State v. Gunter
| Decision Date | 08 May 2023 |
| Docket Number | 83316-2-I |
| Parties | THE STATE OF WASHINGTON, Respondent, v. RONALD JEFFREY GUNTER, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Ronald Jeffrey Gunter appeals his jury conviction for domestic violence (DV) first degree arson with a DV aggravator alleging several errors occurred during his bifurcated trial. Gunter argues that a detective's improper opinion testimony deprived him of his right to a fair trial, that the court erred by admitting irrelevant prior DV convictions during the aggravator phase of his trial, and that the prosecutor committed misconduct by misstating the law to the jury during rebuttal closing argument. Gunter also asserts ineffective assistance of counsel and cumulative error. We affirm.
Gunter is Kristi Dutson's estranged brother. Shortly before 3:00 a.m. on May 30, 2019, Gunter went to Dutson's home uninvited. A security camera above Dutson's front door recorded Gunter pouring liquid from a plastic gas container onto the doormat. Gunter then appears to ignite the liquid and run away.
Dutson's son, Ethan,[1] was awake in his second-floor bedroom and looking out his window when he saw an "orange glow" coming from the front porch. He went downstairs to investigate and saw smoke and flames breaching the front door. The window above the door and the two windows on either side of the door had exploded and flames were coming through the openings. Ethan ran to his parents' room, screamed "fire" several times, then called 911.
The Bellevue Fire Department and police arrived at the home and firefighters extinguished the flames. Dutson then watched the front door surveillance footage from the security camera and recognized the individual setting the fire as her brother Gunter. Meanwhile, Bellevue Police Detective Gregory Oliden walked the scene, took photographs, and documented his observations. He smelled a "strong" odor of gasoline around the outside of Dutson's house, especially around the front door area and north side of the house. He also viewed Dutson's surveillance footage. Because of extensive structural and smoke damage, the Dutsons had to move out of their home for four to six months during repairs.
The State charged Gunter with DV first degree arson. It later amended the information, alleging the crime was an aggravated DV offense and part of an ongoing pattern of abuse. Gunter did not deny starting the fire. Instead, he claimed diminished capacity.
At the bifurcated trial, Detective Oliden testified that based on everything he saw on May 30, 2019, "someone was trying to burn down this house." The parties then offered competing expert testimony about Gunter's capacity to formulate the requisite intent. In closing, Gunter argued that when he set the fire, he was suffering from a manic episode due to his bipolar disorder and could not appreciate the consequences of his actions.
A jury convicted Gunter of first degree arson at the end of the trial phase.[2]By special verdict, it found Gunter and the Dutsons were members of the same family at the time he set the fire. The trial court then moved to the aggravator phase. The State offered and the court admitted certified copies of court records showing Gunter's prior convictions for seven DV offenses between 2008 and 2017. The jury determined by special verdict that the crime was an aggravated DV offense.
Gunter moved to set aside the jury's verdict as to the aggravator, asserting that insufficient evidence supported an ongoing pattern of abuse. The court denied his motion imposed an upward exceptional sentence of 101.5 months, and entered findings of fact and conclusions of law in support of the exceptional sentence.
Gunter appeals.
Gunter argues Detective Oliden denied him a fair trial by impermissibly expressing an opinion about his guilt, the trial court erred by admitting several irrelevant prior DV convictions during the aggravator phase of his trial, and the prosecutor committed misconduct during rebuttal closing argument of the aggravator phase of trial. He also asserts ineffective assistance of counsel and cumulative error.
Gunter argues Detective Oliden's testimony impermissibly expressed an opinion about his guilt to the jury, depriving him of his right to a fair trial. We disagree.
We review a trial court's decision to admit expert testimony for an abuse of discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). The court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v Quaale, 182 Wn.2d 191, 197, 340 P.3d 213 (2014). An evidentiary decision is manifestly unreasonable if it is contrary to law. Id. at 196.
Under ER 701, a lay witness may express an opinion that is (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of ER 702. Under ER 702, an expert may express an opinion if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. The witness must be qualified as an expert by knowledge, skill, experience, training, or education. ER 702.
"Generally, no witness, lay or expert, may give an opinion, directly or inferentially, on the defendant's innocence or guilt." State v. Johnson, 152 Wn.App. 924, 930, 219 P.3d 958 (2009). Impermissible opinion testimony relating to a defendant's guilt violates the defendant's constitutional right to a jury trial, which includes the independent determination of the facts by the jury. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). But "[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ER 704. Whether testimony amounts to an impermissible opinion about the defendant's guilt depends on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. Johnson, 152 Wn.App. at 931.
Detective Oliden testified in his capacity as an arson investigator with training, continuing education, and experience in identifying arson since 2017.[3] He walked the jury through his investigation at the Dutson residence on May 30, 2019. He told the jury what he observed when he arrived at the scene, including a charred front door, doormat, and door frame, smoke damage to the entryway and eaves, and blackened and broken windows above and next to the front door because of the intense heat of the fire. He also smelled gas outside the front area of the house and on the north side. But he explained that while he smelled gasoline on the north side of the home, he found no evidence that someone set a fire there. The prosecutor and Detective Oliden then had the following exchange:
Defense counsel objected as "improper opinion." The court overruled the objection.[4]
Citing State v. Farr-Lenzini, 93 Wn.App. 453, 970 P.2d 313 (1999), Gunter argues that Detective Oliden's testimony amounts to an opinion on Gunter's state of mind, which was "the core issue for determining guilt." In Farr-Lenzini, a Washington State Patrol trooper observed the defendant drive her car recklessly. Id. at 456. The trooper activated his lights and siren, but the defendant kept driving for over four miles. Id. at 457-58. The State charged the defendant with attempting to elude a police officer. Id. at 458. At trial, the trooper testified that the defendant's driving showed that she" 'was attempting to get away from me and knew I was back there and refusing to stop.'" Id. The defendant testified that she did not see or hear the patrol car at first. Id. at 457. Division Two of our court held that the trooper's testimony amounted to an improper opinion. Id. at 465. The court explained that "there was an insufficient foundation to qualify the trooper as an expert for purposes of expressing an opinion as to [the defendant]'s state of mind." Id. at 461. Nor was the opinion admissible lay testimony. Id. at 462.
This case is different than Farr-Lenzini. Here, Detective Oliden was qualified to testify as an expert arson investigator. And his opinion that somebody tried to "burn down this house" was within his area of knowledge. He based his testimony that somebody intentionally set the house on fire on his training and experience as well as his observations at the scene. Those observations included the smell of gasoline on two sides of the home, security footage of Gunter pouring liquid from a plastic gas can onto the front porch, igniting the liquid, and running away, and the damage caused by the intensity of the resulting fire.
And Detective Oliden's testimony did not go to "the core issue" of Gunter's state of mind. Gunter conceded that he intentionally lit the fire but argued through expert testimony that he could not form the capacity to do so maliciously. His expert psychiatrist testified that ...
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