Opinion
No. 26747-4-III.
September 10, 2009.
Appeal from the Superior Court, Yakima County, No. 06-1-02648-4, James P. Hutton, J., entered December 13, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
Unpublished Opinion
Gary Isaacs was tried and convicted in 2007 for a murder committed in 1975. The jury erroneously received a police report that had not been admitted at trial. We agree with the trial court that the error was harmless and did not justify granting a new trial. Mr. Isaacs' other claim is without merit. Accordingly, we affirm the conviction.
FACTS
Everett Fretland was shot and killed in Selah on September 6, 1975. He was gunned down in the back room of the Wagon Wheel bar and restaurant. It was one of three bars that Fretland owned in the Selah-Yakima area.
A month earlier, one of Fretland's other bars, the Strand Café, burned down in an arson fire. Mike Cecil was badly burned in the fire and police considered Cecil, along with Fretland, a suspect in the arson. Fretland wanted to transfer a liquor license from the Strand to the Wagon Wheel. Sergeant Robert Brimmer was the investigating officer.
On August 18, 1975, Sergeant Brimmer spoke with a blonde woman who wished to remain anonymous. His contact report stated that the woman had told him there was a plan between Mr. Isaacs and Dick Sanders to stage a phony robbery at the Wagon Wheel and shoot Fretland.
This report became the first page of exhibit 22, which later is discussed at some length.
Mary Hughes lived with Dick Sanders in 1975. They later married so that she "couldn't testify against him." V Report of Proceedings (RP) (Aug. 16, 2007) 427. Sometime after the Strand fire, Hughes overheard Isaacs, Sanders, and a third person she believed to be Steve Eychison, planning Fretland's murder. They were mad at Fretland for not assisting Cecil after he was injured in the fire. Fearful that they could no longer trust Fretland, the three wanted to kill him and make it look like he died during a robbery. An "alibi party" was set up for the night of September 5 and morning of September 6. Sanders would host the party. Isaacs told the others that he could arrange for a gun.
Hughes did not report the plot to the police. Fearing for her friend Linda Weaver, who worked as a bartender at the Wagon Wheel and often stayed past closing, Hughes told Weaver about the plot so that she would not be caught up in the matter. Weaver later anonymously told the police.
Early on the morning of September 6, after the bar closed, Weaver and Sandra Carpenter both overheard Fretland in a telephone conversation with "Gary." "Gary" would be over shortly. Both believed "Gary" was Isaacs, a person they knew to be a friend of Fretland. While driving away from the tavern, Weaver saw another car drive up to the bar. Isaacs was seated in the passenger seat.
Hughes saw Isaacs arrive at the "alibi party" about 3:00 a.m. He was excited and "bouncing off the walls." V RP (Aug. 16, 2007) 516. He told Sanders, "boy, you should have seen his face." Id. at 419. Karen Shephard testified that Isaacs arrived at the party wearing gloves. That fact was unusual given the hot weather. He was sweating "like he had run a marathon." VI RP (Aug. 17) 676. After calming down Isaacs, Sanders left the party and did not return that night.
Fretland was discovered dead at about 7:30 a.m. He had been shot in the back five times.
Fretland's wife had Sanders manage the Wagon Wheel for her after the murder. Sanders told Hughes that he was skimming from the business. A few months later he was removed from the position. He and Hughes moved to California on January 1, 1976. They bought a bar called Brandy's. Isaacs moved down to California that summer and went to work for Sanders.
Isaacs told Hughes on multiple occasions that he was involved in Fretland's murder. In 1976, he told her that Fretland had been shot while counting his till and talking about a job he had for Isaacs and Eychison. Isaacs told her that he and Eychison had agreed to never tell who had actually fired the shots. Isaacs took the gun apart and got rid of it.
On two or three occasions, Isaacs told Sheldon Johnson, a Brandy's employee, that he had shot Fretland for Sanders. Johnson reported the statements to police in 1978. At the time of trial in 2007, Johnson was serving time in prison in Arizona. He was brought up to testify.
Hughes and Sanders divorced in 1979. She left California at that time. Sanders was murdered in 1989.
In 2006, a task force looking at unsolved homicides took up the Fretland killing. Seattle Police Detective Dan Dudik contacted Hughes. She agreed to testify because she believed all of the participants were dead.
