State v. Berlin

• Citation: 271 P.3d 400
• Decision Date: 06 March 2012
• Docket Number: No. 41307–8–II.,41307–8–II.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Keith Ragner BERLIN, Appellant.

271 P.3d 400

STATE of Washington, Respondent,
v.
Keith Ragner BERLIN, Appellant.

No. 41307–8–II.

Court of Appeals of Washington, Division 2.

March 6, 2012.

[271 P.3d 400]

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Brian Patrick Wendt, Clallam County Prosecuting Attorney's Office, Port Angeles, WA, for Respondent.

PART PUBLISHED OPINION VAN DEREN, J.

¶ 1 Keith Berlin appeals his conviction for first degree assault and the trial court's imposition of domestic violence and firearm sentence enhancements. He argues (1) we should vacate his enhanced sentence based

[271 P.3d 401]

on a Bashaw¹ instructional error and (2) we should reverse and remand for a new trial because the trial court violated his constitutional right to confront adverse witnesses by limiting the scope of cross-examination of one witness and denying Berlin's offer of testimony from another witness. We hold that Berlin may not raise the issue of instructional error under Bashaw for the first time on appeal and that the confrontation clause violation, if any, was harmless error. We affirm.

FACTS

¶ 2 Berlin and Jacob Griffith began living together in Berlin's mother's small mobile home in October 2009. On February 15, 2010, according to Griffith, he awoke around 6:00 p.m., walked into the kitchen, and saw Berlin sitting at a desk while speaking on the telephone. When Berlin hung up, the two had an “exchange of words,” and Berlin went into his bedroom and closed the door. Report of Proceedings (RP) at 84–85. Griffith, thinking Berlin's behavior was odd, followed him, knocked on the bedroom door, and asked what was wrong. Without opening the door, Berlin replied that Griffith had been rude and inconsiderate because he had interrupted Berlin's telephone call.

¶ 3 Griffith returned to the living room, sat down on a couch, and called his girlfriend, Erika Delgado. He told her that something was wrong with Berlin and concluded the conversation when Berlin walked into the room. Berlin “glared” at Griffith and again accused him of being rude and disrespectful and Griffith returned the sentiment. Berlin, who appeared angry and intoxicated, threatened to call Griffith's grandmother and tell her “how sorry of a person” Griffith was, and then Griffith threatened to call Berlin's mother. RP at 88. After the two agreed not to make the telephone calls, Berlin told Griffith, “ ‘Just leave me alone ... I'm going to sleep it off,’ ” went back into his room, and closed the door. RP at 89.

¶ 4 Griffith telephoned Delgado a second time, told her about his difficulties with Berlin, and asked if he could move in with her. Berlin came back into the living room and angrily accused Griffith of calling Berlin's mother; Griffith responded that he had called only Delgado. Berlin demanded that Griffith move out and, when Griffith told him that he was arranging to do that but could not leave that night, Berlin insisted that he leave immediately. Griffith threatened to call Berlin's mother and ask for permission to stay another night, the two continued to argue, and Berlin again returned to his room.

¶ 5 Soon after, Berlin exited the mobile home and went to his car. Griffith warned Berlin not to drive because he was intoxicated, and the two continued to argue until Berlin came back inside. Griffith grabbed Berlin by the shoulders, asked him what was wrong, and hugged him in an attempt to calm him down. The two embraced for a moment before Berlin shoved Griffith away, warned Griffith never to touch him again, and threatened to call the police.

¶ 6 Griffith returned to the couch, called Delgado a third time, and told Berlin that he was leaving that night and that Delgado would pick him up the next morning. When Berlin expressed disbelief, Griffith enabled his cell phone's speaker phone function and Griffith asked Delgado if she was willing to take him in despite Berlin's claim that he had “laid hands” on Berlin; Delgado said she was and that she would pick Griffith up the next morning. RP at 98. Berlin said, “Okay,” and left the room. RP at 99.

¶ 7 Griffith, who remained on the couch speaking with Delgado on the telephone, saw movement three to four feet away and heard a “pow” or “bam” sound. RP at 100. Berlin shot Griffith in the right side of his face with a .22 caliber rifle loaded with birdshot. Berlin dropped the rifle at the foot of the couch; he stood over Griffith while brandishing a pocketknife and said, “ ‘I'm going to stab you. I'm going to cut you. I'm going to kill you.’ ” RP at 102. Hearing Delgado screaming over the telephone, Griffith shouted for her to call the police and fled the residence. Delgado's subsequent recitation of the evening's events was consistent with Griffith's.

