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State v. Payton

The Court of Appeals of Washington, Division Two
Mar 20, 2007
137 Wn. App. 1048 (Wash. Ct. App. 2007)

Opinion

No. 34425-4-II.

March 20, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05867-0, John A. McCarthy, J., entered February 10, 2006.

Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, Seattle, WA.

Counsel for Respondent(s), P. Grace Kingman, Attorney at Law, Tacoma, WA.


Affirmed by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.


Jamal Payton appeals his conviction of second degree assault with a deadly weapon, other than a firearm. He argues that trial court evidentiary error, juror misconduct, and cumulative error deprived him of a fair trial. We affirm.

FACTS

On the evening of October 21, 2004, Patrick Olson was at his home with a man he knew as Joe. Two men, Payton and a man known as "Youngster," came to Olson's house sometime between 6 and 7 p.m. 2 Report of Proceedings (RP) at 81. Youngster and Payton pushed their way into Olson's home. Payton had a metal baseball bat and Youngster had a "buck" knife. 2 RP at 91.

After Olson acted "rude" toward Payton and Youngster, Payton swung the bat at him and Youngster lunged at him with the knife. 2 RP at 90. Olson had his guard up and did not see any of the blows connect, but he believed that a piece of metal struck his head. Joe "just sat there and watched" while the altercation occurred and did not participate or try to stop it. 2 RP at 126. Olson suffered a fractured cheek bone during the altercation.

After hitting Olson for approximately 5 to 10 minutes, Payton told him that he planned to take his television. Youngster said that he was going to get a truck to haul off the television and left the house. While Payton was in another room, Olson ran out of the house to his uncle's nearby mobile home.

Shortly after Olson arrived at his uncle's house, he called 911. Olson told the 911 operator that three men had participated in a "strong-armed robbery" and gave descriptions of all three. 2 RP at 110. From his uncle's home, he saw Joe and Payton leave his house and head in separate directions.

Lakewood Police Officer Noble responded to the 911 call at approximately 7:10 p.m. and met Olson at his house. Noble described Olson as being "very emotional," as if he had been through a "traumatic incident." 2 RP at 67. Noble observed some bruising and a cut on the left side of Olson's face.

The police later arrested Payton and on December 14, 2004, Detective Paynter contacted him at the Pierce County Jail and read him his Miranda rights. Payton waived his Miranda rights, and Paynter questioned him about the altercation with Olson. Payton denied that he was involved with the assault, but he "wept several times during the interview and stated that his life was out of control because of methamphetamine." 1 RP at 13. On December 21, the State charged Payton with one count of second degree assault with a deadly weapon other than a firearm. RCW 9A.36.021 (1) (c).

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

Before trial, Payton moved in limine to exclude any reference to his weeping during Paynter's interview and his statement that "his life was out of control because of methamphetamine." 1 RP at 13. Payton objected only on the grounds that unfair prejudice from the statement would outweigh any relevance.

The trial court denied the motion, finding the statement relevant to show Payton's state of mind during the interview and because a jury could conclude from the statement that he was trying to minimize, justify, or excuse his conduct.

Payton also objected to the admissibility of a recording of Olson's 911 call. The trial court deferred ruling on the call's admissibility until the State presented a foundation for admission.

During jury selection, one prospective juror stated something to the effect of, "I am familiar with the evidence. I work in the property room." RP (Feb. 10, 2006) at 12; RCW 9A.36.021(1)(c). Payton did not object to the statement, request a limiting instruction, or request a new venire. The prospective juror did not serve on the jury because she was excused for cause based on her friendship with the prosecutor handling the case.

A trial jury began on June 2, 2005. After hearing the recording of the 911 call and testimony from Noble about Olson's emotional state after making the call, the trial court found the recording admissible as an excited utterance exception to the hearsay rule. The State played a recording of the 911 call in the jury's presence. Olson testified that Joe did not take part in the altercation, but he said he included a description of Joe in his report to the 911 operator because he was "paranoid and shady about everybody" in the house at the time of the altercation. 2 RP at 119. He also testified that no one stole his television.

The jury found Payton guilty as charged. Payton's counsel interviewed juror 3 with the court's permission. Based on his conversation with juror 3, Payton's counsel believed that juror 10 told other jurors "there must be a bat" because of what the excused juror said during voir dire. RP (June 24, 2005) at 10. A private investigator interviewed juror 10 with the court's permission.

