Opinion
No. 30238-1-II
Filed: December 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 02-1-00769-2. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Russell W Hartman.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Gerard Q. Jackson challenges the trial court's admission of his testimony from his second trial as part of the State's case in chief during his third trial for first degree rape. He contends that (1) the State failed to comply with CrR 3.5 and CrR 4.7 when seeking admission of his prior testimony; and (2) the trial court erred in failing to redact hearsay statements within the transcript. Because Jackson's contentions are not preserved for appellate review and any error was harmless, we affirm.
FACTS A. Factual Background
Numerous witnesses at Jackson's third trial testified to the following events. K.D. lived with her young son in a duplex. On January 4, 2000, K.D. left the back door open because her friend planned to spend the night. That evening, K.D. and her young son fell asleep on the couch while watching television. When K.D. briefly woke up near 9:30 p.m., she did not want to wake up her son, so she alone moved into her bedroom.
Near midnight, she woke up and saw a tall man wearing a hooded sweatshirt standing in the doorway to her bedroom, holding a small gun. The area was dark and she could not clearly identify the man. The man approached K.D.'s bed and told her that if she removed her clothes, he would not hurt her young son. K.D. followed this order and the man began kissing her chest and stomach and inserted his fingers into her vagina. The man demanded that K.D. roll onto her stomach and he then unsuccessfully attempted to penetrate her. The man ordered K.D. to roll onto her back, and he then put a pillow over her face and attained partial penetration for a brief period of time. The man subsequently asked about her money and left.
K.D. remained in her bedroom for a brief period in a state of disbelief. She then checked on her son in the living room, who was not hurt, called her father, and then called 911. The police department received a dispatch regarding the 911 call at 1:09 a.m. K.D. appeared to be in a state of shock, but she related the incident to the officer who responded to her home. She described the suspect as a tall man wearing a hood and holding a small gun.
Officer Mayfield arrived in the area near K.D.'s duplex near 1:15 a.m. He was aware of K.D.'s 911 call and the dispatcher's description of the suspect. He noticed a tall man wearing a hooded sweatshirt at an intersection and stopped him. The man did not have identification, but said his name was John Q. Wilson and that he was walking home from work at a restaurant. The man did not appear curious as to why he was being stopped and Mayfield released him.
Near 4:00 a.m., K.D. went to a hospital and a nurse completed a 'rape kit.' Report of Proceedings (RP) (Feb. 6, 2003) at 71. The nurse performing the examination found that K.D.'s injuries were consistent with forcible sexual intercourse.
Less than two weeks later, Detective Schultz took over the investigation of K.D.'s case. Based on Mayfield's report, she contacted Jackson and interviewed him at the police station. Jackson admitted that he falsely told Mayfield that his name was John Q. Wilson because he had a warrant for his arrest. He stated that he had not been to K.D.'s house and that near the time Mayfield approached him he was walking home from his girlfriend's house. Jackson was released at the end of the interview.
In all three of Jackson's trials, the record does not expressly explain how Schultz identified Jackson through her investigation of the incident in early January 2000. This specific issue was noncontroversial below and not challenged on appeal.
Approximately two years later, Schultz collected Jackson's blood for DNA testing. The Washington State Crime Lab determined that Jackson's DNA matched the DNA in saliva obtained from K.D.'s body. The likelihood of someone else with Jackson's DNA profile is one in 860 quadrillion.
The parties stipulated to the facts and circumstances that led to the collection of Jackson's blood and the Washington State Crime Lab's finding that Jackson's DNA matched DNA recovered from K.D. The jury was not provided these details.
After receiving this lab report, Schultz re-interviewed Jackson in May 2002. Jackson again denied the rape, but when confronted with the DNA results, Jackson became nervous and asserted that he had had a temporary relationship with K.D. for about four months near the time of the incident. But he also stated that he had only met her on two occasions and had sex with her during one of these times. When Schultz asked about this inconsistency, Jackson did not provide a reasonable explanation. Jackson also stated that he ended the relationship with K.D. out of concern for his pregnant girlfriend. He further asserted that K.D. reported the rape because she was upset that he quit having sex with her. When Schultz asked Jackson the victim's name, he replied that he thought her name was Sara.
B. Procedural History
The State charged Jackson with first degree rape with a firearm and third degree assault of a police officer in September 2002. Jackson was convicted of the assault charge; however, the jury could not reach a verdict on the rape charge. A second trial was held on the rape charge in December 2002; but again, the jury could not reach a verdict. Jackson and Thomas Hardy, Jackson's friend who was also K.D.'s neighbor, testified for the defense at the first two trials. Jackson's defense in all three trials was that he had consensual intercourse with the victim, K.D.
