State v. Eastabrook, 12213-8-II

• Decision Date: 14 August 1990
• Docket Number: No. 12213-8-II,12213-8-II
• Citation: 795 P.2d 151,58 Wn.App. 805
• Parties: The STATE of Washington, Respondent, v. Garry A. EASTABROOK, Appellant.
• Court: Washington Court of Appeals

Page 805

58 Wn.App. 805

795 P.2d 151

The STATE of Washington, Respondent, v. Garry A. EASTABROOK, Appellant.

No. 12213-8-II.

Court of Appeals of Washington,

Division 2.

Aug. 14, 1990.

James E. Lobsenz, Carney Stephenson, Badley, Smith & Spellman, Seattle, for appellant.

Philip L. Harju, Deputy Pros. Atty., Olympia, for respondent.

PETRICH, Judge.

Garry Eastabrook challenges his conviction on counts of first degree burglary, first degree rape, and second degree burglary. He contends that the trial court erred in denying his motion for severance of offenses and his motion for recusal. He also claims error based on the deputy prosecuting attorney's closing argument. We affirm.

Eastabrook was charged with first degree burglary (RCW 9A.52.020), first degree rape (RCW 9A.44.040), second degree burglary (RCW 9A.52.030), and first degree attempted rape (RCW 9A.28.020). In Eastabrook's first trial, he was acquitted of the first degree attempted rape count. The jury was unable to agree on the remaining counts and, as to those counts, the trial court declared a mistrial. After a second trial, Eastabrook was convicted of the remaining counts. His claims of error arise out of the second trial.

The first degree burglary and first degree rape charges arose from an incident that occurred on February 2, 1987. The victim lived alone in her apartment at the Capitol Club apartments in Lacey. She had been away from her apartment all day and returned at about 10:30 p.m. She left for another hour to visit a friend. When she returned, she noticed that clothes she had left in a pile in the bathroom were scattered. A beach towel emblazoned with a picture of Wonder Woman that had been with the clothes was spread on the floor.

The victim encountered a man in her bedroom. He tied her hands and held a knife to her throat and chest while he raped her. He then made her take a bath and wipe off with the Wonder Woman towel. The rapist took the towel with him when he left.

The victim testified at trial that her rapist was about 5' 10", and stocky, and wore an orange ski mask, sunglasses, a ring, and white tennis shoes. A head hair recovered from her bra was identified as possibly being either her boyfriend's or the defendant's.

The second degree burglary count arose out of an incident on March 21, 1987. ¹ On that date, another resident of the Capitol Club apartments reported to the police that he saw a prowler in the C Court area. The figure was seen peering into the front window of apartment C 123 and loitering around the bedroom window of the same apartment.

Sgt. Edward Sorger and Officer Ken Anderson responded to the call. They crouched down and waited in the C Court area. Eastabrook, who matched the description of the prowler as reported by the resident, soon walked by. Sorger and Anderson detained him. When they made a pat down search, Eastabrook reached into his jacket and handed Sorger a reddish-orange ski mask, saying, "Here, you might as well have this." The victim of the February 2, 1987 rape later identified the ski mask as similar in shape but a little different in color to the one worn by her rapist. Sorger also obtained a pair of sunglasses from Eastbrook's coat pocket. The resident who initially reported the prowler incident to the police positively identified Eastabrook as the man he had seen prowling around the premises.

The occupant of C 123 was not home. Sorger and Anderson inspected the apartment and found the bedroom window wide open. The occupant of C 123 testified at trial that she lived alone. When she returned to her apartment, she observed things moved around in her bedroom. Her underwear and socks had slid from their shelves and a pile of clothes that had been stacked had been moved around. She also observed a footprint in the middle of her bed and footprints that had scraped the wall under the window.

On the afternoon of March 21, 1987, the police found a knife stuck in the bushes where the prowler had been seen lurking the night before. The knife did not have any identifiable fingerprints.