After the interview, Payton moved for a new trial under CrR 7.5(a). He claimed that juror 10 relied on extrinsic evidence by focusing on the excused juror's statements regarding her job in the property room and familiarity with the evidence.

On February 10, 2002, juror 10 testified at a hearing on the matter. She said that she believed there was a weapon somewhere based on what the excused juror said at voir dire. She also testified that she did not discuss this belief with jurors at any time during the trial or deliberations.

The trial court denied the motion for a new trial, finding that the jury did not rely on any extrinsic evidence. Payton appeals.

ANALYSIS Admission of Custodial Statement

Payton first contends that the trial court erred in denying his motion in limine to exclude his post-Miranda custodial statement that "his life was out of control because of methamphetamine." 1 RP at 13. He asserts that unfair prejudice outweighed any relevance of the evidence.

Although Payton claims in his assignments of error that the trial court erred in allowing evidence that he wept during the custodial interview, he does not address this in his argument. Accordingly, we will not address this claim on appeal. Former RAP 10.3(a)(5) (2002).

Relevant evidence tends to make the existence of a material fact more or less probable. ER 401; see also State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002) (relevancy threshold "very low," and "[e]ven minimally relevant evidence is admissible"). A trial court may exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value. ER 403. "Unfair prejudice" generally means an undue tendency to suggest a decision on an improper basis, commonly an emotional one. State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000).

We review the decision to admit evidence as relevant and not unfairly prejudicial under an abuse of discretion standard. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).

The trial court admitted Payton's statement because it was relevant to his state of mind and his credibility during his custodial interview. He denied the assault throughout the interview. The State did not present the statement as proof of his character or evidence of a prior bad act but, rather, as his reaction to the interview.

Payton argues that the trial court improperly admitted the evidence of drug use for impeachment, citing State v. Dault, 19 Wn. App. 709, 719, 578 P.2d 43 (1978). But the State did not present the statement as evidence that he was using drugs at the time of the statement or the event. Rather, it offered the statement to show his reaction to questions regarding the altercation.

Payton's custodial statement and behavior during the interview undercut the credibility of his denial. A defendant's conduct is a circumstance for the jury to consider when it is not "'likely to be the conduct of one who was conscious of his innocence'" or "'tend[s] to show an indirect admission of guilt.'" State v. McGhee, 57 Wn. App. 457, 461, 788 P.2d 603 (1990) (quoting State v. Kosanke, 23 Wn.2d 211, 215, 160 P.2d 541 (1945)). His conduct during the interview with Paynter and his statement in reaction to questions regarding Olson's assault that his "life was out of control" due to methamphetamine were not consistent with one who was conscious of his innocence. 1 RP at 13. The trial court properly exercised its broad discretion in admitting the statement.

Even assuming error, it would be harmless. The evidence is of minor significance in reference to the overall overwhelming evidence as a whole, including Olson's testimony and the recording of the 911 call, and would not, within reasonable probabilities, have materially affected the trial outcome. See State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

Excited Utterance

Payton next contends that the trial court erred in admitting the recording of Olson's 911 call under the excited utterance exception to the hearsay rule. He asserts that the exception does not apply here because Olson remained calm and collected when he made the 911 call and did not give entirely truthful information to the 911 operator.

ER 803(a)(2) allows hearsay as an excited utterance if "(1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition." State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). We will not disturb a trial court's determination that a statement falls within the excited utterance exception absent an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 854, 83 P.3d 970 (2004).

Payton only challenges the second factor, claiming that Olson was not under the stress of excitement caused by the event or condition when he made the 911 call. The key to this factor is spontaneity. State v. Chapin, 118 Wn.2d 681, 688, 826 P.2d 194 (1992). "In determining spontaneity, courts look to the amount of time that passed between the startling event and the utterance, as well as any other factors that indicate whether the witness had an opportunity to reflect on the event and fabricate a story about it." State v. Briscoeray, 95 Wn. App. 167, 173-74, 974 P.2d 912 (1999).

Here, the short amount of time that passed between the event and Olson's 911 call, as well as his emotional state during that time, suggest that his statements were spontaneous. Shortly after the event, Olson ran to his uncle's house to call 911. Noble arrived at Olson's uncle's house two minutes after receiving the 911 call. Olson appeared "upset" and "very emotional," as if he had gone through a "traumatic incident," and he had bruising and a cut on his face. 2 RP at 67. The evidence supports the decision that Olson made the call while under the stress caused by the altercation with Payton and Youngster.

