State v. Newbern

Decision Date23 April 1999
Docket NumberNo. 22496-8-II,22496-8-II
Citation95 Wn.App. 277,975 P.2d 1041
PartiesSTATE of Washington, Respondent, v. Sirrone Terrell NEWBERN, Appellant.
CourtWashington Court of Appeals

Pattie Mhoon (Court-Appointed), Tacoma, for Appellant.

Barbara L. Corey-Boulet, Pierce County Deputy Prosecuting Attorney, Tacoma, for Respondent.

SEINFELD, J.

A jury convicted Sirrone T. Newbern of attempted murder in the second degree. Newbern appeals, claiming the trial court erred in denying his request for a jury instruction on reckless endangerment and in admitting scientific, expert, and hearsay evidence. Finding that reckless endangerment is not a lesser included offense of attempted murder and finding no other reversible error, we affirm.

FACTS

Newbern shot his girlfriend, Lakenya Jones, with a handgun while she was standing in front of her house talking on the telephone to her former boyfriend, A.J. The bullet passed through Jones's chest; it then went through the front door and the living room, where it shattered a glass vase; and finally entered the kitchen where it lodged in a small refrigerator on the kitchen's back wall.

The next morning, Detective Bomkamp interviewed Jones at Madigan Hospital. 1 She told the detective that before the shooting she had received a telephone call from a former boyfriend. She said she was in her bedroom with her sister speaking on the phone when Newbern came in, told her to hang up, and pointed a gun directly at her. She said she left the bedroom and walked outside where she stood on the front step, still talking on her portable phone. Jones also said that Newbern followed her outside and told her to get off the phone and that when she replied, "No," he lifted the gun to shoulder height and pulled the trigger one time. According to Jones, the gun fired and a bullet struck her in the chest.

Jones was transferred to Harborview Medical Hospital where Bomkamp visited her two days later and took a recorded statement. According to the statement, when she was on the phone, "Sirrone pulled the gun out on me toward my head, but my sister walked in and he took it down so after that, I walked outside...." This was about three minutes before the shooting.

Jones then described the events outside, as follows:

I said, Sirrone, why you keep pullin' the gun out on me. He didn't say nothin', he just backed up.

....

... [H]e seemed like he was mad at me for some reason cause way before all this had happened, he poured beer all on me.

....

He told me to get my ass off the phone. I told him, no, you know, I'm not gettin' off the phone cause it's not a every day thing that I get to talk to A.J., you know.

....

He just, that's when, that's when he just took his gun out, like outta his pants or whatever and was....

... [T]hen he just turned it, pointed it at me and shot.

Exhibit 38.

Bomkamp asked: "It sounds like you don't have any doubt the gun was pointed directly at you." Jones responded, "Just at me." She said that Newbern was standing about five and a half feet away and the gun's barrel was about four feet away.

Meanwhile, after the shooting, Newbern fled the scene and hid in a friend's basement. About a day later, a police SWAT team discovered his whereabouts, entered the residence, and took him into custody. Newbern then admitted that he had been holding the gun when it fired, but he claimed that it discharged by accident.

The State charged Newbern with one count of attempted murder in the first degree, RCW 9A.32.030(1)(a) and RCW 9A.28.020, while armed with a firearm, RCW 9.41.010. The matter proceeded to trial about three months later.

Jones testified at trial, acknowledging that she had received a telephone call from A.J. before the shooting. But at trial, Jones insisted that Newbern had not told her to get off the phone and was not jealous when she spoke to A.J., that she did not see Newbern with a gun when she was outside, and that the shooting was an accident.

The State then impeached Jones with the statements she had made to Bomkamp. In response to this questioning, Jones said she had no memory of speaking with Bomkamp at Madigan Hospital and had not been truthful in her statement at Harborview. Specifically, she claimed that her statements that Newbern was angry with her, told her to get off the phone, and pointed the gun at her when she was outside were all untrue. Jones claimed that she made the untruthful incriminating statements to the detectives to "get back" at Newbern.

