Opinion
No. 56375-1-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-13447-8, Julie Spector, J., entered May 16, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Michael Golbienko (info Only), 2206 NE 197th Pl Apt B, Shoreline, WA 98155.
Counsel for Respondent(s), Julie Anne Kays, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Affirmed by unpublished per curiam opinion.
Michael Golbienko appeals his conviction of one count of first degree robbery. He contends that a police officer's testimony mentioning Golbienko's admission to other acts and referencing dismissed charges deprived him of a fair trial. We disagree. We also hold that Golbienko was not prejudiced by the court's delayed CrR 3.5 findings and accordingly, affirm.
Sandra Crabb woke up from a nap and noticed her teenage son, R.G., had an abraded, bloody arm, and nose swollen so badly his eyes were not completely visible. Because he had been uninjured when she began her nap, she asked what happened. R.G. first said he had fallen down stairs, but soon admitted he had been beaten up. R.G. initially did not want to say who had done it, but eventually named Golbienko, a former classmate. Crabb called 911. Police contacted R.G. and he told them he had been riding with Golbienko in a car and Golbienko demanded his wallet and beat him up when he refused to hand it over. Police photographed R.G.'s injuries that Crabb had seen, as well as additional fresh injuries that were covered by his clothes.
Officers arrested Golbienko, who displayed no injuries. After being advised of his constitutional rights, he agreed to a taped interview with Detective Mike Mellis in which he answered questions about the events with R.G. and an unrelated incident involving the alleged robbery and kidnapping of a different alleged victim. Regarding R.G., Golbienko said he had arranged to buy $70 worth of marijuana from R.G. but while they were in the car, R.G., who was sitting in the back, had hit him in the back of the head. The driver stopped the car, and Golbienko got out, hit R.G. through the open window and fought with him. R.G. left and Golbienko kept the marijuana. He denied taking R.G.'s wallet but agreed with the officer's characterization of his actions as a `classic dope rip.' Police questioned R.G. again, and he admitted bringing marijuana into the car to smoke with Golbienko. He said Golbienko had taken the drugs and his wallet.
Charges involving the other alleged victim were apparently dismissed. The defense moved to suppress Golbienko's statements and the court held a CrR 3.5 hearing before trial. After testimony by Detective Mellis and Golbienko, the judge denied the motion. The judge also indicated that she anticipated the parties would agree to redacting the taped statement to avoid mentioning the facts of the other incident and asked for them to alert her if they were unable to do so. They did not later alert the judge of any problems.
At trial, in referring to his conversation with Golbienko during the arrest, Detective Mellis said he told Golbienko he was under arrest for robbery, kidnapping and unlawful imprisonment. There was no objection. Later, after Detective Mellis's testimony explaining the meaning of the phrase `dope rip,' the prosecutor asked if Golbiesko admitted to having done that in the past and Detective Mellis testified he had. Defense counsel objected. The judge sustained the objection and, after a side bar conference, instructed the jury to disregard the last question and answer. The judge later memorialized sidebars and indicated that in chambers she had denied a defense motion for mistrial based on the detective's testimony. Golbienko was convicted.
Golbienko appealed, challenging the trial court's denial of his motion for mistrial and the court's failure to file findings pursuant to CrR 3.5. After Golbienko filed his opening brief, the court entered the findings. Golbienko argues that Detective Mellis's remarks constituted trial irregularities that denied him a fair trial. Preliminarily, we disagree with Golbienko that Detective Mellis's reference to potential unlawful imprisonment and kidnapping charges constituted a trial irregularity at all. Contrary to Golbienko's claim on appeal, it did not constitute information the trial judge had previously ruled inadmissible. The judge's ruling at the close of the CrR 3.5 hearing clearly applied only to contents of the transcript of the taped interview, not, as Golbienko claims, to any evidence to be produced at trial. The testimony violated no order granting a motion in limine and there was no contemporaneous objection. Moreover, as the State points out, the prosecutor's subsequent questioning would have led the jury to conclude Mellis's comments were a mere reference to other charges police might have suggested for the incident involving R.G. As for Detective Mellis's comments that Golbienko admitted to similar past conduct, while the parties had not redacted that statement from the transcript, the trial judge's comments made it clear that she viewed the comment as within the spirit of her directive to exclude references to other charges from the taped statement. Considering the incident an irregularity then, to determine whether reversal is required, we consider `whether the remark when viewed against the backdrop of all the evidence so tainted the entire proceeding that the accused did not have a fair trial.' In evaluating the prejudicial effect of such an irregular occurrence, we examine the occurrence's seriousness, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it, an instruction we presume the jury will follow. The trial judge is `best suited to determine the prejudice of the statement.' Here the remark was not cumulative, but the trial court issued a prompt instruction to disregard it.
State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983).
State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994) (citing State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)).
State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190 (1987).
Golbienko relies on State v. Escalona to argue that the remark requires reversal because no limiting instruction could have been effective. In Escalona, this court held that a witness's reference to Escalona's prior conviction for stabbing someone else deprived him of a fair trial and reversed his assault conviction. We reasoned that the trial court's instruction to disregard the statement could not cure its prejudicial effect in such a `close case' in which the victim's testimony was `essentially the State's entire case, contained many inconsistencies,' and `[t]here were no other witnesses to the alleged crime except Escalona himself, whose testimony was not substantially impeached.'
Escalona, 49 Wn. App. 251.
Escalona, 49 Wn. App. at 254-57.
Escalona, 49 Wn. App. at 256.
Escalona, 49 Wn. App. at 255.
In contrast to the facts in Escalona, here, despite the impeachment of R.G. by his initial denials about the nature of the incident, his trial testimony was corroborated by the objective evidence of his injuries and the evidence of Golbienko's admissions, which Golbienko largely did not recant during his own testimony. We find the circumstances here much more analogous to cases in which we have held the remarks amenable to a curative instruction. Viewed against the backdrop of the evidence, the irregularity, though serious, did not so taint the entire proceeding that Golbienko did not have a fair trial.
See, e.g., State v. Beel, 32 Wn. App. 437, 443, 648 P.2d 443 (1982); State v. Downs, 11 Wn. App. 572, 575, 523 P.2d 1196 (1974).
In his opening brief, Golbienko also alleged the trial court erred by failing to enter written findings of fact and conclusions of law as required by CrR 3.5. The court entered the findings and conclusions after the brief was filed. Although the practice of submitting late findings is disfavored, entry of findings during the pendency of an appeal does not require reversal unless the delay was prejudicial or the findings have been altered to address issues raised by the appeal. Here, a comparison of the tardy findings with the court's oral ruling shows that the State did not tailor the findings and conclusions to meet arguments raised in Golbienko's brief and Golbienko has made no claim of other prejudice in reply.
State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996) (citing State v. McGary, 37 Wn. App. 856, 861, 683 P.2d 1125 (1984)).
We affirm.
GROSSE, AGID and BAKER, JJ.