State v. Pockert, 8448-5-III

• Decision Date: 10 January 1989
• Docket Number: No. 8448-5-III,8448-5-III
• Parties: STATE of Washington, Respondent, v. Richard Walter POCKERT, Appellant.
• Court: Washington Court of Appeals

Page 491

53 Wn.App. 491

768 P.2d 504

STATE of Washington, Respondent, v. Richard Walter POCKERT, Appellant.

No. 8448-5-III.

Court of Appeals of Washington,

Division 3, Panel Three.

Jan. 10, 1989.

Carl Hueber, Winston & Cashatt, 1900 Seafirst Fin. Center, Spokane, for appellant.

Ronald Skibbie, Deputy Pros. Atty., Spokane, for respondent.

MUNSON, Judge.

Richard W. Pockert appeals his conviction for first degree arson. RCW 9A.48.020. He contends the court erred in: (1) making erroneous evidentiary rulings, (2) imposing an exceptional sentence, and (3) refusing his request for an evidentiary hearing. We affirm his conviction, but remand for resentencing and to hold an evidentiary hearing on restitution.

Mr. Pockert met Cheryl McClelland in April 1986, and they started dating shortly thereafter. An intimate relationship ensued. Over the 4th of July weekend, while on a boating trip in Idaho, the relationship crumbled and they stopped dating. On August 10 about 1 a.m. as a result of multiple, intentionally set fires, Ms. McClelland's home was burned. The following day, Mr. Pockert went to Valley General Hospital where he was treated for second degree burns which covered approximately 15 percent of his body; however, he refused to be admitted to the hospital. He was subsequently hospitalized.

Mr. Pockert was charged with first degree arson. At trial, the State presented evidence showing Mr. Pockert was seen by Ms. McClelland at an Idaho lake about 9 p.m. and was in her neighborhood shortly before the house burned at 1 a.m. He testified the night of the fire he did go to her house about 10:30 p.m. and left a note asking her to call him when she returned. He denied setting any fires. He testified he sustained his burns and injuries on August 11 while cleaning tools in his garage; he was using gasoline to clean some tools and it must have been set ablaze by a trouble light that fell into the gasoline.

A jury found Mr. Pockert guilty of first degree arson. He was sentenced to an exceptional sentence of 72 months; the standard range was 31 to 41 months. He appeals.

Mr. Pockert first asserts the court's erroneous evidentiary rulings denied him a fair trial. He asserts these rulings, when considered together, constitute reversible error.

The first challenged ruling occurred during the testimony of Dr. Richard Lorenz, a physician who treated Mr. Pockert at Valley General Hospital. During cross examination, the defense questioned Dr. Lorenz concerning Mr. Pockert's ability to tolerate pain and sought to obtain testimony regarding Mr. Pockert's past injuries. The court sustained an objection by the prosecutor on the grounds of relevancy.

Whether evidence is relevant is governed by ER 401 and 402. ¹ Here, the evidence the defense sought concerned past injuries not associated with the burns for which he was treated on August 11. Mr. Pockert asserts that his ability or inability to withstand pain is relevant to help establish when the burns occurred. The State asserts that allowing Mr. Pockert to dwell on his prior injuries would only engender sympathy for him with the jury. Whether evidence is admissible is left to the discretion of the trial court and will be reviewed to determine if the court's decision was manifestly unreasonable or based on untenable grounds. Davis v. Globe Mach. Mfg. Co., 102 Wash.2d 68, 684 P.2d 692 (1984). After a review of the record, we agree with the trial court Mr. Pockert's past injuries had no bearing on the present burns. We find no abuse of discretion.

Mr. Pockert also objects to Ms. McClelland's testimony regarding statements made to her by Fred Eikstadt concerning his learning of the fire. These statements were informational only; but assuming arguendo they were error, it would not be constitutional error. Thus, we apply the rule "that error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected." State v. Cunningham, 93 Wash.2d 823, 831, 613 P.2d 1139 (1980); State v. Hancock, 46 Wash.App. 672, 678, 731 P.2d 1133 (1987). The statement did not materially affect the trial outcome; there was no error.