Eastabrook also lived at the Capitol Club apartments. The police searched his apartment and recovered a ring later identified by the rape victim as similar to the one she observed her rapist wearing. The Wonder Woman towel was not recovered. However, Eastabrook's roommate testified that she had seen such a towel in the bathroom and in his room in early February 1987, but had not seen it since.

Eastabrook's employer testified at trial that she had a conversation with him about the rape. Eastabrook told her that his roommate knew the victim and had learned some of the details about the rape. He said the rapist was a "professional or thorough" because he made the victim bathe, wipe off with a towel, and then took the towel. She also testified that Eastabrook said the rapist "knew what the girls were doing as far as going to the laundry or whether their apartments were open, their comings and goings." However, Eastabrook's roommate said that she did not know the victim and she did not tell him that she knew anything about the rape. A neighbor testified that Eastabrook told her that the rapist was "brilliant" because he made the victim take a bath. Eastabrook told his neighbor that he got this information from the newspapers. Detective Loreli Thompson testified that the newspaper account did not relate any information about the bath or the towel, and that none of the residents she spoke with at the apartment complex had that information.

After the first trial, the trial judge and the deputy prosecutor met with the jury. Defense counsel was not present. Their meetings with the jury overlapped for a short period of time. Evidently, the trial judge was present when one of the jurors asked about Eastabrook's criminal history. The deputy prosecutor answered that Eastabrook had an extortion conviction in his background. Several jurors expressed the view that they wished they had known about his conviction during the trial. At the start of the second trial before the same judge, Eastabrook moved for recusal based primarily on this meeting. The trial judge denied the motion.

Eastabrook first assigns error to the trial court's denial of his motion to sever the first degree burglary and first degree rape counts from the second degree burglary count. We hold that joinder was proper under CrR 4.3.

CrR 4.3(a) provides:

Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:

(1) Are of the same or similar character, even if not part of a single scheme or plan; or

(2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

CrR 4.4(b) permits severance of offenses when "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." However, CrR 4.3 is a liberal joinder rule and the trial court has considerable discretion in joining offenses. State v. Thompson, 88 Wash.2d 518, 525, 564 P.2d 315 (1977). A trial court's ruling on a motion for severance will be reversed only for manifest abuse of discretion. State v. Bythrow, 114 Wash.2d 713, 717, 790 P.2d 154 (1990); State v. Watkins, 53 Wash.App. 264, 269, 766 P.2d 484 (1989); State v. Harris, 36 Wash.App. 746, 749, 677 P.2d 202 (1984).

In State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972), overruled on other grounds in State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975), the Supreme Court set forth the purpose and dangers of joining offenses as follows:

The justification for a liberal rule on joinder of offenses appears to be the economy of a single trial. The argument against joinder is that the defendant may be prejudiced for one or more of the following reasons: (1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.

Smith, 74 Wash.2d at 755, 446 P.2d 571, quoting Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964).

The Smith court found several factors present in that case that tended to neutralize the prejudice that may have resulted from the joinder of multiple counts of murder, robbery and assault. Those factors were as follows: (1) the strength of the State's evidence on each count; (2) the clarity of defenses to each count; (3) the court's instruction to the jury as to the limited purpose for which it was to consider the evidence of each crime; and (4) the admissibility of the evidence of the other crimes even if they had been tried separately or never charged or joined. Smith, 74 Wash.2d at 755, 446 P.2d 571. These factors have since been applied by courts when reviewing severance cases to determine whether the denial of a motion to sever was unduly prejudicial. See, e.g., Watkins, 53 Wash.App. at 269, 766 P.2d 484; State v. Gatalski, 40 Wash.App. 601, 607, 699 P.2d 804, review denied, 104 Wash.2d 1019 (1985); State v. Robinson, 38 Wash.App. 871, 881-82, 691 P.2d 213 (1984), review denied, 103 Wash.2d 1015 (1985); State v. Kinsey, 7 Wash.App. 773, 776, 502 P.2d 470 (1972), review denied, 82 Wash.2d 1002 (1973).

The trial court determined...