State v. Pavlik

Decision Date09 February 2012
Docket NumberNo. 29172–3–III.,29172–3–III.
Citation165 Wash.App. 645,268 P.3d 986
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Aleksandr V. PAVLIK, Appellant.

OPINION TEXT STARTS HERE

Paul J. Wasson II, Attorney at Law, Spokane, WA, for Appellant.

Mark Erik Lindsey, Andrew J. Metts III, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

OPINION PUBLISHED IN PART

KORSMO, A.C.J.

[165 Wash.App. 646] ¶ 1 Aleksandr Pavlik challenges his conviction for first degree assault, arguing that the trial court erred by excluding his spontaneous statement to police. While it is unclear that the trial court erred, it is quite clear that the alleged error was harmless. The conviction is affirmed.

FACTS

¶ 2 The participants agree on the general outline of the incident, although their views vary in some particular details. Mr. Pavlik was driving in Spokane southbound on Perry Street near the Avista facilities in order to reach Hamilton Street and enter the freeway. It was nearly 1:00 a.m. on May 19, 2008. He came upon two bicyclists, Gabriel Leenders and Brad Smith, riding abreast in the street and swerved to avoid them. Angry words were exchanged between Mr. Smith and Mr. Pavlik. While the cyclists denied it, Mr. Pavlik contended that they struck his car with something as he drove away.

¶ 3 Mr. Pavlik stopped in the left turn lane on Perry at the traffic light on Mission Avenue. He opened his trunk and pulled out a gun.1 While the bicyclists were still a block away, he fired a “warning” shot in their general direction. Mr. Leenders yelled words similar to “If that is a gun, you'd better kill me or I'm going to kill you.” Report of Proceedings (RP) at 84–85. When the cyclists continued coming toward him, Mr. Pavlik drove east on Mission Avenue, away from Hamilton Street. He stopped at a gas station about six blocks away. Believing that the police had probably been summoned because of the gunshot, he decided to return to the area and await their arrival.

¶ 4 He drove back on Mission Avenue and turned at Perry Street into a parking lot located on the northeast corner of Spokane's Mission Park. There he found Leenders and Smith smoking cigarettes. Pavlik parked about five feet from them; his window was open.

¶ 5 Mr. Leenders approached and saw a gun sitting on the seat beside Mr. Pavlik. He reached through the window for it and a struggle ensued. Mr. Leenders testified that he went for the gun to prevent being shot at again, while Mr. Pavlik testified that Mr. Leenders assaulted him. After being struck four times while keeping Leenders from the gun, Pavlik reached for it and shot Leenders “in a non-fatal area” to avoid being killed. RP at 385.

¶ 6 Officer Stephen Arredondo of the Spokane Police Department was stopped in his patrol car awaiting the traffic light at Mission and Perry. He witnessed the altercation and shooting, and immediately reached the scene. Mr. Pavlik yelled to him: “You saw it, it was self-defense.” RP at 11. A number of other officers and emergency aid personnel arrived shortly thereafter. Mr. Pavlik told two of the other officers, “You saw him punch me in the face. I shot in self-defense.” Id. Upon being introduced later that morning, Mr. Pavlik told an investigating detective, “I was just defending myself. An officer saw me getting punched.” RP at 12.

¶ 7 Mr. Leenders survived with serious injuries. The prosecutor filed charges of attempted first degree murder and first degree assault; both crimes were alleged to have been committed while armed with a firearm. The prosecutor moved in limine to exclude testimony relating to Mr. Pavlik's three noted statements to the officers concerning self-defense as “self-serving hearsay.”

¶ 8 The trial court heard the motion pretrial. The prosecutor argued that because the statements were self-serving and hearsay, they should not be admitted. Defense counsel argued that the first statement was admissible under either the excited utterance or as state of mind exceptions to the hearsay rule. Counsel argued that the two subsequent statements were not hearsay because they were not being offered to prove the truth of the statements, but only to show that he was cooperative with the police. RP at 26–27. The trial court ruled that his cooperation could be established without use of the statements. RP at 27.

[165 Wash.App. 649] ¶ 9 Turning to the initial statement to Officer Arredondo, the trial court made the following observations:

In this instance I believe that it was a statement made, obviously I believe it because there's nothing contrary to that at the time of the event. It was spontaneous. It certainly is self-serving. There was some time in the defendant's mind about this event. This event occurred over a period of time where the bicycle rider and the vehicle became involved in an altercation of some sort, physical or otherwise. It continued over a period of distance and time, culminating in the final confrontation where the bicycle rider allegedly went up to the window and started thumping the defendant, who had a gun and previously had fired the gun at another point in time in another location. So the spontaneity of the statement is there but the spontaneity of the event, there's a lot of things going through this individual's mind and that may have been his belief about the legal conclusion, but it is a self-serving statement. It's also a legal conclusion. It's a different kind of a legal conclusion, however, because I think the public generally thinks in terms of self-defense outside—I mean it's a very common term that individuals are aware of without fully understanding the legal criteria to determine whether it truly is or isn't. I have concerns.

