No. 24313-0-II.The Court of Appeals of Washington, Division Two.
Filed: June 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
District Court County: Pierce, No. 90-1-03489-7, Hon. Frederick W. Fleming, December 18, 1998, Judgment or order under review.
Counsel for Appellant(s), John M. Sheeran, Pierce Cty Prosecutor’s, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402.
Counsel for Respondent(s), Mary K. High, Attorney At Law, 109 Tacoma Ave N, Tacoma, WA 98403.
DAVID H. ARMSTRONG, C.J.
The superior court reversed Steven M. Lamb’s district court conviction for driving under the influence of intoxicants, finding that the district court had improperly commented on the evidence and the totality of errors regarding evidentiary rulings denied Lamb’s right to due process and a fair trial. The superior court granted Lamb a new trial. We granted the State’s motion for discretionary review and now reverse the superior court and remand with direction to reinstate the district court jury verdict.
Facts
On July 28, 1989, Washington State Patrol (WSP) Trooper Robert Noack arrested Lamb for driving under the influence of intoxicants. He transported Lamb to the State Patrol district office and administered a breath test using a BAC Verifier DataMaster machine. The test showed that Lamb’s breath alcohol content exceeded the legal limit. The State charged Lamb with driving under the influence of intoxicants.
Noack testified at Lamb’s jury trial in district court as follows. He stopped Lamb’s vehicle because it was weaving back and forth, and crossing the fog line. Lamb had `a strong odor of intoxicants’ on his breath, was a `little unsteady’ as he got out of the car, and was `very slow and sluggish’ when he answered Noack’s questions. RP at 108-09. Noack gave Lamb several field sobriety tests. He described Lamb’s performance on the `toe tap’ test, stating: `As I looked at his eyes, I noticed that his eyes were — had a bit of a jerkiness[.]’ RP at 113. The court sustained Lamb’s objection to this comment.
Noack stated his belief that Lamb was under the influence of intoxicants because of his `initial observation of [Lamb’s] driving, the odor of intoxicants that came from his mouth, the beer cans that [he] saw behind the driver’s seat, and upon the field tests that were performed at the scene.’ RP at 114-15. Noack also stated:
One thing that stood out in my recollection as I did all these tests, [Lamb] was very cooperative. I could tell that he was a little mad that I had stopped him, but he was also very quiet. And my distinct impression that I got was that possibly he had been through something like this before.
RP at 116. The court sustained Lamb’s objection to the last statement.
Lamb moved for a mistrial based on Noack’s comments, arguing that they were prejudicial. The court denied the motion, noting that it had sustained the defense objections but a new trial was not warranted. Lamb expressly declined the court’s offer to give a curative instruction.
Noack testified that he was certified and trained to operate the BAC Verifier DataMaster machine and explained the procedures he followed when he administered the breath test to Lamb. The procedures included a 15-minute observation period during which Lamb answered Noack’s questions from a BAC questionnaire.
During cross-examination of Noack on how he conducted the balance test, defense counsel referred to the WSP Academy DWI Investigation Manual.
The State objected on relevance grounds, which the court sustained and stated:
The manual is not relevant to the case in terms of whether the trooper — The manual is not the law in this state nor is it required that the trooper follow everything that’s contained in that manual. It’s only a training manual, and the trooper can do what he wants out there in terms of physical tests. I don’t find that the manual itself is in any way relevant to what the trooper did. It’s only a training manual. And again, it’s not the law of this state nor is it required that he follow everything that’s contained therein.
RP at 160.
Ann Jacobson, a BAC technician for the WSP, also testified. She described the BAC machine used to test Lamb and its certification process.
The instrument was initially certified and placed in service on November 24, 1986, and recertified in April 1989. She opined that the machine was in proper working order and that Lamb’s test results were valid.
Defense counsel cross-examined Jacobson on the BAC machine’s maintenance history and asked if it had been taken out of service in December 1986. The State objected on relevance grounds. The court sustained and stated:
It’s not relevant except for within maybe three weeks of the machine itself of this test. I think while the evidence may be relevant, the argument is that the evidence is relevant because it relates to the machine. Like any other evidence that’s relevant, it can be excluded if that evidence would either — there would be a danger of unfair prejudice, confusion of the issues or misleading the jury.
First of all, there is a danger of unfair prejudice dealing with what happened three and a half years ago as compared to what the machine was doing at this time.
