Opinion
No. 37380-7-II.
January 20, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03018-8, John R. Hickman, J., entered February 22, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Bridgewater, JJ.
Howard Carr appeals his jury trial conviction for attempted first degree child rape. He argues that the trial court erred in (1) refusing to suppress the recording of a telephone intercept that failed to capture the entire conversation, (2) failing to give a unanimity jury instruction, (3) instructing the jury on a lesser-included offense, (4) denying motions for a mistrial following the State's attempted encroachment on protected marital communications and after the State elicited testimony regarding Carr's advisement of his constitutional rights, and (5) denying his motion for arrest of judgment and a new trial after the verdict. In both his appellate counsel's brief and his statement of additional grounds for review (SAG), he also argues that cumulative error requires reversal.
RAP 10.10.
In addition, Carr argues that the trial court erred by denying his motions for mistrial after a sitting juror said, "This Trial is a Farce," SAG at 1, in the presence of the other jurors and the trial court's "Executive Aide," SAG at 1; after the trial court left a transcript of the telephone intercept in the jury's presence during a break in the trial; and after the jury was subjected to numerous delays, repeatedly removed from courtroom proceedings, forced to begin deliberating on a weekend, and kept in trial for an excessive number of weeks. Carr also directs us to Pierce County's telephone intercept issuance records, which show that all intercept requests were granted and none denied; but he offers no argument in connection with this fact. We affirm.
FACTS
Howard Carr and his wife, Wanda, met the Reilly family when the Carrs moved into an apartment complex in Federal Way in 1996. The two families became friendly. Because both Reilly parents worked irregular shifts, typically 5:00 a.m. to 1:00 p.m., Carr often babysat the victim, six-year-old MR, and her brother, three-year-old RR. Carr molested MR several times while babysitting at the Reillys' Federal Way apartment.
For purposes of clarity, we use Wanda's first name; we intend no disrespect.
Under RAP 3.4, we use the juveniles' initials to protect their right to confidentiality.
MR was born on May 5, 1990.
I. Attempted Child Rape — Graham Lap Incident
In January 1997, the Reillys moved to a new home in Graham, Pierce County. Carr continued to babysit the Reilly children. In 1997, Carr periodically spent the night at the Reillys' home because of their late night work hours and the distance back to his Federal Way home. On those occasions, Carr slept nude on a day bed in a small room on the home's lower level.
One morning, MR and RR went into Carr's room to awaken him and pulled the blankets off him. When RR left the room, Carr grabbed MR, put her on his lap with her back to him, held her hips with his hands, pulled her underwear aside under her nightgown, and tried to penetrate her, but she was too small. MR believed that he was trying to penetrate her with his penis; she felt pain on the outside of her vagina and yelled for him to stop. MR did not believe that Carr had penetrated her. Carr stopped when RR returned to the room.
MR did not disclose the molestation until she was 14 years old, when she told her mother. The police began an investigation. During a medical examination, MR told a nurse that Carr had not put anything inside her and that she was still a virgin.
II. Police Investigation — Telephone Intercept
Pierce County Sheriff's Detective Ray Shaviri applied for and received a court-approved order to intercept and to record a telephone conversation between MR and Carr. MR participated in the phone call intercept: She telephoned Carr while Detective Shaviri listened to the conversation through electronic equipment. Carr admitted that he had inappropriately touched MR, but he also made numerous exculpatory statements. The tape, however, ran out as MR said goodbye, two to three seconds before the end of the conversation. Detective Daryl Purviance ran the electronic equipment, recorded the conversation, and prepared a supplemental report for the case after the intercept.
Below are examples of inculpatory and exculpatory comments Carr made during the intercepted telephone conversation with MR:
It was my fault and I touched you where you shouldn't've [sic] been touched . . .
[b]ut that's all. I mean never, we never did anything else . . . absolutely no
penetration or anything like that.
Ex. 20 at 7.
I'm tellin' you the honest truth again, you're rememberin' things that I don't remember.
Ex. 20 at 12.
I don't remember anything like goin' into your room and touchin' you while you were asleep.
. . . .
. . . I can't admit that . . . I don't remember it happenin.'
Ex. 20 at 13.
[Y]ou should tell the counselor whatever you have to . . . if you tell them that I molested you as a child or whatever, my life is over. . . . But I want you know that if that's what you have to do, it's most important for you to be comfortable with yourself.
Ex. 20 at 8.
[Y]ou're painting me into . . . a corner here.
Ex. 20 at 16.
