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State v. Manson

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1013 (Wash. Ct. App. 2004)

Opinion

No. 52847-5-I

Filed: November 15, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-1-08912-3. Judgment or order under review. Date filed: 08/04/2003. Judge signing: Hon. Cheryl B Carey.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Dana M Nelson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.

Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.


Police arrested Roy Manson within an hour of an assault near Pike Place Market. At a show-up identification, two of the four eyewitnesses identified Manson based in part on his distinctive walk, which matched the assailant's walk. Manson offered to demonstrate his walk at trial. Because Manson did not establish that his manner of walking at the time of trial was representative of his manner of walking the night of the assault, the trial court properly denied this request. Manson's conviction is affirmed.

Testimony at trial described events that occurred on November 25, 2002. Feanette Black Bear and her boyfriend Benjamin Smith were panhandling in downtown Seattle. Black Bear observed a man about 5 feet 8 inches tall, wearing a black stocking cap, black coat, and baggy jeans, with long dark hair that was pulled back. Black Bear saw the man cross the street, and assault another man by hitting him in the face. The victim, Vernon Thomas, fell down and his head hit the concrete. Black Bear ran across the street, and found Thomas lying on his back, blood coming from his head. Black Bear asked a bystander to call 911. She saw the man who had struck Thomas walking away. She followed him and made sure to get a good look at him before she returned to the scene.

Smith did not see the man strike Thomas, but he heard Thomas hit the ground, and saw a man run across the street, looking back once. The man appeared to be laughing. As Smith watched, the man met up with another person, and Smith heard him talking about how it felt to hit someone `because I just got out.'

Report of Proceedings (3/3/03) at 27.

Kathy Underwood and Varetta Jones also witnessed the assault while they were smoking cigarettes on a balcony above the street. They saw a man walk up behind Thomas and hit him. Thomas fell to the ground, and the assailant walked past him laughing. Both women noticed that the assailant had an uneven gait as he walked.

Sergeant Arata of the Seattle police responded to the 911 call. Based on Black Bear's description of the assailant and the direction he was headed, he located Manson, apprehended him, and brought him back to the scene of the assault.

Black Bear and Smith positively identified Manson as the assailant. Jones and Underwood, who were also at the scene, wanted to see Manson walk because they had noticed how the assailant walked. An officer walked Manson back and forth on a sidewalk. Both women then positively identified Manson as the assailant, in part based on his walk. Sergeant Arata testified that Manson, at the time of his arrest, had a `very distinct limp.'

Report of Proceedings (3/4/03) at 25.

The State charged Manson with first degree assault. A jury convicted Manson of second degree assault, a lesser included offense. Manson appeals.

Demonstration of Manner of Walking

Manson assigns error to the court's refusal to allow him to demonstrate his gait at trial. Defense counsel asked Sergeant Arata during cross-examination if he would be able to direct Manson to walk in court as he had the night of the assault. Counsel wanted the officer to `create representationally where Mr. Manson was with regard to where the witnesses who were observing were, and show the distance that he walked, and have Mr. Manson walk that distance.' The State objected, arguing that to have Manson walk in front of the jury was `potentially completely misleading' and `opens the door for the defendant to dissemble or alter the situation.'

Report of Proceedings (3/4/03) at 99.

Report of Proceedings (3/4/03) at 97.

The trial court sustained the objection on relevance grounds:

I will not allow it for the simple reason that although there has been much testimony that back in November, 2002, Mr. Manson had some sort of a gait that seemed to be, at least certainly by the testimony, somewhat distinguished. This court has no information suggesting why that is.

I have heard testimony where it could be an attitude issue; I have heard testimony where it could be some sort of a — the reason can go to some sort of a physical issue.

This court has no idea what the reason is, and since quite frankly having Mr. Manson walk today does not in any way accurately — at least not based on the information this court has — reflect how he may or may not have walked back in November, I do believe that it would be extremely prejudicial to the State.

Therefore, I'm not going to allow it. I do not find that how Mr. Manson walks today is relevant to how he walked months ago.

Report of Proceedings (3/4/03) at 100-01.

After the State rested, Manson renewed the request for a demonstration. Manson offered to testify that he was in the same condition at trial as during the show-up identification. He argued that it was up to the State to demonstrate otherwise by either cross-examination or independent evidence, and the jury should be allowed to decide what weight to give the offered evidence. The Court again denied the request on the same basis — the evidence was not relevant because there was no way to determine if Manson's present walk accurately reflected how he walked in November 2002. Manson did not testify.

