No. 18984-8-III.The Court of Appeals of Washington, Division Three. Panel One.
Filed: November 27, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 95-1-00717-2, Hon. Robert Austin, December 15, 1999, Judgment or order under review.
Counsel for Appellant(s), Cece L. Glenn, Attorney At Law, Attorney At Law, W 1309 Dean Ste 100, Spokane, WA 99201-2014.
Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.
STEPHEN M. BROWN, A.C.J.
After deciding his confession was properly admitted in a previous trial, on other grounds we reversed Tobias Stackhouse’s 1996 conviction for first degree murder for the 1994 slaying of Linda Jaramillo Guillen. State v. Stackhouse, 90 Wn. App. 344, 350-52, 957 P.2d 218, review denied, 136 Wn.2d 1002 (1998). Mr. Stackhouse was retried and again found guilty in 1999. Now, he argues the trial court erred by (A) admitting his confession in violation of the corpus delicti rule; (B) failing to strike the testimony of the State’s psychologist; and (C) allowing the jury to have unrestricted access to his audio confession and a tape player. We affirm.
FACTS
The victim’s body was discovered soon after the crime. At trial, Dr. George Lindholm related his autopsy results. Dr. Lindholm indicated Ms. Guillen suffered multiple blunt impact injuries and cutting/stabbing wounds and concluded chest wounds caused Ms. Guillen’s death. He termed the death a homicide.
Travis Johnson testified Mr. Stackhouse and Jason Kukrall told him they robbed and killed Ms. Guillen. According to Mr. Johnson, Mr. Stackhouse or Mr. Kukrall told him they dumped the clothing they wore during the murder behind Deer Park High School. Detective Minde Connelly testified about finding a pair of boots connected to Mr. Stackhouse in the same area, relying on a diagram provided by Mr. Kukrall. Barbarella Peltier, a co-worker at the bar/restaurant where Mr. Stackhouse worked, testified she noticed a knife with a six-inch blade was missing from the kitchen after the murder. Fingerprint technician, Craig Coppock, testified a latent print recovered from a beer bottle located at the crime scene came from Mr. Kukrall.
Mr. Kukrall’s testimony from the first trial was read to the jury. Mr. Kukrall said he pleaded guilty to second degree murder in return for testifying against Mr. Stackhouse. Mr. Kukrall testified Mr. Stackhouse hit Ms. Guillen in the face and then kicked her in the face and chest. According to Mr. Kukrall, Mr. Stackhouse asked him for a knife Mr. Stackhouse had taken from work. Mr. Kukrall related he threw the knife to Mr. Stackhouse who then used it to stab Ms. Guillen. Mr. Kukrall testified that after the murder, he and Mr. Stackhouse went to an area behind Deer Park High School where they burned Mr. Stackhouse’s flannel clothes and threw his boots into the bushes.
Ryan Bliss testified he met both Mr. Stackhouse and Mr. Kukrall while he was a trustee at the Pend Oreille County Jail. According to Mr. Bliss, Mr. Stackhouse confided in him about the murder. At first, Mr. Stackhouse said Mr. Kukrall did the killing, but later said he did it himself. Mr. Stackhouse gave Mr. Bliss two versions of the killing; in both versions Mr. Kukrall initiated the assault by hitting Ms. Guillen on the head with a beer bottle. Mr. Stackhouse then kicked her in the head. Mr. Stackhouse kicked her again when she tried to flee and then stabbed her after Mr. Kukrall handed or threw him the knife. From the information provided by Mr. Stackhouse, Mr. Bliss drew a diagram of Ms. Guillen’s body with various wounds marked upon it. Mr. Bliss said Mr. Stackhouse told him some of Ms. Guillen’s blood got on the right sleeve of his coat. Evidence was admitted of unspecified blood on the right sleeve of the coat.
The trial court admitted an audiotape of Mr. Stackhouse’s formal confession and played it for the jury. Mr. Stackhouse admitted hitting, kicking, and stabbing Ms. Guillen with a knife he took from work. He said Mr. Kukrall told him to kill her. Shortly after the jury heard the tape, Mr. Stackhouse moved to dismiss for lack of evidence. The trial court denied the motion, reasoning in part:
I don’t see this as a corpus delicti kind of problem. Not only that we have a body. We have a body with numerous wounds and we have the testimony of Mr. Stackhouse that corroborates the physical finding of not only the police officers but the forensic pathologist, indicating that he has done it in a manner consistent with what they have found. So there is not a corpus delicti.
Report of Proceedings (RP) at 640.