On June 17, 2005, Detective Shaviri, accompanied by Detective Lund, drove to Ocean Shores, where they arrested Carr. Detective Shaviri advised Carr of his constitutional rights.
III. Procedure
That same day, the State charged Carr with two counts of first degree child molestation and three counts of first degree child rape.
A. Pretrial
Carr moved to suppress the intercepted telephone conversation on grounds that the intercept application violated RCW 9.73.130(3)(f) by failing to include "any type of 'statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.'" CP at 18 citing RCW 9.73.130(3)(f). Following a suppression hearing, the superior court denied the motion because "minimum compliance with RCW 9.73 has been met." Clerk's Papers (CP) at 42. Carr moved for reconsideration. The trial court denied the motion.
On October, 23, 2006, Carr pleaded guilty to an amended information charging him with three counts of first degree child molestation. In December, he hired a new attorney. On December 11, Carr moved to withdraw his guilty plea, which the superior court granted.
A new date was set for trial on the second amended information, charging two counts of first degree child molestation and three counts of first degree child rape. The case was assigned to a different judge for trial.
The trial court conducted a CrR 3.5 hearing on the admissibility of Carr's statements during the telephone intercept and ruled them admissible. The trial court found that "the duration of the [telephone intercepted] conversation exceeded the duration of the audio tape, and as a result the end of the conversation between [MR] and [Carr] was not recorded." CP at 290. Nevertheless, the trial court concluded such error was harmless.
Detective Shaviri testified that the phone conversation lasted only 2-3 seconds after the tape ran out. Detective Purviance's supplemental report stated the same. RP at 65-66 ("[MR] said good bye and ended the conversation about two [to] three seconds after the tape ended."). Carr testified that the conversation went on for 20-30 seconds and that during such time he stated unequivocally to MR, "Look, I know I didn't do this." Record of Proceedings (RP) at 228-29.
The trial court ruled: "The fact that the final portion of the conversation was not recorded should not result in suppression of the conversation. The statements that [Carr] claims to have made at the end of the conversation are not materially different than other statements made by [Carr] prior to the end of the audio recording, and are cumulative." CP at 290-91.
B. Trial 1. Testimony
At trial, the State asked Detective Shaviri to read the rights form that he had read to Carr during his arrest. After reading the form, Detective Shaviri continued to relate the follow-up questions he had asked Carr: (1) "'Do you understand each of these rights I've explained to you' "and (2) "[h]aving been made fully aware of these rights do you voluntarily wish to answer questions now?" Report of Proceedings (RP) at 990. Shaviri did not testify about whether Carr had responded to these questions or about the substance of any response. Carr objected and moved for a mistrial, arguing that this testimony strongly implied to the jury that he had failed to make any statements after he invoked his right to counsel following advisement of his constitutional rights.
The trial court denied this motion, noting, "I cannot find that there is any prejudice that would meet the burden of me requiring a mistrial." RP at 1029. The trial court did offer to instruct the jury to disregard Shaviri's comments, but Carr declined the offer.
The trial court said: "I would be happy to entertain any appropriate corrective instructions that the defense might want to suggest." RP at 1029. Defense counsel remarked, "I don't know what corrective instruction the court could give. This is one of those things where if you instruct them not to — not to pay any credence to the fact that. . . ." RP at 1029.
Cross-examining Carr's wife about discrepancies in her testimony, the State asked, "Have you had any conversations with your husband over the last few days?" RP at 1697. Carr objected, arguing that such conversations, if any, were privileged marital communication. The trial court sustained the objection. It appears from the record that Carr intended to move for a mistrial on this point. Outside the jury's presence, defense counsel noted, "Whether I ask for a mistrial kind of depends on my view of the case . . . after I have the opportunity to look at some case law which I'm trying to pull up." RP at 1705. The trial court effectively denied the motion, noting, "[T]he position the court has is that the jury is instructed at the very beginning of this trial . . . not to read anything into . . . objections." RP at 1705.
2. Jury instructions
The State asked the trial court to instruct the jury on the lesser included crime of attempted first degree child rape for counts three, four, and five (first degree child rape). The trial court allowed the lesser included instruction only as to count five — the Graham lap incident. Carr objected, citing the Workman test: In order for a lesser included instruction to be appropriate, "there has to be evidence that the defendant committed only the inferior offense." RP at 1829. The trial court agreed to give the lesser included instruction, pointing to MR's having experienced pain during the Graham lap incident, "which would indicate that there was . . . under the Workman test . . . an attempt." RP at 1834.