Second of all, it’s confusing the issues with the jury. If the machine was not operating three and a half years ago, that doesn’t mean it’s not operating today. They could confuse the issues with what happened back then, and it also tends to mislead the jury. So I don’t think whether this machine was working three and a half years ago has anything to do with what’s going on now in `89. I think the scope of the examination of this machine has to be narrow in terms of when it was working and when it was not working.
Maybe within strict parameters of a month or two of the machine at the time this test was given I might allow that, but I don’t think the whole history of this machine is relevant. RP at 182-83.
Defense counsel then asked Jacobson whether the machine had ever needed a complete `overhaul’ after it was placed in service. Sustaining the State’s objection, the court observed: `Cars need to be repaired once in a while too. But the fact that a car transmission is repaired two years ago doesn’t have relevance to what the machine is doing now.’ RP at 185-86. Jacobson then testified that the machine was overhauled in April 15, 1989, but there were no repairs between April 15 and October of 1989.
Defense counsel moved to admit `Defendant’s Exhibit 2′ that purportedly described the types of BAC malfunctions, which are not recorded in maintenance records. The court excluded this document as speculative and irrelevant:
It’s speculation. It’s not relevant. I mean, we’re not dealing with speculation here. We’re dealing with what actually occurred. And there’s no indication that there was any repair between July and October of 1989. We’re not allowed to speculate. I’m not going to admit it. It’s not relevant.
RP at 198.
Over Lamb’s foundation objection, the court admitted the printout of the breath test results, showing his alcohol levels as .15 and .14. The court ruled that the proper foundation had been established by Noack’s testimony regarding his training on the machine’s functions. The court stated:
The officer . . . checks on a mark that’s on the machine, and that’s a no-go-no mark, as I understand it. If the temperature is at that mark or above, he can proceed. If the temperature is not at that mark — If it’s below that mark he cannot proceed. He has testified that the temperature, as indicated on the machine based on the mark on a machine, was okay. And the officer has laid the necessary foundation and the exhibit will be admitted into evidence.
RP at 206.
The jury found Lamb guilty as charged.
Lamb appealed to the superior court where he contended that the trial court (1) improperly commented on the evidence, (2) erred in limiting defense cross-examination of Noack with respect to his adherence to the DWI Investigation Manual, (3) erred in admitting the BAC test results because the State failed to lay the proper foundation, (4) erred in limiting questioning regarding the repair history of the BAC machine; (5) erred in admitting Lamb’s answers to the BAC questionnaire, and (6) erred in denying Lamb’s motion for a mistrial based on Noack’s comments about the `jerkiness’ of Lamb’s eyes and his apparent familiarity with DWI investigations.
The superior court agreed that the trial court improperly commented on the evidence, ruling:
The trial court improperly commented on the evidence when it:
1. Denied defense counsel further reference to a training manual. RP 157-161.
2. Ruled in excluding evidence of the B.A.C. machine maintenance records. RP 181-83, and 185-87.
3. Ruled concerning the admissibility of defendant’s proposed exhibit #2. RP 197-98, 205-06[.]
CP at 1-2. The court did not address the other issues but ruled generally that `[t]he totality of the trial court’s errors regarding evidentiary rulings . . . constitute a violation of Mr. Lamb’s right to a fair trial and due process rights[.]’ CP 2. The superior court granted Lamb a new trial. CP 2.
We granted the State’s motion for discretionary review of the superior court’s decision.[1]
Analysis I. Comment on the Evidence
Article IV, section 16, of the Washington State Constitution prohibits a judge from commenting on the evidence presented at trial.[2] This prohibition prevents the trial judge from influencing the jury by his or her personal opinion of the evidence. State v. Lampshire, 74 Wn.2d 888, 892, 447 P.2d 727 (1968) (citation omitted). “An impermissible comment is one which conveys to the jury a judge’s personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.” State v. Deal, 128 Wn.2d 693, 703, 911 P.2d 996 (1996) (quoting State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990)). A judge’s statement constitutes an improper comment when the court’s attitude toward the merits of the case or the court’s evaluation on the disputed issue is inferable from the statement. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (citation omitted). `The touchstone of error in a trial court’s comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury.’ Lane, 125 Wn.2d at 838
(citation omitted).
An improper comment on the evidence is reversible error unless it affirmatively appears from the record that the defendant could not have been prejudiced. Lane, 125 Wn.2d at 838-89. Reversible error was found in State v. Bogner, 62 Wn.2d 247, 382 P.2d 254 (1963). There, during the State’s examination of a policeman in a robbery prosecution, defense counsel objected to the witness’s testimony and the judge said: “Don’t you think we are getting a little ridiculous, or aren’t we?” Bogner, 62 Wn.2d at 249. This remark improperly conveyed to the jury the judge’s personal feeling as to the truth or falsity of the evidence and, thus, violated the constitutional prohibition. Bogner, 62 Wn.2d at 251-52.
