STATE v. LEWIS, 49369-8-I (Wash.App. 11-12-2002)

No. 49369-8-IThe Court of Appeals of Washington, Division One.
Filed: November 12, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 001096743, Hon. Helen Halpert, October 15, 2001, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Jennifer L. Dobson, 810 3rd Ave Ste 320, Seattle, WA 98104.

Counsel for Respondent(s), Michael J. Lang, King County Deputy Prosecutor, W554 King County Crthouse, 516 3rd Ave, Seattle, WA 98104.

COX, A.C.J.

Anthony Lewis appeals his conviction for residential burglary. The trial court did not abuse its discretion when it admitted the opinion testimony of Officer Kathleen Graves regarding the term “comparison value” of fingerprints. She testified from her personal knowledge and experience. This did not constitute impermissible expert testimony, and was not hearsay. Moreover, the trial court did not abuse its discretion when it excluded “other suspect” testimony. The trial court’s mistaken reading to the jury of a portion of the charges against Lewis in another case was not an unconstitutional comment on the evidence. Rather, it was a trial irregularity that did not affect Lewis’s right to a fair trial. Lewis fails to demonstrate his pro se ineffective assistance of counsel claim because he cannot show prejudice. We affirm.

Sometime during the morning of September 18, 2000, someone burglarized the home of Matthew Cloner. A neighbor spotted Lewis walking on the sidewalk in front of the house. Another neighbor, who shares a driveway with Cloner, talked with Lewis for two to three minutes. Lewis asked whether Alexandra lived in the Cloner residence. The neighbor replied that no one by that name lived there. About 15 minutes later Cloner’s landlord spotted Lewis, first, coming out of Cloner’s front door, and a few minutes later, standing on the back deck of Cloner’s house. The landlord called 911, and Officer Graves responded to the call. Lewis jumped the fence in Cloner’s yard. Graves ordered Lewis to stop but he ran and eluded Graves’s pursuit. After eluding Graves, Lewis made contact with another community resident. Lewis asked her to lie and say he had been there all morning helping her around the house. She refused. The police apprehended Lewis outside of this woman’s house.

Back in Cloner’s yard, Graves discovered, near the fence, a stack of CDs, a VCR and other items that someone had removed from Cloner’s home. Someone had kicked in the door to Cloner’s home and items were obviously disturbed inside, including drawers, more CDs and two shotguns that had been removed from a closet. Graves dusted the items for fingerprints but was not able to recover any of comparison value.

The State charged Lewis with residential burglary. His first trial ended in a mistrial because the jury was unable to reach a verdict.

The case went to trial again, and a jury found Lewis guilty. Lewis unsuccessfully moved for an arrested judgment and in the alternative a new trial. He received a standard range sentence with credit for time served. Lewis appeals. Evidentiary Ruling — Testimony of Graves

Lewis makes two arguments regarding the testimony of Graves. First, that portions of her fingerprint testimony were inadmissible opinion testimony because Graves did not possess personal knowledge about why no fingerprints of comparison value were found. Second, that Graves’s testimony constituted hearsay that violated Lewis’s right to confrontation under the Sixth Amendment. We disagree with both arguments.

We review a trial court’s decision on the admissibility of evidence for abuse of discretion.[1] A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.[2]

ER 701 permits a lay witness to testify in the form of opinions or inferences if those opinions or inferences are “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”[3]
Additionally, under ER 602, there must be sufficient evidence that the witness has personal knowledge of the matter.[4] A court may admit testimony if a “trier of fact could reasonably find that the witness had firsthand knowledge.”[5] During re-direct the State examined Officer Graves as follows:

[State:] You said your assessment was that the fingerprints you found were not of comparison value. Describe what that term means, “of comparison value.”
[Graves:] In order to compare a latent fingerprint, you have to have a series of ridges that can be compared. So a partial won’t work, or one that is smeared, that doesn’t have a very distinct ridge, one that is too light, like there was not enough body oil to leave a good print. If you don’t have those factors, it won’t go through the computer, and the reason I know this is because for the last five years I’ve been submitting fingerprints for analysis and a majority have come back of no comparison value, which is how I concluded and then went and spoke with the fingerprint analysis person as to what was actually needed in order to be of comparison value.

