d 640 (2007) (holding that evidentiary errors, including constitutional errors, are harmless if "the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt"). Most tellingly, Hourigan and Kieszling both testified that the "Daniel" who assisted in the burglary on the night in question was wearing a bright orange shirt and both surveillance videos show a suspect covering part of his face with a bright orange shirt breaking in and burglarizing the store. Also, Kieszling had met Burgess before, identified him to police on the night of the incident and explained his involvement, provided police with a telephone number that was registered in Burgess's name, and positively identified Burgess at trial. Thus, the State presented overwhelming independent evidence-both direct and circumstantial-to the jury establishing Burgess's guilt. Karout's testimony was merely cumulative. Moreover, the trial court correctly admonished the jury to disregard the portion of Karout's statement related to bragging about breaking in. We presume that the jury has followed the trial court's instructions. Johnson, 124 Wn.2d at 77.
Although Burgess argues that it is "unclear from the record exactly what portion of Mr. Karout's answers the jury was instructed to disregard," the trial court clearly established that it had instructed the jury to disregard Karout's statements about Burgess's bragging about criminal conduct. Br. of Appellant at 14.
Because Burgess fails to establish that Karout's statements-statements the trial court struck and admonished the jury to ignore-had any prejudicial effect on the outcome of his trial, we affirm his second degree burglary conviction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: VAN DEREN, J. PENOYAR, J.