STATE v. MUSGROVE, 31177-1-II (Wash.App. 2-8-2005)

No. 31177-1-IIThe Court of Appeals of Washington, Division Two.
Filed: February 8, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County. Docket No: 02-1-03485-5. Judgment or order under review. Date filed: 11/25/2003. Judge signing: Hon. Frank E Cuthbertson.

Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.

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

VAN DEREN, J.

During a struggle over the contents of a fanny pack, Cindy Denise Musgrove stabbed her boyfriend, Gary Alfiche. He died of the stab wounds six days later. Musgrove asserted accident and self-defense at trial, based on battered woman’s syndrome. The jury convicted Musgrove of second degree intentional murder with a deadly weapon enhancement. On appeal, Musgrove argues that the trial court (1) violated her Fifth Amendment rights; (2) improperly refused to give a cautionary instruction and denied her motion for mistrial; (3) erroneously limited evidence of prior abuse; and (4) erred in giving a first aggressor instruction. She also asserts cumulative error. Finding no error, we affirm.

FACTS
The State charged Musgrove with second degree intentional murder with a deadly weapon enhancement. The charge was based on her stabbing Alfiche, an incident which she claims was accidental and in self-defense.

Musgrove had an on-again, off-again relationship with Alfiche for eight years before his death. During this time, Alfiche had often been physically and verbally abusive to her. Two of these incidents resulted in Alfiche’s arrest and conviction on domestic violence charges.

Musgrove separated from Alfiche in January 2002. In July, she contacted him in an attempt to re-establish a romantic relationship with him. Alfiche then moved in with Musgrove for approximately one week, after which she determined the relationship could not work.

Musgrove arranged to meet Alfiche at her house at 6:30 p.m. on July 19, 2002, to get her house key from Alfiche and to allow him to retrieve the rest of his belongings from the house. At approximately 8:30 p.m., Alfiche had not arrived, so Musgrove went to a nearby tavern.

When Musgrove returned to her residence at approximately 11:30 p.m., she found Alfiche in her bedroom, smoking crack cocaine. Soon thereafter, Alfiche’s ex-wife, Becky Yockman, arrived at Musgrove’s residence. Yockman asked if Alfiche was there, but Musgrove declined to allow Yockman to speak to Alfiche.

Musgrove then questioned Alfiche as to why Yockman came to the house. They argued about whether he was being honest in their relationship, but Alfiche was largely unresponsive. Musgrove testified that she did not know Yockman’s intentions or how many people accompanied her to Musgrove’s house. Musgrove consistently maintained that she feared that Alfiche was going to harm her, as he had in the past.

Musgrove then retrieved Alfiche’s fishing knife from the closet and went outside to Alfiche’s truck. Musgrove took Alfiche’s fanny pack from the truck, because she believed she would find her house keys and other women’s phone numbers in it. At this time Yockman and her friend drove away.

Mugrove returned to the house and attempted to lock herself in a room near the kitchen. As she began to go through Alfiche’s fanny pack, Alfiche forced his way through the door. He tried to recover his fanny pack, and they struggled into the kitchen area. During the struggle, Alfiche was stabbed in the chest.

Musgrove reached a 911 operator at 2 a.m. on July 20, 2002. Musgrove claimed she made two earlier attempts to reach a 911 operator but was unsuccessful.

When Officers Bambico and Crowder arrived at her home, Musgrove was in the bedroom talking to the 911 dispatcher and applying pressure to Alfiche’s wound. As paramedics arrived, the officers removed Musgrove from the bedroom and began talking to her in the kitchen.

The officers asked her to identify herself and Alfiche. They asked her what happened, and Musgrove described the incident. After Musgrove provided her version of the events, Bambico walked through the residence to look at the evidence. Crowder stayed with Musgrove during this 15- to 20-minute period.

When Bambico returned, he read Musgrove her Miranda[1]
warnings and placed her under arrest, at which point Musgrove invoked her right to counsel. As they escorted her to the patrol car, Musgrove said that `she wanted the fanny pack and the money was hers.’ 8 Report of Proceedings (RP) (Sept. 18, 2003) at 1008.

Alfiche died from internal bleeding six days later.

At a CrR 3.5 hearing, the court concluded that Musgrove’s statements to Bambico and Crowder, both before and after Miranda warnings, were admissible.

During trial, the prosecutor extensively questioned Musgrove’s cousin, Sandy Gibson, about whether she received a call from Musgrove immediately after the stabbing. Musgrove requested a mistrial based on this line of questioning, arguing that the State had no factual basis for the questions, and that the questions were therefore misleading to the jury. The court refused to give a cautionary instruction and denied the mistrial motion.

