No. 27224-5-II.The Court of Appeals of Washington, Division Two.
Filed: October 2, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County, No. 001012681, Hon. Terry K. McCluskey, December 15, 2000, Judgment or order under review.
Counsel for Appellant(s), James L. Reese III, Attorney At Law, 612 Sidney, Port Orchard, WA 98366.
Counsel for Respondent(s), Claire A. Bradley, Kitsap Co Dep Pros Atty, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
CARROLL C. BRIDGEWATER, J.
George Edward Ross, Jr. appeals his second degree assault jury conviction. We affirm. Police responded to a 6:17 a.m. dispatch call on September 12, 2000, that a resident had heard thumping and screaming in a neighboring apartment. Officer Olson testified that when he arrived about seven minutes later (6:24 a.m.), the victim, Angela Mossburg, answered the door crying severely and bent over at the waist in a 90-degree angle. Her right arm was wrapped around her waist and chest area and she displayed a lot of pain.
According to Olson, Mossburg stated that Ross came to her residence at about 3:30 a.m. Although she asked him to leave, he did not. The two argued, and Ross grabbed Mossburg by her face and threw her down. Ross then punched Mossburg in the head and face a couple of times. When she tried to get up, Ross threw her down. He also put his hand over her mouth to keep her from yelling. When Mossburg managed to get up again, Ross threw her down again and kicked her left ribs. Mossburg stated that she was afraid of Ross.
At the hospital, Detective Andrew Oakley followed up with the police’s investigation of the case. He noticed that Mossburg had reddish marks on her neck and was suffering a considerable amount of pain in her left rib cage area. According to Oakley, Mossburg was afraid. Her voice had a tremor, her breathing was ragged, and she was very tearful. Much like her statement to Olson, Mossburg told Oakley that she had not wanted Ross at her residence; that they had argued and she asked Ross to leave, but he would not; and that Ross threw her to the floor twice and kicked her in the left rib cage area.
At trial, Dr. David Silk, Mossburg’s examining physician, testified that Mossburg reported to him that her ex-boyfriend hit her on the head and kicked her left ribs. He found bruising on Mossburg’s left lateral ribs and a slight amount of tenderness on the right temporal area and left parietal area. After reviewing Mossburg’s x-rays taken on September 12, Dr. Silk determined that Mossburg suffered a subtle fracture to her ninth rib. The injury was consistent with a kick to the rib. Although Dr. Silk and Dr. Faber, a radiologist, did not notice the fracture in Mossburg’s first set of x-rays, they did notice the fracture in a second set of x-rays taken a week later. Dr. Silk explained that this occurred because the two sets of x-rays were taken from different angles.
I. Hearsay
Ross contends that the court erred in admitting Mossburg’s statements made to Officer Olson and Detective Oakley because (1) Mossburg’s statements did not qualify as excited utterances, an exception to the hearsay rule, and (2) admission of the statements denied Ross his state and federal constitutional rights to confront a witness.
A. Excited Utterance
Ross contends that Mossburg’s statements to Olson, who interviewed Mossburg at her home where the crime occurred, and Oakley, who interviewed Mossburg at the hospital, did not qualify as excited utterances. He argues that because Mossburg gave a detailed statement to Olson, her statements were not spontaneous as required under the excited utterance exception. With regard to Oakley, Ross argues that the two and a half hours that passed between the assault and Oakley’s interview of Mossburg was too long; thus, Mossburg’s statements could not be regarded as excited utterances. Under the excited utterance exception to the hearsay rule, an out-of-court statement is admissible if it relates to `a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’ ER 803(a)(2). An excited utterance requires three preliminary factual findings: (1) a startling event or condition, (2) a declarant under the stress of a startling event or condition, and (3) a connection to the startling event or condition. State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). The key to the requirement that the statements be made while under the stress of excitement caused by the startling event is spontaneity. State v. Chapin, 118 Wn.2d 681, 688, 826 P.2d 194 (1992). In determining spontaneity, courts look to the amount of time that passed between the startling event and the utterance, as well as any other factors relevant to whether the witness had an opportunity to reflect on the event and fabricate a story about it. See Chapin, 118 Wn.2d at 688.