Next, Mr. Pockert assigns error to the State's questioning of Ms. McClelland's next door neighbor about a vehicle she saw. He asserts the court improperly commented on the evidence in violation of article 4, section 16 of the Washington State Constitution. The defense objected when the court asked Ms. Porter: "Again, so I am right on the top, when you seen [sic ] this Mustang that backed up and turned away, when was that?" He asserts that Ms. Porter did not definitely say the car was a Mustang. The court shortly thereafter gave the following curative instruction to the jury: "THE COURT: Let the record reflect if I insinuated it was a Mustang, I am not one to give witness on that, so disregard making such a remark."

The purpose of Const. art. 4, § 16, which prohibits comments on the evidence by the court, is to prevent the jury from being influenced by the court's opinions on the evidence and hence its application is strict. Seattle v. Arensmeyer, 6 Wash.App. 116, 491 P.2d 1305 (1971). A comment on the evidence does not take place unless the judge conveyed his or her personal opinion regarding the truth or falsity of any evidence introduced at trial to the jury. State v. Renfro, 28 Wash.App. 248, 622 P.2d 1295 (1981), aff'd, 96 Wash.2d 902, 639 P.2d 737, cert. denied, 459 U.S. 842, 103 S.Ct. 94, 74 L.Ed.2d 86 (1982). Here, Ms. Porter testified prior to the court's questioning that she believed the car was a Mustang. A review of the record shows that the court was merely trying to clarify the witness' testimony. Such questioning does not constitute improper comments on the evidence. See generally State v. Johnson, 74 Wash.2d 567, 445 P.2d 726 (1968). Furthermore, Mr. Pockert testified he drove a Mustang to the house when he left the note (which was never found). There was no error.

Mr. Pockert also objects to the court's "rebuking" of defense counsel during closing argument, i.e., the court instructed counsel to argue from the facts that had been presented. If he is asserting that the rebuking constituted an improper comment on the evidence, it was not; the court's statement was a ruling on an objection and, therefore, would not constitute comment on the evidence. State v. Willis, 67 Wash.2d 681, 409 P.2d 669 (1966). The court's ruling on the objection did not restrict him from arguing the defense's theory of the case, i.e., that the fire was set by someone else in an attempt to commit a burglary. He was neither curtailed from his right to closing argument nor to argue his theory of the case. There was no error.

Pro se Mr. Pockert objects to the admission of a video taped deposition of Walter Eugene Fowler. He cites no authority to support this contention. He asserts the edited version of the tape deprived the jury of reviewing crucial impeachment testimony. We reviewed the tape; the excluded portion would have been detrimental to Mr. Pockert. This contention is without merit. Davis v. Globe Mach. Mfg. Co., supra.

Next, Mr. Pockert asserts there were not sufficient grounds to warrant an exceptional sentence. The trial court made findings for an exceptional sentence, namely, (1) deliberate cruelty to the victims; (2) the crime constituted a major economic offense; and (3) there was a potential for great harm to innocent parties. RCW 9.94A.210(4) provides the statutory authority for an appellate court to reverse an exceptional sentence. The necessary guidelines for reviewing sentences which fall within RCW 9.94A.210(4)(a) were set forth in State v. Fisher, 108 Wash.2d 419, 423, 739 P.2d 683 (1987).

Mr. Pockert asserts each of these factors were taken into account when computing the standard range for first degree arson. First degree arson is defined by RCW 9A.48.020 which provides in pertinent part:

Arson in the first degree. (1) A person is guilty of arson in the first degree if he knowingly and maliciously:

(a) Causes a fire or explosion which is manifestly dangerous to any human life, including firemen; or

(b) Causes a fire or explosion which damages a dwelling; or (c) Causes a fire or explosion in any building in which there shall be at the time a human being who is not a participant in the crime; or

(d) Causes a fire or explosion on property...