State v. Blum, 2356--II

• Decision Date: 25 February 1977
• Docket Number: No. 2356--II,2356--II
• Citation: 561 P.2d 226,17 Wn.App. 37
• Parties: The STATE of Washington, Respondent, v. Paul Robert BLUM, Appellant.
• Court: Washington Court of Appeals

Page 37

17 Wn.App. 37

561 P.2d 226

The STATE of Washington, Respondent, v. Paul Robert BLUM, Appellant.

No. 2356--II.

Court of Appeals of Washington, Division 2.

Feb. 25, 1977.

John A. Miller, Burkey, Marsico, Rovai, McGoffin, Turner & Mason, Tacoma, for appellant.

Joseph D. Mladinov, Special Counsel, Donald Herron, Pros. Atty., Tacoma, for respondent.

REED, Judge.

Paul Robert Blum appeals his Pierce County Superior Court convictions for second-degree rape and sodomy. Four assignments of error have been made: (1) that the verdict of the jury was contrary to the evidence presented and that a new trial should therefore have been granted; (2) that a mistrial should have been granted because of alleged spectator misconduct; (3) that RCW 9.79.150, and the manner in which it was applied, effectively prevented him from proving his defense of consent, thus denying him procedural due process; (4) that the trial court committed error in limiting the scope of his cross-examination of the prosecutrix. We affirm the convictions for the reasons set forth below.

On the evening of December 26, 1975, defendant Paul Robert Blum, his cousin, Gary Jones, and a friend went to the Firwood Tavern in Milton, Washington, where they met the prosecutrix and two of her friends. Jones had previously known the prosecutrix, having lived with her for some three to four months as her boyfriend. That living arrangement had been broken off approximately three months earlier. The prosecutrix and the defendant had not known each other prior to this occasion. When the tavern closed, at about 2 a.m. on the morning of December 27, defendant, his cousin and their friend requested a ride from the prosecutrix and her friends. Some beer was brought, and all six people went to the apartment of the prosecutrix. At some time after her two friends had gone home, Jones borrowed her car so he could give his friend a ride home. Defendant stayed at the apartment with the prosecutrix to await Jones' return with the car. Jones, however, failed to return promptly with the car, and during the interim between 4 to 7:30 a.m., the prosecutrix alleged she was repeatedly raped and forced to commit sodomy with defendant against her will. He defended on the grounds that the acts took place with her full consent and participation.

Prior to trial, the defendant requested a hearing, pursuant to RCW 9.79.150, in an attempt to bolster his contention of consent through a showing of the prosecutrix's previous sexual relationship with Jones while they had been living together. The hearing judge ruled that such evidence was inadmissible under the statute based upon defendant's offer of proof, but declined to rule that such testimony could not be elicited during the cross-examination of the prosecutrix because the scope of her direct examination could not be determined until it had actually taken place. When evidence of her relationship with Jones was sought to be introduced on cross-examination, the trial judge ruled that it was inadmissible.

Before trial, the trial judge ruled that all witnesses were to be excused from the courtroom in order that their testimony might be untainted by that of earlier witnesses. The prosecutrix was specifically excluded from this order. During the course of the trial, it became apparent that one of the spectators was leaving the courtroom and was talking with the prosecutrix at intervals which seemed to coincide with the examinations of various witnesses. This was brought to the attention of the trial judge, who placed the spectator on the stand, under oath, and questioned her as to her activity during the trial. Both attorneys were also afforded the opportunity to question her. Upon the request of defendant's counsel, a witness who had previously testified was also returned to the stand and questioned regarding his testimony, any possible changes in his recollection of the events he had previously testified to, and any contract which he might have had with the roving spectator. On the basis of these proceedings, which took place out of the presence of the jury, the trial judge determined that the defendant had not been prejudiced by the activity, and admonished the spectator with warnings of possible contempt proceedings for further activity of that nature.

