Opinion
No. 38821-9-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Cowlitz County, No. 08-1-01174-4, James J. Stonier, J., entered February 4, 2009.
Reversed and remanded by unpublished opinion per Appelwick, J., concurred in by Worswick, A.C.J., and Armstrong, J.
Jesse Ryan McMillan appeals his conviction for first degree robbery and first degree trafficking stolen property. He argues that the trial court improperly admitted evidence that he gave an officer a false name because he knew he was "looking at a lot of time" and that this did not show his consciousness of guilt for the crimes charged. Br. of Appellant at 14. We agree. We hold that the trial court erred and that such error was not harmless. We reverse and remand for a new trial.
FACTS
Around 6:00 pm on January 29, 2007, Shelly Crimmins's purse was stolen from her car. It was dark out. Crimmins had finished loading groceries into her car and was returning her grocery cart when she passed a white man in his early 20s. She described him as wearing a white baseball cap, a white hooded sweatshirt with the hood pulled over the cap, and a black jacket with fur around the hood. Crimmins had a weird feeling, let go of the cart, and turned around to see the man grab her purse out of her car's front seat. The man started running; Crimmins chased after him and grabbed the hood of his black jacket, which detached.
The man entered an older white car and backed out of the parking space. Crimmins reached in the open driver's window and grabbed him. The man took off with Crimmins hanging onto the door. She eventually let go. Due to the fall, she sustained significant bruising and was diagnosed with acute cervical strain. Explaining the incident immediately after it occurred was difficult because she was dazed and shocked.
Crimmins's purse contained several items, including two cell phones. As part of a police sting, Crimmins called one of the phones from the hospital, talked to the man who had it, and arranged to buy it back. A plain-clothes police officer impersonated Crimmins at the meeting to buy the phone back, and Adam Pastorino was arrested when he arrived to sell the phone. Crimmins said that Pastorino was not the man who robbed her because he was short and stocky.
The police sent the detached jacket hood to the crime lab for analysis. Months later, on October 15, 2008, police received the lab report, which indicated that McMillan was the source of one of the two DNA profiles found on the hood.
The following day, Officer Brian Clark stopped a car for failure to yield. The driver, later identified as McMillan, said that his name was David W. Sari. Officer Clark suspected that McMillan was using a false name and detained him for suspicion of obstructing a law enforcement officer. McMillan admitted that he had given a false name, and Officer Clark arrested him for obstructing a law enforcement officer and driving with a suspended license.
While McMillan was still at the scene, a corrections officer searched the trunk of his vehicle and found drugs. McMillan was out on bail for two pending felony drug charges and knew that his sentencing range would increase if he received more convictions. Officer Clark took McMillan to the police station.
The record does not specify whether the corrections officer was assigned to McMillan or whether McMillan was on probation or community custody.
At the police station, Detective Damon Blain, who considered McMillan a suspect in Crimmins's robbery, wanted to ask McMillan some questions. He read McMillan his Miranda warnings, showed him the DNA report, and questioned him about the robbery.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After the interrogation, Officer Clark drove McMillan to jail. On the way, McMillan told Officer Clark that he had given a false name during the traffic stop because he was "looking at a lot of time." 2 Report of Proceedings (RP) at 60.
McMillan stood trial for Crimmins's robbery. In a CrR 3.5 hearing, the State moved to admit McMillan's statement that he gave a false name because he was "looking at a lot of time." 2 RP at 60. The State argued that McMillan's statement showed guilty knowledge — one could reasonably infer that he was referring to the robbery investigation because he made the statement after talking to Detective Blain about the robbery. McMillan responded that the statement was irrelevant to the robbery charge because he made it with reference to his two pending drug charges, obstructing, driving with a suspended license, and another new drug charge.
The trial court admitted the statement under ER 404(b). It found that the false name, together with McMillan's statement explaining it, reflected a consciousness that he was guilty of some crime that would generate a lot of time. The court acknowledged that McMillan may have known about the drugs in his trunk, but it found that the only charge he was facing at the time of the traffic stop was driving with a suspended license. It also found that the statement was not unfairly prejudicial.