State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).
Carr conceded that no separate unanimity instruction was required for the Graham lap incident (count five), stating, "I think a Petrich instruction is warranted on every count except Count five." RP at 1869. The trial court agreed, explaining, "Count five was only a one-time incident, and that's all I ever remembered in terms of that particular — putting her on his lap and her feeling what she believed was an object and it hurt and she made a noise." RP at 1869. Accordingly, the portion of jury instruction 12A concerning count five contained no Petrich instruction; it read: "You have heard allegations that the defendant touched M.R. at her home in Graham while she was on the defendant's lap in the spare bedroom. These allegations are the basis for Count five." CP at 224 (emphasis added). Carr did not object to the plural use of "allegations."
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
The jury found Carr not guilty of counts one through four. On count five, the jury found Carr not guilty of the charge of first degree child rape but guilty of the lesser included crime of attempted first degree child rape.
C. Post-trial
Carr moved for arrest of judgment and for a new trial based on the trial court's failure to give a unanimity instruction for count five. The trial court denied this motion. Defense counsel learned that at least one juror did not believe they were required to be unanimous on the underlying act for count five, on which the jury ultimately convicted Carr.
Carr appeals.
ANALYSIS I. Telephone Intercept
Carr argues that the trial court erred in denying his motion to suppress the telephone intercept. We disagree.
A. Intercept Application and Order
Carr first contends that (1) the intercept application failed to contain "a particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or too dangerous to employ," as required by RCW 9.73.130(3)(f); and (2) therefore, the trial court's order was fatally flawed, despite its finding "minimum compliance with RCW 9.73." CP at 42. This argument fails.
We review intercept orders for minimal adequacy: "We will affirm if the facts set forth in the application are minimally adequate to support the determination." State v. Porter, 98 Wn. App. 631, 634, 990 P.2d 460 (1999); State v. Manning, 81 Wn. App. 714, 718, 915 P.2d 1162 (1996). The intercept order here meets this test.
The probable cause statement contained in the intercept application sufficiently supports a finding that "normal investigative procedures . . . appear to be unlikely to succeed if tried," as required under RCW 9.73.130(3)(f), because the crimes noted in the application had been committed 10 years earlier; Carr and MR were the only two persons who had witnessed all of the crimes; and, at the time of the crimes, MR had been too young to know that Carr's actions were wrong. Again because of the passage of time, there was no forensic or physical corroborating evidence, such as DNA. The intercept application also noted that Carr's acts had been secretive: He had concealed the acts, had told MR not to tell anyone about them, and expressed that he feared for his life if MR reported the acts. These facts from the application are more than minimally adequate to support the order-issuing court's conclusion that normal investigative techniques, such as a direct interview of Carr, would likely be unsuccessful. We hold, therefore, that the intercept application meets the requirements of RCW 9.73.130(3)(f) and supports the superior court's intercept order.
B. Findings of Fact
Carr next argues that the trial court erred by admitting the intercept since the evidence did not support its admission. Again, we disagree.
Regarding the intercept, the trial court found that (1) the portion of the phone intercept not captured by the recording was "less than a minute," CP at 290, and consisted of merely closing remarks between Carr and MR, (2) the failure to capture the entirety of the intercept on the recording was not the result of bad faith by law enforcement, and (3) Carr did not make any statements after the end of the audio recording that materially differed from those he made before the end of the audio recording. Based on these findings, the trial court ruled that failure to capture the conversation in its entirety should not result in suppression of the intercepted conversation and Carr's statements during the intercept were admissible.
We review findings of fact on a motion to suppress under the substantial evidence standard. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding. Hill, 123 Wn.2d at 644. We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Here, the evidence supported each of the trial court's three challenged findings. The trial court's findings of fact, in turn, support its conclusion of law, which Carr also challenges.
1. Finding of fact 1
Detective Shaviri testified that the intercepted phone conversation continued for only 2-3 seconds after the tape ran out. Detective Purviance's supplemental report stated the same: "[MR] said good-bye and ended the conversation about two [to] three seconds after the tape ended." RP at 65. Carr's somewhat conflicting testimony — that the conversation persisted for 20-30 seconds after the tape ended — does not undermine the trial court's finding of fact 1. The trial court weighed the conflicting testimony, found Detective Shaviri credible, and found Carr not credible. Both Detective Shaviri's testimony and Detective Purviance's supplemental report are substantial evidence supporting the trial court's finding.
