STATE v. FULLER, 26627-0-II (Wash.App. 1-24-2003)

No. 26627-0-IIThe Court of Appeals of Washington, Division Two.
Filed: January 24, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 00-1-01628-1 Judgment or order under review Date filed: 11/01/2000

Counsel for Appellant(s), John L. Fuller (Appearing Pro Se), #633411, Unit 6 Tier E Cell 5, 1313 N. 13th Street, Walla Walla, WA 99362.

Leslie Orville Stomsvik (Appearing Pro Se), Attorney at Law, 133 So. 51st St, Tacoma, WA 98408-7608.

Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.

SEINFELD, P.J.

John Fuller appeals his conviction for the first degree murder of Ned Hicks. He asserts that the trial court erred when it failed to require the State to provide the current address of its chief witness, denied his motion for a mistrial, and refused to give three of his proposed instructions. Finding no error, we affirm.

FACTS
Ned Hicks and Tiwain Paige were involved in an intimate relationship for about four and a half years when Paige became pregnant. Paige believed that Hicks was the father of her unborn child.

Throughout their relationship, Hicks and Paige were habitual crack cocaine and alcohol users. Both were addicted to cocaine and sometimes used it on a daily basis. But Hicks tried unsuccessfully to persuade Paige to stop using drugs during her pregnancy for the sake of their unborn child.

Hicks and Paige were living with Paige’s aunt, Vivian Rogers, when Hicks was murdered. Paige had introduced Rogers to Fuller, who was her cocaine supplier, and subsequently Rogers and Fuller began dating. Rogers and Fuller both supplied Hicks and Paige with drugs.

During the late evening of April 1, 2000, Hicks returned to Rogers’ apartment after work and took a shower. While he was showering, Paige discovered two letters in his coat pocket that she believed indicated that Hicks was trying to put her in jail and take her baby. One letter discussed keeping pregnant women in jail, mentioned the crack track hotline, and had a phone number and the date, March 21, 2000, written on it. March 21 was the date of a police raid on Fuller’s apartment.

Upset by the letters, Paige confronted Hicks. She refused his demand to return the letters and instead took them to Brenda Horne’s apartment. Paige showed the letters to other acquaintances, including Ricky Cain, and complained that Hicks was “trying to put [her] in jail.” 5 Report of Proceedings (RP) at 302.

The next day, Fuller arrived at Horne’s apartment between 4:30 and 5:00 P.M. Cain and several other people were already there. Fuller saw the letters on the kitchen table and after reading them he became upset. According to Paige, he said: “That nigger, that nigger is the one that got my house raided.” 5 RP at 305-06. Not long after, Fuller and Cain left. According to Cain, he was driving the car while Fuller directed him.[1] Fuller said that they were going to Ned’s to “kick his ass” and told Cain to “stand there and be hard.” 5 RP at 367. Cain thought that he would participate “in the kicking his ass part,” and stated, “I will go whip his ass, too.” 5 RP at 367-68. Cain believed that Fuller planned only to beat up Hicks.

When they arrived at Rogers’ apartment, Cain knocked on the door and Hicks answered it. Fuller and Cain entered and Fuller showed Hicks the letters, asking him what they were about. Hicks said that the letters involved him and his wife, not Fuller, and that the listed phone number was his mental health worker’s number.

Fuller dialed the phone number and then said, “Nigger, that’s the Tacoma Sheriff.” 5 RP at 373. Hicks did not respond.

According to Cain, Fuller then walked over to Hicks and stood in front of him. Because Fuller was wearing a thigh-length leather coat and Cain was standing by the door, Cain could not see Fuller’s hand. But he heard a loud sound that sounded like a BB gun come from Fuller’s direction. Looking around Fuller, he saw a hole in Hicks’ head. Cain was turning toward the door when he heard a second shot.

Fuller and Cain then left. They stopped briefly at Horne’s apartment; Fuller went inside and soon reappeared with another individual. Fuller joined that person in his car, and Fuller motioned for Cain to follow them; Cain complied.

Meanwhile emergency medical personnel took Hicks to the hospital where he died at 6:44 P.M. The medical examiner determined that the cause of death was gunshot wounds to the head.

Based on an anonymous tip, the police arrested Fuller later that evening. The State charged him with murder in the first degree in violation of RCW 9A.32.030(1)(a) and being armed with a firearm in violation of RCW 9.94A.370.