The Supreme Court also found reversible error in State v. Lampshire where the trial judge said: `[Prosecutor’s] objection is well taken. We have been from bowel obstruction to sister Betsy, and I don’t see the materiality[.]’ Lampshire, 74 Wn.2d at 891. This occurred during direct examination of the defendant who was prosecuted for carnal knowledge with three teenage boys. Lampshire, 74 Wn.2d at 890-91. The remark constituted an improper comment because it undermined the defendant’s credibility. Lampshire, 74 Wn.2d at 892.
Unlike Bogner and Lampshire, we do not find that the trial judge’s remarks in this case crossed the line into impropriety. All the remarks at issue were made in the context of the court’s rulings on evidentiary matters. In ruling on such matters, the court may give its reasons. Statements articulating the court’s reasons or analysis are not comments on the evidence unless they indicate the court’s belief or disbelief of the evidence.[3]
Lamb argues that the court’s ruling on the admission of the breath test results improperly conveyed the opinion to the jury that the BAC machine was in proper working order on July 28, 1989. We disagree. The court merely indicated that the threshold query provided in ER 702 was satisfied. It offered no opinion as to the credibility, sufficiency, or weight to be given Noack’s testimony; the remarks simply repeated Noack’s statements about how to read the BAC’s temperature markings. See Schneidmiller v. Tacoma Railway Power Co., 130 Wn. 415, 227 P. 853
(1924) (holding no violation of the constitutional prohibition where the trial judge’s questions of the witness only elicited facts already in the record).
Lamb also argues that the judge’s remarks made during its rulings on the BAC’s maintenance history `clearly conveyed his opinion to the jury that the machine was reliable.’ Br. of Respondent at 13. Again we disagree. The court’s role is to determine whether proffered evidence is relevant under ER 401 and ER 402 and, when necessary, weigh it against any prejudicial impact of its admission under ER 403. Here, the court did just that; its statements simply articulated its analysis. Jacobson’s testimony established that the BAC machine was placed into service in November 1986, recertified in April 1989, and repaired in October 1989. Jacobson was unaware of any repairs during the three months between the BAC’s recertification and when it was used in July 1989 to test Lamb. The court did not abuse its discretion by limiting defense questioning about the machine’s maintenance history or by excluding as irrelevant the defendant’s exhibit 2. Its explanatory remarks did not constitute a comment on the evidence.
The remainder of the challenged remarks occurred when the court excluded defense counsel’s reference to the DWI investigation training manual during cross-examination of Noack. In sustaining the State’s objection, the judge stated that `the trooper can do what he wants out there’ and Lamb argues that this remark `legitimized the officer’s conduct and expressed his personal opinion as to the weight and credibility of the officer’s conduct in performing the field tests differently than the training manual required.’ Br. of Respondent at 8. Lamb’s argument takes the remark out of context. It merely explained the court’s ruling and did not convey the judge’s personal belief in Noack’s testimony.
In sum, none of the remarks at issue constituted an improper comment on the evidence. Moreover, the jury is presumed to follow the instruction to disregard any remarks by the court that are comments on the evidence. See Cerny, 78 Wn.2d at 856. Here, the court so instructed the jury and we presume the jury followed the instruction.
II. Evidentiary Rulings
The admission or refusal of evidence lies largely within the trial court’s discretion; we will not reverse its decision on appeal absent an abuse of discretion. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651
(1992). An abuse of discretion exists only where no reasonable person would take the trial court’s view. State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979); Rehak, 67 Wn. App. at 162.
Before breath test results can be admitted, the State must establish four foundational requirements: `(1) that the machine was in proper working order, (2) that if chemicals were used in testing they were correct and correctly used, (3) that the operator was qualified and performed the test correctly, and (4) that the results are accurate.’ State v. Wittenbarger, 124 Wn.2d 467, 489, 880 P.2d 517 (1994). If the State satisfies these requirements, the test results are then admissible. If the defendant presents rebuttal evidence, whether the result is reliable is a question for the trier of fact. Wittenbarger, 124 Wn.2d at 489 (citing State v. Straka, 116 Wn.2d 859, 875, 810 P.2d 888
(1991)).