Carr claims that during this unrecorded portion of the testimony, he stated unequivocally to MR, "Look, I know I didn't do this." RP at 229.
2. Finding of fact 2
Similarly, substantial evidence supports the trial court's finding 2 that the failure to capture the entire intercepted conversation on the recording was not the result of bad faith by law enforcement. Detective Shaviri testified that just before the recording ended, (1) the conversation had reached the "good-bye phase"; (2) by then he had what he needed for the investigation; (3) "[i]f it was something pertinent and we weren't at the good-bye phase, I would have put another tape in the recorder and we would have continued the conversation," RP at 78-79; and (4) "if there was something I felt we would have needed to record I would have [put in another tape] or had another phone call made." RP at 80.
On the contrary, Carr's contention that the State "purposefully took no action when the second tape ran out . . . in disregard for [his] rights" lacks evidentiary support. RP at 36-37.
3. Finding of fact 3
The evidence also supports the trial court's finding that "[Carr] did not make any statements after the end of the audio recording that were materially different than those made prior to the end of the audion [sic] recording." CP at 290. Carr testified that the phone conversation went on for 20-30 seconds after the recording ended, during which time he stated unequivocally to MR, "Look, I know I didn't do this." RP at 229. The trial court had access to the entire recorded bulk of the intercepted conversation, during which Carr made various other exculpatory statements, which, in fact, do not differ significantly from the exculpatory statement he claimed he made at the end of the conversation after the recording stopped. These recorded exculpatory statements are substantial evidence supporting the trial court's finding of fact number 3.
See footnote 5.
4. Conclusion of law
Carr also challenges the trial court's conclusion of law that failure to record the last few seconds of the intercepted conversation did not warrant suppression of the recording. But the case law he cites does not support this argument. For example, State v. Lewis, 59 Wn. App. 834, 801 P.2d 289 (1990), involved the scope of an investigative stop and reversal of a conviction following an illegal arrest, not an illegal search warrant or intercept order; in fact, there was no warrant in Lewis. 59 Wn. App at 836-38. Lewis is therefore inapposite. State v. Myers, 117 Wn.2d 332, 815 P.2d 761 (1991), is similarly inapposite. Myers held that evidence seized with a telephonic warrant must be suppressed when the failure to record sworn statements (made by police to a magistrate in support of obtaining such warrant) deprives the appellate court of a record sufficient to review the magistrate's probable cause determination. 117 Wn.2d 334. Here, in contrast, Carr does not challenge the probable cause determination; furthermore, the recording of his intercepted conversation and several live witnesses provided the trial court with ample opportunity to review the facts surrounding the telephone intercept. Myers does not support Carr's argument.
More on point is State v. Salle, 34 Wn.2d 183, 208 P.2d 872 (1949), in which Salle moved to suppress a wire-recording because portions were inaudible. Our Supreme Court rejected Salle's argument, noting, "[T]he mere fact that some portion of [the recording] may have been inaudible would not render the entire recording inadmissible." Salle, 34 Wn.2d at 193. So too, failure to record the last few seconds of the intercepted conversation between Carr and MR does not warrant suppression of the recording.
As the trial court remarked to Salle's jury, "[The recording] is quite indistinct, and you will miss a lot of it, but you will get some of it." Salle, 34 Wn.2d at 192.
We hold that the trial court did not err in denying Carr's motion to suppress the recorded intercepted telephone conversation.
II. Jury Instructions on Count 5
Carr next argues that we should reverse his conviction because the trial court made two errors in the jury instructions for count 5, the Graham lap incident. These arguments also fail.
A. No Separate Unanimity Instruction
Carr argues that the trial court erred in failing to provide a separate Petrich unanimity instruction for the Graham lap incident, count 5. Carr not only failed to preserve this issue for appeal, but he also invited this purported error when he told the trial court, "I think a Petrich instruction is warranted on every count except Count 5." RP at 1869 (emphasis added). The invited error doctrine precludes a criminal defendant from seeking appellate review of an error he helped create. State v. Phelps, 113 Wn. App. 347, 353, 57 P.3d 624 (2002) ("The invited error doctrine applies . . . where the defendant engaged in some affirmative action by which he knowingly and voluntarily set up the error.") Carr expressly told the trial court that no Petrich instruction was needed on count 5. Thus, the invited error doctrine precludes his challenging for the first time on appeal the trial court's failure to give a Petrich instruction.