The court preliminarily ruled that, subject to an offer of proof, evidence of Alfiche’s past abuse of Musgrove would be limited to testimony from witnesses who had firsthand knowledge of the abuse. This ruling specifically pertained to two defense witnesses who Musgrove did not subsequently call to testify.

The court gave the jurors a first aggressor instruction. The jury returned a guilty verdict for second degree intentional murder with a deadly weapon enhancement. The trial court sentenced Musgrove to a downward exceptional sentence of 108 months.

Musgrove filed this timely appeal asserting trial court error in: (1) admitting her pre- and post-Miranda statements; (2) denying her motion for mistrial and refusing to give a curative instruction; (3) limiting the scope and nature of prior abuse testimony; and (4) giving a first aggressor instruction. She also asserts cumulative error.

ANALYSIS I. Admission of Musgrove’s Statements in Violation of Her Miranda Rights A. Pre-Miranda Statements
Musgrove asserts that the trial court erroneously permitted Bambico and Crowder to testify regarding her pre-Miranda statements. She asserts that the statements were made during a custodial interrogation.

A police officer must give a suspect Miranda warnings before any custodial interrogation. U.S. Const. amend V; Wash. Const. art. I, sec. 9; Miranda, 384 U.S. at 457-58. Whether there has been a custodial interrogation is a mixed question of law and fact. State v. Solomon, 114 Wn. App. 781, 787, 60 P.3d 1215
(2002), review denied, 149 Wn.2d 1025 (2003).

This court reviews a trial court’s custodial determination de novo. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). The degree to which an officer restricts the defendant’s movement during questioning determines whether the questioning was `custodial.’ Lorenz, 152 Wn.2d at 36. `An objective test is used to determine whether a defendant was in custody whether a reasonable person in the individual’s position would believe he or she was in police custody to a degree associated with formal arrest.’ Lorenz, 152 Wn.2d at 36-37 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

This court reviews the trial court’s factual findings as to whether an interrogation took place under a substantial evidence standard. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). An interrogation takes place when an officer expressly asks the defendant questions or where police actions are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

The officers knew before arriving at Musgrove’s residence that she had admitted to accidentally stabbing Alfiche. When Bambico arrived at the scene, Musgrove was in her bedroom, administering aid to Alfiche. Bambico `asked her to come out’ and she complied. RP (July 28, 2003) at 12. Crowder was also present at this time, and both officers were in uniform.

Bambico testified that after they took Musgrove out of the bedroom, they `tried to calm her down, and then . . . started the investigation.’ 7 RP (Sept. 17, 2003) at 872. Crowder and Bambico then stood with her in the kitchen area, and Bambico `asked what happened.’ RP (July 28, 2003) at 13. Musgrove related her version of the night’s events.

Bambico testified that her entire recount of the evening’s events was in response to his initial question of `what happened’ and there were no additional questions. Bambico said, `She just told us what happened. I didn’t ask specifics.’ 7 RP (Sept. 17, 2003) at 877. Crowder testified that they asked questions to `determine what the situation was that resulted in the stabbing.’ RP (July 28, 2003) at 51. Crowder also stated that he asked her `where was the knife when they were struggling.’ 8 RP (Sept. 18, 2003) at 1005.

After Musgrove gave her statement, Bambico went around the apartment to assess the consistency of her statements with the evidence. During that time, it was `sort of implied at the time that she was going to remain with [Crowder]’ while Bambico looked around the apartment. RP (July 28, 2003) at 42. While Crowder was alone with Musgrove, she `elaborated on some of the things that she had mentioned, but, you know, just no additional questions were asked as far as what she had said, and I never confronted her on anything that she did say.’ RP (July 28, 2003) at 44. Musgrove was not out of Crowder’s sight during the 15 to 20 minutes that Bambico was out of the kitchen area.

Bambico then concluded that her story `didn’t add up.’ RP (July 28, 2003) at 16. He read Musgrove her Miranda rights and placed her under arrest for first degree assault. Musgrove immediately requested an attorney.

Bambico and Crowder testified that Musgrove was not free to go between the time they arrived and the time they formally placed her under arrest. Bambico stated that `she was a prime person there’ and that if she had not come out of the bedroom, they would have physically removed her. RP (July 28, 2003) at 24.

The court concluded that Musgrove’s statements were admissible. It stated that Musgrove’s invocation of her right to counsel after she was read her Miranda rights indicated `her subjective belief at the time of the first interview with the officers . . . that she was [not] in custody’ at that time. RP (July 28, 2003) at 60. It also noted, `[I]t doesn’t appear to the Court that her subjective belief was that she was being coerced into making these statements.’ RP (July 28, 2003) at 60.