Payton also argues that Olson's statements were not excited utterances because he had time to fabricate his statement to the 911 operator. Specifically, he claims that Olson fabricated his statement that Joe was one of the assailants and that the assailants were stealing his television.

Payton cites State v. Brown, 127 Wn.2d 749, 903 P.2d 459 (1995), in support of his argument. In Brown, an alleged abduction and rape occurred. After discussing the situation with her boyfriend, the victim called 911 and told an operator that four men had kidnapped her and taken her to an apartment. But during trial, the victim admitted that she was a prostitute and had willingly gone to the apartment. She fabricated a story that the men had abducted her because she thought the police would not believe her if she admitted to going to the apartment willingly to perform sex. Our Supreme Court concluded that it was error to allow the 911 tape as an excited utterance because the victim had time to reflect and did, in fact, deliberately fabricate a portion of the hearsay statement. Brown, 127 Wn.2d at 757-59.

Unlike Brown, there is no evidence that Olson had time to fabricate a story about the assault so that he would sound more credible to the authorities. Olson could have made his statements regarding the theft of his television based on the assailants' threats to steal it, and his stress and fear at the time he was making the call could have led him to believe that Joe had some role in the assault. The trial court acted within its discretion in admitting the 911 tape as an excited utterance.

Juror Misconduct

Next, Payton argues the trial court erred in denying his motion for a new trial. He asserts that the jury considered extrinsic evidence during deliberations.

We will reverse a trial court's decision to deny a motion for a new trial only where there is a clear showing of abuse of discretion. State v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004). Under CrR 7.5(a)(1), a trial court "may" grant a defendant's motion for a new trial if it "affirmatively appears that a substantial right of the defendant was materially affected" by the jury's receipt of "any evidence, paper, document or book not allowed by the court." In such circumstances, a trial court should only grant a new trial when a defendant "'has been so prejudiced that nothing short of a new trial can insure that the defendant will be treated fairly.'" Pete, 152 Wn.2d at 552 (quoting State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997)) (internal quotation marks omitted).

Generally, we are reluctant to inquire how a jury arrives at its verdict. Pete, 152 Wn.2d at 552. There must be a strong, affirmative showing of misconduct in order to overcome the long-standing policy in favor of "'stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.'" Pete, 152 Wn.2d at 552 (quoting State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 301 (1994)). But a jury commits misconduct when it "consider[s] extrinsic evidence and if it does, that may be a basis for a new trial." Pete, 152 Wn.2d at 552. "'Novel or extrinsic evidence is defined as information that is outside all the evidence admitted at trial, either orally or by document.'" Pete, 152 Wn.2d at 552 (quoting Balisok, 123 Wn.2d at 118) (internal quotation marks omitted).

The trial court found that the jury did not consider extrinsic evidence during deliberations. Payton asserts that the excused juror's statement, "I am familiar with the evidence. I work in the property room.", affected the verdict because juror 10 believed that there was a bat in a property room. RP (Feb. 10, 2006) at 12. We disagree.

Payton cannot use a juror's post-verdict statement regarding the way in which the jury reached its verdict to support a new trial as the decision-making process inheres in the verdict. State v. Ng, 110 Wn.2d 32, 43-44, 750 P.2d 632 (1988). Juror 10 testified that the comments of the prospective juror were never a topic of discussion among the jurors but were only juror 10's supposition and part of her individual mental process that inhered in the verdict. The trial court instructed the jury members that the only evidence they were to consider was testimony of the witnesses and the exhibits admitted into evidence, and we assume that juries follow instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Payton does not establish a strong, affirmative showing of misconduct or that jurors used extrinsic evidence in deliberations. The trial court did not abuse its discretion in denying his motion for a new trial.

Cumulative Error

Finally, Payton contends that the combination of evidentiary errors and juror misconduct requires reversal of his conviction under the cumulative error doctrine. Cumulative error may warrant reversal, even if each error standing alone would otherwise be harmless. State v. Korum, 157 Wn.2d 614, 652, 141 P.3d 13 (2006). Payton has not shown that any errors occurred, so the doctrine does not apply.

Affirmed.

A majorityofthe 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.

Quinn-Brintnall, J., Van Deren, J., concur.


Summaries of

State v. Payton

The Court of Appeals of Washington, Division Two
Mar 20, 2007
137 Wn. App. 1048 (Wash. Ct. App. 2007)
Case details for

State v. Payton

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JAMAL RASHON PAYTON, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Mar 20, 2007

Citations

137 Wn. App. 1048 (Wash. Ct. App. 2007)
137 Wash. App. 1048