Fuller asked the court for production of Cain’s address before the CrR 3.5 hearing and then again at trial. The State indicated that it did not have Cain’s address and that it could only contact him through his pastor.

The State also asserted that Cain had “expressed fear of letting the defense know where he lives” and that he feared retaliation because people were calling him a “snitch.” 4 RP at 111, 254.

The day before Cain testified, the court found that the State had established a prima facie reason not to disclose Cain’s address that day and refused to order disclosure. The court stated that Fuller could ask Cain his address during cross examination and that the State could request a hearing outside the presence of the jury to put on evidence showing that Cain was intimidated from attending the proceedings and feared retaliation.

Cain testified at trial that he was a cocaine addict at the time of the murder, that he had been living with Fuller because he had no other place to go, and that he had met Fuller only the month before. In return for drugs, Cain allowed Fuller to use his vehicle and did things at Fuller’s request; he had been willing to beat up Hicks for crack.

In response to a question from the State, Cain stated that he quit using drugs after the murder. The court struck the question and answer at Fuller’s request, but it denied his motion for a mistrial.

Before cross examination, Cain testified outside the jury’s presence that he did not want to disclose his address because he was “in fear for [his] life.” 5 RP at 392. He admitted that he had not received specific threats, but he said:

You know, you know, it happens all the time. For instance, in that Vietnamese — reading in the paper about the Vietnamese thing that just happened, witnesses found out where somebody was living and some of them ended up dead. I don’t want to be a statistic.

5 RP at 392. The trial court declined to order Cain to provide his address and Fuller did not object.

Michelle Orosco, another acquaintance, testified for the defense. She said that Cain told her that he “did it” [murdered Hicks]. 9 RP at 866. Cain denied making this statement. Fuller proposed instructions defining an accomplice and explaining the weight to give to accomplice testimony. The trial court rejected these instructions and also refused to give Fuller’s proposed instruction on disregarding the testimony of witnesses whom the jury believed testified falsely.

The jury found Fuller guilty as charged.

DISCUSSION I. Non-Disclosure of Cain’s Address
Fuller contends that the trial court abused its discretion when it denied his motion to obtain discovery of Cain’s address. He asserts that Cain’s credibility was a central issue and that he was not able to gain information about him because he could not interview Cain’s neighbors and associates to verify that Cain had ceased using drugs or to gain other information related to Cain’s credibility. Further, he argues that the State had a duty under CrR 4.7(a)(1)(i) to provide the names and addresses of potential witnesses and that an exception to this duty did not exist because Cain expressed only discomfort at disclosing his address.

The State asserts that it made a sufficient showing that Cain feared retaliation from Fuller. It further argues that withholding Cain’s address did not prejudice Fuller.

Under CrR 4.7(a)(1)(i), prosecutors must disclose the names and addresses of persons whom they intend to call as witnesses except as otherwise provided by protective orders. CrR 4.7(h)(4) governs protective orders and states:

Upon a showing of cause, the court may at any time order that specified disclosure be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must be disclosed in time to permit the party’s counsel to make beneficial use thereof.

Trial courts may prevent disclosure of a witness’s address if the evidence supports a finding that the witness’s safety is in danger and that the defendant will not suffer serious prejudice in defending himself. See State v. Mannhalt, 68 Wn. App. 757, 766-67, 845 P.2d 1023
(1992). Such non-disclosure constitutes an exception to the right of confrontation; this exception has been termed the “personal safety exception.” Mannhalt, 68 Wn. App. at 765.

We review a trial court’s discovery ruling for an abuse of discretion Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 778, 819 P.2d 370 (1991). An abuse of discretion occurs when a trial court’s decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

The witnesses in Mannhalt expressed reluctance to testify out of fear for their safety and their families’ safety. 68 Wn. App. at 766. Two had received hang-up calls, one was fearful of testifying against Mannhalt at trial, and there was evidence that there may have been a $50,000 contract out on the life of one of the witnesses. Mannhalt, 68 Wn. App. at 766.

The trial court granted a protective order pursuant to CrR 4.7(h)(4) that prevented disclosure of the witnesses’ addresses and telephone numbers. Mannhalt, 68 Wn. App. at 766.

The reviewing court held that the trial court was in the best position to determine the reality of the threats and that the record reflected a sufficient basis for finding that the witnesses’ safety was in danger Mannhalt, 68 Wn. App. at 766-67. It also found that Mannhalt did not suffer prejudice because the witnesses had disclosed their misdeeds during direct and cross examination, the trial court had provided criminal histories of each witness, and the defense had interviewed each witness. Mannhalt, 68 Wn. App. at 767. Thus, the trial court did not err in granting a protective order denying discovery of the addresses Mannhalt, 68 Wn. App. at 767.

