State v. Post

• Decision Date: 08 October 1990
• Docket Number: No. 23304-1-I,23304-1-I
• Citation: 797 P.2d 1160,59 Wn.App. 389
• Parties: STATE of Washington, Respondent, v. Charles William POST, Appellant.
• Court: Washington Court of Appeals

Page 389

59 Wn.App. 389

797 P.2d 1160

STATE of Washington, Respondent, v. Charles William POST, Appellant.

No. 23304-1-I.

Court of Appeals of Washington,

Division 1.

Oct. 8, 1990.

Reconsideration Denied Nov. 7, 1990.

James Lobsenz, Seattle, for appellant Charles William Post.

Norm Maleng, King County Pros. Atty., Jonathan Love, Deputy King County Pros. Atty., Seattle, for respondent State.

BAKER, Judge.

Charles William Post was convicted of burglary in the first degree RCW 9A.52.020 (count I) and rape in the first degree RCW 9A.44.040 (count II). Post claims eleven assignments of error which may be grouped into two categories: (1) did the trial court err in denying Post's motion for mistrial based upon allegedly improper testimony from a witness for the State; and (2) did the trial court err in sentencing Post to a term outside the standard range.

I. FACTS

M, then 15, awoke in her bedroom to find a strange man standing above her. The man was wearing a ski mask and a dark coat and pants. He put his hand over M's mouth. M tried to scream but the man shoved her against the wall and choked her. He removed her underwear and told her to take off her shirt. He put the shirt over M's face, lodging part of it in her mouth to muzzle her. He then placed a knife against her throat.

The man ordered M to assume various positions before he was able to achieve penetration. Though her face was covered, M felt him take off his mask and could feel his face against her skin. She noticed he had facial hair.

When the man left the bedroom, M ran to the phone to call for help. The man returned, however, again wearing the ski mask, and pulled the cord from the phone. He shoved M back onto her bed and told her he was going upstairs and that he would be back. She stayed on the bed for nearly an hour. She then put on some clothes, armed herself with scissors, climbed out her window, and ran to a neighbor's house for help.

On the morning of the rape, a neighbor observed a bearded man wearing a short jacket and carrying a camera bag walk out of the driveway of M's residence. He thought the man looked suspicious, so he noted the license plate number of the car the man drove. When later shown a photo montage which included a picture of Post, the neighbor picked Post's photo and said he was 80 percent sure the man pictured was the person he had seen in M's driveway.

The license plate was traced and the car was found to belong to a roommate of Post's girlfriend. She testified that on the evening prior to the rape, she and Post went to a party which lasted into the following morning. Sometime around 4 or 5 a.m. she gave Post the keys to her car so he could go home.

Post's girlfriend testified that on the morning of the rape Post arrived at her apartment. When asked where he had gone after leaving the party, Post explained that he had driven to Tacoma to see a friend, but that the friend was not home. She also testified that sometime later Post told her that if the police came around asking whether he had driven her roommate's car, she should say no.

Human hairs found on M's bedsheet were analyzed and compared to samples taken from Post. Seven of the 15 hairs found were determined to have the same microscopic characteristics as those belonging to Post. Sperm found on a vaginal swab taken from M was determined to be consistent with having come from Post. About 30 percent of all men share these same secretion characteristics.

Post did not testify. The defense theory was one of mistaken identity and alibi. Post was charged with one count of first degree burglary and one count of first degree rape. A motion to amend the information, adding a deadly weapon allegation to each count, was granted on the first day of trial. The jury found Post guilty on the rape and burglary charges, but returned verdicts of not guilty with regard to the deadly weapon counts. The trial court subsequently entered an exceptional sentence nearly twice that of the top of the standard range. This appeal followed.

II. PROCEDURAL HISTORY

Prior to trial the State brought a motion in limine to exclude any defense references to other suspects. The State provided the following argument in support of its motion:

I don't think there should be any questioning about other suspects unless somehow the State opens the door to testimony about it. We don't intend to elicit any testimony whatsoever from any witness about other suspects, how they got to Mr. Post, or anything like that.

That obviously cuts both ways, because the way they did get there is because of a relative of the defendant calling the police and saying, "Hey, you have to check this guy out." I suppose Mr. Leen doesn't want that coming in.

The State won't offer any evidence of other suspects, period, through any witness. So I would expect, given that, that the Court should grant the State's motion in limine, and if Mr. Leen feels we open the door, we could have a sidebar.