The excited utterance exception is based on the theory that `a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.’ Davis, 141 Wn.2d at 843. The statement need not be completely spontaneous and may be in response to a question. Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969). Mossburg’s statement to Olson consisted of the following:
[S]he indicated that Ross had come over to the residence about 3:30 in the morning. When she asked him to leave at one point, he did not want to leave. Later in the morning, they again argued. She indicated that Ross grabbed her by the face and threw her down. She stated that he had punched her a couple of times about the head and face area. She also stated that Ross had held her down and she would get up and he would throw her down again. She at one point stated that Ross put his hand over her mouth to keep her from yelling out. She had got up again and he had thrown her down again and this time kicked her in the ribs on the left side. Mossburg stated that she tried to convince Ross to let her go to her mother’s residence, which is not too far away, but said that Ross would not let her leave because he thought she would just contact the police.
3 Report of Proceedings (RP) (Nov. 15, 2000) at 251.
Olson’s testimony at the hearing supports a finding that the trial court did not abuse its discretion in finding Mossburg’s statements admissible under the excited utterance exception to the hearsay rule. Olson responded to the dispatch call within minutes. He testified that he received the dispatch call at 6:17 a.m. and was at Mossburg’s residence at 6:24 a.m. Given Olson’s quick response, there was little time or opportunity for Mossburg to fabricate. Furthermore, it was Mossburg’s neighbor, not Mossburg, who called 911 and prompted the police to come to Mossburg’s residence. Olson also testified that when Mossburg opened the door, she was bent over at the waist in a 90-degree angle with her arm across her stomach and her hand on her ribs. When Mossburg made her statement, she appeared to be very emotional and under great stress. She also appeared to be in pain and was crying. Based on Olson’s testimony, the trial court did not err in finding Mossburg’s statements to him admissible under the excited utterance exception to the hearsay rule.
With regard to Mossburg’s statement to Oakley, Ross argues that passage of time, as discussed in State v. Dixon, 37 Wn. App. 867, 684 P.2d 725
(1984), erodes the exception and supports his position that the statement was not an excited utterance. In general, the more time that passes the greater the `likelihood that the controlling stress of the event has lessened and the ability of the declarant to think and fabricate has been recovered.’ Dixon, 37 Wn. App. at 873.
In Dixon, the victim’s four-page statement fully detailed the defendant arriving at her door, the events that occurred at her place, and her breaking away and escaping from the defendant after he fondled her and implored her to have sexual intercourse with him. Dixon, 37 Wn. App. at 873. At the end of her statement, the victim gave several lines of additional detail and an explanation that the details concerned things that the victim remembered after giving her statement. Dixon, 37 Wn. App. at 873. Under these facts, the court concluded that the victim’s state of being upset when she gave her statement did not automatically render her statement an excited utterance. Dixon, 37 Wn. App. at 873-74. Other than being upset, there was no other indication that the victim’s ability to reason, reflect, and recall pertinent details was in anyway impeded. Dixon, 37 Wn. App. at 874.
Here, Oakley testified that Mossburg’s statement to him, which occurred about two hours after the crime, consisted of the following:
She said that Mr. Ross had arrived at her apartment this morning and that she had made a mistake about not checking who it was before opening the door. She said that as soon as she opened the door, she could tell right away that Mr. Ross had been drinking. She didn’t want him there.
They argued about it. She said she told him to leave and made a remark about a prior instance that she had had a problem with him before. She said that Mr. Ross then just grabbed her and threw her to the floor. She said she tried to get up but he would throw her back to the floor and that he then kicked her in left rib cage area.
3 RP at 269-70. When Mossburg made the statement, which took approximately 20 minutes, she was crying, fearful, in pain, and her voice had a tremor. Mossburg remained in the same emotional state throughout her interview. While passage of time is a factor in this case, it is not the only factor, nor the determinative factor. Mossburg’s statement to Oakley did not differ from the earlier statement she made to Olson. Unlike the victim in Dixon, Mossburg gave no further detail or additional explanations. And it appeared that throughout the interview, Mossburg remained affected by the stress of what had occurred two hours earlier. Thus, the trial court did not abuse its discretion in admitting Oakley’s testimony under the excited utterance exception to the hearsay rule.[1]
B. Confrontation Clause
Ross contends that he was denied his right to confront a witness when Mossburg did not testify and her statements were admitted through Olson and Oakley. Ross argues that the trial court should have required the State to produce Mossburg and force her to testify at trial.