Here, Cain testified that he was fearful of retaliation. Cain’s testimony revealed that Fuller shot Hicks because he believed that Hicks had betrayed him. As a witness to this retaliatory shooting, Cain’s fear of retaliation against himself was justifiable and the record reflects a sufficient basis for finding that Cain’s safety was in danger.

In addition, Fuller’s access to information about Cain, other than his address, was not impeded. As in Mannhalt, his counsel interviewed Cain before trial and had an opportunity to interview Cain’s associates from the time of the murder. Given that Cain had moved to his new residence only four months before trial, interviews with his new neighbors were not likely to be very productive.

Because there was sufficient evidence that Cain’s safety was in danger and there is no indication that Fuller suffered serious prejudice in his ability to defend himself, the trial court did not err when it declined to order Cain to disclose his address.

II. Mistrial Motion
Fuller asserts that the trial court erred when it denied his motion for a mistrial after the State attempted to rehabilitate Cain with evidence that he had stopped using drugs. The State argues that there was no substantial likelihood that the evidence prejudiced Fuller or that it affected the verdict.

During redirect of Cain, the State asked him about his drug use history as follows:

Q: Ricky, you testified about when you were using cocaine, you started using when you were a teenager. You were using at the time of the murder. Was there a period of time where you had stopped using?
A: Yes, there was.
Q: What period of time was that?
A: I quit right up until — right up to the point of around the end of February for about five years.
Q: So you had been clean about five years?
A: Yeah.
Q: And then you started using in February? A: End of February, I believe.
Q: And then you said you were using right up to about the time of the murder?
A: Correct.
Q: And then you stopped again?
A: Yes, I have.

5 RP at 446-47.

Fuller moved to strike Cain’s last response as pertaining to conduct after the offense. The trial court sustained the objection, struck the last question and response from the record, and instructed the jury to disregard the stricken testimony. Outside the jury’s presence, the court stated that it struck this portion of the testimony because Fuller did not have Cain’s current address and, thus, could not explore Cain’s recent conduct.

Fuller then moved for a mistrial, stating:

The basis for the mistrial is this Court has refused to let me have the access to the address to inquire or investigate in any way as to his past conduct. It was on the motion of the State from the events in question. She has sought to rehabilitate him with respect to his character about his nonuse of drugs after the events in question. It was not in response to anything. It exceeded the scope of any cross-examination. I did not go into any of those events after April 2nd. His character was not brought in question. I have not had the ability to investigate. It’s a comment that can’t be erased.

5 RP at 447-448.

The State responded that Cain had already mentioned during cross examination that he had stopped using drugs around the time of the incident.[2] Fuller conceded that Cain had said something to that extent, but he argued that it was not in response to a question. The trial court denied the motion for a mistrial, stating that Cain had already testified during cross examination that he had quit using drugs around the time of the incident.

We review a trial court’s denial of a motion for mistrial for an abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541
(2002). Reviewing courts will find an abuse of discretion “only when `no reasonable judge would have reached the same conclusion.'” Rodriguez, 146 Wn.2d at 269 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014
(1989)).

Further, trial courts “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.” Rodriguez, 146 Wn.2d at 270 (quotin Hopson, 113 Wn.2d at 284). We will reverse a trial court ruling denying a mistrial only if “there is a substantial likelihood that the error prompting the mistrial affected the jury’s verdict.” Rodriguez, 146 Wn.2d at 269-70.

Here, the trial court immediately struck the question and answer, instructing the jury to disregard it. We generally presume that jurors will follow instructions to disregard improper evidence. State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994).

Further, Cain had already mentioned the termination of his drug use on cross examination. As the State’s stricken question and Cain’s stricken answer merely reiterated past testimony, we cannot say that there is a substantial likelihood that this evidence influenced the verdict. Under these circumstances, the trial court did not abuse its discretion in denying Fuller’s motion for a mistrial.

III. Proposed Jury Instructions
Fuller argues that the trial court erred when it failed to give three of his proposed jury instructions. We review a trial court’s refusal to give proposed jury instructions, if based on a factual dispute, for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883
(1998). Parties are entitled to jury instructions that properly instruct the jury on applicable law and allow both parties to argue their theory of the case. State v. Cyrus, 66 Wn. App. 502, 508, 832 P.2d 142 (1992) (citing State v. Hoffman, 116 Wn.2d 51, 111, 804 P.2d 577 (1991)).

