Opinion
No. 25250-7-III.
August 7, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01212-2, Cameron Mitchell, J., entered May 19, 2006.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
This appeal follows a conviction for first degree manslaughter. The appellant argues that the court erred in admitting the opinions of a physician who first saw him at a hospital. The opinions were, first of all, provided to the defendant and, second, easily fall within the scope of the witness's medical expertise. We also reject challenges to the sufficiency of the evidence, the adequacy of the information charging him with the crime, and the court's calculation of the term of the sentence. We therefore affirm the conviction and the sentence.
FACTS
John Stevens and Walter Copland drank for most of the day. They were joined later by a mutual friend, Al Anthis. The three then sat on Mr. Stevens' back patio and drank more.
Mr. Copland said to Mr. Anthis, "[y]ou know, I could shoot you or kill you." Report of Proceedings (RP) at 689. Mr. Anthis replied, "[w]ell, bring it on." RP at 689. Mr. Copland got up and went around a bar behind Mr. Stevens. He walked up to Mr. Anthis and shot him in the head. Mr. Stevens saw the flash from the firearm. Mr. Stevens testified that "[Mr. Copland] put the gun to [Mr. Anthis'] temple and shot 'im." RP at 690. Mr. Stevens then ran inside the house and called 911.
Police officers arrived and arrested Mr. Copland. Mr. Copland had the gun in his rear pocket. The police recovered the handgun. It had been snapped back into its case. Mr. Copland told the officers that he understood his Miranda rights. He had been a police officer in Tacoma for 28 years. Paramedics arrived at the scene. Mr. Anthis had a faint pulse. Mr. Copland commented, "He is dead. I killed him." RP at 445.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Mr. Copland was intoxicated. Police took him to a hospital for a medical clearance before taking him to jail. The police waited at the hospital with Mr. Copland. He talked about his years of service with the Tacoma Police Department. And he talked about a prior injury to his hips that resulted in medical retirement.
Mr. Copland gave the hospital staff his medical history, including his allergies to medication and his current list of medications. He also told them the name of his family doctor. A nurse first assessed Mr. Copland. His speech seemed to be clear. He answered questions appropriately.
Dr. Mark Johnson then examined Mr. Copland. He found that Mr. Copland had a detailed and clear memory of all the events until 9:05 p.m. Mr. Copland said he could not remember anything from 9:05 p.m. until he woke up in the police car. Mr. Copland's blood alcohol was 0.22. Dr. Johnson diagnosed him with intoxication and fictitious memory loss and cleared him, medically, to go to jail.
Police transported Mr. Copland to jail. Mr. Copland had difficulty contacting his son. The police asked if there was anyone else he wanted to contact in the Tri-Cities. He said yes. The police said that he could call a friend. Mr. Copland answered, "I just shot and killed our good friend in front of him, and he's gonna be real pissed off at me." RP at 964.
The case was tried to a jury. Dr. Johnson testified and the court then excused him. Dr. Johnson had a pending driving under the influence (DUI) charge, and the DUI case had been set for trial. Defense counsel did not question Dr. Johnson about the pending DUI since Dr. Johnson, "didn't say anything . . . in his testimony that would open the door to any of that evidence." RP at 976. Defense counsel requested reports on Dr. Johnson's arrest. The next day defense counsel asked to recall Dr. Johnson so he could examine him about the pending DUI case. The trial judge refused the request because he did not see anything in the police reports of the DUI that would support a claim of bias. The trial judge did permit inquiry of Dr. Johnson outside the presence of the jury. The judge ultimately refused to allow examination about the DUI in front the jury because there was no showing that Dr. Johnson had received preferential treatment.
The gun was introduced into evidence based on Officer Dean Murstig's testimony. Officer Murstig testified that he removed the shell casing and placed the gun into an evidence locker. He examined the gun at the scene. He testified that the barrel showed that it had been fired.
The jury found Mr. Copland guilty of manslaughter in the first degree and, by special verdict, found that he was armed with a firearm. The court sentenced Mr. Copland within the standard range for first degree manslaughter and added the statutory enhancement for the firearm.
DISCUSSION
Dr. Johnson's Opinion — Memory Loss
Mr. Copland contends that Dr. Johnson should not have been allowed to testify as an expert because the State did not disclose him as an expert. It instead disclosed him as a fact witness. And, in any event, the court should not have allowed the doctor to comment on Mr. Copland's memory loss because it amounted to a direct comment on his credibility. Dr. Johnson characterized Mr. Copland's claims of memory loss as fictitious.
First, we review a trial judge's decision to admit expert testimony for abuse of discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001).
