State v. Pete, 50404-5-I.

• Decision Date: 16 June 2003
• Docket Number: No. 50404-5-I.,50404-5-I.
• Parties: STATE OF WASHINGTON, Respondent, v. LARIS L. PETE, Appellant.
• Court: Washington Court of Appeals

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STATE OF WASHINGTON, Respondent, v. LARIS L. PETE, Appellant.

No. 50404-5-I.

Court of Appeals of Washington, Division One.

June 16, 2003.

Appeal from Superior Court of King County, Docket No: 01-1-10675-5, Judgment or order under review, Date filed: 04/08/2002.

Counsel for Appellant(s), Cheryl D Aza, WA Appellate Project, Seattle, WA.

Counsel for Respondent(s), Jimmy I Hung, Attorney at Law, Seattle, WA.

Authored by Ronald E. Cox, Concurring Faye C. Kennedy, William W. Baker.

PER CURIAM

Laris Pete appeals his conviction for second-degree robbery. He argues that the jury's improper consideration of evidence never admitted at trial requires reversal. Pete also argues that he was prejudiced by the trial court's failure to timely file written findings of fact and conclusions of law after the CrR 3.5 hearing and that reversal is required.

Finally, Pete argues that the trial court entered and relied upon a finding of fact not supported by the record and thus erred when it found his statements were admissible. We conclude that Pete fails to prove that the statements mistakenly sent back with the jury prejudiced him. We also hold that the late filing of the findings of fact and conclusions of law did not prejudice Pete. Finally, we hold that although there is insufficient evidence in the record to support the challenged finding of fact, there is other evidence to support the conclusion that Pete's statement in the police car was admissible.

Gregorio Olivares-Behena was intoxicated and left a party to buy more beer. After buying a case of beer, Olivares-Behena was approached by Herman Longtimesleeping and Pete. Both Pete and Longtimesleeping had also consumed alcohol that evening. Longtimesleeping asked Olivares-Behena for a cigarette and he gave one to him. Longtimesleeping then asked for a beer and Olivares-Behena gave him one and then another and then a third beer from the case he just purchased. Longtimesleeping asked for more beer and Olivares-Behena broke one or two beer bottles, apparently reasoning that he would rather break them than give them away. Longtimesleeping then asked Olivares-Behena if he had any money. Concerned, Olivares-Behena moved his wallet from his back pocket to his front pocket and while his hand was still in his front pocket he fell over and hit his head on the street. Olivares-Behena could not recall what happened next. Officers testified that when they arrived on the scene Longtimesleeping was kicking Olivares-Behena and Pete was trying to wrestle the case of beer from his hands as he lay on the street. Pete finally got the case away from Olivares-Behena, and he and Longtimesleeping started to walk away. Police officers arriving at the scene intercepted them.

The State charged Pete and Longtimesleeping with robbery in the first degree. A CrR 3.5 hearing followed to determine the admissibility of a written statement made by Pete at the police station and a comment made by Pete during transport to the station that was recorded in Officer Kaffer's statement. The court found both statements admissible. The trial court did not enter written findings of fact and conclusions of law until after Pete filed his opening brief in this appeal.¹

The trial proceeded and neither party offered the two statements into evidence. During jury deliberations, both statements were inadvertently sent to the jury. The bailiff noticed the error almost immediately, and she retrieved the statements and instructed the jurors to disregard them. Following a jury verdict of guilty of the lesser offense of robbery in the second degree, the judge polled the jurors to determine whether any of them had reviewed the statements. The judge indicated on the record that two or three jurors acknowledged that they read one or both statements. Pete moved for a mistrial, which the judge denied.

Pete appeals.

CrR 7.5(a)(1) MOTION

Pete argues that the jury's consideration of evidence never introduced at trial was prejudicial because it deprived him of an opportunity to object to, explain, rebut, cross-examine, or defend against the evidence contained in the two statements. He contends that the trial court abused its discretion when it denied his motion for a new trial. Pete also argues for the first time in his reply brief that the jury's consideration of the two statements deprived him of his right against self-incrimination, his right to remain silent, and his right to effective assistance of counsel. We conclude that the trial court did not abuse its discretion because Pete fails to prove prejudice.