A third trial was held in February 2003. During pretrial proceedings, Jackson informed the trial court that he did not intend to call Hardy as a witness in the third trial, but that the State might call Hardy as a witness and that the State had charged Hardy with perjury based on his testimony in the second trial. The State confirmed this information, but told the court that it did not anticipate calling Hardy as a witness.
Jackson also challenged the State's motion in limine that sought to exclude Jackson's 'self-serving hearsay statements' to Hardy, and Hardy's statements to Jackson contained within Jackson's prior testimony 'that the victim K.D. had told Hardy that she thought the defendant was cute.' Clerk's Papers (CP) at 39-40. Jackson argued that Hardy's statements were not hearsay because Jackson sought to offer them not for the truth of the matter asserted, but to demonstrate Jackson's state of mind at the time of the incident, so that the jury would know what 'his perception of [K.D.] was when he approached her.' RP (Feb. 4, 2003) at 23. Jackson told the court that he intended to offer this portion of Hardy's statement through himself or Schultz. The trial court reserved ruling on this issue.
After eight witnesses testified for the State, including Schultz, Mayfield, and K.D., the prosecutor moved to admit Jackson's prior testimony from his second trial in the State's case in chief. Jackson's counsel asserted that the State's request was unusual and unprecedented. The parties and the court focused their arguments on whether the State's request chilled Jackson's right to refuse to testify under the Fifth Amendment and the admissibility of Jackson's prior testimony under ER 801(d)(1) and ER 804(b)(1). The State briefly discussed ER 801(d)(2). At no time did Jackson object to the admissibility of Hardy's statements within Jackson's prior testimony or assert that the State violated CrR 3.5 or CrR 4.7.
Jackson does not argue Fifth Amendment issues on appeal.
After a recess, the court admitted Jackson's prior testimony as an admission by a party opponent under the 'express language' of ER 801(d)(2). RP (Feb. 10, 2003) at 323. The court required that the transcript of Jackson's prior testimony not indicate that it was prior trial testimony before a different jury. The prosecutor raised the issue of Hardy's statements within Jackson's prior testimony, indicating that he did not object to the admissibility of these statements, and stating 'I don't know whether the defense is going to object at this point, I suspect not, but it was an issue we dealt with.' RP at 326. Jackson's counsel responded that 'I suspect we may need some time to go through it line-by-line.' RP at 326. The parties then agreed to the court's suggestion of an extended recess to allow the attorneys time to redact prejudicial portions of Jackson's testimony. The court expressly asked the parties if the recess provided adequate time for them to review the transcript and neither party raised an objection or expressed concern.
ER 801 (d)(2) provides in relevant part:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if
. . . .
(2) Admission by Party-Opponent. The statement is offered against a party and is (i) the party's own statement, in either an individual or a representative capacity.
When the parties returned to the courtroom, they presented to the court the redacted transcript of Jackson's prior testimony. Jackson did not raise any concern about Hardy's statements that remained in the transcript. Jackson also successfully advocated for the jury to receive the properly redacted transcript of his prior testimony as an exhibit because this presentation would be the least prejudicial.
The State was concerned that admitting the entire transcript of Jackson's prior testimony could raise appellate issues; however, Jackson's counsel expressly agreed to waive this issue on appeal. Accordingly, Jackson does not challenge the State's presentation of the transcript.
The State introduced Jackson's testimony to the jury as an exhibit, stating that the transcript was from a prior hearing. The State then rested and Jackson did not testify or call defense witnesses. During closing arguments, the prosecutor discussed Jackson's prior testimony to demonstrate inconsistencies in his consent defense and to corroborate facts that the jury heard through the State's other witnesses. Jackson's counsel briefly mentioned the transcript during closing argument. Neither party focused on Hardy's statements to Jackson within the transcript.
The jury found Jackson guilty of first degree rape; however, the jury could not agree on the special verdict regarding the use of a firearm. The court sentenced Jackson within the standard range.
Jackson's counsel remained the same in all three trials. The same prosecutor appeared in Jackson's second and third trials. The judge during the third trial did not preside over Jackson's earlier trials.
ANALYSIS
The State argues that RAP 2.5(a)(3) precludes our review of Jackson's appellate arguments because they are nonconstitutional arguments raised for the first time on appeal. When evaluating an assignment of error not raised below, we first evaluate whether the error 'suggests a constitutional issue' and if so, we then 'determine whether the alleged error is manifest.' State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). A manifest error has 'practical and identifiable consequences in the trial of the case' that is based on the record below. State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001); Lynn, 67 Wn. App. at 345. If the assigned error satisfies this threshold, we next review the 'merits of the constitutional issue' and if we determine the trial court erred, we then evaluate whether the error was harmless. Lynn, 67 Wn. App. at 345.
