Opinion
No. 53657-5-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 02-1-01447-2. Judgment or order under review. Date filed: 12/18/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Royce Scott Buckingham, Attorney at Law, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Eduard P. Vasilchenko challenges his convictions for kidnapping in the first degree, assault in the second degree, and felony harassment. We affirm the convictions because (1) the trial court properly admitted statements made during a polygraph pre-test; (2) the State was not required to preserve all evidence; (3) the prosecutor did not commit misconduct; and (4) the trial court did not abuse its discretion making evidentiary rulings.
FACTS
On October 15, 2002, Whatcom County sheriff's officers and paramedics responded to a 9-1-1 call to investigate an assault and injuries on then 15-year-old V.Y.V.Y. had numerous scratches, bruises, abrasions, a swollen eye and bloody lips.
As will be seen below, different versions of the night's events were heard at trial. After taking a private polygraph test, and believing that a polygraph examination would be of benefit to him, Vasilchenko submitted to one administered by the State. Vasilchenko was given Miranda warnings, waived his rights and entered into a pre-test conversation with the detective administering the test. The parties disagree whether there was a prior agreement between counsel as to the non-use of any statements made by Vasilchenko to the detective administering the polygraph examination. Vasilchenko sought to suppress the statements as well as others made at the time of his arrest. A CrR 3.5 hearing was held to determine the admissibility of the statements. The trial court found that the detective advised Vasilchenko of his Miranda warnings and that Vasilchenko reaffirmed his desire to speak with the detective and waived his rights. The court determined Vasilchenko's pre-test statements were admissible at trial. Two alternate versions of the night's events emerged. In short, the prosecution's theory of the case was that Vasilchenko used the ruse of taking V.Y. from his home to help him identify a local teen gang leader named 'Richard.' Vasilchenko told V.Y. and his mother of his belief that Richard had burglarized the Vasilchenko's home. However, once he and his friend reached a nearby rural area, Vasilchenko accused V.Y. of burglarizing the home and proceeded to assault him while trying to obtain information about the burglary and the whereabouts of items taken from the home, especially his video camera. V.Y. testified that he escaped after being hit by a fist and kicked a number of times, then dragged alongside the van over gravel for anywhere from 5 to 50 feet until the fabric from his shirt ripped or became untied and he fell. V.Y. testified he got away and ran home. Shortly thereafter, Vasilchenko returned to the porch of V.Y.'s family home making threats to V.Y. and to his family. V.Y.'s mother was making a call to 9-1-1 at the time and testified that Vasilchenko was at the house making threats. She grabbed a kitchen knife in the event Vasilchenko came in, but Vasilchenko left.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The detective testified that during the pre-test conversation Vasilchenko indicated he went to V.Y.'s house and picked him up. He admitted that he had been drinking and that his co-worker Valentin Romanyuk drove. As they were driving to a remote location Vasilchenko said he accused V.Y. of burglarizing his house. But Vasilchenko indicated that V.Y. got out of the van where other juveniles were by a bonfire, and that he and Romanyuk left the area at which time V.Y. was fine.
The defense theory was that Vasilchenko did not abduct V.Y. but was actually seeking his assistance in recovering the property stolen from Vasilchenko and his wife, or in identifying the person who burglarized their house. There had been a number of burglaries in the area and Vasilchenko believed they were likely committed by teenage gang members. Vasilchenko and a friend, Valentin Romanyuk, went to V.Y.'s home and left with V.Y. to have him direct them to an area where local teens hang out. Vasilchenko indicated that V.Y. understood that he was being asked to help him make contact with the teens. They drove to a clearing at the end of a gravel road where there was a campfire in the woods with many teens about. V.Y. took them to the spot and exited the vehicle with Vasilchenko and went to the campfire. At that time Vasilchenko alleges that V.Y. partially confessed and stated he knew that some of the property was at the home of Victor Fedchuk. Thereafter, Vasilchenko and the driver Romanyuk left in the van and V.Y. remained behind at the campfire.
