State v. Strader, No. 32277-3-II (WA 12/13/2005)
| Decision Date | 13 December 2005 |
| Docket Number | No. 32277-3-II,32277-3-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. AARON DONALD STRADER, Appellant. |
Appeal from Superior Court of Cowlitz County. Docket No: 04-1-00665-9. Judgment or order under review. Date filed: 08/11/2004. Judge signing: Hon. Jill M Johanson.
Counsel for Appellant(s), John A. Hays, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), George Timothy Gojio, Cowlitz Co Prosecutor, Child Support Div, 871 11th Ave Ste 2, Longview, WA 98632-2401.
Aaron Donald Strader appeals his convictions for possession of methamphetamine and violating a protection order. Strader claims the trial court improperly admitted a 911 tape over his hearsay objection, the prosecutor improperly stated the facts underlying a prior conviction, and the prosecutor misstated the law in closing argument. Strader also claims that the trial court should have granted his mistrial motion for juror bias. In a statement of additional grounds, Strader argues that the court should not have used juvenile adjudications to enhance his adult offender score. Finding no prejudicial error, we affirm.
Chandra Mason obtained a restraining order against Aaron Strader because he had physically abused and threatened her in the past. Strader and Mason have a son together but they no longer date. One evening, after Mason had obtained the restraining order, Strader was at a friend's house two doors away from Mason's mother's house when he learned that Kenneth Allumbaugh, Mason's mother's boyfriend, had a baseball bat and wanted to speak with him. Strader went down the alley to Mason's mother's house to confront Allumbaugh.
Mason arrived at her mother's home to find Strader and Allumbaugh arguing loudly in the back yard. Mason testified that Strader Report of Proceedings (RP) (July 14, 2004) at 43. When Strader saw Mason, he called her `bad names,' threatened to kill her, and threatened to kill Allumbaugh. RP (July 14, 2004) at 45. Mason then called 911. At trial, Allumbaugh corroborated Mason's testimony.
Strader denied making the threats and claimed that he left as soon as he became aware that Mason had arrived. When police responded a few minutes later, they found Strader in the alley a few houses away. They arrested him for violating the protection order and while searching Strader, they found two syringes and a baggie containing methamphetamine.
The State charged Strader with one count of possessing methamphetamine, one count of felony harassment against Mason, one count of violating a protection order, and one count of misdemeanor harassment against Allumbaugh.
At trial, the State admitted a tape of Mason's 911 call and played it for the jury. Strader objected as to foundation, but the court overruled him.
Strader testified that he had previously been convicted of residential burglary, third degree theft, and lying to a police officer; all crimes that are admissible under ER 609(a). On cross-examination, the prosecutor asked Strader:
Q. Now, you testified that you pled guilty to residential burglary?
A. Yes, I have.
Q. And that was your parents' house; right?
A. That's correct.
The defense objected and moved for a mistrial. The court denied the motion but struck the question and answer and instructed the jury to disregard it.
During the closing rebuttal argument, the prosecutor said:
Regarding the protection order, I do not have to prove that because Chandra went over there and she was on the property, that that makes him any more or less guilty. All I have to prove is that he was there, she was there, he violated it, could have happened in a split second.
RP (July 15, 2004) at 247-48. The defense objected, arguing that the prosecutor misstated the law. The court responded, `I've instructed the jury on the law and they'll read it for themselves.' RP (July 15, 2004) at 248. The prosecutor then argued, RP (July 15, 2004) at 248.
At the end of the first day of testimony, the court instructed the jury not to discuss the case with anyone and not to do their own research. The next day, the court discovered the following article in the `Police Blotter' section of the local newspaper:
Inmate arrested— A Cowlitz Jail inmate faces a malicious mischief charge following an incident in the jail library. Aaron Donald Strader, 25, Longview, was arrested by sheriff's deputies for second-degree malicious mischief on July 3 in a jail library following a fight with another inmate, according to the probable cause statement. While in the library, he broke the leg off a table and used the leg to beat the door knob off the library door, the document said.
