Opinion
No. 26739-3-III.
February 26, 2009.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-1-00005-1, Donald W Schacht, J., entered December 14, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
Appellant Michael Elmore challenges his Walla Walla County conviction for first degree manslaughter, arguing that the trial court erred in not granting his request for public funding of a video expert. We conclude Mr. Elmore did not show that a video expert was necessary for his defense and that the court did not abuse its discretion in permitting officers to testify to what they saw on videotapes. Therefore, we affirm.
BACKGROUND
Washington State Penitentiary inmate Kevin Achartz died from injuries inflicted by two men who attacked him in his cell. An autopsy determined that Mr. Achartz died from blunt trauma injuries to the head and chest, along with probable asphyxia. Michael Elmore and Victor Doty were discovered hiding under an open stairwell with blood on their clothing. Suspicion fell on them. DNA testing showed the blood belonged to Mr. Achartz. The two eventually were charged with first degree murder.
The penitentiary maintains a video surveillance system that captured some of the events on camera. The system is an 18-camera multiplex analog format. The original videotapes could only be viewed on the prison's system. A detective who viewed between 150 and 200 hours of tapes copied them to DVD and CD digital formats.
The defense sought to hire a videotape expert from Spokane, Grant Fredericks, to review the copies, because he would testify that copying to DVD could make the copy unreliable. The court and counsel journeyed to the penitentiary and watched the original tapes on the prison's system. The trial court ultimately denied the motion, finding that there was no indication that the copies were inaccurate. The court indicated it was not going to authorize a "fishing expedition."
Report of Proceedings (RP) 135.
At trial, the detective and a prison guard testified concerning the identity of the inmates shown on the videotape. The defense had objected to any such testimony prior to trial. The trial court ruled that identification testimony would be proper if a sufficient foundation existed.
RP 104, 108-109.
Testimony from the victim's cellmate, George Barr, identified both Mr. Doty and Mr. Elmore as the assailants. The cellmate originally had told authorities that only Mr. Doty was involved in the attack. He also testified that the assault was not intended to kill Mr. Achartz. Instead, the other inmates hoped to beat him so that the victim would seek protective custody rather than live in the general population.
Counsel for Mr. Elmore argued in closing that although his client was present in the cell and had assaulted Mr. Achartz, he had not killed the victim and most certainly had not premeditated any killing. RP 499-511. The jury partially agreed, returning a verdict for first degree manslaughter instead of first degree murder. After receiving a high-end standard range sentence of 280 months, Mr. Elmore appealed to this court.
RP 502, 504.
ANALYSIS
Video Expert. Mr. Elmore argues that the trial court erred by not authorizing retention of Mr. Fredericks at public expense. We agree with the trial court that there was no showing that Mr. Fredericks was necessary to the defense. Accordingly, there was no error.
A criminal defendant is constitutionally entitled to present relevant evidence in support of his defense. State v. Maupin, 128 Wn.2d 918, 924-925, 913 P.2d 808 (1996). An indigent criminal defendant can have necessary services provided at public expense in order to fulfill this constitutional mandate. State v. Mines, 35 Wn. App. 932, 935, 671 P.2d 273 (1983), review denied, 101 Wn.2d 1010 (1984). To that end, CrR 3.1(f) sets forth a procedure for obtaining expert services at public expense. CrR 3.1(f)(1) provides that expert or other "services necessary to an adequate defense in the case" may be obtained by motion to the court. "Upon finding that the services are necessary," the trial court "shall authorize the services." CrR 3.1(f)(2). A trial court's determination that services are or are not necessary is reviewed for abuse of discretion. State v. Kelly, 102 Wn.2d 188, 201, 685 P.2d 564 (1984). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the trial court found there was no showing of necessity because there was no indication that the copies were erroneous. This was a tenable basis for denying the motion. The trial court had reviewed the original tapes at the prison. There was no defense argument that the copies actually were faulty. Instead, the allegation of Mr. Fredericks was that the copies could be bad because the process used to copy analog to digital was not sound. That generalized allegation was insufficient to establish necessity for an expert in this case.
