State v. Read

• Decision Date: 09 May 2000
• Docket Number: No. 17942-7-III.,17942-7-III.
• Citation: 100 Wash.App. 776,998 P.2d 897
• Parties: STATE of Washington, Respondent, v. Jeremy Mark READ, Appellant.
• Court: Washington Court of Appeals

998 P.2d 897

100 Wash.App. 776

STATE of Washington, Respondent, v. Jeremy Mark READ, Appellant.

No. 17942-7-III.

Court of Appeals of Washington, Division 3, Panel Nine.

May 9, 2000.

David B. Koch, Nielsen, Broman & Associates, Seattle, for Appellant.

Douglas J. Shae, Deputy Prosecuting Attorney, Wenatchee, for Respondent.

KATO, J.

Jeremy Mark Read, a juvenile, appeals his convictions for second degree murder, first degree assault, and unlawful possession of a firearm. He contends a medical expert and lay witnesses improperly were permitted to give their opinions of his guilt. He also contends the court violated double jeopardy by convicting him of both murder and assault. We affirm the murder and possession convictions. But because we agree the convictions for both murder and assault violated double jeopardy, we vacate the assault conviction and remand for resentencing.

Mr. Read shot and killed Bruce Larson Jr. in a Wenatchee motel room on May 3, 1998. He was charged with second degree murder, first degree assault, and unlawful possession of a firearm. At trial, Mr. Read testified he pulled the gun to protect himself, and it fired by accident. He denied he intended to hurt or shoot anybody.

After a bench trial, the court rejected Mr. Read's defenses of justifiable or excusable homicide and found he intended to kill Mr. Larson. The court thus found Mr. Read guilty of second degree murder and first degree assault. Based on evidence Mr. Read was a convicted felon at the time of the shooting, the court also found him guilty of unlawful possession of a firearm.

The court sentenced Mr. Read to concurrent terms of 335 months for the murder conviction, 244 months for the assault conviction, and 48 months for the unlawful firearm possession conviction.¹

First, we consider whether the trial court abused its discretion by permitting a medical expert to testify about the circumstances of the shooting. The State's first witness at trial was Dr. Gerald Rappe, a pathologist and Chelan County coroner. Dr. Rappe gave the findings of his autopsy of Mr. Larson's body. The prosecutor then asked Dr. Rappe several questions about the angle of the bullet as it entered the body. The witness further testified:

A Basically to hurry it along, Your Honor, the gun has to be up. I mean up at approximate eye level of the person who's doing the shooting. I mean we aren't talking about a gun down here, Your Honor. We're talking about a gun up here.

Q So you're indicating that when you say gun down here, you're waving around the waist line. It's not a scenario where a gun would just go off automatically or accidentally when somebody pulls it out; is that correct?

The court overruled a defense objection, and the testimony continued:

Q ... Please continue, Doctor. Do you have an opinion as to how this gun was aimed when it entered into the defendant's — or excuse me, the victim's body?

A Yes, I do. The basic thing here is that the gun was fully up and that there was — and that it is reasonable that the decedent was sighting right down the gun when it went off.

. . . . Q Doctor, do you have an opinion as to how far the gun was from Mr. Larson when he was shot?

A I have an opinion of — I have an opinion of a minimum distance that it had to be away. That's what I have.

Q Okay. What's your basis of that opinion?

A The basis of that opinion is that you noted, Your Honor, that where I placed the shot going in — and I have been told, Your Honor, that he had on a shirt that would have exposed virtually all of his neck and — well, first of all, I know it's not a contact wound. I know it's not a near contact because I would have seen characteristics in the entrance wound itself regardless of the fact that he had — that it may have gone through some fabric, I would have seen characteristics to tell me that so we're not dealing with contact and we're not dealing with near contact. So we're dealing with close or we're dealing with distant. Now, since it was so close to the top of the shirt, I should have seen — if it was within 18 inches to two feet, I should have seen some stippling of powder on his neck where the shirt was not protecting his skin. I saw none so my opinion is that the end of the barrel — not where the two were standing, Your Honor, but the end of the barrel was at least 18 inches to two feet away from the person who was shot.

On cross examination, Dr. Rappe admitted he had not examined the shirt Mr. Larson wore at the time of the shooting. The testimony continued:

Q Doctor, I guess re-enacting your re-enactment here, a little stage play. Could you step out. Now, I notice that Mr. Shae [the prosecutor] when he was doing this was standing very upright. Could you tell from any of your examination of Mr. Larson the angle of his body when the bullet hit?

