Frantom v. State
| Decision Date | 07 April 2020 |
| Docket Number | NO. 52007-9-II,52007-9-II |
| Citation | 460 P.3d 1100 |
| Parties | Robert J. FRANTOM, individually, Appellant, v. STATE of Washington; Kitsap County, Washington ; Kitsap County Sheriff’s Office ; Washington State Patrol; and Washington State Patrol Trooper Joren Barraclough and Washington State Patrol Trooper Robert Zoellin, in their official and individual capacity, Defendants, and Kitsap County Deputy Sheriff Shane Hanson, in his official and individual capacity; and Lorena Llamas, an individual, Respondents. |
| Court | Washington Court of Appeals |
Thomas S. Olmstead, Attorney at Law, Po Box 68, Poulsbo, WA, 98370-0068, M. Jeffery Kallis, Kallislaw-Protecting Civil Rights P.C., 321 High School Rd. Ne Ste. D3, Bainbridge Island, WA, 98110-2648, for Appellant.
Ione Susan George, Kitsap County Prosecutors Office, 614 Division St., Ms 35a, Port Orchard, WA, 98366-4681, for Respondents.
Angelica Dibella-Lira A/K (Appearing Pro Se), Doc #369356, Yakima County Jail, 111 N. Front St., Yakima, WA, 98901, for Other Parties.
PUBLISHED OPINION
Glasgow, J. ¶1 Lorena Llamas struck a car that the plaintiff, Robert Frantom, was driving. Frantom was injured, and his passenger was killed.
¶2 Frantom sued multiple defendants for damages, including Llamas, Kitsap County Deputy Sheriff Shane Hanson, and two Washington State Patrol (WSP) troopers who were involved in the incident. Several defendants were dismissed before trial, leaving Llamas and Hanson as the only remaining defendants at trial. The jury found Llamas liable for Frantom’s injuries and found Hanson not liable.
¶3 Frantom appeals, arguing that the trial court erred when it made certain evidentiary rulings that he contends violated ER 611(c). Frantom argues that the trial court improperly refused to let him treat Hanson as an adverse party for purposes of asking leading questions when Frantom called Hanson during his case in chief. Frantom also argues that the trial court erred by permitting Hanson’s counsel to ask leading questions of Hanson when she cross-examined him during Frantom’s case in chief. Frantom makes similar arguments regarding the two WSP troopers who were no longer parties, but were witnesses at trial.
¶4 We hold that the trial court erred when it did not permit Frantom’s counsel to ask Hanson leading questions during direct examination, but that this error was harmless. Frantom did not properly preserve the issue of the defense’s use of leading questions during cross-examination of Hanson. Frantom also did not preserve error with regard to the issues involving examination of the troopers.
¶5 We affirm the jury’s verdict and the judgment in favor of Hanson.
FACTS
¶6 Law enforcement officers contacted Llamas in the parking lot of a Silverdale, Washington bar. Llamas fled, and three law enforcement officers—Hanson (a Kitsap County deputy sheriff), Joren Barraclough (a WSP trooper), and Robert Zoellin (a WSP trooper)—followed in their patrol cars. At an intersection, Llamas crashed into a car that Frantom was driving, killing Frantom’s girlfriend, who was a passenger, and injuring Frantom.
¶7 Frantom sued Llamas. He also sued Hanson, Barraclough, and Zoellin in their individual and official capacities, as well as their employer agencies. Frantom argued that the officers engaged in a high-speed pursuit in violation of their respective agency’s policies. He sought monetary damages from each of the officers and their respective employers. Barraclough and Zoellin settled the claims against them before trial.1
¶8 At trial, Frantom called Hanson, Barraclough, and Zoellin, as witnesses during his case in chief. Early in Frantom’s direct examination of Hanson, the defense objected to a leading question that Frantom’s counsel posed. The trial court sustained the objection, explaining that a party can never use leading questions in direct examination. Frantom’s counsel responded by calling the trial court’s attention to the portion of ER 611(c) referring to adverse parties and arguing that he was permitted to ask leading questions because Hanson was an adverse party. The trial court disagreed, noting that Frantom’s counsel had failed to bring a motion to treat Hanson as an adverse witness. The trial court added that leading questions were categorically disallowed on direct examination except when used to develop a witness’s testimony.
¶9 The trial court then suggested that leading questions may sometimes be allowed on direct examination if a motion is made to treat a witness as hostile. Frantom made a motion to treat Hanson as a hostile witness. The trial court denied Frantom’s motion, ruling that the record did not support Frantom treating Hanson as a hostile witness.