At trial, Crimmins testified about the robbery, describing the perpetrator and his car. She testified that the perpetrator was a little taller than her height, 5 feet 7 inches. The State also played Crimmins's 911 call that she made just after the robbery. In that call, she described the perpetrator as a white male, about 5 feet 4 inches tall with dark hair.
Detective Blain testified that he showed Crimmins three photomontages. One of them contained a photograph of McMillan, but Crimmins did not identify him as the perpetrator. Instead, she said that photographs of two other people shared some likeness with the perpetrator. She was 95 percent certain that the people in those two photos had facial features resembling the perpetrator.
Crimmins testified that she could not remember whether the perpetrator's car had two doors or four doors, but she knew it was white. She thought it was an older sporty model, similar to a Honda Prelude, because it had a big back window. She was unsure whether the car had a spoiler but believed that the back end was higher than the front and believed that it had black door handles. On cross, Crimmins confirmed that, in a written statement just after the robbery, she described the car as white with four doors, similar to an older model Toyota Celica. Crimmins said in her 911 call that the car was white with four doors, like a Toyota Corolla.
Detective Blain testified that he visited McMillan's address after his name came up in the investigation and that he saw a white two-door Plymouth Colt GL with a rear spoiler parked there. The Colt did not have black door handles. Other officers testified that McMillan was driving the Colt when stopped for traffic infractions on November 5, 2006, and January 10, 2007. Pastorino, who was arrested after trying to sell Crimmins's phone, testified that he bought the phone from James Repperger. Repperger testified that on January 29, 2007, the date of the robbery, McMillan came to his home between 7:00 and 7:30 p.m. Repperger said that McMillan had some cell phones with him and wanted to sell them. Repperger bought one of the phones for $20 and gave it to Pastorino.
The State also presented evidence that the jacket hood found at the scene contained a mixed DNA profile, consistent with originating from two people. The major contributor was McMillan. The minor contributor was a trace amount of DNA that was insufficient for identification. It was also impossible to tell when the DNA was deposited or which profile was more recent. McMillan testified at trial that he was 6 feet 1.5 inches tall and that he had blonde hair. He also testified that he had a jacket with a hood similar to the one in evidence about two years earlier but that he did not remember when he wore it last. He knew Repperger, and he believed Repperger had been to his house when the jacket was there.
A major contributor to a tested DNA profile contributes at least 67 percent of their DNA to the tested profile.
On cross-examination, the State asked McMillan about his arrest. He admitted to giving a false name and to making the statement that he was looking at doing a long time in jail. He did not explain why he made the statement.
In closing, the State relied on McMillan's statement to show consciousness of guilt, arguing that McMillan told Officer Clark that he had lied about his name because he was looking at a long time for a serious crime like robbery. The State commented that McMillan gave no explanation for his statement and argued that an innocent man would not act that way.
ANALYSIS
The question is whether McMillan's giving a false name tended to show consciousness of guilt for the robbery. We hold that it does not.
Evidence of other crimes, wrongs, or acts is inadmissible to prove character and show action in conformity with it. ER 404(b); Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994). But such evidence may be admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b). We review a trial court's ruling under ER 404(b) for abuse of discretion. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). Abuse occurs only where the trial court's decision was manifestly unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Admitting evidence under ER 404(b) requires a three-part analysis. State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001). First, the trial court must identify the purpose for which the evidence will be admitted. Freeburg, 105 Wn. App. at 497. Next, the evidence must be materially relevant to that purpose. Freeburg, 105 Wn. App. at 497. Finally, the court must balance the probative value of the evidence against any unfair prejudicial effect the evidence may have on the fact finder. Freeburg, 105 Wn. App. at 497.
Evidence of assuming a false name is admissible if it allows a reasonable inference of consciousness of guilt of the charged crime. Freeburg, 105 Wn. App. at 497-98. Because giving a false name is in the same category as evidence of flight, we apply the following rules to giving a false name. Freeburg, 105 Wn. App. at 497.