A Only one thing I could say with reasonable accuracy about the angle of his body and that's that he was probably leaning forward a little bit. That's the only thing that I can say with accuracy because what you said before is exactly true. You don't know anything else about how he was rotating.

Q All right. So if he was — say you're holding a gun. Hold it at whatever level but if you are holding a gun and if you were shooting me and I was standing upright, then your hypothesis is the gun had to be way up high?

A Yeah, if he was standing up like this, then the gun would have to be here.

Q So your height is what?

A Five eight.

Q Okay. So I'm six feet so that's a little bit more difference between, say, Mr. Read and Mr. Larson but not too much. So if we were — you said three to four feet so if this is about four feet here, the angle would have to be — the gun would have to be held about straight above your head. The closer though that I was to you, the lower the gun would be, correct?

A Correct.

Q And also the more I was leaning forward, the lower the gun could be, correct, so if I'm like this, the gun could be at this height, correct, assuming 12 or 10 degrees?

A Bend over a little more. Yes, you're exactly right, yes.

Q And there's no way — so this 18-inch minimum that you stated, that's based on not having an opportunity to see the shirt and not knowing where the shirt was, if it was pulled up or pulled down or the style of shirt, anything else, correct?

A That's absolutely correct.

ER 702 permits an expert to testify "in the form of an opinion or otherwise." The decision whether to admit expert testimony is within the trial court's discretion. State v. Swan, 114 Wash.2d 613, 655, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991). Mr. Read appears to raise three issues regarding Dr. Rappe's testimony. First, he contends the testimony was improper opinion evidence. Opinion testimony is admissible even if it "embraces an ultimate issue to be decided by the trier of fact." ER 704. However, "[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference." State v. Black, 109 Wash.2d 336, 348, 745 P.2d 12 (1987). An opinion by either an expert or a lay witness on the ultimate question of a defendant's guilt violates his constitutional right to an impartial trial, including the independent determination of the facts by a judge or jury. State v. Carlin, 40 Wash.App. 698, 701-02, 700 P.2d 323 (1985),overruled on other grounds by City of Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658 (1993),

review denied, 123 Wash.2d 1011, 869 P.2d 1085 (1994).

Mr. Read contends Dr. Rappe inferentially expressed an opinion about the validity of his defenses, and thus his guilt, by testifying he was "sighting right down the gun when it went off." But while Dr. Rappe's testimony certainly cast doubt on Mr. Read's version of the events, it was not a direct or indirect opinion as to the validity of his defenses. Even after the testimony, the trial judge still had to decide (1) whether to believe Mr. Read's testimony, and (2) the ultimate issue whether he shot Mr. Larson by accident or in self-defense. See State v. Cruz, 77 Wash. App. 811, 815, 894 P.2d 573 (1995)

. The testimony was not an improper expression of Mr. Read's guilt.

Second, Mr. Read contends there was insufficient foundation for the testimony. He apparently contends that, because Dr. Rappe was the State's first trial witness, there was no evidence regarding the relative positions of Mr. Read and Mr. Larson at the time of the shooting. "The facts or data ... upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." ER 703. An expert may give an opinion "without prior disclosure of the underlying facts or data, unless the judge requires otherwise." ER 705. Under these rules, expert opinions may be admitted "without any recitation of the expert's factual data, hypothetically or otherwise." 5B Karl B. Tegland, Washington Practice, Evidence § 705.2, at 254 (4th ed.1999). "[M]odern evidence rules permit an expert to state an opinion without prior disclosure of the underlying facts, leaving to the opposing party the responsibility of questioning the basis of the opinion." Cornejo v. State, 57 Wash.App. 314, 329, 788 P.2d 554 (1990). Here, defense counsel on cross examination was free to, and did, challenge the factual assumptions underlying Dr. Rappe's opinion.

Third, Mr. Read contends the court should have excluded Dr. Rappe's testimony under ER 403 because its probative value was outweighed by the danger of unfair prejudice. However, evidence is not inadmissible under ER 403 simply because it is detrimental or harmful to the interests of the party opposing its admission; it is unfairly prejudicial only if it has the capacity to skew the truth-finding process. See State v. Hudlow, 99 Wash.2d 1, 12-13, 659 P.2d 514 (1983)

. Dr. Rappe's testimony certainly was harmful to Mr. Read's case, but it was not unfairly prejudicial because it did not...