State v. Smith[6] recognizes that some statements derive in part from personal knowledge and in part from reports by others. In that situation, the trial court has the discretion to admit or exclude it. As stated in Smith:

Of course, some testimony may be based partially on admissible personal knowledge, and partially on reports from others. Under those circumstances, the court must exclude testimony unsupported by personal knowledge. “We think this problem is one of degree. If the belief is primarily based on hearsay, it is inadmissible.” United States v. Mandel, 591 F.2d 1347, 1370 (4th Cir. 1979). “When the witness testifies to facts that he knows partly at first hand and partly from reports, the judge, it seems, should admit or exclude according to the reasonable reliability of the evidence.” 1 McCormick on Evidence sec. 10; see 5A KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE § 218(3) (3d ed. 1989).[7]

Lewis’s argument misconstrues the personal knowledge requirement under ER 602. Lewis argues that Graves lacked personal knowledge because she never saw Lewis touching the stolen property; she never observed that Lewis lacked sufficient body oil or distinct ridges, and she never testified that there were smudged prints. The requirement is not that Graves have personal knowledge of how Lewis’s fingerprints may or may not have ended up there — she did not testify to that matter. The requirement is whether she had personal knowledge about what was needed, generally, for a fingerprint of comparison value. Graves’s testimony did not go to her opinion of Lewis’s guilt, but was a clarification of a term used in her testimony. It was reasonable that her personal knowledge of what constituted comparison value was a natural outgrowth of her five years of police work. Although it appears that Graves supplemented her own knowledge with discussions with the “fingerprint analysis person,” this does not negate the fact she possessed her own personal knowledge. The trial court did not abuse its discretion when it allowed Graves’s testimony regarding what constituted comparison value fingerprints.

In the alternative, Lewis argues that Graves was not qualified to offer expert testimony about what constitutes comparable value fingerprints, under ER 702. The trial court specifically ruled that Graves was not qualified as an expert on fingerprint analysis. Accordingly, we will not address this argument.

In the alternative, Lewis argues that Graves’s testimony regarding what constituted comparable fingerprints was, in effect, a relaying of the fingerprint expert’s statements to the jury. Accordingly, he argues the statement was inadmissible hearsay that violated Lewis’s right to confrontation under the Sixth Amendment. We disagree because the statement was not hearsay.

Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[8] Here, Graves did not testify to anyone else’s statement. She was speaking from her own experience of the past five years during which she has been submitting fingerprints for analysis, of which the majority have come back as “no comparison value”. Her brief reference to conversations with others did not reveal anything about what they had said. This was not hearsay and it did not implicate Lewis’s constitutional right to confrontation. The trial court did not abuse its discretion in allowing Graves’s testimony.

Evidentiary Ruling — Other Suspect

Lewis next argues that the trial court improperly excluded testimony about another suspect. He points to the testimony of Cloner, arguing that his statements about his “fatal attraction” relationship with a woman in Massachusetts suggested the possibility that she put someone up to the burglary in question. We hold that the trial court did not abuse its discretion in excluding this evidence.