CrR 7.5(a)(1) allows the trial court to grant a defendant's motion for a new trial where unauthorized material is sent to the jury and it materially affects a substantial right of the defendant. We will not reverse a trial court's ruling on a motion for a new trial absent a strong showing of abuse of discretion.² The petitioner must make a very convincing affirmative showing of misconduct.³ A jury's consideration of novel or extrinsic evidence is misconduct and a proper basis for a new trial.⁴ Consideration of any material by a jury not properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have been prejudiced.⁵ Novel or extrinsic evidence is any information outside all the evidence admitted at trial by testimony or document.⁶ Such information is improper because the parties have not had a chance to object to it, rebut it, or subject it to cross-examination.⁷ The trial court ruled that no prejudice resulted because: (1) the documents were with the jury for only a very short time and the jurors were specifically instructed by the bailiff to disregard them; (2) Officer Kaffer's report was structured to support a first-degree robbery charge, and the jury obviously disregarded the report because they found Pete and Longtimesleeping guilty of only second-degree robbery; (3) the content of Officer Kaffer's report did not contain anything more than what he had already testified to at trial; and (4) Pete's statement was exculpatory in nature and was not an admission of robbery.

The trial testimony established Pete's accomplice liability to the crime of second-degree robbery. Under RCW 9A.56.210 a person commits robbery in the second degree when he commits robbery, which is defined as when a person `unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone.'⁸

Olivares-Behena testified that Pete never touched him or asked him for money. But Olivares-Behena then stated, `I don't know if he didn't do anything, why did they both run away together?' Throughout his testimony Olivares-Behena indicated that it was difficult for him to remember what happened that evening and that once he fell over and hit his head, he lost track of what Pete was doing.

Officer Branham testified that when she arrived on the scene she saw Pete and Longtimesleeping stooping over Olivares-Behena, who was lying on the ground, and that Pete was `vigorously' trying to pull the case of beer from Olivares-Behena's hands. Officer Cook testified that he saw Pete pulling the case of beer out of Olivares-Behena's hands as he lay on the ground. Officer Cook saw Longtimesleeping kick Olivares-Behena twice while Pete attempted to take the case of beer. Officer Kaffer testified that when he encountered Pete, there was a case of beer next to him and two individual beers on his person.

Pete did not testify or otherwise put on a defense.

First, we deal with Pete's written statement made at the police station and drafted by Officer Parker. The information in the statement is not prejudicial to Pete. This was not a confession. Pete's statement was exculpatory. In it, he stated that Olivares-Behena handed him the case of beer and told him to walk up the street. Nothing in the statement tends to prove the crime for which he was convicted. Although the State did not use the statement, the trial court ruled that it was admissible. Thus, although several jurors saw the statement, it did not prejudice Pete. Next, we turn to the question of prejudice arising from Officer Kaffer's statement. This too was ruled admissible by the court though no one introduced it at trial. In Officer Kaffer's report, he states that Pete told him en route to the precinct that he only took some beer, but that the other guy was the one who actually beat the victim. Pete's objection to this statement appears to be to the form rather than the content. While officers testified to the fact that they witnessed Pete trying to take the beer while Longtimesleeping was apparently assaulting Olivares-Behena, consistent with the content of Pete's statement to Officer Kaffer, that information was not presented at trial in the form of a statement made by Pete. The key question is whether Pete's statement recorded in Officer Kaffer's written report was prejudicial in light of the fact that there was no testimony by Officer Kaffer concerning any statement made by Pete that night although more than one officer who witnessed the scene between Pete, Longtimesleeping, and Olivares-Behena testified to the same facts contained in Pete's statement.

There is no reasonable ground to believe that the jury's exposure to this statement prejudiced Pete. The evidence was more than sufficient to convict Pete on second-degree robbery based on the testimony of officers at the scene. Despite defense characterizations to the contrary in closing argument, Olivares-Behena did not unequivocally say that Pete never touched him or never took his beer. Olivares-Behena testified that once he fell, he lost track of Pete's actions.

The trial judge did not abuse his discretion when he denied Pete's motion for a mistrial.

We need not address Pete's additional arguments, made for the first...