I. CrR 3.5
Jackson argues for the first time on appeal that the trial court's decision to admit his prior testimony violates CrR 3.5. But the court's failure to hold a CrR 3.5 hearing is not a constitutional error that merits appellate review under RAP 2.5 when there is no genuine issue about the statement's voluntariness. State v. Williams, 137 Wn.2d 746, 753-54, 975 P.2d 963 (1999). Here, Jackson's testimony from his second trial was clearly voluntary. Thus, RAP 2.5(a)(3) precludes our review of Jackson's challenge under CrR 3.5.
Criminal Rule 3.5 provides a pretrial procedure for determining whether a defendant's statement is voluntary and admissible.
II. CrR 4.7
Jackson next contends for the first time on appeal that the State failed to comply with discovery requirements under CrR 4.7(a)(1)(ii) and (c)(2) when it moved to admit Jackson's prior testimony from his second trial for its case in chief. Jackson argues that this was a discovery violation that prejudiced his defense strategy and his ability to effectively cross-examine the victim, K.D.
Criminal Rule 4.7(a)(1)(ii) and (c)(2) provides:
(a) Prosecutor's Obligations.
(1) Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney's possession or control no later than the omnibus hearing:
. . . .
(ii) any written or recorded statements and the substance of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one;
. . . .
(c) Additional Disclosures Upon Request and Specification. Except as is otherwise provided as to matters not subject to disclosure the prosecuting attorney shall, upon request of the defendant, disclose any relevant material and information regarding:
. . . .
(2) The acquisition of specified statements from the defendant.
Although CrR 4.7 is a procedural rule, a discovery violation can affect a defendant's constitutional rights of due process and a fair trial. State v. Greiff, 141 Wn.2d 910, 920, 10 P.3d 390 (2000). But these constitutional concerns typically involve circumstances where the State fails to disclose or improperly hides material evidence from the defendant. See, e.g., Greiff, 141 Wn.2d at 918-19; State v. Yates, 111 Wn.2d 793, 796, 801, 765 P.2d 291 (1988); State v. Cole, 117 Wn. App. 870, 879, 73 P.3d 411 (2003), review denied, 151 Wn.2d 1005 (2004), State v. Dunivin, 65 Wn. App. 728, 731-32, 829 P.2d 799 (1992). Here, the State sought to admit Jackson's own public testimony from his second trial and the same prosecutor and defense counsel participated in the second trial. And the State correctly emphasized that the evidence rules did not expressly prohibit the use of Jackson's prior testimony.
Jackson focuses on the timing of the State's request to use his prior testimony in its case in chief; however, Jackson's counsel had the opportunity to redact portions of the transcript of Jackson's prior testimony before it was admitted and he raised no objection or concern about the amount of time the trial court provided to counsel to redact the transcript. See State v. Falk, 17 Wn. App. 905, 908, 567 P.2d 235 (1977) (discovery error harmless when defendant did not deny content of his undisclosed statement and the court granted a recess 'so that defendant could decide upon a course of action.'); see also State v. Linden, 89 Wn. App. 184, 195-96, 947 P.2d 1284 (1997) (affirming Falk's reasoning). And contrary to assertions in Jackson's appellate brief, nothing in the record supports his implication that the State acted in bad faith in moving to admit Jackson's prior sworn testimony. Consequently, RAP 2.5(a)(3) precludes our review of Jackson's challenge because he fails to demonstrate how the State's alleged discovery violation was a constitutional manifest error.
We note briefly, however, that Jackson's challenge fails to demonstrate prejudice. First, Jackson ignores that suppression of testimony is very rarely an appropriate sanction for a discovery violation. State v. Hutchinson, 135 Wn.2d 863, 880, 882, 959 P.2d 1061 (1998). Second, the record demonstrates that admitting Jackson's prior testimony did not materially hinder his trial strategy or his ability to cross-examine K.D.
Consistent with his earlier trials, Jackson's defense was consent. Jackson always knew the content of his prior testimony, as did his attorney who represented him in all three trials. After Jackson's counsel redacted portions of the transcript, Jackson's decision not to testify was unlikely the result of an impaired trial strategy. Jackson's cross-examination of K.D, as in the prior two trials, attempted to portray a relationship between K.D. and Jackson and suggest inconsistencies in her recollection of the incident. The record indicates that K.D.'s testimony in Jackson's third trial was very similar to her testimony during the two prior trials and included answers about K.D.'s alleged relationship with Hardy.
