State v. Blake
| Decision Date | 24 December 2012 |
| Docket Number | No. 67247–9–I.,67247–9–I. |
| Citation | 298 P.3d 769,172 Wash.App. 515 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Jerome Jayvon BLAKE, Appellant. |
OPINION TEXT STARTS HERE
Nielsen Broman Koch PLLC, Attorney at Law, Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant/Cross–Respondent.
Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, for Respondent/Cross–Appellant.
OPINION PUBLISHED IN PART
[172 Wash.App. 519]¶ 1 As authorized by the Rules of Evidence, a lay witness may testify as to observations gleaned from his or her senses as well as to inferences arising from those perceptions. A witness need not have had actual visual perception of an event to testify that it occurred. Here, Jerome Blake contends that the jury heard impermissible opinion testimony from two witnesses—who testified that Blake shot Marquise Brown—because these two witnesses did not physically see the shot as it was being fired from the gun. Because this challenged testimony did not express impermissible opinions on guilt and because the experienced trial judge ruled correctly regarding this and all other issues to which error has been assigned, we affirm.
¶ 2 On the evening of June 22, 2010, Blake, along with Arthur Cooper and Brandon Lewis, decided to purchase OxyContin pills. Quinlin Bess, a friend of Cooper, initiated a drug deal to acquire the OxyContin on behalf of the purchasers with the help of Ivor Williams. Williams connected Bess with a seller, Marquise Brown.
¶ 3 Brown, however, schemed to surreptitiously sell OxyContin pills that could not be smoked and, thus, were less desirable as street drugs. Recognizing that problems might ensue, Brown telephoned his brother, James Baskin, and instructed him not to answer any telephone calls for the rest of the evening from Brown himself or from any telephone numbers that Baskin did not recognize. Brown then assigned to Baskin's telephone number in his cell phone the fictitious name “Mike.”
¶ 4 Bess, carrying $2,400 of the purchasers' money, thereafter met with Williams and Brown. The three drove to the house of Brown's friend where the pills were stored. Bess gave Brown the $2,400 and then departed with the pills. Later in the evening, Bess realized that the pills could not be smoked. Bess reported to Cooper and Blake that the pills were “fake” and that he would try to get their money back. Bess, joined by his girlfriend, Tricia Hawthorne, then met with Brown and Williams.
¶ 5 Bess confronted Brown about the “fake” pills. In turn, Brown telephoned “Mike” in a feigned attempt to retrieve the $2,400. Brown claimed that it was “Mike” who had delivered the pills. Supposedly looking for “Mike,” the group drove to a nearby park and searched the surrounding neighborhood. Blake and Cooper then joined the group, which continued to search for “Mike” in an attempt to retrieve the purchase money. Ultimately, Williams noted that tension was rising among the group. While the group was standing outside of their vehicles, Williams saw Blake put his hands under his shirt, and he heard a metallic “click—click” sound.
¶ 6 Blake began speaking with Brown. Brown, who was terrified, was on his knees with his pockets turned out. Brown was pleading with Blake, telling Blake that he did not have his money, but that he would get it for him. Bess turned away to telephone “Mike.” At this time, Blake was standing roughly 3 feet from Brown, and Cooper and Williams were standing roughly 10 feet from Brown. Blake was standing to the right of Williams. An instant later, Brown was shot, and he toppled to the ground. Williams described seeing a muzzle flash on his right side. Brown died from the gunshot wound; physical evidence later indicated that the gun was less than one foot from Brown's head when it was fired and that the path of the bullet went from the front, right side of his head to the rear, left side.
¶ 7 In the immediate aftermath of the shooting, Bess ran to Hawthorne's car, and they drove to Jamie Mayer's house. Bess noticed a wound on his neck that he thought resulted from the bullet skimming his neck.1 Bess and Hawthorne arrived at Mayer's house within 12 minutes of the shooting. Blake arrived shortly thereafter. When Bess saw Blake, Bess, referring to the wound on his neck, accused Blake of shooting him. Blake replied, “my bad, my bad.”
¶ 8 Detective Kevin Allen investigated the shooting. Allen determined that at the time that Bess turned away from Brown just before the shooting, he had telephoned Baskin and left a voice mail that recorded some of the commotion that occurred around the time of the shooting. The recording included the following utterances:
[Bess]: [Muffled noises] “Go, go, go.”
[Hawthorne]:
[Bess]:
[Hawthorne]: “Who shot?”
[Bess]: “Just go.”
[Hawthorne]:
[Bess]: “Yes.”
¶ 9 Bess and Hawthorne, fearing retaliation from Baskin, sought protection from the police. They were referred to Detective Allen. Bess told Allen that Blake was the person who had shot Brown. Bess indicated to Detective Allen that Williams was also present at the scene of the shooting. The police later interviewed Williams, who was shown a photomontage from which he also identified Blake as the shooter. Both Bess and Williams claimed to have not been looking directly toward Brown at the time of the shooting, but surmised that Blake was the shooter based on the surrounding circumstances.
[172 Wash.App. 522]¶ 10 The State thereafter charged Blake with one count of murder in the first degree with a firearm enhancement. Prior to trial, Blake moved to exclude the voice mail recording, wherein Bess identified Blake as the shooter by responding “yes” to Hawthorne's question, claiming that it was inadmissible hearsay. The trial court denied the motion, ruling that the content of the statement in the recorded message qualified as both an excited utterance and a present sense impression, and that the statement was therefore admissible.
¶ 11 The defense also sought introduction of impeachment evidence demonstrating Bess's bias (as a witness for the State). The proposed evidence concerned an occasion in which Hawthorne reported to the police domestic violence perpetrated upon her by Bess. This, according to Blake, gave Bess a motive to lie to Hawthorne when he made comments to her about the identity of the shooter. The trial court excluded the proffered evidence, ruling that it was not sufficiently relevant to any fact in issue.
¶ 12 The defense also moved pretrial to preclude any witness from offering testimony that constituted an opinion on the guilt of the defendant. Blake specifically requested that Detective Allen be precluded from testifying that Hawthorne's and Bess's initial statements to the police were consistent with each other. The court granted the motion.
¶ 13 The jury found Blake guilty as charged. Blake was sentenced to a standard range sentence of 380 months of incarceration.
¶ 14 Blake appeals.
A.
¶ 15 Blake first asserts that reversal is warranted because the jury was allowed to hear improper opinions by lay witnesses regarding Blake's guilt. Because no such impermissible opinions on guilt were offered, this claim fails.
¶ 16 Evidence Rule (ER) 701 allows testimony as to “opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.” Similarly, ER 704 provides that “[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Case law establishes that the limits of ER 701 and ER 704 are exceeded when a witness testifies “in the form of an opinion regarding guilt ... of the defendant,” State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001), because such an opinion “ ‘invad[es] the exclusive province of the [jury].’ ” Demery, 144 Wash.2d at 759, 30 P.3d 1278 (alterations in original) (quoting City of Seattle v. Heatley, 70 Wash.App. 573, 577, 854 P.2d 658 (1993)). However, “testimony that ... is based on inferences from the evidence is not improper opinion testimony.” Heatley, 70 Wash.App. at 578, 854 P.2d 658. “The fact that an opinion supports a finding of guilt ... does not make the opinion improper.” State v. Collins, 152 Wash.App. 429, 436, 216 P.3d 463 (2009).
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