Vasilchenko and Romanyuk drove to Fedchuk's house where Vasilchenko confronted Fedchuk while Romanyuk stayed in the van. Fedchuk told Vasilchenko that he bought a video camera from V.A., evidently meaning V.Y., who told Fedchuk that he was the owner of the camera and the other items. Thereafter, Vasilchenko and Romanyuk returned to V.Y.'s home to confront him. Vasilchenko noticed there were knives in people's hands, so he left. Vasilchenko claims he had no idea that V.Y. was assaulted. He went home and then went to a neighbor's house where he proceeded to fall asleep.
After receiving the call, officers arrived at Vasilchenko's home where they encountered the van described by V.Y. They looked at the van and saw smudges down one side. They spoke to Valentina Vasilchenko and a neighbor who were at the home. Valentina was initially cooperative. The parties stipulated that Valentina initially told the officers that Vasilchenko could not have been involved because he was home babysitting his four children that night. Thereafter, Valentina took the officers to the home of the neighbor. There, the officers discovered Vasilchenko on a couch. He was either asleep or passed out. The officers indicated their belief that he was intoxicated as they tried to rouse him. Initially he resisted being questioned or arrested, both verbally and physically. He claimed he didn't know of any assault incident. He accused police of making false accusations against him during questioning. Eventually, he was placed on the floor, handcuffed and arrested. Valentina attempted to help her husband and she was detained as well. The sheriff's officers said that there was one nick or scratch on Vasilchenko's knuckles, but there were no other marks on his body that officers noticed. A forensic expert testified there was no blood transference or spatter found on Vasilchenko's clothing. The expert testified that if Vasilchenko hit V.Y. as many times as V.Y. claimed there should have been blood on Vasilchenko's hands and that blood would likely have been found on his clothing.
After Valentina was cited and released, but while Vasilchenko was still detained at the scene, without procuring a search warrant, detectives looked at the exterior of, and photographed the van located in the driveway at the Vasilchenko house. Valentina testified that she told the officers to get off her property, but they ignored her and continued to look at the van and take additional pictures of it.
As a result of the investigation of the incident, Vasilchenko was charged with kidnapping in the first degree, assault in the second degree, and felony harassment of the V.Y. and his mother.
Before trial, CrR 3.5 and CrR 3.6 hearings were held on motions to suppress the pre-polygraph test statements made to the detective who administered the examination and other physical evidence obtained.
After the CrR 3.5 hearing, the trial court determined that the detective would be allowed to testify as to what Vasilchenko said during their pre-test conversation. The court indicated that Vasilchenko had been given his Miranda warnings and waived any right to remain silent, speaking voluntarily to the detective. There was no post-test conversation.
Findings of fact and conclusions of law were filed.
A CrR 3.6 hearing was held. The court determined that when officers first went to the Vasilchenko home and observed the smudges on the van, those observations were admissible and formed part of the probable cause for the arrest. When the officers returned to the property after releasing Valentina, any pictures taken before she told them to get off the property were admissible, but after she asked them to stop and leave, a warrant was necessary and any pictures taken thereafter would not be admitted. None of the pictures were offered into evidence at trial.
The court also ruled on a number of evidentiary issues. Among the rulings was the court's determination that the defense could not attack the completeness or competence of the sheriff's office investigation of the original burglary at the Vasilchenko house. Further, the trial court held that Vasilchenko's belief that V.Y. burglarized his residence was relevant, but the fact that he actually did burglarize the home was not, because this had not been charged or proved. Thus, V.Y.'s admission, if any, to Vasilchenko could come in, but there were to be no general blanket statements by others about V.Y. admitting to taking part in the burglary or to the selling of the camera to Fedchuk, as they were not proved or relevant to the charge against Vasilchenko. The court offered to revisit this ruling once witnesses testified, to give a more complete ruling at that time if the defense could make the relevance more apparent.