[271 P.3d 402]

¶ 8 Berlin's account of the night's events substantially differed from Griffith's and Delgado's. According to Berlin, earlier that morning he had angered Griffith because he told Griffith that he would no longer purchase methamphetamine for them both and Griffith felt it was unfair that Berlin would purchase alcohol for himself but would not purchase methamphetamine they both could use. That evening, Berlin was sitting at his desk and drinking whiskey. After Griffith came into the room, Griffith became “increasingly agitated” because Berlin was drinking. RP at 321. Suddenly, he stood right beside Berlin and said, “ ‘I'll kill you.’ ” RP at 321.

¶ 9 Although Berlin did not immediately feel threatened because he and Griffith had “joked around in the past,” he told Griffith to move out that night. RP at 322. Griffith told him that he could not do so, the argument “escalated,” and Berlin told Griffith to ask Delgado if he could stay with her. RP at 324. After Griffith called Delgado, Griffith reiterated to Berlin that he could not move out that night. Berlin again demanded that he do so, and Griffith said, “I could kill you.” Berlin felt fearful after this second threat because Griffith was “very agitated”; he had “a look in his eye that [Berlin] didn't like”; he had told Berlin in the past that he had “Navy SEAL training”; and he was bigger, stronger, and in better health than Berlin. RP at 327, 329. Berlin admitted that he “[m]ay have been” too intoxicated to drive and that he “may have” smoked marijuana that evening. RP at 352.

¶ 10 Berlin told Griffith to call Delgado again, and he did so. Griffith then put Berlin on speaker phone; Berlin asked Delgado whether she wanted Griffith living with her when he had threatened Berlin's life, and she said, “ ‘Yeah.’ ” RP at 326. While Griffith continued speaking with Delgado, Berlin went into the bathroom; when he came out, Griffith grabbed him by the shoulders and told him that if he “tried to call [Berlin's] family, [Griffith's] family, or 9–1–1 that [Griffith] could get to [him] before they got there.” RP at 332. Griffith released him and then went into the living room, where he sat on the couch and resumed speaking with Delgado.

¶ 11 Berlin felt that his life was in danger at this point due to the repeated threats; Griffith's agitated demeanor; and his “height advantage, size, youth, strength, [and] his training.” RP at 332. Berlin stated that he retrieved the .22 rifle, took a few steps into the room, and shot Griffith without warning from six feet away because he feared Griffith would take the rifle away and use it on him if he called out or got too close. Berlin intended to disable Griffith, so he aimed for Griffith's shoulder, but he shot him in the face because Griffith turned toward him as he fired the gun. He then stood over Griffith with a pocketknife and said, “ ‘Get out, and don't make me finish it.’ ” Griffith then fled the mobile home. Berlin did not observe that Griffith was armed at any time during the evening.

¶ 12 Griffith suffered “a number of very small puncture wounds to the face” and lost some vision in his eye. RP at 61. A number of the birdshot pellets penetrated the inner and outer bones of the sinus cavity beneath his eye, and a few crossed the nasal septum. The pellets could have penetrated to Griffith's brain or severed arteries and veins in his neck, possibly resulting in fatal infection or blood loss.

¶ 13 Griffith required plastic surgery to repair his face and multiple procedures to remove as many of the pellets as possible from his face and eye. Over 200 pellets remained in his face, and some could not be removed without causing further damage. Forensic evidence showed that Berlin shot Griffith from a distance of two to four feet.

¶ 14 The State charged Berlin with attempted second degree murder and first degree assault, with firearm and domestic violence enhancements on each count. Before trial, the State moved to preclude Berlin from introducing an out-of-court statement written by Berlin's now-deceased mother, Evelyn Berlin.

¶ 15 According to Evelyn's ² statement, Griffith called her twice on April 25, 2010, after Berlin was charged, and offered to

[271 P.3d 403]

“sign a statement saying he would not ask for the maximum sentence and would not pursue a civil suit against [Berlin]” in exchange for $1,500. Ex. 55, at 1. Her statement also recited that, on May 14, Griffith called her again, asked for $1,000, and stated that he could “either say [Berlin] didn't know the gun was loaded and shot him by accident” or Berlin “deliberately shot him then attacked him with a knife.” Ex. 55, at 2. The statement also said that Evelyn never accepted Griffith's offer, that her daughter was present during one call, and that her granddaughter was present during the other.

¶ 16 Berlin argued that the written statement provided a “good faith basis to inquire of ... Griffith whether he in fact solicited [Evelyn] for money in order to change or shape his testimony.” RP at 28. The trial court reserved its ruling until it could examine Griffith outside the presence of the jury, stating:

[T]here's no way ... to substantiate [whether Griffin solicited Evelyn] since [Evelyn] is now...