The right to confront and cross-examine adverse witnesses is guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 22 of this state’s constitution. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). As Ross acknowledges, State v. Palomo, 113 Wn.2d 789, 783 P.2d 575 (1989), cert. denied, 498 U.S. 826 (1990), is directly on point. In Palomo, the court determined that the excited utterance hearsay exception applies even if the declarant is available as a witness. Palomo, 113 Wn.2d at 796. The court reasoned that excited utterance statements are highly reliable. The `stress of the event suppresses the reflective faculties of the declarant with the result that the utterances are sincere and spontaneous.’ Palomo, 113 Wn.2d at 796. An excited utterance is even more reliable than what is likely to be elicited from the same person testifying in court under oath. Palomo, 113 Wn.2d at 796. Furthermore, `[o]ne of the primary purposes of the confrontation clause is to assure to defendants an opportunity for cross examination in criminal cases.’ Palomo, 113 Wn.2d at 797. The hearsay rule `rejects testimonial assertions which are not tested by cross examination, since untested assertions may be inaccurate and untrustworthy.’ Palomo, 113 Wn.2d at 797 (citing 5 John Henry Wigmore, Evidence §§ 1363, 1420 (1974)).
Finding no reason to deviate from this state’s Supreme Court ruling in Palomo, that an excited utterance does not violate a defendant’s right to confront a witness when the declarant is available as a witness, Ross’ contention is without merit.[2] Although Ross argues that this state’s constitution offers greater protection, he provides no argument supporting his contention; thus, we decline review of it.
II. Prosecutorial Misconduct
Ross next contends that the prosecutor committed misconduct by commenting on the victim’s absence at trial. The prosecutor argued in closing,
I submit to you it’s obvious why she’s not here today. You heard the testimony. She told over and over that she was terrified. She was afraid. She was afraid of the defendant. She was afraid for her safety. She was afraid of the consequences of her reporting this to the police. It’s very clear why she’s not here today.
She’s not here telling you that it never happened. No witnesses came in here and told you that she’s now recanting her statements, that she is saying it didn’t happen. You didn’t hear anything like that. The witnesses told you she was afraid.
And do you blame her for being afraid? She had her ribs broken by Mr. Ross in front of her two children. Do you blame her for being afraid? The beauty of this system is that we can stand up for her even when she doesn’t have the strength to come here. Do we need her to prove our case? No.
4 RP (Nov. 16, 2000) at 452-53. The prosecutor continued his closing argument with the following statement:
And don’t be tempted to say, you know, why should I care in this case, why do I need to care about this, the victim is not here, we don’t know why, the State is telling me it’s because she’s afraid, but what do I know. I don’t know why she’s not here. Don’t fall into that trap. Because fear is the reason why she’s not here. She told it to many people. Well two, Officer Olson and Detective Oakley. She told it to them. And do you blame her after hearing all of this testimony? If you have an abiding belief in the truth of these charges, an abiding belief, you are satisfied beyond a reasonable doubt.
4 RP at 462-63.
Prosecutorial misconduct requires reversal when there is a substantial likelihood that improper argument affected the verdict. State v. Barrow, 60 Wn. App. 869, 876, 809 P.2d 209 (citing State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986)), review denied, 118 Wn.2d 1007 (1991). The defendant has the burden of showing both impropriety and prejudice. Barrow, 60 Wn. App. at 876 (citing State v. Hughes, 106 Wn.2d 176, 195, 721 P.2d 902 (1986)). What constitutes misconduct depends on the circumstances of each case. State v. Brown, 35 Wn.2d 379, 388, 213 P.2d 305 (1949) (citing State v. Hart, 26 Wn.2d 776, 175 P.2d 944 (1946), cert. denied, 332 U.S. 750 (1947)). Unless a proper objection was made at trial, a defendant cannot raise the issue of prosecutorial misconduct on appeal, unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546
(1997), cert. denied, 523 U.S. 1007 (1998).
