State Of Washington v. Trayvon R. Cail ( 2018 )

:LEO
COURT OF APPEALS DIV I
STATE OF WASHINGTON
2018 APR 23 An 8:31
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75963-9-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
TRAYVON R. CAIL, )
)
Appellant. ) FILED: April 23, 2018
TRICKEY, J. — The trial court convicted Trayvon Cail of first degree
attempted murder, first degree murder, and first degree robbery, all while armed
with a firearm. On appeal, Cail argues that the trial court erroneously excluded
evidence of his lack of consciousness of guilt and that the prosecutor committed
misconduct. Finding no error, we affirm.
FACTS
Jermaine Smith and David Fashaw were both shot in the head in an
attempted robbery that occurred during a drug transaction. Fashaw died at the
scene. Smith survived and provided the police with information that eventually led
to Cail's arrest.
Cail was arrested in Los Angeles, California. King County Sheriffs
Department Detectives John Pavlovich and Eleanor Broggi interviewed Cail at the
offices of the Los Angeles Police Department Robbery Homicide Division. During
No. 75963-9-1 /2
the interview, Cail believed that the detectives wanted to talk with him about an
unrelated drug crime.
The State charged Cail with first degree attempted murder, first degree
murder, and first degree robbery, all with firearm enhancements, based on the
Smith and Fashaw shooting. Cail waived his right to a jury and his case proceeded
to a bench trial.
Cail sought to introduce statements from his interview with Detectives
Pavlovich and Broggi that demonstrated his belief that the interview pertained to
an unrelated drug crime. He argued that his statements indicated his state of mind.
The trial court denied this request because Gail's state of mind at the time of the
police interview was not at issue in the case.
During trial, the issue arose whether Cail was right- or left-handed.
According to Smith, the shooter was right-handed. Cail initially told Detective
Pavlovich that he was left-handed. The State attempted to prove that Cail was
right-handed.
The State introduced a handwritten letter that Cail had written while in jail.
The letter was to a person named Alicia Wilson. The State then asked Cail to write
the name for a handwriting comparison. Cail began writing with his left hand and
then switched to his right hand. Cail testified that he was ambidextrous.
The State asked Cail whether he had used his right hand to write the letter
from jail, to which Cail replied that he did not know which hand he had used. The
State then pointed out that the handwriting in the letter and the name written in
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No. 75963-9-1 / 3
court looked different, "like a second grader versus an adult."1 Cail acknowledged
that the writing looked different. The State suggested that the difference in the
writing was due to the fact that Cail was not left-handed. Cail did not object to this
line of questioning.
The State also referred to a diagram that Cail had drawn to show that Cail
was pretending to be left-handed. At the beginning of his testimony, Cail was
directed to draw a diagram of the Los Angeles neighborhood in which he was
raised. Later, the State referred to this drawing as "sad" while attempting to
establish that Cail was right-handed.2
The State noted that Cail would benefit from convincing the trial court that
he was left-handed, and then asked, "And that's why you used your left hand to
draw this kind of sad diagram up here; right?"3 Cail objected to the form of the
question and the trial court sustained the objection and told the State to rephrase
without using "sad."4 Cail answered that the writing in the diagram and the jail
letter looked the same, to which the State replied, "[w]e'll let the Judge decide
that."5 Cail made no further objections to this line of questioning.
Also during the trial, the State made several additional remarks about the
trier of fact's role in interpreting the evidence. In response to questions about the
contents of a jail telephone call, Cail testified that he was talking to his brother
about a basketball game, not speaking in code about a witness in the case. Cail
1 Report of Proceedings(RP)(June 28, 2016) at 1635.
2 RP (June 28, 2016) at 1636.
3 RP (June 28, 2016) at 1636.
4 RP (June 28, 2016) at 1636.
5 RP (June 28, 2016) at 1637.
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No. 75963-9-1 /4
said, "Mou're interpreting it wrong."6 The State responded,"Ma let the Trier of
Fact interpret it wrong then."7 Cail objected and the trial court sustained the
objection.8 In the same line of questions, the State reiterated, "I guess that's for
the Trier of Fact to determine."6 Once again, Gail objected and the trial court
sustained the objection.
After several days of testimony, the trial court found that Gail's testimony
was not credible and that the testimony of the State's witnesses was credible. Call
was convicted as charged.
Gail appeals.
ANALYSIS
ER 803(a)(3)
Gail claims the trial court erred by excluding evidence that he believed that
his arrest pertained to his involvement in an unrelated drug crime, rather than the
shooting. Specifically, Call argues that this evidence demonstrated his lack of
consciousness of guilt at the time of his interview with Detectives Pavlovich and
Broggi. The State objected to this evidence as self-serving hearsay. Because
Gail's state of mind at the time of his interview was not at issue in the case, we
conclude that the trial court did not err in excluding this evidence.
"'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," and is not admissible except as provided by the evidentiary rules or
6 RP (June 28, 2016) at 1711-12.
7 RP (June 28, 2016) at 1712.
8 RP (June 28, 2016) at 1712.
9 RP (June 28, 2016) at 1714.
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statutes. ER 801(c); ER 802. "A statement of the declarant's then existing state
of mind" is admissible as an exception to the general hearsay rule. ER 803(a)(3).
