Opinion
No. 35630-9-II.
October 31, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-04870-2, Stephanie A. Arend, J., entered November 22, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Hunt, JJ.
Saquarra St. Marie Smith appeals her first degree assault conviction. She argues denial of the right to cross-examine her accuser, improper admission of evidence under ER 404(b), improper opinion testimony, prosecutorial misconduct, lack of jurisdiction over her for a crime committed as a juvenile, insufficient evidence, and cumulative error deprived her of the right to a fair trial. We affirm.
FACTS
In her reply brief, Smith challenges the State's presentation of the facts. At trial, there were three different versions of what happened: Smith's statement to police, the victim's explanation (mainly saying she could not see who hit her because she stayed in a defensive posture), and the testimony of Smith's accomplice, Tiffany Osborne. The State presents Osborne's version of events. The verdict of first degree assault reflects the jury's finding that Osborne was credible. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Smith believed that Nacole Naquin had stolen $2,000 from her. Smith, her co-defendant Tiffany Osborne, and two other young women began looking for Naquin to confront her about the stolen money. Once the young women located Naquin, they asked her if she wanted to "hang out," and she willingly left with the young women. 2 Report of Proceedings (RP) at 252.
After arriving at yet another young woman's house, Smith, Osborne, and the other young women confronted Naquin in a bedroom. Smith grabbed Naquin by the throat, pushed her onto a bed, and punched and kicked her. Naquin put her hands over her head and curled up in a defensive position. Osborne also punched and kicked Naquin. A few minutes into the attack, Smith armed herself with a wood baseball bat and began hitting Naquin on the head. At some point, Osborne took the bat from Smith. Naquin screamed for help and one of the young women with the assailants let Naquin out the back door where she sought further help.
Naquin made it to an acquaintance's house and was taken to Tacoma General Hospital. The emergency room doctor treated Naquin for broken fingers, a contusion on her shoulder, and a four and a half inch laceration on her head. Naquin's injuries were so severe that the emergency room doctor ordered her to undergo a computed axial tomography scan and x-rays. The doctor had to use staples to repair Naquin's scalp.
Police arrested Smith and Osborne. Osborne pleaded guilty to second degree assault and agreed to testify against Smith in exchange for leniency. The State charged Smith with first degree assault while armed with a deadly weapon. A jury found Smith guilty as charged.
ANALYSIS
Limits On Cross-Examination
Smith argues that the trial court erred when it limited her cross-examination of Osborne, demonstrating bias. We disagree.
The trial court has inherent authority to control litigation before it. See In re Matter of Firestorm 1991, 129 Wn.2d 130, 139, 916 P.2d 411 (1996); State v. S.H., 102 Wn. App. 468, 473, 8 P.3d 1058 (2000) (citing RCW 2.28.010(2)-(3)).
The confrontation clause in the Sixth Amendment of the United States Constitution protects a defendant's right to cross-examine witnesses. State v. Kilgore, 107 Wn. App. 160, 184, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288 (2002). But the trial court retains "discretion to control the scope of cross-examination and may reject lines of questions that only remotely tend to show bias or prejudice, or where the evidence is vague or merely speculative or argumentative." Kilgore, 107 Wn. App at 185. The evidence a party seeks to admit to show bias, ill will, interest, or corruption must be specific enough to be free from vagueness. State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965). A trial court properly excludes evidence that only vaguely tends to show bias in an indefinite and speculative way. Jones, 67 Wn.2d at 512.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend VI.
Here, Smith questioned Osborne about the plea agreement in which Osborne received leniency in exchange for testifying against Smith. Osborne admitted on cross-examination that her possible sentence was reduced from 13 to 4 years. Smith's counsel asked, "Okay. Now, you're also being investigated for other problems?" 3 RP at 301. The State objected and the court heard argument outside the jury's presence. Smith asserted that she wanted to question Osborne about whether she was receiving favorable treatment in a California prostitution investigation for testifying against Smith. The State argued that the California matter had no bearing on Osborne's testimony against Smith and asserted that, in fact, Osborne was a victim, not a suspected perpetrator, of child prostitution. The court sustained the State's objection and instructed the jury to disregard the question.
Smith also alleges that the trial court erred when it refused to allow her to ask Osborne about leaving the state in violation of her conditions of release. There is no suggestion in the record that Smith attempted to ask Osborne about leaving the state in violation of her conditions of release and, thus, she is prohibited from raising the issue for the first time on appeal. See RAP 2.5(a); see also State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001), review denied, 145 Wn.2d 1023 (2002).
Next, Smith argues that Osborne's alleged prostitution was nonetheless admissible under ER 608 and 609. ER 609 deals with convictions and is not applicable. ER 608(b) provides that specific instances of a witness's conduct, introduced for purposes of attacking a witness's credibility, may not be proved by extrinsic evidence, but may, "in the discretion of the [trial] court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness." In exercising its discretion, the trial court may consider whether the instance of the witness's misconduct is relevant to the issues presented at trial. State v. O'Connor, 155 Wn.2d 335, 349, 119 P.3d 806 (2005). The trial court ruled that ER 608 was not applicable because there was nothing about the alleged prostitution that made it an "issue of truthfulness or untruthfulness." 3 RP at 311.
The trial court did not err in its rulings. Smith did not demonstrate that Osborne's alleged victimization as a child prostitute was part of her plea agreement. Thus, the question would not elicit evidence of bias. Moreover, prostitution is not a crime involving dishonesty and does not affect a witness's character for truthfulness. The trial court did not err by limiting the scope of Smith's cross examination to exclude inflammatory and irrelevant references designed to reveal embarrassing information about Osborne.