In his defense, Mr. Stackhouse portrayed his confession as false, made to protect Jason Kukrall. In support of the defense theory, and over the State’s objection, Mr. Stackhouse called psychologist Marty Beyer, Ph.D.
The trial court reasoned:
If, based upon her experience and training, she issues an opinion, that is an application of her experience and training, as it relates to the facts in the interviews with Tobias Stackhouse, if the opinion is couched in terms of reasonable psychological probability, then, I will allow her to express her opinion.
RP at 26-27.
Dr. Beyer opined that Mr. Stackhouse’s childhood history rendered him more likely to be a follower than a leader. According to Dr. Beyer, Mr. Stackhouse admired Mr. Kukrall as an older and powerful friend. She said Mr. Stackhouse told her Mr. Kukrall asked him to take the blame for the murder because Mr. Stackhouse was 17 at that time while Mr. Kukrall was 19, and would have been tried as an adult. According to Dr. Beyer, Mr. Stackhouse said he took responsibility in order to avoid the blame falling on Mr. Kukrall.
When defense counsel asked Dr. Beyer to give an opinion as to the `authenticity’ of Mr. Stackhouse’s confession, the State objected, arguing the opinion would be improper testimony on an ultimate issue and credibility. RP at 754. The trial court overruled the objection so long as Dr. Beyer limited her opinion `to a reasonable psychological probability.’ RP at 755.
Then, Dr. Beyer testified:
Well, in my opinion, the things that I have described about his immaturity have to be taken into consideration in, umm, evaluating the authenticity of his confession. And I — in my opinion, he fits the psychological profile of an emotionally immature teen-ager, who would confess to something that he did not do.
RP at 755. Dr. Beyer further opined ‘[t]hat it is more likely than not that he confessed to a crime he did not commit.’ RP at 757.
In rebuttal, the State called Dr. Timm Fredrickson to criticize Dr. Beyer’s report. In Dr. Fredrickson’s opinion, Mr. Stackhouse’s confession `was a volitional conscious act, that was not impaired by any developmental mental or legally recognized defect.’ RP at 863. He characterized Mr. Stackhouse’s relationship with Mr. Kukrall as a `party-type’ friendship of convenience. RP at 864.
In surrebuttal, over the State’s objection, Dr. Beyer again stated that Mr. Stackhouse did not fit the profile of a killer but rather the profile of someone who lied for a friend. After Dr. Beyer had completed her surrebuttal, defense counsel moved to strike Dr. Fredrickson’s testimony because he did not render his opinion with `a reasonable psychological certainty[.]’ RP at 896. The State agreed it did not ask the question but noted also that defense counsel did not object. The trial court asked defense counsel, `Don’t you have a duty to object somewhere?’ RP at 896.
The trial court denied the motion to strike noting the lack of objection and the fact that Mr. Stackhouse had three defense attorneys.
During closing argument the defense invited the jury to listen to Mr. Stackhouse’s tone when giving his taped confession, `if you listen closely to that account, it has all the trappings and earmarks of a rote, recited account, as given to Toby Stackhouse by another person.’ RP at 989. The jury later requested a tape recorder to play the critical tape. Mr. Stackhouse objected, arguing unsuccessfully it would be unduly prejudicial to allow the jury unlimited use of the tape player. Mr. Stackhouse appealed his conviction for first degree murder; the State filed a cross-appeal with regard to Dr. Beyer’s testimony.
ANALYSIS A. Corpus Delicti
Does sufficient evidence exist establishing the corpus delicti of murder?
`The corpus delicti rule prohibits the admission of a confession absent prima facie evidence that a crime has been committed.’ State v. Finch, 137 Wn.2d 792, 838, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999) (citing State v. Aten, 130 Wn.2d 640, 655-56, 927 P.2d 210 (1996)). `The purpose of the rule is to prevent a person from being convicted based on a confession to a crime that has not been committed.’ Finch, 137 Wn.2d at 838
(citing City of Bremerton v. Corbett, 106 Wn.2d 569, 576-77, 723 P.2d 1135
(1986); State v. Dodgen, 81 Wn. App. 487, 492, 915 P.2d 531 (1996)). `In a homicide case, the corpus delicti consists of two elements the State must prove at trial; (1) the fact of a death and (2) a causal connection between the death and a criminal act.’ Finch, 137 Wn.2d at 838
(citing Aten, 130 Wn.2d at 655).
`The State need not show a causal connection between the defendant and the crime and can rely entirely on circumstantial evidence to establish the elements of the corpus delicti.’ State v. Thompson, 73 Wn. App. 654, 659, 870 P.2d 1022 (1994) (citing State v. Sellers, 39 Wn. App. 799, 802, 695 P.2d 1014 (1985)). Here, the uncontroverted evidence showed (1) Ms. Guillen was dead, (2) as a result of being stabbed in the chest. The dispute was the identity of her killer. `Corpus delicti is more than adequately established in this case.’ Finch, 137 Wn.2d at 838.