When evidence of flight is admissible, it tends to be only marginally probative to the ultimate issue of guilt or innocence. Freeburg, 105 Wn. App. at 498. "Therefore, while the range of circumstances that may be shown as evidence of flight is broad, the circumstance or inference of consciousness of guilt must be substantial and real, not speculative, conjectural, or fanciful." Freeburg, 105 Wn. App. at 498. The probative value of evidence of flight as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Freeburg, 105 Wn. App. at 498.
McMillan argues that the link between his "looking at a lot of time" statement and the robbery was too tenuous for the statement to be probative of his guilt for the robbery. Br. of Appellant at 14. He maintains that the statement was not probative to his consciousness of guilt for the robbery because he did not know he was a suspect for that crime when he gave the false name. And, he argues that he did not give the false name with regard to the robbery but, rather, with regard to the drugs in his trunk and other pending drug charges.
The State responds that the false name was connected to the robbery. It points out that McMillan made his "looking at a [lot of] time" statement after he was confronted with evidence that he was involved in the robbery. Br. of Resp't at 11.
The State's argument misses the point. When determining whether evidence of giving a false name is admissible to show consciousness of guilt, the inquiry is whether the defendant gave the false name to feign detection for the crime charged. Freeburg, 105 Wn. App. at 497-98. More specifically, the question is whether a connection between the false name and the crime charged existed at the time of giving the false name. See Freeburg, 105 Wn. App. at 497-98. The State's argument does nothing more than use McMillan's subsequent realization, after arrest, transport, and interrogation, that he was a suspect in the robbery to show that the robbery prompted him to give the false name in the first place. It begs the question of whether McMillan was trying to avoid detection of the robbery at the time of giving the false name.
The probative value of flight evidence, or evidence of similar import, depends on all four inferences listed in Freeburg. The third inference that must be drawn from a defendant's actions is that his consciousness of guilt was of the crime charged. Here, McMillan was charged with robbery. The State had to show, then, that when McMillan gave the false name, he did so because of his guilt concerning the robbery. See Freeburg, 105 Wn. App. at 498.
In State v. Hebert, 33 Wn. App. 512, 513, 656 P.2d 1106 (1982), a teacher reported her wallet missing from her classroom. Witnesses gave police officers a description of a man seen in her classroom and adjacent hallways, and officers quickly apprehended Hebert. Hebert, 33 Wn. App. at 513. During a "pat-down" search, Hebert broke away, but officers quickly recaptured him. Hebert, 33 Wn. App. at 513. Hebert argued on appeal that admission of flight evidence unfairly prejudiced him because, to explain why he fled, he had to inform the jury that he was a parolee in possession of marijuana. Hebert, 33 Wn. App. at 515. Division One of this court upheld the trial court's admission saying, "Hebert's flight from the officer reasonably could be considered a deliberate effort to evade arrest and prosecution for the burglary and could also reasonably be considered probative of his consciousness of guilt." Hebert, 33 Wn. App. at 515 (citing State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965)).
In State v. Chase, 59 Wn. App. 501, 502, 799 P.2d 272 (1990), the defendant fled the scene of a video store burglary. A U-Haul truck was near the scene and contained a motorcycle and items belonging to the video store. Chase, 59 Wn. App. at 503. Using a police dog, the police tracked the defendant to a pair of abandoned boots that were still warm, as if recently worn. Chase, 59 Wn. App. at 503. They continued to track the defendant in an area covered with blackberry bushes and soon connected the defendant to an address and began surveillance. Chase, 59 Wn. App. at 503. They saw a man wearing no shoes and no shirt disembark from a taxi to the suspected address. Chase, 59 Wn. App. at 503. They saw that he had scratches on his upper body and that his pants were wet and muddy. Chase, 59 Wn. App. at 503. The defendant gave the name Ken Coldeen, which was the name on the registration for a motorcycle found in a U-Haul truck. Chase, 59 Wn. App. at 503-04. The defendant's real name was Brian Chase. Chase, 59 Wn. App. at 504. We held that evidence that the defendant gave a false name was properly admitted because the particular name linked him to the scene and because the false name tended to show consciousness of guilt for the burglary. Chase, 59 Wn. App. 507.