III. Jackson's Prior Testimony
Jackson contends that the trial court erred in admitting the transcript of Jackson's prior testimony because the court did not redact Hardy's alleged hearsay statements. Hardy did not testify in Jackson's third trial. But Jackson's appellate argument contains two significant flaws.
During oral argument, Jackson's appellate counsel clarified that he was not challenging the admissibility of Jackson's prior testimony under ER 801(d)(2).
First, Jackson did not voice an objection to the trial court about Hardy's statements. Indeed, Jackson advocated for their admission in pretrial proceedings as statements not offered for the truth of the matter asserted, but as evidence of Jackson's state of mind. Significantly, after the State moved to admit Jackson's prior testimony but before the court ruled on the State's request, Jackson sought to admit Hardy's statement that K.D. told him that Jackson was attractive through Shultz in order to persuade the jury that K.D. and Jackson had a relationship.
Further, as previously discussed, Jackson's counsel had the opportunity to redact prejudicial portions of Jackson's transcript, and did not seek to omit Hardy's statements. Consequently, the court did not abuse its discretion under these circumstances. And in general, alleged evidentiary errors are nonconstitutional and require a specific objection in order to preserve appellate review. State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997); State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000).
Second, Jackson asserts that Hardy's statements within the transcript are irrelevant hearsay; however, his appellate brief fails to cite or discuss legal authority to support this challenge, other than a mere citation to ER 801(c). See RAP 10.3(a)(5) (appellant should present 'argument in support of the issues presented for review, together with citations to legal authority.'); State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
Thus, RAP 2.5(a)(3) and 10.3(a)(5) preclude our review of Jackson's evidentiary challenge; however, we note that Jackson's arguments are unpersuasive. The record demonstrates that Hardy's statements within the transcript are admissible under ER 804(b)(1). And assuming arguendo that the court erred in failing to redact Hardy's statements from the transcript of Jackson's prior testimony, this evidentiary mistake would be harmless. See State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (evidentiary errors are harmless when a reasonable person can conclude that the wrongfully omitted evidence 'is of minor significance in reference to the overall, overwhelming evidence as a whole.') (citation omitted).
The parties do not discuss Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); however, we note that it does not apply here because the record demonstrates that Hardy's statements are admissible under ER 804(b)(1). His statements were non-testimonial. And even if they were testimonial, Jackson fully cross-examined Hardy during his second trial. Crawford, 124 S. Ct. at 1369.
Jackson's testimony, particularly the statements Jackson attributed to Hardy in the second trial, was a minor part of the State's evidence against Jackson during the four day trial for first degree rape. Significantly, undisputed DNA evidence linked Jackson to the victim. Consequently, Jackson argued that K.D. consented to sexual intercourse. But the testimony of detectives and K.D. during Jackson's third trial effectively rebutted his consent defense by showing numerous inconsistencies in Jackson's story of the incident. For example, Mayfield testified that he questioned Jackson near K.D.'s duplex within an hour of the incident and Jackson gave him a false name. Schultz testified that Jackson told her he had a relationship with K.D.; however, Jackson could not explain important inconsistencies in his statements, such as his ignorance of K.D.'s name. And K.D. testified that she never had any prior contact with Jackson and she could not identify him at trial. We do not review the credibility of witness testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A material example of Hardy's statements within the transcript of Jackson's prior testimony is the following:
[Jackson's counsel]:. . . . can you describe the relationship with Mr. Hardy[?].
[Jackson]: Close, real close. Good friends.
. . . .
[Jackson's counsel]: Did Thomas [Hardy] ever tell you anything about what she had said?
[Jackson]: Yeah. He told me, he say, '[K.D.] says she thinks you are cute.'
[Jackson's counsel]: When was that?
[Jackson]: That was one day when we were sitting outside. . . . Exhibit 32 at 35, 37.
The elements of first degree rape pertinent here are:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
. . . .
(d) Feloniously enters into the building or vehicle where the victim is situated.
RCW 9A.44.040(1)(a), (d).
In summary, we hold that Jackson's appellate arguments fail to satisfy the threshold for appellate review under RAP 2.5(a)(3) and 10.3(a)(5) and that a brief review of Jackson's claims fail to establish prejudice.
The State filed a motion on the merits under RAP 18.14 with its appellate brief. Although Jackson's appellate arguments are unpersuasive, resolution under RAP 18.14 is inappropriate and we deny the State's motion. See RAP 18.14(e)(1) (motion on the merits appropriate when appeal is 'clearly without merit').
We affirm. 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.
ARMSTRONG, P.J. and HUNT, J., concur.