In this case, Ross did not object to the prosecutor’s closing. Instead, Ross argued in closing that the State was speculating about Mossburg’s fear, and he commented that Mossburg’s failure to testify created reasonable doubt. Ross had made similar comments in his opening statement.
We find that the prosecutor’s statements were not based on any evidence at the trial concerning Mossburg’s absence. The argument that this was a reasonable inference from the facts is meritless; the effect was to comment on the credibility of the `excited utterances.’ As such, the prosecutor committed misconduct.
However, three factors prevent reversal: Ross did not object and a curative instruction to the jury to disregard the prosecutor’s statements would have obviated the prejudice; the jury was instructed that the attorney’s statements were not evidence and, we presume that the jury followed the court’s instruction; and there is not a substantial likelihood that the improper argument affected the verdict.
In gauging whether there was a substantial likelihood that the argument affected the verdict, we employ the following test:
In . . . determining whether the improper comment was prejudicial and reversible error, it is necessary for us to examine the entire record. The question we must ask is whether there is substantial likelihood the prosecutor’s comment affected the verdict. If we are unable to say from the record before us whether the petitioner would or would not have been convicted but for the comment, then we may not deem it harmless.
State v. Charlton, 90 Wn.2d 657, 664, 585 P.2d 142 (1978) (citations omitted).
The excited utterances, coupled with the medical testimony, overwhelmingly support guilt; thus, the comment did not affect the verdict. The misconduct was harmless.
III. Ineffective Assistance of Counsel
Ross bases his ineffective assistance of counsel claim on his attorney’s failure to object when the prosecutor did not call Mossburg to testify at trial and when the prosecutor improperly commented during closing on why Mossburg did not testify.
We begin our analysis of Ross’ contention with the presumption that a defendant received effective representation. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). To overcome this presumption, a defendant must show that the record lacks legitimate strategic or tactical reasons supporting counsel’s conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Thus, to establish ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense. State v. Turner, 143 Wn.2d 715, 730, 23 P.3d 499
(2001). Deficient performance is shown if counsel’s conduct fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice is shown if, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different.
In re Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). If either element of ineffective assistance of counsel has not been established, the court need not address the other element. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996); State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267 (1984)).
A. Prosecutorial Misconduct
Ross specifically argues that his attorney’s failure to object to the prosecutor’s improper closing argument constituted ineffective assistance of counsel. He argues that the prosecutor’s comments were intended to inflame the jury’s passion and prejudice. Ross also appears to allege that the prosecutor misstated why Mossburg did not testify.
Ross’ attorney did not object to the prosecutor’s closing. Instead, his attorney argued in closing that the State was speculating that Mossburg did not testify because she was afraid and that Mossburg’s failure to testify created reasonable doubt. We have previously held that the error complained of here was harmless; thus, the outcome would not have been different even if the remarks had been stricken. Further, Ross had a tactical reason to not object: he could comment on the victim’s absence himself, and argue that her absence was evidence of reasonable doubt. Thus, Ross’ attorney’s failure to object to the prosecutor’s closing cannot be a basis for a claim of ineffective assistance of counsel.
B. Expert Medical Witness
Ross also contends that his attorney’s representation was deficient because he did not call an expert medical witness to dispute when Mossburg suffered a fractured rib. The emergency room physician and the radiologist examined Mossburg’s x-rays on the date of the alleged injury, but did not find any fracture in her ribs. They noticed the fracture in x-rays taken a week later. Ross argues that his attorney’s investigation should not have stopped at talking to Mossburg’s examining physician, and he should have contested the physician’s and radiologist’s opinions with another expert’s opinion because substantial bodily injury is an element of second degree assault. While an attorney should investigate any possible defenses, the decision of whether to hire an expert is generally a matter of trial strategy. See State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981). As Ross concedes, his attorney spoke with both doctors. This may not be the extent of the investigation that Ross desired; nevertheless, it was enough for his attorney to tactically decide that a defense expert witness was unnecessary. Although his attorney did not obtain an expert witness, he left no stone unturned and argued extensively that the State presented no testimony as to when the fracture occurred. The attorney also told the court that he and Ross had discussed an expert and that he believed he made an informed decision to not call or retain one. By hiring an expert, Ross also risked that the expert’s opinion would have been inculpatory. Because the decision to call an expert witness here was a strategic decision, Ross’ contention that he received ineffective assistance of counsel fails.