Failure to Disclose
Mr. Copland objected to Dr. Johnson's expert testimony at trial since the State only listed him as a fact witness. The trial judge posited, and we agree, that based upon Dr. Johnson's qualifications and training he was qualified to give an expert opinion. RP at 793. The judge also concluded that his testimony was relevant. RP at 793.
The State provided the defense with a complete copy of Dr. Johnson's medical report. His opinions, including those opinions Mr. Copland objects to here, were all set out in that medical report. And Mr. Copland does not contend otherwise. The trial judge did not abuse his discretion by permitting Dr. Johnson to testify as an expert.
Opinions of the Defendant's Guilt
Mr. Copland next contends that Dr. Johnson should not have been allowed to describe Mr. Copland's memory loss as fictitious. The general rule is that no witness, lay or expert, can testify to a defendant's credibility or guilt or innocence. City of Seattle v. Heatley, 70 Wn. App. 573, 577-78, 854 P.2d 658 (1993).
Again, we review a trial court's decision to admit or exclude testimony for an abuse of discretion. Demery, 144 Wn.2d at 758. An expert medical witness may express an opinion as to a defendant's medical, emotional, or psychological condition. ER 702. Here, Dr. Johnson diagnosed fictitious memory loss. RP at 807. His diagnosis was also based upon his examination of Mr. Copland, lab tests, and his medical background. RP at 805-08. He concluded, based on these exams, that there was no medical explanation for the memory loss here. Mr. Copland objected to the opinion and argued that the testimony should be limited to Mr. Copland's medical clearance to go to jail (the purpose for the exam).
The trial judge's reasons easily support the discretionary decision to allow the opinion:
He [Dr. Johnson] is certainly qualified to render an opinion, and his testimony in this particular case makes clear, at least to this court, that his evaluation of the reasons for any period of memory loss by Mr. — by the defendant in this case is certainly relevant to his determination as to whether or not Mr. Copland should be cleared to be released to the jail.
RP at 793.
Impeachment of Dr. Johnson
Mr. Copland also argues that the trial judge should have allowed Mr. Copland to impeach Dr. Johnson with details of his pending DUI charge to show potential bias or prejudice.
We also review the trial court's decision to deny a request to recall a witness before the close of a party's case for an abuse of discretion. State v. Martinez, 53 Wn. App. 709, 717, 770 P.2d 646 (1989). Likewise, whether the probative value outweighs the unfair prejudice of that evidence is a decision vested in the sound discretion of the trial judge. State v. Grimes, 92 Wn. App. 973, 981, 966 P.2d 394 (1998).
Here, the court ruled:
I would be willing to allow you [defense counsel] to bring the doctor back in outside the presence of the jury for an offer of proof as to what the testimony would be. I think absent some showing that there is some type of bias that could be shown to the jury, I think that any relevance to that would be outweighed by unfair prejudice.
RP at 1295.
The trial judge went on to say that if Dr. Johnson indicated that he was not anticipating any favoritism or preferential treatment from the State for testifying in Mr. Copland's case, "then I don't think that it should be presented in front of the jury." RP at 1296. Dr. Johnson testified outside the presence of the jury, as did his lawyer. Both confirmed that they neither anticipated nor received any special benefits from the State as the result of Dr. Johnson's testimony in Mr. Copland's trial.
The court's discretionary decision to refuse examination of Dr. Johnson on his DUI charge is supported by the testimony of Dr. Johnson, his attorney, and the judge's concern over the potential for unfair prejudice. Sufficiency of the Evidence
Mr. Copland next argues that the evidence when fairly considered is insufficient to support the elements of manslaughter.
We review a challenge to the sufficiency of the evidence for substantial evidence. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992). We, of course, draw all reasonable inferences in favor of the State and against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993); State v. Myles, 127 Wn.2d 807, 816, 903 P.2d 979 (1995).
A person is guilty of manslaughter in the first degree when he or she "recklessly causes the death of another person." RCW 9A.32.060(1)(a).
Here, Mr. Copland told Mr. Anthis, "I could shoot you or kill you." RP at 689. Mr. Anthis replied, "[w]ell, bring it on." RP at 689. Mr. Copland walked up to Mr. Anthis, placed the gun on his temple, and shot him. Mr. Stevens saw the flash from the firearm. Mr. Stevens ran inside the house and dialed 911.
Mr. Copland could still place the gun back into its case and did so. The first morning in jail Mr. Copland told a police officer that he could not call his friend because, "I just shot and killed our good friend in front of him, and he's gonna be real pissed off at me." RP at 964.
