Opinion
No. 58269-1-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-05208-4, Carol A. Schapira, J., entered May 3, 2006.
Affirmed by unpublished per curiam opinion.
The issue in this case is whether any alleged errors in admitting identification testimony are harmless where the defendant testifies that he struck the victim and held him in a headlock while others punched him, but claims he did so in self-defense. We affirm because any error in admitting identification testimony was harmless in light of the defendant's testimony and self-defense theory.
FACTS
Zack Barr, his brother, and some friends were standing near the Ballard High School pool at approximately 2:30 p.m. on October 17, 2005. Pedro Borrayo, along with his girl friend, walked by the group. Barr walked up to Borrayo and stood only about a foot away from him. Barr's brother then ripped the headphones off Borrayo's head and told him, "[Y]ou got jacked."
When Borrayo tried to retrieve his headphones, Barr and his brother punched him. Borrayo hit Barr back. During the struggle for the headphones, Borrayo hit Barr's head on a wall, causing Barr to have a bump on his head. Barr and his brother then punched Borrayo, while four or five other kids joined in the attack and began to hit and kick Borrayo as well. At one point, Barr held Borrayo in a headlock while others hit Borrayo. As Borrayo was still trying to get his headphones back, Barr's friend, John Kelly, pulled out a knife and threatened to kill Borrayo. The entire confrontation involving Barr, his brother, Kelly, and the other individuals lasted about 15 minutes. Immediately afterwards, Borrayo reported the incident to the police.
Debra Spiegelman, a teacher at Ballard High School, witnessed the end of the attack. From 60 feet across the parking lot, she heard Barr and others curse at Borrayo. She also saw Barr hit Borrayo very hard on the head. She drove to the scene and saw Barr from about ten feet away. She then spoke with Barr and a young woman. She noticed an abrasion she later described as a "goose egg" on Barr's head and expressed concern for his injury. The young woman explained to Spiegelman how Barr received his injury. After Spiegelman got into an argument with the group as to whether they belonged on campus, Barr and the rest of the group scattered and ran away.
Police officers stopped Barr and Kelly a few blocks from the pool. During a pat-down search, the officers found a knife on Kelly. After a search incident to arrest, the officers found Borrayo's headphones in the waistband of Kelly's pants, and both Barr and Kelly admitted they belonged to Borrayo.
Before trial, Barr moved to suppress all identification evidence due to unduly suggestive police identification procedures. The court orally denied the motion. At trial, both Borrayo and Spiegelman identified Barr as one of Borrayo's attackers and both testified about police identification procedures used to identify Barr.
Regarding the fight over the headphones, Barr testified that he approached Borrayo, Borrayo struck him first, and that he reacted in self-defense by punching Borrayo in the face. He admitted that during the fight, he had Borrayo's head under his arm while others hit Borrayo. Barr also admitted that he did not think Borrayo had a fair chance at winning the fight and recalled speaking with a female teacher after the fight.
During closing argument, Barr's counsel argued that Barr acted in self-defense. The court found that even if it believed Barr's testimony, his use of force was not appropriate and that he knowingly assaulted Borrayo to assist his brother in taking and keeping the headphones. The court found Barr guilty of robbery in the second degree, and he now appeals.
ANALYSIS
We must decide whether any error in admitting identification testimony was harmless. The State argues that it is harmless because at trial, Barr admitted he was at the scene and struck Borrayo and held him in a headlock, but contended that he acted in self-defense. We agree that any error in admitting identification testimony was of no significance to the outcome of the trial because at trial, there was no issue concerning Barr's identification.
Evidentiary error is grounds for reversal only if it results in prejudice. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). An error is prejudicial if, "`"within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected."`" Neal, 144 Wn.2d at 611 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole. Neal, 144 Wn.2d 611. Error in admitting identification evidence is not prejudicial where the defendant admits to committing the acts in question. See State v. Jamison, 93 Wn.2d 794, 800-01, 613 P.2d 776 (1980) (no prejudicial error in admitting identification evidence where record reflected that defendant confessed to police that he committed the robbery in question).
Here, the outcome of Barr's trial would not have been materially different if the identification evidence had been excluded because Barr's conviction hinged on the merits of his self-defense claim, not on identification. At trial Barr admitted that he was at the scene and approached Borrayo. He claimed that Borrayo struck him first and that he retaliated by punching him in the face. He also testified that he held Borrayo's head under his arm while others hit Borrayo. He admitted that he spoke with a female teacher at the school after the incident. During closing argument, Barr's counsel argued that although Barr struck Borrayo, he did so in self-defense. Taking into account Barr's testimony, the court still found that his use of force was not appropriate and that he knowingly assaulted Borrayo to assist his brother in taking and keeping the headphones.
Barr argues that the error was not harmless because the State would not have been able to establish his identity or place him at the scene of the incident if the court had suppressed the identification evidence. Barr cites no authority for this argument. It was his choice to testify, and he admitted that he struck Borrayo and put him in a headlock. He could have chosen not to testify and preserved this issue for appeal. By testifying and asserting self defense, he removed any issue concerning his identification.
Barr also argues that the court committed reversible error by entering CrR 3.6 written findings of fact and conclusions of law while his appeal was pending. We need not address this issue because of our disposition in this case.
For the foregoing reasons, we affirm.