State v. Greiff
| Decision Date | 12 October 2000 |
| Docket Number | No. 68370-1.,68370-1. |
| Citation | 10 P.3d 390,141 Wash.2d 910 |
| Parties | The STATE of Washington, Respondent, v. Hans W. GREIFF, Petitioner. |
| Court | Washington Supreme Court |
Hugh M. Spall, Jr., Ellensburg, for Petitioner.
Jeffrey Sullivan, Yakima County Prosecutor, Michael G. McCarthy, Deputy, Yakima, for Respondent.
Hans Greiff was charged with second degree rape of a 16-year-old young woman. The case proceeded to trial and ended in a hung jury. The case was tried again and Greiff was convicted. In an unpublished opinion, the Court of Appeals upheld the conviction. Greiff claims here that the trial court (1) incorrectly denied his motion for a mistrial, and (2) committed reversible error in admitting the testimony of the alleged victim to the effect that another person told her that a forensic rape examination produced no results because it had been performed incorrectly. For reasons stated herein, we affirm Greiff's conviction.
On the cold and snowy evening of February 7, 1997, J.E. left her father's home in Selah, following an argument during which J.E. was told by her father that she was no longer welcome to reside with him. After departing, J.E. headed on foot for her boyfriend's house in Yakima.
While en route to her boyfriend's home, J.E. was approached by a car which contained Hans Greiff, the driver, and Greiff's passenger, Rick Marshall. The two men offered J.E. a ride and she accepted. The three persons then made their way to Greiff's home, ostensibly for the purpose of letting J.E. use Greiff's telephone. When they arrived at Greiff's home, Greiff told J.E. that she better not use the telephone because "his friend was heard over the phone." 2 Verbatim Report of Proceedings (VRP) at 111. Greiff, Marshall, and J.E. then proceeded to listen to some music and look at old photographs. Eventually, Marshall and Greiff left the house, leaving J.E. in the home by herself.
Greiff later returned to the home by himself. Shortly after his return, Greiff came into the living room, where J.E. was located. Greiff, who was wearing only "thong" underwear, resumed looking at photographs with J.E. 2 VRP at 114. After some small talk, Greiff attempted to kiss J.E. She rebuffed his advances and told him, "no." 2 VRP at 114. J.E. then went to bed in one of the back bedrooms. A few minutes later Greiff entered the bedroom in which J.E. was located and asked her "if the stereo was too loud." 2 VRP at 116. She indicated that she told him "no, it was fine, I was all right." 2 VRP at 116. Greiff then left the room but returned a few minutes later. This time, he had a blanket around him and he told J.E. that it "was cold in his room." 2 VRP at 116. He indicated that it would be better if they slept in the same bed so that they "wouldn't freeze." 2 VRP at 117. According to J.E., Greiff then took hold of her hands and removed her sweatpants. She said that she resisted Greiff's efforts and attempted to free herself from him, but was unsuccessful. Greiff, according to J.E., engaged in oral intercourse with her and then vaginally raped her. J.E. testified that during the attack, she was "crying and screaming" while Greiff was telling her that he knew she "wanted it." 2 VRP at 124. After the attack, J.E. got up to leave but not before Greiff said he would "kill me if I told anybody." 2 VRP at 124. J.E. then put on her clothing and left Greiff's dwelling.
About 20 minutes later, Officer Robert Marlow of the Yakima Police Department was dispatched to a parking lot where J.E. had been found wandering about. Marlow took J.E. to the police station and attempted to find her a place to pass the remaining hours of the morning. J.E. was eventually taken to a group home in Yakima where she stayed for the balance of the morning. Later that day J.E. was sent to a group home in Sunnyside where a child protective services caseworker informed her that she would be sent to Ohio to live with her adoptive parents.1 J.E. told the worker that she did not want to return to Ohio.
The following day, J.E. informed an employee at the group home that she had been sexually assaulted by Greiff. The person to whom J.E. spoke convinced J.E. to go to a hospital for an examination. J.E. agreed with the suggestion and was examined at a hospital by a physician, who told her to come back a few days later for the results from the rape exam. According to J.E., when she returned to the hospital she was told that no results were available because the examining physician had performed the test incorrectly. A few days later, J.E. spoke with a Yakima Police Department detective and gave a description of the events surrounding the alleged rape that comported with the above factual recitation.
On February 20, 1997, the Yakima Police Department detectives questioned Greiff about the alleged rape of J.E. Greiff's statement to the police differed somewhat from J.E.'s narrative. According to Greiff, when he picked up J.E. he told her that he ran a "clean and sober house" and that he was a "Christian" who was "studying the Bible" and that there would be "no funny stuff at all." Statement of Hans Greiff (Feb. 20, 1997) at 4. Greiff indicated that he went to bed later that evening but conceded that he later brought some bed covers into J.E.'s bedroom because he was concerned that she might be cold. Id. at 5. When the detectives inquired as to why Greiff entered J.E.'s room without clothing, he responded that "I don't sleep in my clothes." Id. He also told the detectives that he got into bed with J.E. because he was "cold" and that he took J.E.'s clothing off because "it's not right for people to sleep with their clothes on and that's just kinda of a rule I have at the house." Id. at 7. Greiff claimed that despite the fact that he slept in the bed with J.E., he did not touch her or have contact of a sexual nature with her. Id. at 8.
The State of Washington thereafter charged Greiff with second degree rape. The case proceeded to a jury trial at which Officer Marlow testified to the effect that when he first came into contact with J.E. he asked her several times if she had been sexually assaulted. He indicated that each time he asked J.E. this question he received a negative response. Ultimately, a mistrial was declared because the jury was unable to reach a unanimous verdict.
The State refiled the charge against Greiff, and the case proceeded to trial for a second time. At the commencement of the second trial, Greiff's counsel made the following remarks during his opening statement to the jury:
Suppl. VRP at 8. Although Greiff's counsel was clearly relying on Officer Marlow's testimony from the previous trial when he made his opening statement, he was confronted with testimony at the second trial that differed significantly from the testimony that Marlow gave at the earlier trial. Specifically, when asked by the State if he had asked J.E. "about a sexual assault in Yakima," Marlow responded, "I don't believe that I did." 2 VRP at 81-82. Greiff's counsel, who claimed to be surprised by this testimony, attempted to impeach Marlow with his testimony from the previous trial as follows:
Greiff's counsel then moved for a mistrial, asserting that Officer Marlow's testimony had "sabotaged" his opening statement. 2 VRP at 210. He argued that since the prosecutor knew that Marlow's testimony would differ from his prior testimony, he had an obligation to inform Greiff of the expected change in the testimony. The trial court denied the defense motion, but ruled that a transcript of Marlow's previous testimony would be admitted as an exhibit, "and the jury may consider his prior testimony at the earlier hearing in its entirety in order to judge his credibility." 2 VRP at 211.
The State called J.E. to testify. During direct examination, the deputy prosecutor asked J.E. if she knew what the results were from the examination that was performed at the hospital. Over defense counsel's objections, J.E. was allowed to testify that "I was told that the doctor had did the test...
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