A. Proposed Instructions 4 and 5
Fuller contends that the trial court erred when it refused to give his Proposed Instructions 4 and 5, which relate to the weight to give to accomplice testimony and to the definition of an accomplice.[3] The State argues that the proposed instructions were not warranted because the testimony did not show that Fuller and Cain were accomplices in murdering Hicks.

The trial court refused to give the instructions because there was no evidence that Cain had advance knowledge that Fuller intended to kill Hicks.[4] Fuller excepted to the court’s refusal to give the instructions.

The law requires a trial court to submit instructions to a jury upon a theory of the case only if there is substantial evidence to support the theory. Savage v. State, 127 Wn.2d 434, 448, 899 P.2d 1270 (1995). The supporting facts for an instruction must consist of more than speculation and conjecture. Savage, 127 Wn.2d at 448-49.

For accomplice liability to attach, a person must not merely aid in any crime, but must knowingly aid in the commission of the specific crime charged. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000). A purported accomplice’s knowledge that the principal intends to commit a crime does not necessarily mean that accomplice liability attaches for all offenses committed by the principal. Cronin, 142 Wn.2d at 579. Thus, Cain had to solicit, command, encourage, or request another to murder Hicks or knowingly aid another in the premeditated murder of Hicks to be an accomplice to the murder.

Here, Fuller’s theory of the case was that Cain murdered Hicks. He presented testimony that Cain said he [Cain] “did it.” 9 RP at 866. But Fuller contends that the evidence supported giving accomplice instructions, specifically evidence that Cain, acting at Fuller’s request, retrieved Fuller’s gun and brought it to Fuller earlier in the day, that Cain intended to beat up Hicks, and that Cain left the murder scene with Fuller.

But there was no evidence that Cain solicited, commanded, encouraged, or requested Hicks’ murder or knowingly aided in the murder. The evidence revealed that Cain did not know that Fuller intended to shoot Hicks.

Because Cain only agreed to aid in beating Hicks, accomplice liability for first degree murder cannot attach and Fuller was not entitled to accomplice instructions. Thus, the trial court did not err when it refused to give Fuller’s proposed instructions regarding accomplices and accomplice testimony.

B. Proposed Instruction 9
Fuller asserts that the trial court erred when it refused to give his Proposed Instruction 9 regarding the weight to give to the testimony of witnesses who may have testified falsely. He contends that the witnesses contradicted each other and that the jurors needed instruction on dealing with testimony that was not truthful.

Proposed Instruction 9 stated:

If, in considering the evidence, you believe that any witness has willfully testified falsely on any material matter, then you are a [sic] liberty to disregard the testimony of such witness entirely, except insofar as the same may be corroborated by other competent or credible proof in the case.

CP at 26. The State argues that this instruction was unnecessary because Instruction 1 adequately addressed witness credibility and allowed Fuller to argue his theory of the case.[5]

Fuller cites State v. Huff, 76 Wn.2d 577, 458 P.2d 180 (1969), as support for his contention that it was error to reject his proposed instruction where the case turned on the credibility of witnesses, as was the situation here. The witness in Huff testified that he had been honorably discharged from the armed forces and then, on redirect, admitted that he had been dishonorably discharged. 76 Wn.2d at 581. The trial court gave a witness credibility instruction that included a statement about disregarding the testimony of a witness who testified falsely, similar to Fuller’s Proposed Instruction 9; it declined to give an instruction calling attention to a particular witness’s credibility Huff, 76 Wn.2d at 581. The Huff Court found that the trial court’s instructions were sufficient, but it did not provide guidance as to using an instruction such as Fuller’s Proposed Instruction 9. 76 Wn.2d at 581.

It is not error to refuse a proposed instruction if other instructions adequately cover the subject matter or contain the same legal principle Hoffman, 116 Wn.2d at 111; State v. Etheridge, 74 Wn.2d 102, 110, 443 P.2d 536 (1968). Here, Instruction 1 informed the jury how to weigh testimony based upon credibility considerations; it allowed Fuller to argue his theory of the case. Proposed Instruction 9 covered the same subject matter. Thus, the trial court did not err when it refused Fuller’s Proposed Instruction 9.

Accordingly, we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER and ARMSTRONG, JJ., concur.