Other cases have also relied on the connection between the circumstances surrounding the defendant's arrest and the crime charged. See State v. Rowell, 144 Wn. App. 453, 458-59, 182 P.3d 1011 (2008) (evidence of flight relevant when defendant found fleeing from a shots-fired location within minutes of the reporting calls, at an early morning hour when no others were present), review denied, 165 Wn.2d 1021 (2009); State v. B.J.S., 140 Wn. App. 91, 99, 169 P.3d 34 (2007) (evidence supported finding that defendant fled the scene of the crime where witnesses saw someone running from a house while burglary in progress); Freeburg, 105 Wn. App. at 500-01 (insufficient evidence of consciousness of guilt where defendant arrested out of state a little over two years after shooting, carrying a gun not related to the crime); State v. Hagler, 74 Wn. App. 232, 234, 236, 872 P.2d 85 (1994) (defendant's flight from officer during traffic stop not consciousness of guilt where State failed to show which of two possible crimes defendant felt guilty about); State v. Porter, 58 Wn. App. 57, 58-59, 62, 791 P.2d 905 (1990) (jury could infer guilt when defendant attempted to flee residence as soon as police entered a house and police later found narcotics next to seat defendant had occupied before fleeing).
Under ER 401, evidence need only have a tendency to make the existence of a fact that is of consequence to the determination of the action more probable. McMillan giving the false name has a slight tendency to show that he had a consciousness of guilt for the robbery so long as there is a connection between the act showing a consciousness of guilt and the crime charged. This connection makes the evidence much more probative, which outweighs the inherent prejudice in explaining alternative circumstances for giving the false name. ER 403. And linking consciousness of guilt evidence to the crime charged prevents the State from using that evidence to show the defendant has generally bad character. ER 404(a); Chase, 59 Wn. App. at 507.
The facts here indicate that McMillan gave Officer Clark a false name to evade arrest for reasons unrelated to the robbery. At the time Officer Clark stopped McMillan for failing to yield, he was out on bail for two pending felony drug charges. He had drugs in the trunk of his car and knew that any more charges would increase his standard range. Based on these facts, McMillan reasonably gave Officer Clark a false name to evade another drug charge and a stricter sentence range.
In contrast, nothing in the record suggests that McMillan gave the false name to evade detection for the robbery. The robbery occurred about a year and a half before Officer Clark stopped him. Nothing in the records suggests that, despite two previous arrests, law enforcement previously made him aware he was a suspect in the robbery. Unless we presume he was guilty of the robbery, it was only after he was arrested for giving a false name, transported to the police station, and interrogated that he had reason to believe that he was a suspect in the robbery.
This evidence indicates that McMillan gave a false name to evade detection of a drug offense, not the robbery. There was no evidence that he was aware of the robbery charge at the time of his flight. For the purpose of ER 404(b), it follows that his subsequent explanation that he was "looking at a lot of time" also relates to being pulled over with drugs in his trunk. 2 RP at 60. Even though he made the statement after having reason to believe that he was a suspect in the robbery, the statement explains why he gave the false name, which the evidence indicates had nothing to do with the robbery.
Without a connection between McMillan giving the false name and the robbery, we cannot draw the inference necessary under Freeberg. Therefore, his statement that he was "looking at a lot of time" lacked probative value relative to the robbery charge. 2 RP at 60. The trial court lacked tenable grounds to admit the statement. We hold that evidence of McMillan giving a false name, including his explanation of why he gave it, was inadmissible as ER 404(b) evidence.
The error admitting this statement was also prejudicial. The State unfairly argued that he gave a false name because he was "looking at a long time for a serious charge like robbery," implying he knew he was guilty of the robbery. 3B RP at 295. To overcome this prejudice, McMillan would have had to explain that he gave the false name and made the statement with regard to evading a third drug charge, a task that is equally as prejudicial. The next question is whether the trial court's error was of sufficient magnitude to necessitate a new trial.