Isaacs was arrested for the killing on November 1, 2006. He was detained in the King County Jail. Brandt Sappenfield, an old acquaintance, was housed nearby. Isaacs talked to Sappenfield about the murder charge and expressed concern about the death penalty for killing another person for money. When Sappenfield explained about advances in DNA testing, Isaacs told him that "it was clean, we were in and out." I RP (Aug. 20) 94-95.
The defense argued that Sanders was the killer based on his admissions to two people in California and that because of the victim's body temperature, the murder had to have taken place well after the 3:00 a.m. time frame when Isaacs arrived at the party. The defense postulated that Sanders had kidnapped Fretland, taken him to the woods, shot him there, and then returned the body to the tavern.
The jury deliberated only two hours before convicting as charged. Sentencing took place the following month. Mr. Isaacs' offender score was three and included a prior murder conviction. The court imposed a sentence of life in prison and set a minimum term of 300 months.
After trial it was discovered that exhibit 22, a 29-page report about the Strand fire investigation written before the murder, had been sent to the jury with the other exhibits even though it had not been admitted into evidence. Jurors asked the bailiff if they should consider the report and were told that anything in the deliberation room was for their use. The defense moved for a new trial based on the jury consideration of the report and the bailiff's communication with the jury.
The trial court held a hearing on the motion on December 13, 2007. Two jurors testified that they had seen and read part of the report, and had asked the bailiff about whether they could use it. Both said they set it aside and did not consider it. After hearing argument, the court denied the motion for a new trial. While it was error to have sent exhibit 22 to the jury, the error was harmless in light of the strength of the case against Mr. Isaacs. The trial judge classified the testimony from the State's witnesses as strong and "compelling."
Mr. Isaacs timely appealed to this court.
ANALYSIS
This appeal presents two issues. First, we consider the claim that the trial court erred in permitting the State to impeach two of its witnesses with their pretrial statements to a detective. Next we address the propriety of the ruling on the motion for a new trial.
Counsel for Mr. Isaacs presents a cumulative error argument that is based in substantial part on the two arguments we do address. In light of our conclusion that there was no prejudicial error, we do not separately address that claim. Mr. Isaacs' statement of additional grounds raises several claims, including the sufficiency of the evidence to support the conviction. We have considered his arguments and find they lack merit. We will not further address those arguments here.
Impeachment
Isaacs first argues that the court erred when it allowed a detective to impeach both Hughes and Shephard by testifying concerning their pretrial statements, which provided more detail than the witnesses did on the stand. He claims that the impeachment was improper because the trial testimony was consistent with the pretrial statements. The State argues that Isaacs objected on different grounds during trial and cannot raise the claim here. We agree.
Our rules of evidence require a party to object to evidence in order to preserve a challenge for appeal. ER 103(a)(1). Appellate courts generally will not review claims of error that were not presented to the trial court. RAP 2.5(a). With respect to alleged evidentiary errors at trial, the rule is even more specific. Appellate courts will only consider challenges that were raised at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). As explained in Guloy:
As to statement (d), counsel objected but on the basis that it was not proper impeachment nor was it within the scope of redirect. A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.
Id. (citation omitted).
Here, defense counsel at trial objected when the detective was asked to testify concerning the pretrial statements made by the witnesses. The objection, however, was that the statements were only impeachment and could not be considered for other purposes. Counsel also obtained oral limiting instructions from the trial court at each instance, specifying that the evidence could only be used for impeachment. I RP (Aug. 20) 134-137; II RP (Aug. 21) 240-243. A written limiting instruction was also used. Clerk's Papers (CP) 171.
On appeal, Isaacs takes a contrary stand and argues that the evidence was not proper impeachment. This he cannot do. Guloy, 104 Wn.2d at 422. His argument that the evidence was not proper impeachment is foreclosed by his failure to object on that ground below. Id.
Isaacs has not preserved his claim of error. Motion for a New Trial
Accordingly, we do not address the additional arguments that any error was invited and that the trial court properly admitted the evidence.
The primary focus of the parties in this action involves the trial court's decision to deny the motion for a new trial based on the jury improperly receiving exhibit 22 and communicating with the bailiff concerning it.
The decision to grant or deny a motion for a new trial is one left to the discretion of the trial judge. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003); State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994); State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). 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). "The question is not whether this court would have decided otherwise in the first instance, but whether the trial judge was justified in reaching his conclusion." State v. Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962).