My reading of the law is that the self-serving quality of that statement under these circumstances is something that takes it outside of its admissibility and that the excited utterance or state of mind, I don't believe it's truly a state of mind. The statement was more a conclusion of why he shot but it wasn't his state of mind. He didn't say I was afraid, I was being beaten, I thought I was going to be hurt, killed or maimed. That state of mind would have been a little different. Here that isn't what was said. What was said is it was self-defense. I think that's obviously self-serving. I don't believe that the other hearsay exceptions would trump it and therefore I'm granting the motion.

RP at 34–36.

¶ 10 The case proceeded to jury trial. Mr. Pavlik testified that he fired both shots in order to protect himself from being beaten or killed. Over defense objection, the trial court gave a first aggressor instruction to the jury. Defense counsel argued the case on the theory that the State had presented inconsistent testimony2 and that her client had acted in self-defense to prevent being harmed with his own gun.

¶ 11 The jury acquitted on the attempted murder count, but convicted on the assault charge. It also found that Mr. Pavlik had been armed with a firearm. After rejecting motions to set aside the verdict, the trial court imposed a mitigated exceptional sentence, including firearm enhancement, of 125 months.

¶ 12 Mr. Pavlik then timely appealed to this court. He was permitted to remain out of custody on bond pending the appeal.

ANALYSIS

¶ 13 Mr. Pavlik challenges the decisions to exclude his “self-serving hearsay” statements and to give the first aggressor instruction. We will address each argument in turn; the latter issue will be discussed in the unpublished portion of this opinion.

Defendant's Statements

¶ 14 Mr. Pavlik argues that his statements were admissible hearsay and that the trial court erred by excluding them. We agree that there is no “self-serving hearsay” rule that bars admission of statements that would otherwise satisfy a hearsay rule exception. However, the exclusion of his initial statement to Officer Arredondo was at worst harmless error.

¶ 15 A trial court's decisions to admit or exclude evidence are entitled to great deference and will be overturned only for manifest abuse of discretion. State v. Luvene, 127 Wash.2d 690, 706–707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 16 A party cannot change theories of admissibility on appeal. State v. Mak, 105 Wash.2d 692, 718–719, 718 P.2d 407, overruled on other grounds by State v. Hill, 123 Wash.2d 641, 870 P.2d 313 (1994). That doctrine is fatal to Mr. Pavlik's argument on appeal that his other statements also were admissible as excited utterances. He told the trial court that they were not hearsay and cannot now say that in actuality the statements were admissible under exceptions to the hearsay rule. Id.

¶ 17 The only remaining statement for our review is the first statement to Officer Arredondo. The prosecutor argues that the statement was not admissible because it was self-serving hearsay, citing to State v. Finch, 137 Wash.2d 792, 824–825, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999). The problem with this argument is that there is no “self-serving hearsay” rule that excludes otherwise admissible evidence. A brief history review is in order.

¶ 18 Washington adopted its version of the Rules of Evidence effective April 2, 1979. See 91 Wash.2d at 1117. Among those original provisions was ER 801(d)(2), which stated then, in relevant part, as it currently states:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if—

...

(2) Admission by Party–Opponent. The statement is offered against a party and is (i) [the party's] own statement.

See 91 Wash.2d at 1162. The comment to the rule included this paragraph:

Subsection (d)(2) differs from previous Washington law more in theory than in practice. Previous decisions have considered admissions by party-opponents to be hearsay, but have admitted them as an...

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  • State v. Jackson
    • United States
    • Court of Appeals of Washington
    • June 10, 2019
    ...hearsay." However, "there is no 'self-serving hearsay' bar that excludes an otherwise admissible statement." State v. Pavlik, 165 Wn. App. 645, 653, 268 P.3d 986 (2011). Instead, "'self-serving seems to be a shorthand way of saying that it was hearsay and did not fit into any of the recogni......
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    ...... excitement caused by the startling event or condition. Third,. the statement must relate to the startling event or. condition." Woods, 143 Wn.2d at 597 (citing. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194. (1992)); State v, Pavlik, 165 Wn.App. 645,. 654, 268 P.3d 986 (2011), review denied, 174 Wn.2d. 1009 (2012). In determining whether the declarant made the. statement while still under the influence of the event,. courts look to the amount of time that passed between the. startling event and ......
  • State v. Tinajero
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    ...event or condition." Woods, 143 Wn.2d at 597 (citing State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)); State v. Pavlik, 165 Wn. App. 645, 654, 268 P.3d 986 (2011), review denied, 174 Wn.2d 1009 (2012). In determining whether the declarant made the statement while still under the in......
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    ...Woods, 143 Wn.2d at 597 (citing State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)); State v, Pavlik, 165 Wn.App. 645, 654, 268 P.3d 986 (2011), review denied, 174 Wn.2d 1009 (2012). In determining whether the declarant made the statement while still under the influence of the event, ......
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