B. Dr. Fredrickson’s Testimony
The issue is whether the trial court erred by abusing its discretion when failing to strike Dr. Fredrickson’s rebuttal testimony because it was not based upon a reasonable psychological certainty.
We review evidentiary decisions for an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997); Stackhouse, 90 Wn. App. at 354. A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based upon untenable grounds or reasons. Stenson, 132 Wn.2d at 701.
The objection, timed after Dr. Beyer’s surrebuttal, was very general and broad enough to strike the entirety of Dr. Fredrickson’s rather extensive testimony. Generally, a party’s failure to raise a specific objection to evidence at trial waives the issue for appellate review. State v. Elmore, 139 Wn.2d 250, 283, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000); State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182
(1985). Thus, we limit our discussion toward the need to establish a reasonable certainty for expert testimony.
ER 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine an act in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In the sexual predator commitment context, this court has held ‘[e]xpert opinion testimony concerning a person’s mental status is not admissible unless the expert holds his or her opinion with reasonable medical and psychological certainty.’ In re Detention of Twining, 77 Wn. App. 882, 891, 894 P.2d 1331 (1995) (citing State v. Martin, 14 Wn. App. 74, 76-77, 538 P.2d 873 (1975)). This standard is equivalent to the `more likely than not’ and `reasonable medical certainty’ standards applied in other contexts. Twining, 77 Wn. App. at 891. The purpose of the reasonable certainty standard is to measure the correlation between the facts of a case and the expert’s opinion. In re Detention of A.S., 138 Wn.2d 898, 918, 982 P.2d 1156
(1999).
Here, the prosecutor asked Dr. Fredrickson to give two specific opinions. First, the prosecutor asked for an opinion, based on the doctor’s research, his training, and his experience as to whether Mr. Stackhouse’s developmental history could have caused him to falsely confess to a murder. Dr. Fredrickson answered: `Based on the information that I had available, it is my opinion that Mr. Stackhouse’s confession, in January of 1995, was a volitional conscious act, that was not impaired by any developmental mental or legally recognized defect.’ RP at 863.
Second, the prosecutor asked Dr. Fredrickson to give an opinion, again based on his research, whether Mr. Stackhouse’s confession was influenced by irrational loyalty or need for acceptance. Dr. Fredrickson replied, `It’s my opinion that the irrational loyalty and dependence was not significant enough to interfere with his volitional conscious act at that particular time.’ RP at 863.
Dr. Fredrickson did not state with respect to either opinion that they were based on a reasonable psychological certainty or some other equivalent language. Under the principles established in Twining, the trial court erred. Next, we discuss harmless error.
`An error in admitting evidence that does not result in prejudice to the defendant is not grounds for reversal.’ State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (citing Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983)). Apart from a fleeting and unreasoned contention that the error deprived Mr. Stackhouse of a fair trial, no argument is presented establishing the error was constitutional in magnitude. Allegations of constitutional error unsupported by reasoned argument and citation to authority merit no consideration on appeal. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). If the evidentiary error is not of constitutional magnitude, it is deemed harmless if no reasonable probability exists of the error materially affecting the verdict. Bourgeois, 133 Wn.2d at 403; Stenson, 132 Wn.2d at 709; State v. Rivers, 129 Wn.2d 697, 707, 921 P.2d 495 (1996). `The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.’ Bourgeois, 133 Wn.2d at 403
(citing Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086
(1994)). `In assessing whether the error was harmless,’ the reviewing court measures the admissible evidence of guilt `against the prejudice, if any, caused by the inadmissible testimony.’ Bourgeois, 133 Wn.2d at 403.
First, Dr. Fredrickson’s testimony did little to rebut the basis of Mr. Stackhouse’s false confession theory. During cross-examination, defense counsel paraphrased Dr. Fredrickson’s conclusions to support the proposition that although Dr. Fredrickson found the confession to be a volitional act, there was still a possibility that Mr. Stackhouse did not mean what he said at the confession. In that context, Dr. Fredrickson’s opinion was not entirely inconsistent with Mr. Stackhouse’s defense theory.