The evidence here easily supports first degree manslaughter. RCW 9A.32.060(1)(a); Galisia, 63 Wn. App. at 838. Firearm Enhancement Mr. Copland complains that the informations here charged him with first degree murder and first degree manslaughter, while armed with a deadly weapon (in violation of RCW 9.94A.602 (formerly RCW 9.94A.125)) rather than armed with a firearm (RCW 9.41.010). And he says the sentencing court therefore erred by sentencing him for the firearm enhancement rather than the deadly weapon enhancement. State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), rev'd, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
Mr. Copland challenges the adequacy of these informations, the charging documents. If the defendant challenges the information after the State has lost its opportunity to amend it, the reviewing court construes the charging document liberally. State v. Phillips, 98 Wn. App. 936, 940, 991 P.2d 1195 (2000). So viewed, the question is whether the necessary elements of the crime (here a firearm enhancement) appear in any form, or by fair construction may be found, on the face of the document. State v. Kjorsvik, 117 Wn.2d 93, 104-05, 812 P.2d 86 (1991). Words in a charging document are read as a whole, construed according to common sense, and include facts that are necessarily implied. Id. at 109. The primary purpose of this rule is to give the accused notice of the nature of the allegations so that a defense may be properly prepared. State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004); Kjorsvik, 117 Wn.2d at 101-02.
Here, the State specifically alleged in the information that Mr. Copland possessed a .22 caliber handgun. This gave notice for the firearm enhancement. City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992). There is then some language in the document, however inartful, relating to the necessary element. Brooke, 119 Wn.2d at 636.
Mr. Copland relies on Recuenco for the proposition that his sentence should not have been enhanced for the firearm. This case has been reversed by the United States Supreme court. Recuenco, 126 S. Ct. 2546. In Recuenco, a defendant was sentenced to a firearm enhancement when the jury explicitly found facts supporting only a deadly weapon enhancement. Recuenco, 154 Wn.2d 156. That did not happen here. Here, the jury found facts supporting a firearm enhancement. And the special verdict form so reflects. The jury returned a special verdict answering yes to the specific question of whether "the defendant Walter Copland [was] armed with a firearm at the time of the commission of the crime." Clerk's Papers at 74.
ADDITIONAL GROUNDS
Mr. Copland also makes a number of assignments of error, pro se. Prosecutorial Misconduct
Mr. Copland gives examples of what he claims is prosecutorial misconduct. He accuses the prosecutor of misstating crucial evidence and manufacturing a crime by telling the jury that Mr. Copland was mad at Mr. Anthis. Mr. Copland states that there is absolutely no evidence or testimony to support that he was angry. He states that the prosecutor's comments during closing argument that he unfastened his clip and pulled the firearm out also constituted misconduct since no evidence or testimony supported that.
He argues that the prosecutor simply made up these assertions and they exist solely as a product of his imagination. He also contends that the prosecutor lied to the jury when he stated that, "[w]ell, you have a wild theory that Mr. Anthis shot himself with no testimony to support that." RP at 1436. He further asserts that prosecutorial misconduct occurred when he tried to show that Mr. Copland was fabricating his memory loss.
Defense counsel did not object to any of these remarks. We do not consider issues raised for the first time on appeal. RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). Moreover, in context, the prosecutor's remarks appear to be a fair comment on the evidence. State v. Russell, 125 Wn.2d 24, 85-92, 882 P.2d 747 (1994).
Sentence Exceeds Statutory Maximum
Mr. Copland next contends that his sentence of 150 months exceeds the statutory maximum. His offender score was zero. First degree manslaughter is a class A felony. RCW 9A.32.060. A person who is convicted of first degree manslaughter with an offender score of zero has a seriousness level of eleven. RCW 9.94A.515. The standard range is 78 to 102 months. RCW 9.94A.510. Here, the jury returned a special verdict that Mr. Copland was armed with a firearm during the commission of the crime. CP at 74. If such a special verdict is found by the jury, then an enhancement of five years can be added for any class A felony. RCW 9.94A.533(3)(a). "If the addition of a firearm enhancement increases the sentence so that it would exceed the statutory maximum for the offense, the portion of the sentence representing the enhancement may not be reduced." RCW 9.94A.533(3)(g). The court was then well within the sentencing range to impose the sentence of 150 months. RCW 9.94A.510; RCW 9.94A.533(3)(a). Effective Assistance of Counsel
Finally, Mr. Copland asserts that he received ineffective assistance of counsel because his attorney did not object to any of the prosecutor's improper statements. Mr. Copland contends that the prosecutor repeatedly misled the jury about its role and law, shifted the burden of proof, and incited the jury's passion and prejudice against him. The record does not support these allegations of prosecutorial misconduct. And his lawyer was not then ineffective.
We affirm the conviction and sentence.
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.
SCHULTHEIS, J., BROWN, J., concur.