An extended argument followed and it does not appear that the court specifically ruled on the motion. However, it may be gleaned from the colloquy that the parties understood the court would not permit reference to any particular suspect, and that the State would not elicit testimony as to how the police came to suspect Post in the rape.

III. MOTION FOR MISTRIAL

As part of its case-in-chief the State called Detective James Constantine of the Bellevue Police Department. During direct examination the following exchange took place:

Q. At some point, did your investigation focus or narrow on Charles Post?

A. Yes, it did.

Q. How is it you became aware of Mr. Post?

MR. LEEN: Judge, objection. Calls for hearsay.

THE COURT: Overruled.

Q. (By Mr. O'Leary): You can answer.

A. We became aware of Mr. Post from a telephone information call from an individual who gave us his name.

MR. LEEN: Judge, can I ask for a sidebar?

THE COURT: Yes.

(Sidebar)

THE COURT: Members of the jury, you're instructed to disregard the last answer by the officer relating to a telephone call. You must disregard that answer. You may proceed.

(Emphasis added.)

At the following recess Post moved for a mistrial, claiming the testimony was hearsay, prejudicial, and contrary to the State's pretrial assurances that such evidence would not be elicited. In addition, Post reasons on appeal that the trial court's failure to grant a mistrial was error because the testimony violated both his constitutional right to confront the witness ¹ and, as an expression of the caller's opinion that Post was the rapist, his constitutional right to a jury trial. ² Post further argues that notwithstanding the court's instruction to disregard it, the testimony was so prejudicial that he was denied a fair trial. We disagree.

The challenged testimony was not hearsay. It was not offered for the truth of what the caller said; rather, it is clear when viewed in context that the testimony was offered to establish why the detective acted as he did.

Moreover, a trial judge has wide discretion in curing irregularities which occur during trial. State v. Gilcrist, 91 Wash.2d 603, 612, 590 P.2d 809 (1979); State v. Swenson, 62 Wash.2d 259, 276, 382 P.2d 614 (1963). The standard of review in this regard is abuse of discretion. State v. Weber, 99 Wash.2d 158, 166, 659 P.2d 1102 (1983).

Even assuming that this testimony violated the agreement of the parties in limine, it does not necessarily follow that a mistrial should be ordered, when the jury is properly instructed to disregard.

The law presumes, and must presume, that the jury finds the facts from the evidence the court permits them to consider. Any other rule would render the administration of the law impractical.

State v. Priest, 132 Wash. 580, 584, 232 P. 353 (1925) (quoted with approval in State v. Johnson, 60 Wash.2d 21, 29, 371 P.2d 611 (1962)). We presume that the jury followed the trial court's instruction to disregard Detective Constantine's remark and did not consider it as evidence before them. Weber, 99 Wash.2d at 166, 659 P.2d 1102; State v. Mak, 105 Wash.2d 692, 702, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). The Supreme Court has adopted the following standard for reviewing trial irregularities:

A mistrial should be granted only when "nothing the trial court could have said or done would have remedied the harm done to the defendant." In other words, a mistrial should be granted only when the defendant has been so prejudiced that nothing short of a new trial can insure that defendant will be tried fairly. Only those errors which may have affected the outcome of the trial are prejudicial.

State v. Gilcrist, 91 Wash.2d at 612, 590 P.2d 809 (citations omitted).

Post relies primarily upon State v. Miles, 73 Wash.2d 67, 436 P.2d 198 (1968). However, Miles and the other cases cited by Post are inapposite. In Miles, a similar question was asked on direct examination. The response was that police attention had been drawn to the defendant by a police teletype which described two wanted suspects in an identified car headed for Spokane to duplicate a robbery committed in Grandview. The court did reverse, despite the trial court's admonition to the jury to disregard the testimony. However, the court's focus was upon the prejudicial effect of testimony relating to another uncharged serious crime. No such factor is present in this case.

The appropriate inquiry in this case is whether Detective Constantine's testimony, when viewed against the backdrop of all the evidence, so tainted the entire proceeding that Post did not receive a fair trial. Weber, 99 Wash.2d at 164, 659 P.2d 1102. We have read and considered the record carefully and conclude, as did the trial court, that the detective's statement did not deprive Post of a fair trial. After a timely sidebar, the jury was immediately instructed to disregard the answer. No further reference to the telephone information call was made. The trial court...