After trial, the jury convicted Vasilchenko of the kidnapping in the first degree, assault in the second degree and felony harassment charges of V.Y. The jury acquitted Vasilchenko of the harassment charges pertaining to V.Y.'s mother. Vasilchenko appeals.
ANALYSIS
Vasilchenko alleges the trial court abused its discretion by admitting the pre-polygraph test statements made by him to the detective administering the test. Before beginning the examination, the detective read Vasilchenko his Miranda rights, which Vasilchenko waived in writing. In discussing the questions the detective would be asking, and discussing what was being sought through the test, Vasilchenko told the officer that he and his friend Romanyuk went to V.Y.'s house and picked him up. Romanyuk was driving because Vasilchenko had been drinking. Vasilchenko indicated that as they were driving to the spot where teens gathered he accused V.Y. of burglarizing his house and threatened to call police and have him arrested. He said that V.Y. began shaking and crying. He then said that V.Y. got out of the van and went to the location where the kids were by a campfire, and that he and Romanyuk left. He said that V.Y. was fine when they left.
Vasilchenko asserts the trial court should have excluded this testimony because any results of the polygraph test are inadmissible, and because the detective violated an agreement between counsel that any statements would not be used at a CrR 3.5 hearing or at trial. The arguments are not persuasive.
Vasilchenko's argument misstates the rule pertaining to the admission of polygraph examinations. It is the result of polygraph examinations, not statements made during the examination, which are inadmissible. Further, no actual agreement existed between the parties that prevented the detective from conducting the pre-test inquiries. Defense counsel did not base any objection to the admissibility of the statements at the CrR 3.5 hearing on any agreement, but only in his motion for a new trial. Counsel's argument that there was an actual agreement limiting use of statements made is not supported. There is an e-mail between the prosecutor and the detective setting forth a list of conditions defense counsel desired on the polygraph test. But there was never a written agreement or contract between defense counsel, the prosecutor and/or the detective. The detective indicated that if there was any general verbal understanding regarding the examination, it was that Vasilchenko would give information regarding whether or not he did the crime in hope that he might receive the benefit of a favorable test.
State v. Rupe, 101 Wn.2d 664, 677, 683 P.2d 571 (1984) (citing Wyrick v. Fields, 459 U.S. 42, 48 n.*, 103 S. Ct. 394, 74 L. Ed. 2d 214 (1982)).
The e-mail between the prosecutor and the detective indicated that Vasilchenko would like to set up a polygraph test at one of three times. The initial inquiry was if those times would work, and asked for a reply. Further, the e-mail noted that defense counsel would like to review the questions, be present as much as possible without disturbing the test and prohibit any investigative interviewing. The prosecutor asked that he be contacted regarding the questions and to discuss if the conditions will work.
The trial court did not abuse its discretion by admitting Vasilchenko's statements. Vasilchenko took the polygraph examination voluntarily, waived his Miranda rights, and had the ability to end the test at any time. The trial court's determination that the statements are admissible as relevant evidence is correct.
Next, Vasilchenko claims the State has a duty to disclose material exculpatory evidence to the defense and has a related duty to preserve such evidence for use by the defense. Here, Vasilchenko claims that while the State used testimony about smudges on the van to argue that V.Y. was dragged by the van, the State failed to properly measure the size of the handprints on the van to eliminate the fact that the smudges or marks could have been left by Vasilchenko's children or others. By the time of trial, those prints and others allegedly on the van were no longer available to the defense. Further, the State did not preserve the clothing or shoes that V.Y. was wearing at the time of the assault. Claiming these items, if preserved by the State, could have refuted V.Y.'s testimony that he was dragged by the van and hit numerous times, the defense moved for a new trial based on the State's failure to preserve this material exculpatory evidence. The motion was denied.
See California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
The case of State v. Wittenbarger, citing Trombetta and the case of Arizona v. Youngblood, sets forth the test in Washington to determine whether the government's failure to preserve evidence violates a defendant's due process rights. Wittenbarger sets forth that [i]t is clear that if the State has failed to preserve 'material exculpatory evidence' criminal charges must be dismissed. Recognizing that the right to due process is limited, however, the Court has been unwilling to 'impos[e] on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.' A showing that the evidence might have exonerated the defendant is not enough. In order to be considered 'material exculpatory evidence', the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994).
Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).
Wittenbarger, 124 Wn.2d at 475.
However, Vasilchenko fails to provide proof that the evidence now sought is materially exculpatory. The exculpatory value of the smudges on the van and the bloody shirt V.Y. was wearing was not apparent at the time. The evidence was, at best, only potentially exculpatory.
See State v. Donahue, 105 Wn. App. 67, 78, 18 P.3d 608 (2001).
'[F]ailure to preserve 'potentially useful' evidence does not constitute a denial of due process unless the criminal defendant can show bad faith on the part of the State.' Here, the sheriff's officers had little reason to believe that the smudges or clothes were potentially useful evidence. The van was always in the custody of the defendant, and unless the officers sought to impound the van, there is little that could have been done to preserve the evidence. Additionally, there was no reason for the State to believe that V.Y.'s clothes would necessarily have been potentially useful to Vasilchenko. His defense was one of general denial, which was fully set forth at trial. Vasilchenko claimed that V.Y. was assaulted by someone else and the potential usefulness of the evidence of blood on the clothes was not necessarily relevant to his claim that he did not assault V.Y. Even if this court believed that the evidence was potentially useful, there is no evidence of bad faith on the part of the sheriff's office or the deputies.
Wittenbarger, 124 Wn.2d at 477 (quoting Youngblood, 488 U.S. at 58).
Next, Vasilchenko claims the prosecutor made improper and prejudicial closing argument denying him a fair trial. Vasilchenko alleges that the prosecutor's closing argument prejudiced the jury by improperly focusing the jury on a myriad of alleged defense tactics rather than evidence supporting the State's charges. That argument was as follows:
Another aspect [of the defense case] is what we call the evil genius defense where you have a victim who is so clear that he's been able to pin an entire case on the wrong person, fool the police, fool his mom, all the while being a 16-year-old boy. No offense to [V.], but is he bright enough as a 16-year-old to pull that off?
. . .
There's another technique that I'll tell you about that defense attorneys use. It's perfectly legitimate, but you need to know how it is. If we just had a little bit more technique when the State brings a case and we have so much evidence available, and where we bring you loads of it into court the lots of officers to testify, lots of stuff from the scene, the defense will often say, 'Boy if we just had a little bit more evidence we'd know.'
Vasilchenko claims these comments require a retrial, even though he acknowledges defense counsel did not object at the time.
A defendant who alleges improper conduct on the part of a prosecutor must establish that the conduct was improper and that it had a prejudicial effect. The alleged improper statements are viewed in the context of the prosecutor's entire argument, the issues in the case, the evidence discussed, and the jury instructions. Prejudice on the part of the prosecutor is established only if 'there is a substantial likelihood the instances of misconduct affected the jury's verdict.'
State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Pirtle, 127 Wn.2d at 672.
Where defense counsel fails to object to improper argument, it constitutes a waiver unless the argument is 'so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.' Here, there was no objection at trial so Vasilchenko must show that the prejudice was so inflammatory that it could not have been cured by an instruction.
Brown, 132 Wn.2d at 561.
Counsel are permitted latitude to argue the facts in evidence and reasonable inferences therefrom in closing argument. However, counsel are not permitted to make prejudicial statements that are not sustained by the record. In this case, a review of the entire closing argument of the prosecutor shows that he repeated throughout closing that the jury must consider and weigh all the evidence. He cautioned the jury however about tactics used by defense attorneys to obscure the evidence. He argued from the evidence presented at trial and attempted to debunk the defense theory. The closing argument was not inappropriate. Even if the rebuttal argument made by the prosecutor could be considered to be misconduct, the unobjected-to comments were not so flagrant or ill-intentioned to require a mistrial.
State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985).
State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963).