While the trial court improperly considered Musgrove’s subjective belief as to whether she was in custody, this mistake does not render the court’s ultimate ruling erroneous. A reasonable person in Musgrove’s situation would not have believed she was in police custody to a degree associated with formal arrest. She initiated contact with the police when she called 911. And although the police were aware that Musgrove was responsible for stabbing Alfiche, the dispatcher had described the stabbing as accidental and it was unclear whether a crime had been committed.

Furthermore, the police questioning was limited and took place in her own home. The officers’ questioning of Musgrove for purposes of establishing the participants’ identity and `what happened’ did not amount to a custodial interrogation. Thus, the trial court properly admitted the pre-Miranda statements.

B. Post-Miranda Statements
Musgrove asserts that the trial court erred in admitting her post-Miranda statements. Once an accused invokes her Fifth Amendment right to counsel, officers must cease interrogation unless the accused initiates further communication. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378
(1981).

After Musgrove explained her version of the evening’s events, Bambico read Musgrove her Miranda warnings and formally placed her under arrest. Musgrove immediately invoked her right to counsel.

But as they escorted her to the patrol car, Crowder overheard her state that `she wanted the fanny pack and the money was hers.’ 8 RP (Sept. 18, 2003) at 1008. The court conducted a CrR 3.5 hearing and concluded that the statement was voluntary.[2] Crowder then related Musgrove’s statement before the jury.

There is no evidence that Musgrove’s statement about the fanny pack or the money was in any way coerced or instigated by the officer who was questioning her. The record shows that her post-Miranda statements were entirely voluntary. Thus, there was no error in the trial court’s ruling.

II. Motion for Mistrial and Curative Instruction
Musgrove argues that the trial court erred in denying her motion for a mistrial based on the State’s misleading questioning of its own witness, Gibson. She also asserts that the court erred in deciding that a curative instruction was not warranted.

This court reviews a lower court’s denial of a motion for mistrial for manifest abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A reviewing court will only disturb the trial court’s decision to deny a mistrial motion where there is a substantial likelihood that the error giving rise to the motion influenced the jury’s verdict. Rodriguez, 146 Wn.2d at 269-70.

Musgrove contends that the State’s manner of questioning Gibson amounted to misconduct and misled the jury. She asserts that questions regarding whether Gibson received a call from Musgrove before her 911 call implied that the State had evidence that the call had been made.[3]

Musgrove objected and in the ensuing colloquy, Musgrove asked the State where this line of questioning was coming from. The prosecutor responded:

It’s instinct. I heard it for the first time on the stand, too. Instinctively the State believes it’s illogical she was listening to a police scanner and that’s how she knew.

Also, there is no evidence that anybody — the dispatcher would have used the term domestic violence. Not an accidental stabbing. We have heard the 911 tape. We have heard the allegation. There is no allegation of domestic violence . . . based on the dried blood and the period of time that — et cetera . . . it’s all from in my head. There is no other evidence of that. No police report. Nothing else.

7 RP (Sept. 17, 2003) at 833.

Counsel then moved for a mistrial, alleging that the State’s questions were leading and implied that there was proof of a phone call from Musgrove to Gibson. The State responded that the questions were consistent with the State’s ongoing theory that there was a `significant delay’ before Musgrove called 911.

The court denied counsel’s mistrial motion but initially decided to give the jury a curative instruction to `disregard any questions and responses regarding telephone calls that came into Ms. Berry’s residence before the scanner.’ 7 RP (Sept. 17, 2003) at 840. It noted concern `that the jury may be misled to believe that there is some evidence that the State has at this time that such a phone call happened.’ 7 RP (Sept. 17, 2003) at 841.

But after reviewing the transcript of the State’s questions, the court stated, `I don’t think a curative instruction is warranted at this point. I believe it was a legitimate question regarding whether or not there was a call.’ 7 RP (July 17, 2003) at 849-50. The court clarified that its original decision to issue the instruction was based on the mistaken belief that the State asked Gibson if she told someone that Musgrove called her.

The trial court did not err in failing to grant a mistrial or give a curative instruction. Musgrove has not asserted a specific error by the State beyond alleging that the State’s questions were `misleading’ to the jury. But the State had circumstantial evidence to support questions to Gibson regarding whether she received a call from Musgrove. And Gibson’s ambiguous answers warranted the State’s repetitive questioning.

III. Limitation of Evidence
This court reviews a trial court’s decision to admit or exclude evidence for an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 869, 83 P.3d 970 (2004). A court abuses its discretion when the `decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.’ State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997) (quoting State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).