Petrich, 101 Wn.2d at 572 ("When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. . . . The State may, in its discretion, elect the act upon which it will rely for conviction. When the State chooses not to elect, the trial court must instruct that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.").
Even assuming, without deciding, that Carr can raise this allegedly manifest constitutional error for the first time on appeal, in spite of his own "invitation" of this "error," any error was harmless. Br. of Appellant at 39. He concedes that the trial court identified a single incident as the basis for count 5, namely the Graham lap incident, during which he allegedly touched MR at her home in Graham while she was on [his] lap in the spare bedroom. He argues that the trial court erred by failing to repeat this language when instructing the jury on attempted first degree child rape and that using the plural "allegations" in instruction 12A confused the jury into believing more than one act could have been the basis for count 5. Even if these alleged errors were properly before us on appeal, both would be harmless in that a reasonable juror would have reached the same result in the absence of such errors. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
B. Lesser Included Instruction
Carr also argues that the trial court erred by instructing the jury on the lesser included crime of attempted first degree child rape for count 5 (lesser included instruction). He cites Workman, which establishes this test: In order for a lesser included instruction to be appropriate, (1) each of the elements of the lesser offense must be a necessary element of the offense charged (legal prong), and (2) the evidence in the case must support an inference that only the lesser crime was committed (factual prong). State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). Carr concedes that the legal prong was satisfied.
Carr contends, however, that the factual prong was not met, arguing that the State failed to "point to evidence that would support a jury finding that [he] committed only the lesser included offense and may not rely on the possibility that the jury could disbelieve the State's evidence." Br. of Appellant at 46-47. We disagree.
When determining if the evidence at trial was sufficient to support giving an instruction, we "view the supporting evidence in the light most favorable to the party that requested the instruction." More specifically, the trial court should give a requested jury instruction on a lesser included or inferior degree offense "'[i]f the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.'" Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)).
Fernandez-Medina, 141 Wn.2d at 455-56 (citing State v. Cole, 74 Wn. App. 571, 579, 874 P.2d 878, review denied, 125 Wn.2d 1012 (1994), overruled on other grounds by Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997)).
The evidence here supports instructing the jury on the lesser included offense of attempted first degree child rape. According to MR, during the Graham lap incident (count 5), Carr put her on his lap and tried to penetrate her vagina, during which she felt pain on the outside of her vagina, even though he was unsuccessful in penetrating her. From this evidence the jury could conclude that only the lesser attempted rape was proved. We hold, therefore, that the trial court did not err in giving the lesser included instruction.
III. Marital Privilege
Carr next argues that the trial court erred in denying his motion for a mistrial following the State's attempted encroachment on his marital privilege during cross-examination of his wife. He contends that in asking his wife about whether she had had any conversations with him during the preceding days, the State effectively commented on "the exercise of a privilege" and that "[s]uch comment [was] prejudicial" and "justif[ied] a new trial." Br. of Appellant at 49. Because Carr neither requested a curative instruction nor unequivocally moved for a mistrial, this argument fails.
After the trial court sustained Carr's privileged marital communication objection to the State's questioning of his wife, defense counsel noted, " Whether I ask for a mistrial kind of depends on my view of the case . . . after I have the opportunity to look at some case law which I'm trying to pull up." RP at 1705 (emphasis added). The record does not show, however, that Carr followed through with researching the case law and definitely asking for a mistrial on this ground. Nor does it appear that the trial court ruled on any such motion; instead, the trial court simply noted, "[T]he position the court has is that the jury is instructed at the very beginning of this trial . . . not to read anything into . . . objections." RP at 1705.
A. No Motion for Mistrial
Carr did not move for a mistrial; he merely alluded to doing so. The trial court therefore did not deny a motion not made, and there is no denial of a motion for mistrial for this court to review.
B. No Abuse of Discretion in Denying Motion for Mistrial
Even if we assume, without so ruling, that Carr moved for a mistrial and that the trial court denied his motion, such ruling is not grounds for reversal on appeal.
1. Standard of review
We review denial of a motion for a mistrial abuse of discretion, finding abuse only when no reasonable judge would have reached the same conclusion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure a fair trial. We deem prejudicial only errors affecting trial outcome. Hopson, 113 Wn.2d at 284. Under this standard, Carr's argument fails.