Vasilchenko filed two statements containing six additional grounds for review pursuant to RAP 10.10. The first ground alleges that when Vasilchenko went in for the polygraph test he was told that he would be sent back to jail if he did not answer all of the detective's questions. A review of the record does not provide any factual support for this claim. No such objection suggesting that there was coercion or that the polygraph test was anything other than voluntary is contained in the record. As noted above, a CrR 3.5 hearing was held and voluntary statements made by Vasilchenko to the detective administering the polygraph, after Miranda warnings were given, were properly admitted. There is no error.
Vasilchenko alleges that pictures taken of his wife's van should have been suppressed because the sheriff's officers were trespassing without a search warrant. A CrR 3.6 hearing was held on this issue. The trial court found that the officers had a right to be on the property until such time that Valentina told the officers to leave. The court limited the introduction of any pictures to those taken before the officers were told to leave. However, a review of the record shows that no pictures of the van were ever admitted. The record illustrates that investigating officers were asked about marks on the van and extensively cross-examined as to the marks, but that no pictures were admitted. There is no error.
Vasilchenko next alleges he was unable to adequately defend himself because the trial court denied him the ability to elicit testimony from the V.Y. and others specifically with regard to the V.Y.'s part in the burglary of the Vasilchenko home. Admissibility of evidence is addressed to the sound discretion of the trial court and will not be overturned unless the court's exercise of that discretion is manifestly unreasonable or based upon untenable grounds. At the CrR 3.6 hearing, the trial court indicated that Vasilchenko could testify to his belief that V.Y. burglarized his home, but limited testimony regarding any facts of the alleged burglary to that relevant to the charges before the jury. During the trial, testimony was elicited from V.Y. that Vasilchenko thought that he had burglarized the Vasilchenko home. The trial court did not limit the defendant's theory of the case. The trial court's determination that testimony of Fedchuk and Romanyuk to indicate that V.Y. had burglarized the Vasilchenko home or sold or brought back the stolen goods was irrelevant to the charges against Vasilchenko is supported especially in light of the fact that those allegations have never been proved. The trial court did not limit testimony of Vasilchenko's belief that V.Y. took his property. As such, the trial court did not abuse its discretion in limiting the testimony.
State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Vasilchenko also alleges that the jury was not given juror orientation as required under CrR 6.2. CrR 6.2 indicates that all jurors will be given a general orientation when they report for duty. The rule further indicates that a copy of the Juror's Handbook to Washington Courts shall be provided to all petit jurors by the court in which they are to serve and that a Juror Information Sheet will be furnished to the jurors.
The voir dire of this trial has not been transcribed. The only argument regarding juror orientation happened in a post-trial motion for a new trial by the defense. There, defense counsel acknowledged that after some odd answers were elicited from potential jurors there was a question about whether an orientation occurred. The trial court allegedly asked the jury pool if they had an orientation. Those who responded they had not were dismissed. Claims that potential juror responses tainted the remaining jurors or that no orientation was held are not otherwise supported in the record. There is no authority for the proposition that a new trial is a remedy for any of the suggested flaws in the jury orientation process.
Vasilchenko raises two additional grounds for review: (1) that the State did not properly preserve blood transference evidence, or the lack thereof, and (2) that the prosecutor breached an agreement which precluded using the testimony of the detective administering the polygraph at the CrR 3.5 hearing and at trial. These issues are subsumed in argument of appellate counsel, discussed above, and need not be addressed.
Finally, Vasilchenko alleges that multiple incidents of prosecutorial misconduct denied him a fair trial because the cumulative effect of the misconduct materially affected the outcome of the trial. He also argues that there were additional errors that when taken cumulatively denied him a fair trial. The combined effect of an accumulation of errors may be of sufficient gravity to constitute grounds for reversal and require a new trial. Here, however, there is no such accumulation of errors and a new trial is not warranted.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984) (citing State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963)).
The conviction is affirmed.
GROSSE, J., COX, C.J., and ELLINGTON, A.C.J.