State v. Young

• Decision Date: 08 July 1987
• Docket Number: No. 9469-0-II,9469-0-II
• Citation: 48 Wn.App. 406,739 P.2d 1170
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Bradley A. YOUNG, Appellant.

Page 406

48 Wn.App. 406

739 P.2d 1170

STATE of Washington, Respondent, v. Bradley A. YOUNG, Appellant.

No. 9469-0-II.

Court of Appeals of Washington,

Division 3, Panel Four.

July 8, 1987.

William S. McGonagle, Sherrard, McGonagle, Green & McKinstry, Bainbridge Island, Charles K. Wiggins, Edwards and Barbieri, Seattle, for appellant.

Pamela Cameron, Deputy Pros. Atty., Port Orchard, for respondent.

GREEN, Judge. ^*

Bradley Young appeals his conviction of two counts of vehicular homicide. He contends the court erred by (1) refusing to admit prior instances of misconduct pursuant to ER 404(a), (b) and ER 406, and (2) refusing a jury request to clarify a jury instruction. We reverse.

In the early morning hours of April 17, 1985, a pickup truck owned and driven by Mr. Young went out of control near Bremerton and left the road, injuring Mr. Young and killing the two passengers, Vince Setzer and Curt Pelham. As a result, Mr. Young was charged with two counts of vehicular homicide pursuant to RCW 46.61.520.

At trial Mr. Young testified that earlier that evening he had met a friend with whom he had two drinks. Afterward he encountered Mr. Setzer and Mr. Pelham at a Poulsbo tavern where they played pool. Mr. Young had two bottles of beer while at the tavern. At about midnight the three men left and drove to Bremerton. Enroute Mr. Young was stopped by a deputy sheriff and issued a citation for failing to come to a complete stop at an intersection. They then proceeded to a Bremerton tavern where the men each had one drink. Mr. Young and his friends ate breakfast at Denny's restaurant and at approximately 2:45 a.m. left to proceed home. Mr. Young testified that on the way home Mr. Setzer, who was seated next to him, reached over and grabbed the steering wheel. Mr. Young jerked it back, turning it to the left which headed them in the direction of the bank on the other side of the road. He stated he corrected it again, this time to the right, and applied his brakes as the truck traveled sideways. The truck hit the guardrail, became airborne, and landed on its side. Mr. Young blacked out twice before help arrived. He told the arriving officer that he had "messed up" because he had been driving and thought he was paralyzed, having no idea of the condition of his friends. In Mr. Young's opinion, he was not affected by the alcohol at the time of the accident. He made an offer of proof that three witnesses would testify Mr. Setzer, as a passenger, had on four prior occasions within the last year and a half grabbed the steering wheel away from the driver. One of the witnesses, a friend of Mr. Setzer, would testify that Mr. Setzer had grabbed the steering wheel of his vehicle twice in the 30 days prior to the accident, almost putting them in the ditch on one occasion. The offer was rejected, the court finding the evidence, although relevant, was outweighed by a danger of prejudice, confusion of issues, and misleading the jury pursuant to ER 403.

The deputy sheriff who stopped Mr. Young earlier that evening for the traffic infraction, testified he did not detect any visible signs of intoxication. A blood sample taken approximately 1 hour after the accident reflected an alcohol level of .11 grams percent blood alcohol. According to Mr. Young's expert, based upon the number of drinks Mr. Young testified he had consumed that evening, Mr. Young's blood alcohol should have been 0.

Both Mr. Young's and the State's accident reconstruction specialists testified as follows: The posted speed limit on the highway was 50 m.p.h. and the posted speed limit on or near where the truck began to swerve was 35 m.p.h. Both experts testified that there was no visible evidence of braking. The State's expert testified that although Mr. Young was traveling between 50 to 57 m.p.h. in the 35 m.p.h. zone, it was not excessive. Both experts agreed that section of the road could be negotiated at that speed. Mr. Young's expert testified it was his opinion the speed of the vehicle was not a proximate cause of the accident. In his opinion, the scuff marks left were consistent with a passenger grabbing the steering wheel, the driver pulling it back to the left, and then again to the right in an attempt to avoid striking the bank. The State's expert stated although Mr. Young's theory of what happened was possible, the evidence was more consistent with someone driving on the shoulder of the road and overreacting in an attempt to bring the vehicle back on the road.