2. Marital privilege inapplicable
The State's questioning of Wanda Carr did not violate any marital privilege because such privilege did not apply. RCW 5.60.060(1) protects a spouse from being examined about marital communications without the other spouse's consent. This privilege does not apply, however, where the spouse is charged with a crime against a child of whom the charged spouse is a parent or guardian. A guardian can be any adult who stands in the place of the parent — even for a short period of time. See State v. Wood, 52 Wn. App. 159, 758 P.2d 530 (1988). Under this test, Carr was MR's guardian.
The relevant text of RCW 5.60.060(1) reads:
A spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner . . . [b]ut this exception shall not apply . . . to a criminal action or proceeding for a crime committed by said spouse or domestic partner against any child of whom said spouse or domestic partner is the parent or guardian.
In State v. Waleczek, 90 Wn.2d 746, 748, 585 P.2d 797 (1978), our Supreme Court held that a guardianship relationship existed during an overnight visit during which the child victim spent the night at the defendant's home. Waleczek was the child victim's neighbor, bore no legal relationship to the child, and had been acquainted with the victim's family for only about three weeks. Waleczek, 90 Wn.2d at 747. The neighbor relationship and the overnight visit sufficed for the guardian exception to the marital privilege to apply.
Our Supreme Court also provided a general definition of "guardian," which includes a person acting in loco parentis, or a person who has "put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation." Waleczek, 90 Wn.2d at 753. In finding the guardian exception applicable, the court emphasized the legislature's intent that the spousal privilege be subordinated to the overriding goal of protecting children from abuse. Waleczek, 90 Wn.2d at 751.
Similarly, in Wood, 52 Wn. App. 159, Division One of our court held that Wood was acting as a guardian when he played with neighborhood children, despite the fact that there was no express agreement between the child's parents and the defendant about care of the child. Reiterating the Waleczek definition of "in loco parentis," the court noted that a guardian relationship can be formed over a short period of time with an act as simple as an adult engaging in play with another's child, due to the parental duty that the adult undertakes in such circumstances. Wood, 52 Wn. App. at 165-66.
Carr was a frequent childcare provider for the MR and her brother. The charged crimes occurred while Carr was acting as MR's guardian. Therefore, the exception to the marital privilege applied, and it was lawful for the State to ask Carr's wife if she and Carr had discussed the case. Although the trial court ruled that the marital privilege did apply, nevertheless, it denied any motion for a mistrial that Carr may have made. Because we can affirm the trial court's ruling on an alternative ground, we affirm the trial court's denial of Carr's motion for mistrial, if any, because the State's questioning of Carr's wife did not violate the marital privilege statute under the circumstances of this case. An appellate court may sustain a trial court on any correct ground, even though the trial court did not consider that ground. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
3. No bad faith
But in sustaining Carr's objection, the trial court recognized the marital privilege. Nevertheless, the trial court denied that the State's questioning prejudiced the jury and denied that the State's questioning was in bad faith. The trial court did not abuse its discretion in these rulings.
To prove prosecutorial misconduct, Carr bears the burden of demonstrating that the State's conduct was improper and that it prejudiced his defense. We review allegedly improper comments in the context of the prosecutor's entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Jungers, 125 Wn. App. 895, 901, 106 P.3d 827 (2005). Carr has not met this burden. As noted above, the State's questioning of Wanda Carr was not privileged but lawful and, therefore, not conducted in bad-faith.
IV. Right To Remain Silent
After Detective Shaviri read the "Advisement of Rights" form that he had read to Carr during his arrest, Shaviri related to the jury the follow-up questions he had asked Carr, "'Do you understand each of these rights I've explained to you,'" and "'Having been made fully aware of these rights do you voluntarily wish to answer questions now?'" RP at 990. Carr argues that the trial court erred in denying his motion for a mistrial following this testimony. Holding that any error was harmless, we disagree.
A. Invited Error
Carr refused the trial court's offer of a curative instruction, stating, "I don't know what corrective instruction the court could give." RP at 1029. We presume the jury would have followed the trial court's instruction to disregard the testimony. Thus, Carr's refusal of such instruction constitutes invited error, which we will not review. Phelps, 113 Wn. App at 353.
See State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
B. Harmless Error
An error in admitting evidence that does not prejudice the defendant is not grounds for reversal. State v. Roberts, 31 Wn. App. 375, 380, 642 P.2d 762 (1982). We "apply the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); accord State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." See State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997); Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994).