As we noted previously in this opinion, we review a trial court’s decision on the admissibility of evidence for abuse of discretion.[9] A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence.[10] Evidence connecting another person with the crime charged is not admissible unless there is a train of facts or circumstances that clearly point to someone other than the defendant as the guilty party.[11] Not only must there be a showing that another suspect had the ability to place herself at the scene of the crime, there must also be a showing that another suspect took steps indicating an intention to act on that ability.[12] Lewis argues tha People v. Hall,[13] a California case, clarified People v. Mendez,[14]
the California case upon which the Washington Supreme Court based its rule for the State v. Downs[15] line of cases. Based on that premise, he argues that we should depart from the Maupin and Downs line of cases. This argument is unpersuasive. First, our state supreme court settles the law in this jurisdiction. It has given no indication of any intent to depart from the rules of Downs and Maupin. We are bound to follow the controlling precedent of that court. Second, Lewis argues for a “minimally relevant” standard as the proper test for admitting or excluding other suspect testimony. However, even Hall does not articulate a “minimally relevant” standard, but states that the testimony “need only be capable of raising a reasonable doubt of defendant’s guilt.”[16] I Hall, the case that Lewis claims overruled Mendez, the California court actually summarizes, with approval, that portion of the Mendez decision that formed the basis for the Washington line of cases:[17] “.evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.”[18]
Lewis further relies on Maupin. There, the court concluded that the offered proof of another suspect in a kidnapping and murder case was neither speculation nor mere evidence of another’s motives. The excluded testimony was that the kidnapped child was seen a day after the kidnapping with someone other than the defendant.[19] This case does not articulate a “minimally relevant” standard, but cites with approval the test announced in Mak and Downs.[20] In Downs, the defense sought to introduce evidence that a known safe burglar, “Madison Jimmy” was in town on the night of the charged burglary.[21] The court concluded that even if someone had positively identified “Madison Jimmy” as being in Seattle that night, this fact had absolutely no effect on the question of the guilt or innocence of the charged parties.[22] The court held that mere opportunity to commit a crime is not enough to support other suspect testimony.[23] Lewis’s argument is even weaker than the one offered in Downs. In Downs we have a known safe burglar who was alleged to be in town on the same night a safe was robbed. Here, we have a “fatal attraction” ex-girlfriend in Massachusetts with no allegation she was even in town. There is only speculation that she could get “someone” to perform the burglary. During the first trial Cloner was asked if he thought that whoever had broken into his house might have been paid to do so, he responded, “I don’t know. I need to find out.” Lewis’s offer of proof during the second trial was similarly weak. His counsel conceded that there had been no overt threats by the ex-girlfriend. He stated that Cloner had also expressed a concern that the person who broke into his house may have been someone entirely different — a person he had “blown the whistle on” back in Massachusetts. Lewis’s counsel also noted Cloner’s testimony during the first trial, in which he expressed his concern that the police had tapped his phone. This is not a compelling foundation for other suspect testimony. It does not satisfy the test that there must be a train of facts or circumstances that clearly point to someone other than the defendant as the guilty party and that the other suspect had the ability to place herself at the scene of the crime, and took steps indicating an intention to act on that ability.

Trial Irregularity

Lewis argues for the first time on appeal that the trial judge improperly commented on the evidence when, during jury selection, she mistakenly read the charging information from Lewis’s prior residential burglary case. We conclude this is more properly characterized as a trial irregularity, not an improper comment on the evidence. As such, the proper test is whether Lewis received a fair trial. After reviewing the record, we hold that Lewis did receive a fair trial.

A threshold question is whether, for the first time on appeal, Lewis properly characterizes the judge’s mistaken reading to the jury of the information from another case involving Lewis as a comment on the evidence as contemplated under Article 4, Section 16 of the Washington Constitution. That provision states: “Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” As the state supreme court recently stated in State v. Lane:[24]
. A statement by the court constitutes a comment on the evidence if the court’s attitude toward the merits of the case or the court’s evaluation relative to the disputed issue is inferable from the statement. (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. (citation omitted).

The purpose of prohibiting judicial comments on the evidence is to prevent the trial judge’s opinion from influencing the jury. (citation omitted). Early in our constitutional history, we explained:

The constitution has made the jury the sole judge of the weight of the testimony and of the credibility of the witnesses, and it is a fact well and universally known by courts and practitioners that the ordinary juror is always anxious to obtain the opinion of the court on matters which are submitted to his discretion, and that such opinion, if known to the juror, has a great influence upon the final determination of the issues. (citation omitted).[25]

The cases construing this constitutional provision have all involved a judge making comments about the evidence at trial with respect to the issues actually submitted to the jury for decision.[26] None has involved the mistaken introduction to the jury of matters not submitted to the jury for consideration. And Lewis fails to bring to our attention any such case.