During jury deliberations, two notes were sent to the judge requesting clarification. Mr. Young requested clarification of the second question, but the prosecutor objected. The court responded by telling the jury they must refer to the instructions. Mr. Young was convicted of both counts of vehicular homicide. After his motion for a new trial was denied, this appeal followed.

First, Mr. Young contends the court erred in refusing to admit evidence that on prior occasions Mr. Setzer had interfered with other drivers' ability to control their vehicles. He argues the evidence was admissible under three theories: (1) evidence of prior acts to show proof of control, identity, absence of mistake and modus operandi under ER 404(b); (2) evidence of a pertinent trait of character under ER 404(a); and (3) evidence of habit under ER 406.

Generally, any circumstance is admissible which reasonably tends to establish the theory of the party offering it, to explain, qualify or disprove the testimony of his adversary. Rothman v. North Am. Life & Cas. Co., 7 Wash.App. 453, 500 P.2d 1288, review denied, 81 Wash.2d 1008 (1972). The admission or refusal of evidence lies largely within the discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. State v. Laureano, 101 Wash.2d 745, 764, 682 P.2d 889 (1984). Evidentiary errors under ER 404 are not of constitutional magnitude, but are judged by the harmless error test. State v. Jackson, 102 Wash.2d 689, 695, 689 P.2d 76 (1984). The error is harmless if there is a reasonable probability that the outcome of the trial would not have been materially different had the error not occurred. Jackson, at 695, 689 P.2d 76.

Mr. Young first argues Mr. Setzer's prior acts of intentional interference with other drivers' control of their vehicles is admissible under ER 404(a)(2) to prove a chronic trait of recklessness. We disagree.

Generally, a person's prior conduct is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. ER 404(a); Calbom v. Knudtzon, 65 Wash.2d 157, 396 P.2d 148 (1964); State v. Holmes, 43 Wash.App. 397, 400, 717 P.2d 766, review denied, 106 Wash.2d 1003 (1986). It may, however, be admitted when it is relevant and material under ER 404(a)(2): "Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same ..." Nevertheless, the admissibility of specific acts even if relevant, may be denied if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ER 403; State v. Tharp, 96 Wash.2d 591, 597, 637 P.2d 961 (1981).

Evidence of a victim's character is relevant in cases where the defense to a charge of homicide is suicide, State v. Brooks, 16 Wash.App. 535, 557 P.2d 362 (1976), review denied, 88 Wash.2d 1012 (1977), or self defense, State v. Safford, 24 Wash.App. 783, 604 P.2d 980 (1979), review denied, 93 Wash.2d 1026 (1980). Admissibility is confined almost always to these two situations. 5 K. Tegland, Wash.Prac., Evidence § 111 (2d ed. 1982). The only other situation where character evidence is admissible in a criminal case is when consent is at issue in a prosecution for rape. RCW 9A.44.020; State v. Carver, 37 Wash.App. 122, 678 P.2d 842, review denied, 101 Wash.2d 1019 (1984).

Character is defined in E. Cleary, McCormick on Evidence § 195, at 574 (3d ed. 1984), as a "generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness." (Footnote omitted.) Mr. Setzer's acts on only four prior occasions are insufficient to constitute a trait of chronic recklessness. We find no error.

Nor do we find merit in Mr. Young's argument that Mr. Setzer's conduct can be characterized as a habit pursuant to ER 406, which provides:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Unlike ER 404, a habit is admissible to prove the person acted in conformity therewith on the occasion in question. In determining whether the conduct rises to the level of a habit, the court must consider the regularity of the acts and the similarity of circumstances. Breimon v. General Motors Corp., 8 Wash.App. 747, 752-54, 509 P.2d 398 (1973). As defined in E. Cleary, at 575, habit is a person's "regular practice of responding to a particular kind of situation with a specific type of conduct." (Footnote omitted.) The number and regularity of the acts here are again insufficient to rise to the level of habit and the court did not err in refusing admission of the evidence on this basis.

Mr. Young further argues the evidence should have been admitted pursuant to ER 404(b) to prove identity, control, absence of mistake and modus operandi. Calbom, 65 Wash.2d at 168, 396 P.2d 148.

The admission of other acts under ER 404(b) has been used primarily where the prosecution offers the evidence to prove an essential element of the crime or rebut a defense of mistake. State v. Dinges, 48 Wash.2d 152, 292 P.2d 361 (1956); ...