Over Newbern's hearsay objection, Bomkamp testified about the Madigan Medical Hospital interview, saying that Jones told him that Newbern pointed the gun at her twice in the space of about five minutes and shot her after she refused to get off the telephone. Bomkamp also produced the tape recording of the Harborview Medical Hospital interview, which the trial court admitted into evidence over Newbern's hearsay objection. The court reasoned:

Well, while the chronology of this statement is, in my opinion, somewhat consistent, very consistent, actually, with the chronology that Lakenya Jones and other witnesses have testified to, the entire tone and thrust of this statement is totally contradictory to what she attempted to portray at trial. It gives the exact opposite impression, in my opinion, and, in its totality, is simply an inconsistent version of what the jury has heard on the witness stand, and the jury ought to have the opportunity to hear what she said at another time, which is a totally different version from what she said to them in the courtroom.

The trial court later elaborated:

Expanding a little bit on my ruling, I want to say also that, not only is the overall thrust of the statement inconsistent, but those areas that are consistent are either areas that are of assistance, actually, to the defense or are of no consequence. They're just, in effect, stage setting sorts of items that, in the Court's opinion, don't prejudice the defendant in any way.

Detective Gagner, a detective and technical accident reconstructionist for the Washington State Patrol, also testified for the State. He explained that he had measured the trajectory of the bullet with a device called an electronic total station (ETS), a surveyor's tool that is used for precision surveying work. He told the jury that the Department of Transportation uses the ETS for surveying and that, consequently, most of them probably would have seen it sitting on a three-legged tripod on the highway.

Gagner said that he participated in a four-hour block of training for ETS operators in 1995 and since then has trained other officers on its use. The ETS takes a measurement by shooting an infrared beam that hits a prism at the location to be measured. The beam then reflects back at a different frequency. From this, the ETS can calculate the distance and slope of a trajectory, providing the information for pinpoint drawings.

Without objection, Gagner produced and explained the information on two pinpoint drawings, Exhibits 40 and 41, he had made using the ETS. The drawings indicated the trajectory of the bullet from Jones's entry and exit wounds, through the door to the freezer in the kitchen.

During Gagner's testimony, the State moved to admit Exhibit 41. Newbern said that he did not object to its admission "for illustrative purposes, but for evidence, I am." He argued that the drawing was not sufficiently reliable because the bullet might have struck an internal organ or bone in Jones's body, which would have caused a change in the trajectory. The trial court admitted Exhibits 40 and 41 after allowing Newbern time to further research the law on the issue.

Following Gagner's explanations of the exhibits, the State asked him an opinion question. Newbern then objected on the basis that Gagner had not been qualified as an expert "to trajectory, just that he took the measurements." After the trial court sustained on the basis that the question was leading and that the State needed to lay a further foundation, the State did not ask for any further opinions.

On the fifth day of trial, the absence of defense witnesses delayed the start of proceedings. The trial court told the jury about the delay, as follows:

Apparently, we're not ready to proceed.

I'm extremely frustrated. I set this at 10:00 so we would be ready to proceed, and still we're not. So all I can tell you is we're going to wait, and I'll let you know just as soon as we have a witness available. Again, I apologize and appreciate your willingness to sit through this. I know it's rude and it's a discourtesy to you, but we're just going to have to put up with it a bit.

So I'll let you know as soon as we have a witness available. We'll be at recess.

Newbern objected to the trial court's comments and moved for a mistrial or at least a curative instruction. Before the trial resumed, the court advised the jury:

Ladies and gentlemen, thank you for your patience. We are prepared to proceed.

I want to remind you, however, before we proceed of an instruction that I gave you early on in this case, and, in fact, I think a couple of times. I want to be sure that none of the delays that may happen during this trial are in any way part of your deliberative process, or that you make any assumptions about why we're having delays or that you have any ill will towards any of the participants in this trial, be it attorney or party or anybody else. Don't let that be a part of your decision making in any way, shape, or form, please.

If I intimated to you that I was distressed, I am distressed, but it's not with any particular individual or party in this particular lawsuit. I'm distressed because of your having to waste your time back in this jury room, and for no other purpose, and you should read no more in to it.

With that, if the defense is ready, you may call your next witness.

Newbern then renewed his motion for a mistrial, indicating that he was dissatisfied with the...

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