In short, the mistake here was not a comment on the evidence. Notwithstanding Lewis’s improper characterization of the mistaken reading to the jury, we do address it as a trial irregularity. Trial irregularities are irregularities that occur during a criminal trial that only implicate the defendant’s due process rights to a fair trial.[27]
Such irregularities neither independently violate a defendant’s constitutional rights, nor violate a statute or rule of evidence.[28]
The proper test is “whether the remark when viewed against the backdrop of all the evidence so tainted the entire proceeding that the accused did not have a fair trial.”[29] It does not matter whether the remark was deliberate or inadvertent.[30] At the start of voir dire the following occurred:

The Court: Mr. Lewis is charged by information with the crime of residential burglary. It is alleged that in King County, on or about May 7th, 1991, Mr. Lewis did enter and remain unlawfully in the dwelling of John Mally, located at 5342 — 12th South in Seattle, and that he entered with the intent to commit a crime against a person or property therein. Mr. Lewis has entered a plea of not guilty. [State:] Excuse me, Your Honor, may we have a brief side bar, please. (Bench conference [off the record]) The Court: This is embarrassing. I’ve picked up the wrong file. This is not the crime we’re talking about. We are talking about residential burglary but it is not this offense, I am so sorry. It’s not a 1991 case and as I was reading I thought how odd that we’re trying a 1991 case, and the lawyers brought that to my attention, that I read something that is not this case. Excuse me. Now we’ll start with the correct case. I do apologize.

Did this incident, when viewed against the backdrop of all the evidence adduced at trial, so taint the entire proceeding that the accused did not have a fair trial? We conclude that it did not.

To determine whether a trial was fair, we must look at the trial irregularity and then determine whether it influenced the jury.[31] In examining the entire record, the question to be resolved is whether there is a substantial likelihood that the judge’s remarks here affected the jury verdict, thereby denying the defendant a fair trial.[32]

The irregularity involved here was a serious one. The trial judge’s inadvertent reading of the prior residential burglary charge exposed the jury to ER 404(b) evidence that was properly excluded before trial. The fact that the trial judge, not the prosecutor or a witness, mistakenly disclosed the information, adds to the gravity of the irregularity. State v. Escalona[33] is instructive here. There, the testimony of the victim, the only witness, that the defendant had a record and had already stabbed someone warranted a mistrial in light of the “paucity of credible evidence” against the defendant.[34] The court also held that the limiting instruction given was not sufficient in light of the prejudicial effect of the witness’ statement, and the lack of evidence against the defendant.[35] Escalona turned in large part upon the fact that there was little evidence against the defendant, other than the statements of the witness in question. Such is not the case here.

Here, immediately after the mistaken reading, there was an off the record bench conference between counsel and the court. Thereafter, the trial judge immediately acknowledged the mistake, and so informed the jury.

There is no record of any request by Lewis’s counsel for a mistrial or a special corrective instruction to the jury.

We consider these events in light of the backdrop of the evidence against Lewis. Lewis was observed by Cloner’s landlord, as she entered their shared driveway, attempting to push or pull something out of Cloner’s front door. The landlord’s property is immediately behind Cloner’s house. Upon seeing the landlord, Lewis stepped back inside Cloner’s home. After parking her car, the landlord went back out to the street to check her mail and observed Lewis standing on Cloner’s side deck, which was only accessible through the house or by climbing a six foot high fence into the yard. When the police arrived, Lewis fled. At the point where Lewis jumped the fence and fled, Officer Graves found stacks of CDs, a VCR, and other boxes on the ground. Lewis was subsequently apprehended a few blocks away. He was standing in the yard of a person who testified that Lewis asked her to lie and say he had been there helping her all morning. Additionally, Lewis had asked the woman’s male companion to go and pick up his car for him, which was still parked in front of Cloner’s house. The man declined.