In State v. Johnson, 42 Wn. App. 425, 431, 712 P.2d 301 (1985), we held that "[a]lthough it was error for the State to inject any reference to defendant's refusal to discuss the case after receiving Miranda warnings, we do not believe the error occurred in such a manner as to rise to constitutional proportion." This decision controls here.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
We affirmed Johnson's conviction even though his post-arrest silence was revealed during the State's direct examination of a police officer who was laying the foundation for admitting into evidence the money seized from Johnson after his arrest. Johnson, 42 Wn. App. at 431-32. Agreeing with the trial court, we ruled that the police officer's testimony did not highlight or call attention to Johnson's post-arrest silence in such a fashion or to such a degree as to penalize him for exercising his right to remain silent. Johnson, 42 Wn. App. at 432. The trial court, which had been in a position to observe the testimony's effect on the jury, apparently also had believed that the officer's testimony was innocuous. Johnson, 42 Wn. App. at 432. When Johnson moved for a mistrial, the trial court characterized the reference to his post-arrest silence as "inadvertent" and offered to instruct the jury to disregard the evidence. Johnson, 42 Wn. App. at 432. At Johnson's request, however, the trial court did not give an instruction. Johnson, 42 Wn. App. at 432 n. 5. The jury heard no further evidence of defendant's post-arrest silence; nor did the State comment on Johnson's post-arrest silence during closing argument. Johnson, 42 Wn. App. at 432. We held that the "defendant's post-arrest silence was not used unfairly by the prosecutor to deprive the defendant of his due process right to a fair trial [and] [t]here is no reasonable probability that the outcome of the trial would have been different and the error, if any, was harmless." Johnson, 42 Wn. App. at 432 (citing State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984)).
The trial court also stated that, although it had attempted to exclude the evidence, it did not believe the error had been serious enough to grant a mistrial or to dismiss the case. Johnson, 42 Wn. App. at 432.
Similarly here, any comment the State made about Carr's post-arrest silence was harmless error. First, any comment the State made was inadvertent. Detective Shaviri's relating the follow-up questions he had asked Carr (about whether he understood and wished to waive his rights) was spontaneous and not in response to the State's more limited request that Shaviri simply read the rights form he had read to Carr during his arrest. The record does not show that the State or Carr knew that Detective Shaviri would continue his testimony in this non-responsive manner. Consistently, the trial court noted, "I believe that it was probably a nonresponsive answer by the witness in regards to the State's intent, because I don't believe the State was intending to try to solicit a comment on [Carr's] right to remain silent or not." RP at 1027-28.
Again we note that Shaviri did not say whether Carr responded or relate the substance of any response.
Second, as in Johnson, Detective Shaviri's testimony neither highlighted nor called attention to Carr's post-arrest silence in such a manner as to penalize Carr for exercising such right. Again, the trial court consistently noted, "I do not see any attempt to exploit by the State during the course of the trial to date." RP at 1028. Carr does not contend the State attempted to comment on his exercise to remain silent in closing arguments; nor does the record indicate any such comment. Furthermore, as in Johnson, the trial court here offered to instruct the jury to disregard Detective Shaviri's comments, but Carr declined the offer. As in Johnson, we agree with the trial court that the State did not unfairly use Carr's post-arrest silence to deprive him of this due process right to a fair trial.
The trial court stated: "I would be happy to entertain any appropriate corrective instructions that the defense might want to suggest." RP at 1029. Defense counsel remarked, "I don't know what corrective instruction the court could give. This is one of those things where if you instruct them not to — not to pay any credence to the fact that. . . ." RP at 1029.
Again, as in Johnson, the trial court stated it did not believe a mistrial was appropriate, unable to find "prejudice that would meet the burden of . . . a mistrial." RP at 1029. Finding no reasonable probability that the outcome of the trial would have differed without Detective Shaviri's nonresponsive testimony, we hold that any error in Shaviri's comments was harmless.
The rest of the evidence, namely the intercept and Carr's inculpatory comments therein, is so strong that this minor misstep could not have affected the trial's outcome.
V. Motion for New Trial
Carr next argues the trial court erred in denying his motion for arrest of judgment and motion for new trial following the jury's verdict. Defense counsel brought these motions after learning that at least one juror did not believe they were required to have unanimity on the underlying act for count 5 in order to find Carr guilty of attempted first degree child rape. This argument also fails.
We review orders denying a motion for new trial for manifest abuse of discretion. See State v. Dawkins, 71 Wn. App. 902, 906-07, 863 P.2d 124 (1993). As we have previously held, courts may not consider testimony about matters that inhere in the verdict:
[I]nquiring into the jury's intent is not permitted in Washington: "The individual or collective thought processes leading to a verdict 'inhere in the verdict' and cannot be used to impeach a jury verdict."