Due process guarantees criminal defendants the right to present testimony in their defense. State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983). But `a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.' Hudlow, 99 Wn.2d at 15. A trial court's evaluation of relevance and its balancing of probative value against its prejudicial effect or potential to mislead is given a great deal of deference and reviewed using a `manifest abuse of discretion' standard of review. State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when no reasonable person would have decided the issue as the trial court did. Russell, 125 Wn.2d at 78. Manson argues that any evidence pertaining to his identity was at least minimally relevant. But a demonstration could be relevant only if it accurately represented how Manson walked four months previously. Manson's assertion that he was in the same physical condition during trial as he was during the night of the assault does not provide this foundation, because it does not prove that his limping gait on the night in question was attributable to a physical condition. The court did not abuse its discretion by excluding the demonstration.

Manson's Statements to Police

At the scene, Officer Huber read Manson his Miranda rights. He then asked Manson if he wanted to say anything, and Manson said no. But he did make some statements later on, and now assigns error to the order denying his motion to suppress those statements.

Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

During custodial interrogation, an accused has the right to remain silent or to have an attorney present. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Any incriminating statement made in response to any type of interrogation after the accused has expressed the wish to remain silent is inadmissible as violative of the Fifth and Sixth Amendments. Miranda, 384 U.S. at 473-74. But incriminating statements that are not a response to an officer's question are freely admissible. State v. Bradley, 105 Wn.2d 898, 904, 719 P.2d 546 (1986).

Manson said to Sergeant Arata, `I wasn't up there. I haven't hit anybody. It couldn't be me, I just got out of prison.' This statement was properly admitted at trial. According to the uncontroverted testimony at the suppression hearing, the statement was not in response to interrogation. Sergeant Arata testified at the suppression hearing that Manson spontaneously volunteered it as police were taking him out of the police car to be shown to the witnesses for identification. The trial court appropriately concluded that Manson was aware of his right not to further communicate with police and that the statements were not coerced. Because witness Smith heard the attacker state that he had just `got out', the statement was relevant to help prove Manson's identity as the assailant. The second statement at issue was made to Officer Huber, one of the arresting officers. Officer Huber testified at the suppression hearing that while they were waiting for the witnesses to be brought for the show-up identification, he asked Manson if he had been arrested before or had any outstanding warrants. Manson responded `he had just gotten out of prison on the first of the month' and told him `it was for assault'. Manson contends that the question about warrants was interrogation, designed to elicit an incriminating response. The trial court orally ruled that this statement could be admitted. However, the written order (entered months after the trial) does not mention this statement, and it was not admitted at trial. Officer Huber did not testify at trial. Because the jury did not hear the statement, any error that the court may have made in the pretrial ruling on admissibility was harmless and we need not address it further.

Report of Proceedings (3/4/03) at 33.

Report of Proceedings (3/3/03) at 27.

Report of Proceedings (2/10/03) at 69.

CrR 3.5/3.6 Findings of Fact and Conclusions of Law

Finally, Manson argues his conviction should be reversed because of the trial court's failure to enter findings of fact and conclusions of law following the CrR 3.5 and CrR 3.6 hearings. Such findings are necessary for proper appellate review. State v. Smith, 68 Wn. App. 201, 842 P.2d 494 (1992) (reversing conviction due to absence of findings and conclusions). In Smith, findings and conclusions were never entered, and the oral ruling was neither clear nor comprehensive, leaving doubt as to the trial court's actual findings. Smith, 68 Wn. App. at 206-07. Here, the trial court filed its findings and conclusions on May 24, 2004, about 14 months after the trial. They leave no doubt as to the basis for the court's rulings. When the trial court enters findings and conclusions after an appeal is filed, reversal is appropriate only if the appellant establishes prejudice due to the delay or if there is an indication that the findings and conclusion have been tailored to meet the issues raised on appeal. State v. Byrd, 83 Wn. App. 509, 512, 922 P.2d 168 (1996). Manson has not met this test and accordingly the conviction will not be reversed on this basis.

Affirmed.

BECKER, KENNEDY and COLEMAN, JJ., Concur.


Summaries of

State v. Manson

The Court of Appeals of Washington, Division One
Nov 15, 2004
124 Wn. App. 1013 (Wash. Ct. App. 2004)
Case details for

State v. Manson

Case Details

Full title:STATE OF WASHINGTON, Appellant, v. ROY MANSON, Respondent

Court:The Court of Appeals of Washington, Division One

Date published: Nov 15, 2004

Citations

124 Wn. App. 1013 (Wash. Ct. App. 2004)
124 Wash. App. 1013