A jury's consideration of extrinsic evidence is considered jury misconduct. State v. Boling, 131 Wn. App. 329, 332, 127 P.3d 740, review denied, 158 Wn.2d 1011 (2006). The injection of new evidence into deliberations is improper because the evidence is not subject to objection, explanation, or rebuttal by the parties. Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973). A party claiming that the jury engaged in misconduct must establish the existence of the misconduct and show that the misconduct affected the verdict. State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47, review denied, 142 Wn.2d 1013 (2000); Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990), review denied, 116 Wn.2d 1014 (1991). In light of a strong public policy in favor of verdicts and against inquiry into the jury's discussions, there must be a strong showing of misconduct. Breckenridge, 150 Wn.2d at 203; Balisok, 123 Wn.2d at 117-118. When the misconduct is established, the State bears the burden of showing that, viewed objectively, the error was not prejudicial. State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466 (1983). The trial court should grant a new trial unless it is satisfied beyond a reasonable doubt that the misconduct did not contribute to the verdict. Boling, 131 Wn. App. at 333.
This is an unfortunately pejorative term where, as here, the jury is not responsible for the error that led to the exhibit improperly being submitted.
The trial court issued a nine-page written ruling explaining its denial of the request for a new trial. CP 25-33. It determined that at least some jurors had seen the document and considered it in some manner, although the court disregarded the statements of the jurors about its impact. CP 25, 28. The court carefully considered information in exhibit 22 with respect to Mr. Isaacs and concluded that none of it was harmful. CP 28-31. Accordingly, the court was convinced beyond a reasonable doubt that the information did not contribute to the verdict in light of the strong case against Mr. Isaacs. CP 33. The court also considered the bailiff's contact with the jury and determined that it, too, was harmless in light of the evidence in the case. CP 32-33.
The jurors stated that they set the exhibit aside and did not consider it. While it is highly likely given the brief deliberation period that the jury did not consider exhibit 22 since it was lengthy and of such poor quality that reading was difficult, we will presume (as the trial court did) that the exhibit was considered.
We review this determination for abuse of discretion. Breckenridge, 150 Wn.2d at 203. We find no abuse of discretion here. Exhibit 22 makes a handful of references to Mr. Isaacs. The cover page reported the alleged plot between Sanders and Isaacs to murder Fretland in the wake of the Strand arson. This information was already before the jury from the trial testimony. The report makes reference to a gun, registered to Isaacs but reported by him to have been stolen, being found in the rubble of the cafÉ. The report expressly noted it was unknown to whom the gun belonged. Since the gun was of a different caliber than that used to murder Fretland, and was obviously in police custody at the time of the murder, this information could not have harmed Isaacs in any manner. There is nothing illegal about owning a gun. It also would not arouse suspicions for a gun belonging to Isaacs to be found in the rubble of the building since he worked at the Strand at the time of the fire. The report also noted that the gun might be submitted for testing to determine if it may have been involved in a July robbery. The report did not name Isaacs as a suspect in that crime.
The report did allege that Isaacs had been introduced around the Wagon Wheel under a different name. The trial court noted that Fretland and Isaacs had a close relationship and were known to each other, so Isaacs' identity did not play into the murder.
Finally, the report also noted that Isaacs was known to the officer through other investigations and that the Seattle hospital treating Cecil had been told not to let Isaacs, Fretland, or Sanders communicate with him. The trial court correctly noted that this information did not undermine the defense theory of the trial. The fact that Isaacs and his associates were people known to the police and had been investigated was well known to the jury from trial testimony. Indeed, portraying Sanders, who was close to Isaacs, as a bad person was very much a part of the defense theory of the case.
The trial court correctly determined that this information was not prejudicial to Isaacs in light of the trial evidence. The court also concluded that in light of the "compelling and overwhelming" evidence of guilt, the error was harmless. CP 32, 33.
The same reasoning applies with even more force to the bailiff's unfortunate éx parte communication with the jury. The trial court recognized the communication was error. CP 32. The court concluded that the error was harmless in light of the overwhelming evidence of guilt. We agree.
Viewing the communication in the worst possible light, the bailiff's statement told the jury that it could consider exhibit 22. However, the trial court (and this court) already assumed that the jury considered the exhibit for purposes of analyzing the effect it may have had on the verdict. Thus, this error was not an independent one, but merely helped cumulate the impact of exhibit 22. Having already determined that error was harmless, it necessarily follows that this error was harmless as well.
The trial court gave serious consideration to the problem and produced a thoughtful response. We can find no error in its analysis and no abuse of discretion in the conclusion that these errors were harmless.
The conviction for first degree murder 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., Kulik, J., Concur