¶10 Frantom did not make an offer of proof to articulate that there was testimony he would have elicited with leading questions. Nor does the record otherwise reflect what testimony, if any, Frantom was unable to put before the jury due to the trial court’s ruling.
¶11 Within nine questions of the sustained objection, Frantom resumed asking leading questions. The defense objected only once more to Frantom’s continued use of leading questions during redirect. The trial court overruled this objection and permitted the question. Frantom also impeached Hanson during direct examination using Hanson’s report and on redirect examination using his direct examination testimony.
¶12 During the defense’s cross-examination of Hanson during Frantom’s case in chief, Frantom objected twice based on leading questions without otherwise explaining why he believed the questions were objectionable. The first question Frantom objected to was about the distinction between two definitions of "pursuit" in the Kitsap County Sheriff’s Office policy manual: "Is there any relationship between 314.1.1 and 314.1.2, relationship between those two definitions?" Verbatim Report of Proceedings (VRP) (Jan. 25, 2018) at 128. The trial court overruled this objection noting that leading questions were permitted because it was cross-examination, even though this was not a leading question.
¶13 Frantom’s second objection to the defendant’s use of leading questions occurred at the beginning of a discussion pertaining to Hanson’s visual contact with Llamas’s car during the pursuit. The defendant began a question, but Frantom objected before counsel actually asked anything. The trial court overruled Frantom’s objection, explaining again that leading questions were permitted on cross-examination. Frantom did not object again during this line of questioning, even though the defendant completed, and Frantom answered, at least one additional leading question. Frantom did not make a standing objection to the defendant’s use of leading questions during the cross-examination of Hanson.
¶14 Frantom also used leading questions throughout his direct examinations of troopers Barraclough and Zoellin during his case in chief. The defense objected to these leading questions four times. The trial court sustained all four objections. Frantom did not provide an offer of proof to show how the two troopers might be identified with an adverse party, nor did he otherwise establish what additional testimony he might have elicited through leading questions.
¶15 While examining Barraclough and Zoellin, Frantom continued asking leading questions even after the trial court sustained the defendant’s objection. In Frantom’s examination of Zoellin, the defendant did not object until redirect, at which point Frantom had already asked many leading questions.
¶16 Frantom also objected to the defendant’s use of leading questions in the cross-examination of Barraclough during Frantom’s case in chief. The trial court overruled this objection, noting that leading questions during cross-examination were permitted.
¶17 The jury ultimately found Llamas liable to Frantom and awarded him $400,000 in damages. The jury found Hanson not liable to Frantom.
¶18 Frantom appeals the jury’s verdict in his claim against Hanson.
ANALYSIS
¶19 We review the trial court’s interpretation of evidentiary rules de novo. State v. DeVincentis , 150 Wash.2d 11, 17, 74 P.3d 119 (2003). If the trial court’s interpretation of ER 611(c) was correct, the trial court’s application of the rule "to admit or exclude evidence is reviewed for an abuse of discretion." Id. Abuse of discretion has occurred when a ruling was " ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ " State v. Williams , 137 Wash. App. 736, 743, 154 P.3d 322 (2007) (quoting State v. Downing , 151 Wash.2d 265, 272, 87 P.3d 1169 (2004) ).
¶20 Errors pertaining to the form of a question are reversible only if they are prejudicial and not harmless. See State v. Swanson, 73 Wash.2d 698, 699, 440 P.2d 492 (1968) ; see also State v. Torres, 16 Wash. App. 254, 258, 554 P.2d 1069 (1976). The test for harmless error is whether there is a reasonable probability that the error materially affected the outcome of the trial. State v. Gresham , 173 Wash.2d 405, 425, 269 P.3d 207 (2012).
¶21 Frantom argues that the trial court erred when it did not permit him, the plaintiff, to treat the defendant, Hanson, as an adverse witness when Frantom examined Hanson during his case in chief. We agree that leading questions should have been allowed.
¶22 ER 611(c) provides that if "a party calls a hostile witness, an adverse party , or a witness identified with an adverse party, interrogation may be by leading questions ." (Emphasis added.) ER 611(c) does not require that a party seeking to ask leading questions of an adverse party move to declare the witness hostile nor does it require a pretrial or preexamination motion to permit leading questions of an adverse party during direct examination.
¶23 In McLean v. St. Regis Paper Co. , 6 Wash. App. 727, 734, 496 P.2d 571 (1972), we held that a witness who is...
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