Notably, the defense never claimed that Mr. Elmore was not present in the cell. Mr. Elmore never filed a pretrial affidavit in support of the motion denying that he was present or otherwise contesting the allegation that he was in the cell. Mr. Barr's testimony placed him there and the victim's blood was conclusively shown to be on his clothing. Indeed, counsel conceded as much in closing argument when he agreed that his client was present, but simply had not premeditated any killing.
In light of the trial court's own investigation of the situation and the lack of any particularized claim that these digital copies were in error, the trial court's conclusion that the services of Mr. Fredericks were not necessary was certainly based on tenable grounds. There was no abuse of discretion in denying the motion for expert services.
Identification Testimony. Mr. Elmore also contends that the trial court erred in permitting the detective and the prison guard to identify the prisoners seen on the videotape when the copies were played for the jury. The admission of evidence at trial is a matter left to the discretion of the trial judge. State v. Rivers, 129 Wn.2d 697, 709, 921 P.2d 495 (1996). The trial court did not abuse its discretion in this regard. We also fail to see how this evidence was harmful in light of the defense theory of the case.
Mr. Elmore argues that the identification testimony by the two witnesses was improperly admitted in violation of ER 602 (personal knowledge), ER 701 (lay opinion testimony), and ER 702 (expert witness foundation), and the opinion in State v. Jamison, 93 Wn.2d 794, 613 P.2d 776 (1980). The trial court instead found the governing case was State v. Hardy, 76 Wn. App. 188, 884 P.2d 8 (1994), aff'd sub nom. on other grounds by State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996). We agree that Hardy was more on point than Jamison. Jamison, a case tried prior to Washington's adoption of the Rules of Evidence, involved testimony by counselors who knew the defendant and that he was the person depicted in photographs of a robbery. 93 Wn.2d at 799. The court concluded the testimony invaded the province of the jury since there was no showing of special need for the testimony. Id. The court expressly noted that identification testimony from photographs was not necessarily inadmissible. Id. Hardy involved a prosecution after the Rules of Evidence were adopted. There a police officer who was more familiar than the jury with the defendant was permitted to identify him on a videotape shown the jury. 76 Wn. App. at 190. The court noted there was significant federal authority permitting identification testimony under ER 701 as long as the lay witness was more likely to correctly identify the person in the photograph than the jury was. Id. at 190-191. In Hardy, the officer knew the defendant and had seen him in motion before, something the jury had not. Accordingly, it was proper to allow the identification testimony. Id. at 191. The court also distinguished Jamison as involving a photograph rather than a video, and noted that the case predated the adoption of the Rules of Evidence. Id. at 190 n. 1.
Similarly here, this case involves a videotape of men moving about a prison rather than a photograph. The detective spent nearly 200 hours watching the videotapes. The corrections officer had worked with the defendant for some time. Both men had much more extensive experience with Mr. Elmore than the jury. They were more likely to correctly identify him than the jury would be. Thus, the court correctly ruled that the two could identify Mr. Elmore as one of the men observed on the tapes. There was no error. Hardy, 76 Wn. App. at 191.
Appellant also argues that the detective only "knew" him from watching the videotapes, so his opinion was not based on personal knowledge as required by ER 602. However, the detective had interviewed Mr. Elmore and spent time with him. The identification was not based solely on viewing the videotapes. Accordingly, ER 602 does not bar the detective's identification testimony.
Finally, we question how this evidence would have been harmful to the defense case. As noted, he was also identified by an eyewitness and the DNA testing showed the victim's blood was on Mr. Elmore's clothing. In light of all of the evidence placing Mr. Elmore in the cell at the time of the attack, the defense understandably focused on intent and causation in its arguments, which succeeded when the jury reduced the charge to first degree manslaughter. The additional identification by the two officers who viewed the videotapes could not have harmed Mr. Elmore's defense under these facts. Thus, even if there had been error in admitting the testimony, it was harmless.
For both reasons, we affirm the decision of the trial court to admit the challenged identification testimony. Accordingly, the conviction for first degree manslaughter is affirmed.
A majority of the panel has determined 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, C.J. and KULIK, J., concur.