A. Limiting Instruction on Evidence of Abuse
The court instructed the jury to consider evidence of Alfiche’s abuse of Musgrove `only for the purpose of evaluating the defendant’s decision to arm herself with a knife.’ 9 RP (Sept. 25, 2003) at 1253. Musgrove assigns error to this limitation, arguing that there is `no authority for giving the limiting instruction.’ Br. of Appellant at 41.

Musgrove does not cite any support for this assignment of error. And this omission precludes appellate review. RAP 10.3(a)(5); Trohimovich v. State, 90 Wn. App. 554, 559, 952 P.2d 192 (1998).

Furthermore, the court’s limitation of the jury’s use of evidence on prior abuse was well within its discretion. The court reasonably expressed concern that the jury might improperly use testimony of specific instances of abuse as character evidence, showing the victim’s propensity for violence. See ER 404, 405. And Musgrove could not articulate any relevance beyond the specified purpose. Thus, there was no error.

B. Witnesses’ Testimony about Prior Abuse
Musgrove next contends that the trial court erred in limiting witness testimony on prior abuse to witnesses who have `firsthand knowledge that [the abuse] actually happened.’ 9 RP (Sept. 25, 2003) at 1218. Specifically, the State objected to the testimony of Tammy Lewis and Mikki Harrington because some of their testimony pertained to instances of abuse that they did not personally witness. Musgrove argued that their testimony was not going to Alfiche’s character but was being offered to refute the State’s theory that the abuse was less severe than Musgrove alleged.

The court responded that the threshold question was whether the witness has `firsthand knowledge that [the abuse] actually happened.’ 9 RP (Sept. 25, 2003) at 1218. It resolved that when Musgrove called Lewis and Harrington as witnesses, it would ask for an offer of proof. But Musgrove did not call either Lewis or Harrington as witnesses.

The court specifically stated, `I’m going to ask for an offer of proof, and [they] can be examined. . . . We’ll see if [they] actually [do] have firsthand knowledge of anything.’[4] 9 RP (Sept. 25, 2003) at 1217-18. Defense counsel responded, `I think that’s fair.’ 9 RP (Sept. 25, 2003) at 1218. Counsel then chose not to call either Lewis or Harrington as witnesses.

The court had not made a final ruling on what exact testimony it would admit from these two proposed witnesses. And counsel chose not to call them to provide an offer proof and obtain a final ruling. A party waives any error where a trial court makes a tentative ruling on an evidentiary issue and no follow-up objection is made. State v. Powell, 126 Wn.2d 244, 256-57, 893 P.2d 615 (1995). Thus, Musgrove has waived review of this issue.

IV. First Aggressor Instruction
Musgrove challenges the trial court’s decision to give the jury a first aggressor instruction.[5] The State responds that the evidence justified the court’s instruction.

We review adequacy of a jury instruction de novo. State v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002). Each party is entitled to have the court instruct the jury on its theory of the case if evidence supports that theory. State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997).

A first aggressor instruction is appropriate when `there is credible evidence that the defendant provoked the use of force, including provoking an attack that necessitates the defendant’s use of force in self-defense.’ State v. Wingate, 123 Wn. App. 415, 422, 98 P.3d 111, 2004 (citing State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999)). For the instruction to be valid, the record must demonstrate the defendant’s involvement in wrongful or unlawful conduct prior to the charged crime. Wingate, 123 Wn. App. at 422-23.

The State presented evidence showing that: (1) Musgrove and Alfiche got into an argument after Alfiche’s ex-wife appeared at Musgrove’s residence; (2) the subject of their argument was whether he was seeing other women; (2) when Alfiche was unresponsive, Musgrove armed herself with Alfiche’s fishing knife and went to get his fanny pack from his truck; (3) Musgrove re-entered the residence and locked herself in a room near the kitchen; (4) she was looking through the fanny pack for his set of house keys and women’s phone numbers; and (5) Alfiche followed Musgrove into the room where they struggled over the fanny pack, resulting in Alfiche’s stab wound.

The State’s evidence indicates that Musgrove first armed herself with Alfiche’s fishing knife, then took his fanny pack, an act that was likely to provoke a physical response from Alfiche. Thus, the instruction was appropriate, and the trial court did not err.

V. Cumulative Error
Cumulative error may entitle a defendant to a new trial or a reversal of her conviction where errors have produced an unfair trial. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994). But cumulative error cannot deprive a defendant of a fair trial where the defendant has not shown prejudicial error. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990). Because Musgrove has failed to establish any error on appeal, this claim also fails.

Musgrove’s convictions are affirmed.

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.

MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.