Blum first contends there was no substantial evidence which could support the verdict. This overlooks the fact that testimony was given to the effect that the prosecutrix had been yanked or dragged off the bed, that her clothes had been forcefully removed, that she had been penetrated repeatedly, that she had been threatened with death in a number of ways, that she had suffered scratches and bruises on her body, that furniture had been overturned and damaged as a result of her struggles, and that she had appeared to be near hysteria when she was finally able to contract her neighbors for help. Clearly, there was substantial evidence upon which the jury's verdict could have been based, and the jury obviously believed her version of the testimony rather than that offered by defendant. As it is the jury's function to be the sole and exclusive judge of the weight of evidence, and of the credibility of witnesses, the trial court did not err in denying defendant's motion. State v. Randecker, 79 Wash.2d 512, 487 P.2d 1295 (1971); State v. White, 16 Wash.App. 315, 556 P.2d 255 (1976).

Blum next contends he was substantially prejudiced by the described misconduct of the courtroom spectator. We find no merit in this contention. The record indicates that the spectator's conversation was conducted principally with the prosecutrix. The order excluding witnesses specifically exempted the prosecutrix, so that she could have been present in court at all times relevant to the presentation of testimony. Even if the spectator had relayed information to her, it would not have worked to prejudice the defendant. Moreover, the spectator also testified that any information she might have given the prosecutrix was of a general nature, absent any detail. The other witness who had been talking with the spectator was a deputy sheriff and a former neighbor of the spectator. He testified that his testimony had not been altered in any way by his conversation with the spectator. This problem arose when one of the attorneys for the defendant discussed this officer's testimony with him, apparently in front of the spectator and the prosecutrix. The prosecutrix waited until the attorney had left before correcting the deputy on a small detail which he had forgotten. The deputy then immediately sought out the attorney to advise him of the previously forgotten detail. His subsequent testimony before the court included the item. The trial judge was satisfied that this testimony was true, and was the best recollection of the witness. In any event, the spectator had nothing to do with the officer's testimony.

The rule in Washington is that the trial court has discretion to take whatever remedial action is necessary to neutralize the effect of irregularities at trial. State v. Swenson, 62 Wash.2d 259, 382 P.2d 614 (1963). We are satisfied that the trial judge's action in this case was sufficient to ferret out and neutralize any prejudice. Both attorneys were given the opportunity to question those involved, and it appeared to the trial judge, as it appears to us, that there was no intentional misconduct, that there was no change in the testimony of witnesses as a result of the spectator activity, and that no actual prejudice occurred. The trial judge properly exercised his discretion in denying a mistrial.

Defendant next contends that he was denied procedural due process, guaranteed by the United States and Washington Constitutions, by the manner in which RCW 9.79.150 was applied. ¹ His argument seems to be based upon the fact that a pretrial hearing was held for the purpose of determining the admissibility of the proof offered by him regarding the previous sexual activity of the prosecutrix.

As defendant states it, he was deprived of 'notice and an opportunity to be heard or defend before a competent tribunal in an orderly proceeding adapted to the nature of the case.' In re Welfare of Petrie, 40 Wash.2d 809, 812, 246 P.2d 465, 467 (1952). We disagree. Our Supreme Court has repeatedly countenanced pretrial determinations respecting the admission or exclusion of evidence even in cases where no statute or rule specifically authorizes such a procedure. Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85 549 P.2d 483 (1976); State v. Hill, 83 Wash.2d 558, 520 P.2d 618 (1974); Wilson v. Lund, 74 Wash.2d 945, 447 P.2d 718 (1968); State v. Morgan, 192 Wash. 425, 73 P.2d 745 (1937); State v. Smith, 189 Wash. 422, 65 P.2d 1075 (1937). Our present criminal rules either contemplate or require that certain evidentiary rulings be made in advance of trial. See for example CrR 3.5 and 4.5.

The problems inherent in delaying certain evidentiary rulings until trial and the salutary use to which pretrial motions in limine may be put, without prejudice to the parties, are explored by Milton J. Carter, Jr., Motions in Limine in Washington, 9 Gonz.L.Rev. 780 (1974). In that article at...