Second, the State minimized any prejudicial effect of Dr. Fredrickson’s testimony by ignoring it entirely during closing argument, instead directing its energy on attacking Dr. Beyer’s evaluation. By contrast, defense counsel attacked Dr. Fredrickson’s failure to state his opinion with reasonable psychological certainty, citing it as an indicator of unreliability. In that way, Mr. Stackhouse was able to take advantage of that omission in Dr. Fredrickson’s testimony. Yet, even that attack did not motivate the State to refer to Dr. Fredrickson’s challenged opinion testimony in its rebuttal argument. In sum, if any prejudice flowed from Dr. Fredrickson’s challenged testimony, it was de minimus.
Third, the unchallenged portions of Dr. Fredrickson’s testimony raised legitimate questions as to the efficacy of Dr. Beyer’s evaluation of Mr. Stackhouse. In this connection, Dr. Fredrickson paid particular attention to formative events closer in time to the murder that were largely ignored by Dr. Beyer, such as Mr. Stackhouse’s stint in the Job Corps.
Fourth, and perhaps most importantly, Dr. Beyer was unable to cite any actual case of a person giving a false confession out of irrational loyalty to a friend. That central flaw in Dr. Beyer’s analysis was a major and persuasive focus of the State’s closing argument.
In sum, when one considers the totality of admissible evidence, the absence of Dr. Fredrickson’s testimony would not have changed the result. See Bourgeois, 133 Wn.2d at 404-05. Therefore, we conclude any error was harmless.
C. Audio Tape Use During Deliberations
The issue is whether the trial court erred in allowing the jury to have access to a tape player so it could listen to Mr. Stackhouse’s taped confession. Generally, `a tape recorded statement of the defendant and a properly authenticated transcript thereof may, within the sound discretion of the trial court, be admitted as exhibits and reviewed by the jury during its deliberations.’ State v. Frazier, 99 Wn.2d 180, 188, 661 P.2d 126 (1983) (citing State v. Forrester, 21 Wn. App. 855, 587 P.2d 179 (1978)). And, it is appropriate to send properly admitted recorded statements to the jury if, `in the sound discretion of the trial court, the exhibits are found to bear directly on the charge and are not unduly prejudicial.’ Frazier, 99 Wn.2d at 189.
Mr. Stackhouse contends the trial court abused its discretion in allowing the jury unfettered access to a tape player. But there is no `blanket prohibition’ against allowing such access in Washington. State v. Castellanos, 132 Wn.2d 94, 102, 935 P.2d 1353 (1997). To the contrary, where the tape recording bears directly on the determinative issue, ‘[w]ithholding the playback machine would be like admitting a written contract into evidence but denying jurors their eyeglasses necessary to read it.’ Id. Accordingly, the trial court has discretion to allow a tape player in the jury room, and the reviewing court will not reverse its decision absent an abuse of that discretion. Id.
A trial court abuses its discretion when no reasonable person would take the view adopted by the trial court. Castellanos, 132 Wn.2d at 97
(citing State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979)). Alternatively, a trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based upon untenable grounds or reasons. Stenson, 132 Wn.2d at 701.
The primary considerations in determining whether the trial court abused its discretion in allowing the jury to have a tape player are whether (1) the tape bears directly on the charge, and (2) the tape is not unduly prejudicial. Castellanos, 132 Wn.2d at 100. The first consideration is obvious; the tape contained Mr. Stackhouse’s confession to the charged crime. Whether the tape was unduly prejudicial turned on whether it was “likely to stimulate an emotional response rather than a rational decision[.]” Id. (quoting State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995)).
The prejudice determination is hindered somewhat by Mr. Stackhouse’s failure to include the offending tape in the appellate record. See Bulzomi v. Dep’t of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996
(1994) (noting appellant has burden of perfecting record and insufficient record on appeal precludes review of alleged error). Nevertheless, whether the tape was unduly prejudicial was decided against Mr. Stackhouse in his first appeal. Stackhouse, 90 Wn. App. at 356-57.
Moreover, the manner in which Mr. Stackhouse voiced his confession was a key facet of Dr. Beyer’s theory that Mr. Stackhouse recited a canned confession for the benefit of Mr. Kukrall; indeed, defense counsel urged the jury to listen closely to the tape. Mr. Stackhouse does not show how the jury actually used the tape player, so his argument that it was excessive is speculative. Accordingly, Mr. Stackhouse cannot show with any reasonable probability that the error affected the outcome. See Stenson, 132 Wn.2d at 709. Given these circumstances, we conclude the trial court did not abuse its discretion. Castellanos, 132 Wn.2d at 102.
CONCLUSION
We decide Mr. Stackhouse has failed to demonstrate reversible error.
Therefore, it is unnecessary to discuss the State’s concerns regarding the propriety of Dr. Beyer’s profile testimony.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SWEENEY, J., KATO, J.