The defense theory of the case was that Lewis admitted being inside Cloner’s house, but that he had mistakenly entered it looking for someone he was supposed to meet (Alexandra), and that someone had already burglarized the house. Lewis had actually conversed with Cloner’s neighbor, however, regarding whether someone named Alexandra lived in Cloner’s house and the neighbor indicated that no one by that name lived there. This weighs against a mistaken entry because a neighbor specifically advised Lewis the person he was looking for did not live there. The police did not find Lewis’s fingerprints on any of the disturbed items in or outside of Cloner’s home. But in view of the other strong evidence against Lewis, including his admission that he was inside the residence, a jury would still be able to find guilt.

We conclude that Lewis had a fair trial. The trial irregularity in this case did not overcome the strength of the evidence against Lewis.

Ineffective Assistance of Counsel

Lewis argues that his trial counsel’s failure to object when the trial court improperly revealed his prior residential burglary conviction and his trial counsel’s failure to investigate and request fingerprint analysis reports denied him his constitutional right to effective assistance of counsel. We conclude that Lewis fails to demonstrate prejudice on both claims.

To prevail on his claim of ineffective assistance of counsel, Lewis must meet both prongs of a two-prong test.[36] He must first establish that his counsel’s representation was deficient.[37] To show deficient performance, Lewis has the “heavy burden of showing that his attorney
“made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment[.]'”[38] He may meet this burden by establishing that, given all the facts and circumstances, his attorney’s conduct failed to meet an objective standard of reasonableness.[39] Deficient performance is not shown by matters that go to trial strategy or tactics.[40]

Lewis must also show that the deficient performance resulted in prejudice such that “there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different.”[41]
This Court employs a strong presumption that counsel’s representation was effective.[42]

Lewis first argues that his attorney’s performance at trial was deficient because he failed to object or move for a mistrial when the trial judge mistakenly read the information from a prior residential burglary charge. Arguably, the failure to request a special curative instruction would also be within the scope of Lewis’s deficient performance argument. Assuming without deciding that the performance of counsel was deficient, Lewis must still demonstrate prejudice resulting from that deficient performance. That is, that there is a reasonable probability that the trial result would have been different but for counsel’s errors.

The evidence, as outlined in the discussion of the trial irregularity above, indicates overwhelming evidence of Lewis’s guilt. Accordingly, we conclude that Lewis fails to prove how his attorney’s failures resulted in prejudice.

Lewis’s second ineffective assistance of counsel argument is that his attorney should have investigated and requested fingerprint analysis reports that were not provided to him during discovery. He further asserts that these reports contained exculpatory evidence that his fingerprints were not found at Cloner’s residence or on any of the recovered items. Lewis completely fails to show prejudice.

Lewis’s trial counsel received, on the morning of trial, police reports stating that they had dusted all of the items for fingerprints, they had not found Lewis’s fingerprints, and they had released the items back to Cloner in October of 2000. The crux of Lewis’s counsel’s concern with the fact this report had just been given to him was not that he had been unaware that Lewis’s prints were not found — he knew that from the first trial. He was concerned because, in the context of the State’s sudden decision to call an expert witness on fingerprint evidence, Lewis’s trial counsel felt unprepared to cross-examine the expert, and protested that, because the police had released the items back to Cloner, he would not have the chance for his own expert to review them.

The State never called an expert witness on fingerprint evidence, however. Lewis fails to prove even the slightest probability that, but for counsel’s alleged errors, the result of the trial would have been different since the pertinent fact, that the police did not find Lewis’s fingerprints, was known and argued in both trials.

We affirm the judgment and sentence.

BECKER and APPELWICK, JJ., concur.