State v. Tarrer
| Decision Date | 09 February 2016 |
| Docket Number | 45998-1-II |
| Parties | STATE OF WASHINGTON, Respondent, v. LARRY TARRER, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Larry Tarrer appeals his jury convictions of one count of murder in the first degree, one count of attempted murder in the first degree, and one count of manslaughter in the first degree for a 1991 shooting. We hold (1) the trial court did not abuse its discretion when it denied Tarrer's motions for continuance because it had tenable grounds and reasons to deny his motions, (2) Tarrer fails to show evidence of the trial court's actual or potential bias, (3) the trial court did not comment on the evidence because the trial court's attitude is not reasonably inferred from its remarks, (4) the trial court did not abuse its discretion by excluding Tarrer's expert witness because it had tenable grounds and reasons to exclude the evidence under ER 702, (5) the prosecutor's errors do not amount to such pervasive error that they could not have been cured by proper instruction, (6) Tarrer was not prejudiced by his counsel's deficient performance, (7) the trial court correctly instructed the jury on reasonable doubt, (8) there was no cumulative error, and (9) we need not determine whether this matter should be assigned to a different judge on remand because we are not remanding for a new trial. We affirm.
In January 1991, Claudia McCorvey was six months pregnant. McCorvey's apartment served as a location for using and dealing crack cocaine. Bishop (Slim) Johns dealt crack cocaine out of McCorvey's apartment on January 8, 1991. Johns brought Lavern Simpkins and Larry Tarrer to McCorvey's apartment. Following an argument about Tarrer's missing cocaine, Tarrer left the apartment and went to a car. He retrieved a pistol and walked back to McCorvey's apartment.
McCorvey saw Tarrer point the pistol at her. He shot her twice. As a result, McCorvey was rendered a paraplegic. Her baby Marquise McCorvey, was surgically delivered and lived for less than one hour. Tarrer also fatally shot Simpkins.
In 1991, Tarrer entered an Alford/Newton[1] plea to amended charges of murder in the second degree and assault in the first degree. In 2004, while serving his sentence, Tarrer filed a CrR 7.8 motion to vacate his conviction. The trial court denied the motion. Tarrer appealed and we reversed and remanded to the trial court consistent with In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), and In re Pers. Restraint of Hinton, 152 Wn.2d 853, 100 P.3d 801 (2004).[2] The State then withdrew the 1991 amended information.
In 2009, the State filed an amended information charging Tarrer with premeditated murder in the first degree, attempted murder in the first degree, and manslaughter in the first degree. The State added three sentencing aggravators[3] to the attempted murder in the first degree charge.
The case went to trial in 2009 and resulted in a mistrial. The State retried the case in 2010, resulting in convictions on all counts. We reversed and remanded the case for prosecutorial misconduct.[4] The Honorable Katherine Stolz presided over both trials.
In September 2013, before his third trial, Tarrer moved the trial judge to recuse herself because, he argued, she was not impartial. Tarrer argued that the judge's comment during sentencing following the second trial that "[t]his court is going to do its best to make sure you never get out of prison alive" demonstrated actual bias and violated the appearance of fairness doctrine. Clerk's Papers (CP) at 121. The trial court found that Tarrer failed to establish actual bias "because the court did nothing untoward in making its comments at the last sentencing hearing." CP at 125. The trial court additionally found that "[Tarrer] made this same argument during the appeal from his conviction . . . [and] [t]he court of appeals rejected that request." CP at 125. The judge accordingly denied Tarrer's motion.
On December 12, 2013, Tarrer moved for a continuance of the trial date. Although five weeks earlier Tarrer's counsel represented to the court that he would be ready for trial, he argued that his ongoing investigation revealed the identity of another possible shooter. In denying the motion, the trial court noted that defense counsel had been investigating the case for seven months, the issues in Tarrer's case were established, trial was to be held in one month, and Tarrer had speedy trial rights.