State v. Rooth, 129 Wn. App. 761, 771-72, 121 P.3d 755 (2005) (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 272, 796 P.2d 737 (1990), review denied, 116 Wn.2d 1014 (1991)).
Juror motives, the effect the evidence had on the jurors, the weight given to the evidence by particular jurors, and the jurors' intentions and beliefs are all factors inhering in the jury's thought processes in arriving at its verdict and, therefore, inhere in the verdict itself. And any averment that is offered concerning these mental processes is inadmissible to impeach the verdict. Therefore, any evidence that a juror misunderstood or failed to follow the court's instructions inheres in the verdict and may not be considered.
Rooth, 129 Wn. App at 771-72 (citing Ayers v. Johnson Johnson Baby Prods. Co., 117 Wn.2d 747, 768-69, 818 P.2d 1337 (1991)).
Rooth controls here. We hold, therefore, that neither we nor the trial court can consider any post-verdict information Carr's defense counsel learned about individual jurors' beliefs during deliberation because such information inheres in the jury's thought processes in arriving at its verdict. Accordingly, the trial court did not abuse its discretion in denying Carr's post-verdict motions for a new trial and for arrest of judgment.
VI. SAG Issues A. Denials of Motions for Mistrial
In his SAG, Carr argues that the trial court erred in denying his motions for mistrial based on the following three occurrences: (1) when a sitting juror said, "This Trial is a Farce," in the presence of the other jurors and the trial court's executive aide; (2) when the trial court left a transcript of the telephone intercept in the jury's presence during a break in the trial; and (3) when the jury was subjected to numerous delays, continuously "ordered out of their hearing, motions and Court proceedings," forced to begin deliberating on a weekend, and kept in trial for an excessive number of weeks. See SAG. These arguments also fail.
Although the rules of appellate procedure do not require Carr to cite to the record or authority in his SAG, nonetheless he has an obligation to "inform the court of the nature and occurrence of alleged errors." RAP 10.10(c). And we are not required to search the record to find support for his claims. RAP 10.10(c). Moreover, we cannot address matters outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995). Nor can we review issues of credibility of witnesses and weight to accord the evidence; these issues are for the finder of fact, here, the jury. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Again, we review orders denying a motion for new trial for manifest abuse of discretion. Dawkins, 71 Wn. App. at 906-07. But we cannot consider any of the three occurrences that Carr mentions because none appear in the record before us on appeal. Furthermore, his mention of the third occurrence is more like a summary of the record. But even if they were properly before us, he has neither alleged nor shown how any of the three occurrences were sufficiently prejudicial such that we could say the trial court abused its discretion in denying a motion for a new trial.
McFarland, 127 Wn.2d at 338 n. 5; RAP 10.10(c) (Defendant must "inform the court of the nature and occurrence of alleged errors.")
B. Other Court Rules
Carr also argues that he is entitled to relief under "other rules of the Court." See SAG. But he provides no hint about which rules of court entitle him to relief or how such relief would arise. Thus, we are unable to consider this argument because it fails to "inform the court of the nature and occurrence of alleged errors." RAP 10.10(c).
C. Pierce County Intercept Records
Similarly, rather than "inform[ing] the court of the nature and occurrence" of any alleged error, as RAP 10.10(c) requires, Carr makes the following request:
Please check Pierce County's issuance of intercepts[.] [V]irtually every intercept asked for is granted. [A]t the time of these proceedings NO denials were offered.
See SAG. Not only does this argument fail to allege an error, as RAP 10.10(c) requires, but also it is not clear what Carr is asking us beyond confirming his assertions about the Pierce County intercept records before us on appeal.
The record before us on appeal contains Pierce County Reports of Applications and/or Orders Authorizing Intercept of Communication spanning years 1999-2005. As Carr contends, these records indicate that over this seven-year period, 35 requests for intercept were filed, each was granted, and none were denied. But because he does not argue why these records require us to reverse his conviction, we do not further consider this point. RAP 10.10(c).
VII. Cumulative Error
In both his SAG and his appellate counsel's brief, Carr argues that he is entitled to relief under the cumulative error doctrine. This argument also fails.
The cumulative error doctrine applies when several errors occurred to deny the defendant a fair trial, but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. State v. Price, 126 Wn. App. 617, 655, 109 P.3d 27 (2005). We hold that Carr has not demonstrated an accumulation of error of sufficient magnitude to warrant a retrial.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.