Criminal History
Smith also challenges Detective Gene Miller's testimony that he "[o] btained a photo montage that included [Smith and] looked at her criminal history." 2 RP at 76. Smith argues this testimony was inadmissible under ER 404(b), which provides, in relevant part, that "[e] vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." She reasons that Miller's testimony implied that Smith was a criminal and, therefore, was more likely to commit the crime for which she stood accused.
Smith did not object to Detective Miller's testimony. Absent a manifest constitutional error, we do not review evidentiary objections raised for the first time on appeal. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). Evidentiary errors under ER 404(b) are not of constitutional magnitude and, therefore, cannot be raised for the first time on appeal. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).
Moreover, Smith's ER 404(b) claim is meritless. Detective Miller did not testify to Smith's character or prior crimes, wrongs, or acts. Rather, in response to the prosecutor's question, he discussed his investigation to explain how he identified Smith as a suspect — by obtaining a photograph of her and presenting a photo montage to the victim. ER 404(b) does not bar this testimony. Opinion Testimony
Smith next claims that Detective Miller gave improper opinion testimony of her guilt requiring reversal under the doctrine of manifest constitutional error. We disagree.
Generally, no witness may offer testimony in the form of an opinion regarding the defendant's guilt; such testimony is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Opinion testimony is testimony based on one's belief or idea rather than on direct knowledge of the facts at issue. Demery, 144 Wn.2d at 760 (quoting Black's Law Dictionary 1486 (7th ed. 1999)).
Here, the State asked Detective Miller about his investigation and he explained that the victim identified Smith from a photo montage. The challenged testimony follows:
[State] Okay. Based on the information in the montage procedure, what happened next?
[Miller] I believed — I developed probable cause for the arrest of Ms. Smith, and notified our patrol officers of same and documented my investigation at that point forward to the prosecutor's office in an attempt to get a warrant for her arrest.
2 RP at 79.
Smith did not object to this testimony. Thus, to obtain review of this issue, she must prove a manifest error affecting a constitutional right. Scott, 110 Wn.2d at 686-87. Smith claims she was denied her constitutional right to a fair trial because Detective Miller opined on her guilt when he said he believed he had probable cause to arrest her. But jurors already knew that police believed they could arrest Smith and that probable cause to arrest and charge her with the crime existed. It does not mean that the arrestee is guilty of the crime charged, only that she must stand trial. Further, Miller did not express that Smith is, in his opinion, guilty. No error is manifest and, therefore, we do not review this issue further. RAP 2.5; accord State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007) (it is improper to invade the jury's province by holding that unobjected-to opinion testimony is a manifest error, absent an explicit or almost explicit witness statement of guilt).
Prosecutorial Misconduct
Smith further argues that the prosecutor committed misconduct. To prevail on this claim, Smith must show that the prosecutor's conduct was both improper and prejudicial. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)), cert. denied, 523 U.S. 1007 (1998). Smith takes issue with the following dialogue, which begins with the State questioning Osborne:
[State]: At any point during the assault after the point where the assault occurred?
[Defense]: Objection to the categorization of "assault;" that's a legal conclusion.
[State]: [Osborne has] been convicted of assault.
[Court]: I'll allow it. Go ahead.
[State]: At any point during the assault and the assault that you committed and that the defendant is on trial for, was [Naquin] able to say anything?
3 RP at 255-56 (emphasis added).
Smith asserts the emphasized question was prosecutorial misconduct. But the prosecutor properly referred to the incident as an assault. Osborne, Smith's alleged accomplice, had been convicted of that crime and Smith was charged with it. Further, Smith's case theory was that the jury should find her guilty of second degree assault instead of first degree assault, not that no assault occurred. Thus, no prejudice could have resulted from asking this question.
Statement of Additional Grounds (SAG) Issues
Smith raises two additional issues in her SAG. Neither warrants reversal. Smith argues that she should have been tried in juvenile court because she was 16 when the crime was committed and no declination hearing was held. But juvenile courts lack jurisdiction over a 16-year-old defendant charged with first degree assault. RCW 13.04.030(e)(v)(A); former RCW 9.94A.030(40) (2005) (defining "serious violent offense"). Accordingly, Smith was properly tried as an adult.
RAP 10.10.
Next, Smith asserts that insufficient evidence supported the conviction because (1) she used the bat in self-defense after she was attacked with it first; (2) the assault did not cause life-threatening injuries; and (3) she did not intend to inflict great bodily harm on Naquin. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt based on all evidence in the record. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The evidence here was sufficient. First, Smith did not argue self-defense and the record does not support such a claim. Second, it is irrelevant whether the assault resulted in life-threatening injuries because the question was whether the assault was conducted by "any force or means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a). Smith's act of repeatedly hitting Naquin in the head with a baseball bat was force likely to produce great bodily harm or death. Third, the evidence belies Smith's claim that she did not intend to inflict great bodily harm; she repeatedly hit Naquin with a baseball bat. Cumulative Error
Last, Smith requests reversal based on cumulative error. The cumulative error doctrine applies when several errors occurred at the trial court level but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Instead, the combined errors effectively denied the defendant a fair trial. Hodges, 118 Wn. App. at 673-74. Because Smith has demonstrated no error, this doctrine does not apply. Accordingly, 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., HUNT, J., concur.