IV. Mistrial
Ross contends that because the jury’s questionnaire asked the jury about its ability to sit fairly in a robbery case involving a knife, he was prejudiced. Thus, Ross argues that the trial court abused its discretion in denying his request to empanel a new jury and in denying his motion for a mistrial.
We review a court’s ruling denying a motion for mistrial under the abuse of discretion standard. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). Since the trial judge is in the best position to make firsthand observations, he or she is accorded wide discretion in dealing with trial irregularities. Mak, 105 Wn.2d at 701. 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. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995); State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). Only errors affecting the outcome of the trial will be deemed prejudicial. Mak, 105 Wn.2d at 701.
In determining whether a trial irregularity prejudiced the jury so as to deny the defendant his right to a fair trial, we consider four factors: (1) the seriousness of the irregularity; (2) whether the statement at issue was cumulative evidence; (3) whether the jurors were properly instructed to disregard the remarks of counsel not supported by the evidence; and (4) whether the prejudice was so grievous that nothing short of a new trial could remedy the error. Mak, 105 Wn.2d at 701
(citing State v. Weber, 99 Wn.2d 158, 165-66, 659 P.2d 1102 (1983)). Here, the State moved to dismiss robbery charges against Ross before trial.
The court instructed the jury to not consider the charge and to only consider the evidence presented at trial. We presume that the jury followed this instruction. State v. Grisby, 97 Wn.2d 493, 509, 647 P.2d 6
(1982), cert. denied sub nom., Frazier v. Washington, 459 U.S. 1211
(1983). With no argument beyond mere speculation that the jury did not follow the court’s instruction, Ross has failed to meet his burden on appeal of demonstrating prejudice. Thus, the trial court did not abuse its discretion in denying his motion for a mistrial.
V. Jury Instructions
Finally, Ross contends that the court erred in denying his proposed self-defense instruction. He argues that evidence at trial supported such an instruction.
A defendant need only present `any evidence’ of self-defense to be entitled to a self-defense instruction. State v. Gogolin, 45 Wn. App. 640, 643, 727 P.2d 683 (1986) (quoting State v. Adams, 31 Wn. App. 393, 395, 641 P.2d 1207 (1982)). We review the trial court’s rejection of a proposed jury instruction for an abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336, review denied, 136 Wn.2d 1021 (1998). A trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971). An element of self-defense is that the person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). To meet this element, Ross contends that Mossburg pushed him in the chest first and that he responded by picking Mossburg up by `the front of the clothing area and taking her to the floor.’ Br. of Appellant at 38. When proposing the self-defense jury instruction, Ross’ attorney stated as follows:
His confession was entered in as substantive evidence that she pushed him first. Although that may not be a particularly very convincing self-defense argument, he specifically stated to both officers, and they both testified, that substantive evidence is before the jury, that she pushed me and then he reacted after that. That would seem to be a colorable self-defense claim.
. . . .
It would be circumstantial certainly. But I think, clearly, the jury could infer from `She pushed me first’ and then his testimony that followed, about what his reactions actually were, outlines a self-defense claim. She used force against him and then he responded with force is basically what the testimony was. Now, whether or not his actions were reasonable, I think clearly the jury is going to be able to make a decision on that. But that should be for them to decide. Whether or not his response was proportionate and reasonable and necessary are all questions for the jury. But him actually responding to her force with force I think is the crux of the self-defense.
4 RP at 443-44.
The evidence Ross relies on to support his self-defense instruction is insufficient. As the prosecutor noted at trial, Ross did not testify. And there was no evidence that Ross, while being hit in the chest, had any apprehension of great bodily harm. Thus, the evidence did not support a self-defense instruction, and the trial court did not abuse its discretion in rejecting Ross’ proposed self-defense instruction.
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.
WE CONCUR: SEINFELD, J., HUNT, C.J.