No. 18914-7-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: November 20, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Walla Walla County, No. 99-1-00077-1, Hon. Donald Schacht, October 25, 1999, Judgment or order under review.
Counsel for Appellant(s), Gerald V. Labensky (Appearing Pro Se), #735978 1830 Eagle Crest, Clallam, WA 98326.
Counsel for Respondent(s), James L. Nagle, Walla Walla County Prosecutors Office, 240 W Alder Ste 201, Walla Walla, WA 99362-2807.
FRANK L. KURTZ, C.J.
Gerald Labensky, an inmate at the Washington State Penitentiary, was charged with three counts of custodial assault. One of the counts against him was dropped after a prison correctional officer viewed a videotape of the fight that demonstrated that Mr. Labensky was not the inmate who had assaulted him. Ultimately, Mr. Labensky was convicted of one count of custodial assault. He appeals pro se, contending that the trial court erred by ruling that the officer’s testimony about misidentifying Mr. Labensky as his assailant was irrelevant and, therefore, Mr. Labensky could not call the correctional officer as a witness. Mr. Labensky also contends that the trial court erred by allowing a correctional officer, who was one of Mr. Labensky’s alleged victims, to remain in the courtroom as the State’s representative at counsel’s table, after the officer had testified. We affirm Mr. Labensky’s conviction because we conclude that it was within the discretion of the trial court both to exclude the testimony of the correctional officer and to allow the officer to remain in the courtroom.
FACTS
During dinner one day in the Washington State Penitentiary, a fight broke out in a dining hall. Gerald Labensky, an inmate at the penitentiary, was involved in the fight. Afterwards, he was charged with three counts of custodial assault against three different correctional officers. Although he admitted his involvement in the fight, Mr. Labensky denied assaulting the correctional officers.
Before trial, the State’s witnesses viewed a videotape of the fight.
At that time, one of the correctional officers whom Mr. Labensky is alleged to have assaulted, Charles Cooper, realized that another inmate, not Mr. Labensky, had assaulted him. As a result, one of the charges against Mr. Labensky was dropped.
Both before and during trial, Mr. Labensky asked the court to allow him to examine Officer Cooper as part of his case. Mr. Labensky explained that he wanted to question the officer to show the jury that the officer initially indicated Mr. Labensky had assaulted him, and later realized it was not Mr. Labensky, but another inmate who committed the assault.
The court denied the motion. The court reasoned that there were differences in the circumstances of the three assaults. Moreover, the court noted that neither of the correctional officers who testified indicated that they were confused about the identity of their assailant. Mr. Labensky objected and made an offer of proof.
One of the correctional officers who testified that Mr. Labensky had assaulted him, was allowed to remain in the courtroom after his testimony. Later, he testified in rebuttal.
Mr. Labensky was convicted of one count and acquitted of one count. He appeals.
ANALYSIS
Exclusion of the Testimony of Officer Charles Cooper. This court reviews a trial court’s decision to exclude evidence for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Judicial discretion is abused if the court’s decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971).
`Evidence which is not relevant is not admissible.’ ER 402. Evidence is relevant and probative if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ER 401. `There must be a logical nexus between the evidence and the fact to be established.’ State v. Cochran, 102 Wn. App. 480, 486, 8 P.3d 313
(2000), review denied, 143 Wn.2d 1004 (2001).
In this case, the court ruled that Officer Cooper’s misidentification of Mr. Labensky was irrelevant. Mr. Labensky’s defense consisted of asserting that in the confusion surrounding the fight, he was misidentified as the inmate who assaulted the officers. He sought to introduce Officer Cooper’s testimony to show that it was likely that the other two officers were also mistaken about Mr. Labensky’s identity.
However, Mr. Labensky failed to show a sufficient nexus between Officer Cooper’s testimony and the testimony of the other two assaulted officers. The court was correct in noting that the remaining two officers were not alleged to have been in the exact same position, or have the same contact as Officer Cooper. Officer Cooper’s experience with Mr. Labensky therefore was not relevant to the experiences of the other two officers.
The trial court did not abuse its discretion by finding the testimony of Officer Cooper irrelevant.
Allowing Officer Russell Michael to Remain in the Courtroom. Mr. Labensky contends that the court erred by allowing Officer Michael to remain in the courtroom at the State’s counsel table. During the trial, Mr. Labensky raised this issue. The court stated that each party was entitled to have a representative, and that the officer could be called as a rebuttal witness, even if he remained in the courtroom. The remainder of this exchange was conducted off the record.
Witnesses may be excluded from the courtroom under ER 615, so that they cannot hear the other witnesses’ testimony. However, this exclusion does not apply to persons who are representatives of a party, which is not a natural person. ER 615. In this case, Officer Michael could be construed as a representative for the State.
Moreover, as the State points out, Officer Michael’s testimony did not overlap with the other witnesses’ testimony. Thus, it does not appear that the State gained any advantage, as asserted by Mr. Labensky, by having Officer Michael remain at the State’s counsel table.
`Questions concerning the exclusion of witnesses and the violation of that rule are within the broad discretion of the trial court and will not be disturbed, absent manifest abuse of discretion.’ State v. Schapiro, 28 Wn. App. 860, 867, 626 P.2d 546 (1981). In this case, it appears the court did not abuse its discretion by allowing Officer Michael to remain in the courtroom after his initial testimony and prior to his rebuttal testimony.
We affirm Mr. Labensky’s conviction.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KATO, J.