Exh. 13 (Clerk's Papers). Several of the jurors acknowledged reading the paper that morning, but only one said she saw the article in question. The court questioned the juror at length; she claimed that the article would not affect her ability to be fair and impartial in this case. The court warned the juror not to discuss the article with the other jurors and to base her verdict only on the evidence presented at trial. The defense again moved for a mistrial, which the court denied.
The jury found Strader guilty of possession and of violating the protection order, but acquitted him of the two harassment charges. In determining Strader's criminal history at sentencing, the court considered crimes committed before Strader turned 18.
Strader claims the trial court erred in admitting the tape of Mason's 911 call over his hearsay objection. The State argues that Strader did not object to the tape as hearsay at trial and because no constitutional right was affected, Strader cannot raise the issue on appeal.
The State is correct that Strader never objected to the tape on hearsay grounds. Strader objected to the tape's foundation, but he never argued that the tape was inadmissible as hearsay.
A party's failure to object to testimony at trial generally precludes appellate review as to whether that testimony should have been excluded. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000) (citing State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993)). A party may assign error in the appellate court only on the specific ground given at trial. State v. Koepke, 47 Wn. App. 897, 911, 738 P.2d 295 (1987) (citing State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985)). If a specific objection is overruled and the evidence admitted, we will not reverse on the basis of a different rule that could have been argued but was not. State v. Ferguson, 100 Wn.2d 131, 138, 667 P.2d 68 (1983) (citing 5 K. Tegland, Wash. Prac., Evidence sec. 10, at 25 (2d ed. 1982)).
Strader may argue different grounds for excluding the evidence if the error is manifest and affects a constitutional right. RAP 2.5(a)(3); State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004) (citing State v. Roberts, 142 Wn.2d 471, 500-01, 14 P.3d 713 (2000)). Strader has not, however, provided a manifest constitutional error analysis in his brief. Accordingly, we decline to review the issue. RAP 10.3(a)(5); Thomas, 150 Wn.2d at 868-69 (citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992)).
Strader contends that the prosecutor committed misconduct by asking if his parents were the victims of Strader's prior residential burglary. Strader argues that this information was highly prejudicial, and the court's instruction to the jury to disregard the question and answer was inadequate.
Evidence of crimes of dishonesty is admissible to attack a witness's credibility. ER 609(a). Burglary, performed with an intent to commit theft, is a crime of dishonesty. State v. Schroeder, 67 Wn. App. 110, 116, 834 P.2d 105 (1992). But cross-examination on prior convictions under ER 609(a) is limited to facts contained in the record of the prior conviction: the fact of conviction, the type of crime, and the punishment imposed. State v. Coe, 101 Wn.2d 772, 776, 684 P.2d 668 (1984) (citing State v. Coles, 28 Wn. App. 563, 625 P.2d 713 (1981)). The fact that Strader victimized his parents was beyond the proper scope of the inquiry.
Still, we review the trial court's decision denying a mistrial for an abuse of discretion. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989) (citing State v. Mak, 105 Wn.2d 692, 701, 719, 718 P.2d 407 (1986)). The trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. Hopson, 113 Wn.2d at 284 (citing Mak, 105 Wn.2d at 701). A trial judge is best suited to measure the possible prejudice of an improper statement. Hopson, 113 Wn.2d at 284 (quoting State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983)). In considering possible prejudice, we examine (1) the irregularity's seriousness, (2) whether it involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard it. Hopson, 113 Wn.2d at 284. Jurors are presumed to follow instructions. Hopson, 113 Wn.2d at 287 (citing Mak, 105 Wn.2d at 702).
The judge instructed the jury to disregard the question and the answer, and the prosecutor did not again mention the fact. More importantly, Strader admitted to past convictions for burglary, theft, and lying to a police officer. Considered against this backdrop, the information that his parents were the victims of one of the crimes was not particularly harmful. The trial court did not abuse its discretion in denying the ...
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