"An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Because a violation of an evidentiary rule is not of constitutional magnitude, we do not apply the more stringent "'harmless error beyond a reasonable doubt'" standard. Bourgeois, 133 Wn.2d at 403 (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). "Instead, we apply 'the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'" Bourgeois, 133 Wn.2d at 403 (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). A trial court improperly admitting evidence is harmless error if the evidence is of minor significance compared with the overwhelming evidence as a whole. Bourgeois, 133 Wn.2d at 403.
The State argues that the following is overwhelming evidence supporting McMillan's guilt: (1) McMillan's DNA on the jacket hood found at the robbery, (2) Crimmins's general description of the victim and getaway car, (2) Repperger's testimony that McMillan sold him Crimmins's phone shortly after the robbery, and (3) McMillan's implausible explanation of both how a third party obtained his jacket and why Repperger was accusing him of selling the cell phone.
But the State's evidence is not overwhelming. Other than the color, Crimmins did not identify features of McMillan's car as the one used in the robbery, but rather she gave varied and inconsistent descriptions. Crimmins also did not identify McMillan at trial or in the montage containing his photograph. Instead, she identified two people in the montages who were not McMillan and said she was 95 percent certain that their facial features resembled the perpetrator. Additionally, in her 911 call, Crimmins described the perpetrator as 5 feet 4 inches tall with dark hair, but at trial, she described him as a little taller than 5 feet 7 inches. The evidence at trial was that McMillan is 6 feet 1.5 inches tall with blonde hair. When asked to explain some of her inconsistencies, Crimmins said that it was dark out, he was wearing a hood and hat, and that she only had a split second look at him. Indeed, explaining what had happened immediately following the robbery was also difficult for her because she was dazed and shocked.
The State's most compelling evidence was McMillan's DNA found on the jacket hood and Repperger's testimony that McMillan sold him the stolen phone shortly after the robbery. But the hood had two DNA profiles, and the State could not prove that McMillan was the last to wear the hood. And Repperger's testimony about the stolen phone is circumstantial and, alone, does not equate to overwhelming evidence that McMillan robbed Crimmins.
Compared with the foregoing evidence, admitting McMillan's statement that he was "looking at a lot of time" was not of minor significance. 2 RP at 60. The State suggested in closing that McMillan admitted on the stand that he knew he was "looking at a long time for a serious charge like robbery." 3B RP at 295. The jury could either draw the inference that the State suggested, that McMillan was admitting guilt in the robbery, or it could speculate that he had committed other offenses about which it had not been told. The latter unfairly shifts the jury's attention to the defendant's criminal propensity, just as if McMillan had explained that he gave the false name to evade detection for a third drug charge. ER 404(a). If the State truly believed the evidence was overwhelming, it would not have needed to rely on arguing the inference from McMillan's statement.
The State did not present overwhelming evidence of McMillan's guilt. We cannot conclude that the trial court's error in admitting evidence of his false name, in light of the State's evidence, did not materially affect the trial outcome. We hold that the error was not harmless.
STATEMENT OF ADDITIONAL GROUNDS
McMillan raises two issues in his statement of additional grounds. He first argues that the trial court violated his right to confrontation when it allowed the State to ask McMillan whether he called Repperger a snitch even though defense counsel never impeached Repperger with the same. The confrontation clause of the Sixth Amendment guarantees the right to impeach prosecution witnesses with evidence of bias. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998). But the trial court here never prevented McMillan from re-calling Repperger to ask him about being called a snitch. Indeed, defense counsel's decision not to recall Repperger was likely a tactical decision to avoid Repperger confirming the name calling.
He next argues that the trial court violated his speedy trial rights when it granted a continuance, and if violated, would necessitate dismissal of the charges with prejudice. See Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). A trial court's decision to grant a continuance under CrR 3.3 will not be disturbed absent a showing of manifest abuse of discretion. State v. Williams, 104 Wn. App. 516, 520-21, 17 P.3d 648 (2001). Here, the trial court granted the State's motion for a continuance because inclement weather was preventing the State from bringing Pastorino down from King County and from finding Repperger. The trial court did not abuse its discretion in granting the continuance.
We reverse and remand for a new trial.
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, J. and WORSWICK, A.C.J., concur