Lamb appears to challenge the third requirement, i.e., operator qualifications and proper use of the machine. He points to Noack’s testimony acknowledging that he did not know the exact temperature of the simulator solution or the serial number for the BAC machine used to test Lamb. We reject Lamb’s argument and agree with the trial court that Noack’s testimony regarding his training and certification on the use of the BAC machine is sufficient for purposes of admitting the test results. Noack’s lack of knowledge regarding the solution temperature and the machine’s serial number merely goes to weight and did not preclude admission of the printout. See Bremerton v. Osborne, 66 Wn.2d 281, 282, 401 P.2d 973 (1965) (sufficiency of the evidence to meet the four requirements for admitting breathalyzer test results goes to the weight rather than the admissibility of the results). Therefore, the trial court did not abuse its discretion in admitting the breath test results.
Next we address Lamb’s contention that the trial court erred when it excluded defense counsel’s reference to the DWI Investigation Manual on cross-examination of Noack about the guidelines for conducting one of the field tests, the balance test. Under Evidence Rule 611, the trial court has broad discretion to curtail inquiries into matters that are irrelevant, collateral, or repetitious. 5A K. Tegland, Wash. Prac., Evidence § 247, at 273 (3d ed. 1989). In a criminal case, however, the defendant should be given great latitude in the cross-examination of a prosecution witness to show motive or credibility. State v. Smith, 130 Wn.2d 215, 227, 922 P.2d 811 (1996). Lamb asserts that `[b]y cutting defense questioning off regarding the Trooper’s behavior . . . the court precluded the Defense from presenting impeaching evidence as well as from forwarding its theory of the case.’ Br. of Respondent at 30. Even assuming that the court erred, we find such error to be harmless based on this record.[4]
Lamb contends that his answers to the BAC questionnaire should have been suppressed because he was not properly advised of his rights. He further argues that his answers were coerced under the threat of losing his driver’s license. These arguments lack merit. First, Noack’s advisement was consistent with the language suggested in State v. Bartels, 112 Wn.2d 882, 886, 774 P.2d 1183 (1989). Second, contrary to Lamb’s contention, nothing in the questionnaire suggests the loss of his license if he refused to answer the questionnaire. Third, Lamb’s answers were not inculpatory.
Therefore, the court did not abuse its discretion in admitting Lamb’s answers to the BAC questionnaire.
III. Motion for Mistrial
Lamb contends that the trial court erred by denying his motion for a mistrial based on Noack’s comments about the `jerkiness’ of Lamb’s eyes and his apparent familiarity with DWI investigations. A 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; we review for an abuse of discretion. State v. Newbern, 95 Wn. App. 277, 296, 975 P.2d 1041, review denied, 138 Wn.2d 1018
(1999).[5] In considering whether a trial irregularity warrants a new trial, the court considers three factors: (1) the seriousness of the irregularity; (2) whether the statement was cumulative of evidence properly admitted; and (3) whether the irregularity could be cured by an instruction.
The seriousness of an irregularity is measured by considering the nature of the irregularity, the effect of it on the defense strategy, and the overall strength of the State’s case.[6] Lamb argues that the `jerkiness’ comment violated the trial court’s earlier ruling prohibiting any reference to the gaze nystagmus test. Because Noack never mentioned this test in his testimony, there was no reason for the jury to give any more weight to the `jerkiness’ of Lamb’s eyes than to other testimony regarding his condition, e.g., watery and bloodshot eyes, slowed and slurred speech, or smell of alcohol.
The trial court did not abuse its discretion nor has Lamb shown any prejudice.
The comment regarding Lamb’s familiarity with DWI investigations is more troubling. However, it was only an expression of Noack’s opinion and not supported by any direct evidence showing that Lamb had been previously investigated. Additionally, Lamb’s refusal of a curative instruction is further evidence that the impact of Noack’s comments was negligible. We hold that the trial court did not abuse its discretion by denying the motion because the improper comments, when viewed in context of all the evidence, were not so prejudicial as to deny Lamb a fair trial.
IV. Cumulative Error
The superior court granted Lamb a new trial based in part on the `totality of the trial court’s errors regarding evidentiary rulings.’ CP at 2. We construe the superior court’s holding to be an application of the cumulative error doctrine, which mandates reversal when the cumulative effect of nonreversible errors materially affects the outcome of trial. Newbern, 95 Wn. App. at 297. Because we find no abuse of discretion in any of the trial court’s evidentiary rulings, the doctrine of cumulative error does not apply and the superior court erred in reversing the district court judgment on this basis.
Thus, we reverse the superior court and remand with direction to reinstate the district court jury verdict, which 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.
WE CONCUR: MORGAN, J., HUNT, J.