On January 10, 2014, three days before trial, Tarrer again moved for a continuance to seek more time to create his witness list and prepare motions in limine. The trial court denied Tarrer's motion and noted that the witness lists were past due.
Tarrer moved in limine to exclude and limit the suggestibility of the eyewitness identification. In support of his motion, Tarrer submitted briefing. On the day of trial, Tarrer requested that the trial court allow Dr. Geoffrey Loftus to testify on the unreliability of eyewitness identification.[5] Tarrer argued that the trial court should consider new case law, which Tarrer included in his brief. The trial court responded:
Well, you're going to have to get some sort of a synopsis of what you think Dr. Loftus is going to testify to; but again, you know, I took a look through your memorandum I got this morning; and I went back and pulled up the case, you know, Section B, admission of eyewitness identification. . . . I went through all of it. I mean, that ruling was affirmed. That is the state of the law in this case. Whatever prospectively the Supreme Court might rule or the Court of Appeals might rule in the future, that's not where we are right now. Irrespective of whatever New Hampshire, New Jersey, or some other state has done, this state, our Court of Appeals, Division II, has allowed that identification, both by the photomontage and in court, to stand; so you know, I don't really intend-you know, you can argue it again; but you already know how I'm going to rule.
Report of Proceedings (RP) at 67-68.
Tarrer also moved in limine to limit the State's closing argument based on our opinion reversing Tarrer's convictions because of prosecutorial misconduct. Prior to argument on these motions, the State noted that it might waive closing argument. The trial court responded, "[The State] can basically cut and paste his closing argument to avoid offending the Court of Appeals." RP at 85. The State notified the trial court that it did not intend on giving "any form of the declare-the-truth argument" during closing. RP at 102. The trial court granted Tarrer's motion to preclude the State from making a declare-the-truth argument in closing, but denied his motion to preclude the State from arguing that the jury should render a true verdict. The trial court stated:
I think there's a distinction between searching for the truth, or the truth is what you decide, and the instruction about render a true verdict. Since we do instruct them on that, I would assume that the appellate court, if they felt that was an inappropriate instruction from the Court, would have taken time to reverse it in their opinion.
RP at 103. The trial court also deferred its ruling on whether the State could use puzzle analogies during closing argument "until or when and if we actually get to some sort of argument regarding a puzzle." RP at 109.
Prior to its opening instructions to the jury, the trial court advised the parties that it was going to emphasize the seriousness of juror misconduct and that it would point out a recent mistrial resulting from juror misconduct in King County. Tarrer responded, "That's fine." RP at 180. During preliminary jury instructions, the trial court told the jury:
We cannot emphasize strongly enough that you are not to discuss the case or conduct any research . . . by yourself on the subject of this trial. This is very important because it can lead to a mistrial. That has recently happened both in King and Snohomish Counties where . . . the jurors have committed misconduct during deliberation by researching the issues in the case. That means the county has to try the case. In the . . . King County case, it was a rape case which means the victim will have to testify again. In the Snohomish case, it was a child rape case which meant that, ultimately, the Prosecutor's Office dealt with the case because they did not want the five-year-old victim to have to testify again; so it's very important that you not conduct any research.
McCorvey testified at Tarrer's trial. During redirect examination of McCorvey, the State asked if she recalled Tarrer asking her if drug dealing was dangerous and if drug dealers could have their drugs stolen. The State then asked, "[Tarrer] thought his drugs were stolen that night; right?" RP at 688. Tarrer objected. Outside the jury's presence, Tarrer argued that the State was trying to characterize him as a drug dealer.
RP at 689. The State made an offer of proof that Johns would testify that Tarrer was a drug dealer and that the State would offer part of Tarrer's prior testimony in which he admitted he was a drug dealer. The trial court overruled Tarrer's objection.
Tarrer sought to introduce testimony from Dr. Eric Kiesel, a forensic pathologist. Tarrer made an offer of proof that Dr Kiesel would testify regarding the size of entrance and exit wounds and what...
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