"[Then' in the term 'then-existing' refers to the time the statement was made, not
the earlier time the statement describes." State v. Sanchez-Guillen, 135 Wash. App.
636, 646, 145 P.3d 406 (2006). While statements offered as circumstantial
evidence of the declarant's state of mind are not hearsay, they must be relevant to
be admissible. State v. Stubsjoen, 48 Wash. App. 139, 146, 738 P.2d 306 (1987).
A trial court's decision on the admissibility of evidence is reviewed for abuse
of discretion. State v. Dobbs, 180 Wash. 2d 1, 10, 320 P.3d 705(2014). "A trial court
abuses its discretion when its decision 'is manifestly unreasonable or based upon
untenable grounds or reasons." Dobbs, 180 Wn.2d at 10(quoting State v. Powell,
126 Wash. 2d 244, 258, 893 P.2d 615(1995)).
Here, Cail sought to introduce his initial statements from his interview with
Detectives Pavlovich and Broggi as state-of-mind evidence to show a lack of
consciousness of guilt. He claims that his mistaken belief that his arrest was for
an unrelated drug crime demonstrated his ignorance of the shooting and,
therefore, his innocence.
Cail acknowledges that his statements to Detectives Pavlovich and Broggi
were a "then-existing" belief at the time of the interview, rather than at the time of
the shooting." Cail's state of mind at the time of his arrest was not an issue in the
case. Whether Cail believed he was being questioned about an unrelated drug
crime or the shooting has no bearing on his state of mind at the time of the
'° Opening Br. of Appellant at 17.
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shooting. The relevant state of mind was when the shooting occurred, not during
a subsequent interview. See Stubsioen, 48 Wash. App. at 146.
As a result, Call's interview statements about an unrelated drug crime were
not relevant and, therefore, not admissible." A defendant's right to due process
does not require admission of irrelevant evidence. State v. Jones, 168 Wash. 2d 713,
720,230 P.3d 576(2010). Therefore, we conclude that the trial court did not abuse
its discretion by excluding this evidence.
Prosecutorial Misconduct
Cail argues that the prosecutor committed misconduct during the bench
trial. Specifically, Cail claims that the prosecutor improperly testified to evidence
outside the record when she said that Cail had written the jail letter with his right
hand and was clearly not left-handed. Cail also contends that the prosecutor made
several improper remarks about the role of the trier of fact. We concluded that Cail
has not established that the prosecutor's conduct was improper or ill-intentioned.
To prevail on a claim of prosecutorial misconduct,the defendant must prove
that the prosecutor's comments were improper and prejudicial. State v. Yates, 161
Wn.2d 714,774, 168 P.3d 359(2007). "Any allegedly improper statements should
be viewed within the context of the prosecutor's entire argument, the issues in the
case, the evidence discussed in the argument, and the jury instructions." State v.
Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432(2003).
"We also note that during trial Cail testified that he did not know about the shooting until
the investigators arrested him. Cail's testimony pertains to the same evidence, that Cail
had no knowledge of the shooting at the time of his interview. Therefore, any error in
excluding the evidence of Gail's state of mind at the time of the interview would not have
materially affected the outcome of the trial and was harmless. See State v. Gresham, 173
Wash. 2d 405, 433, 269 P.3d 207(2012).
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No. 75963-9-1 /7
Failure to object to a prosecuting attorney's improper remark constitutes a
waiver of the error unless the remark is so flagrant and ill-intentioned that the
resulting prejudice could not have been neutralized by a curative instruction. State
v. Elmore, 139 Wash. 2d 250, 292, 985 P.2d 289 (1999). Absent evidence to the
contrary, we presume that the judge in a bench trial does not consider improper
matters or inadmissible evidence in rendering a verdict. In re Det. of H.N., 188
Wash. App. 744, 765, 355 P.3d 294 (2015), review denied, 185 Wash. 2d 1005, 366
P.3d 1244(2016).
Cail objected to the prosecutor's reference to the "sad" diagram and
statements concerning the role of the trier of fact. The trial court sustained the
objections. Cail has not shown that the judge in this bench trial considered these
improper statements after sustaining his objections to them. See In re Det. of H.N.,
188 Wash. App. at 765. Therefore, Cail cannot demonstrate that the prosecutor's
remarks had a prejudicial effect on the outcome of the trial.
Cail did not object to the State's line of questions about the jail letter and
whether he wrote with his left or right hand. Due to this lack of objection, Cail must
show that the prosecutor's statements were flagrant and ill-intentioned. See
Elmore, 139 Wash. 2d at 292. Cail makes no argument that the prosecutor's attempts
to show that Cail was actually right-handed rose to this level. We find no
prosecutorial misconduct.
Credibility
Cail assigns error to the trial court's finding of fact 26 and conclusion of law
4 that his testimony was not credible and that the State's witnesses were credible.
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No. 75963-9-1 /8
Although he assigns error, Call does not raise legal arguments pertaining to this
assignment of error in his opening brief. An appellate court will not consider a
claim of error that a party fails to support with legal arguments in its opening brief.
See State v. Dennison, 115 Wash. 2d 609, 629, 801 P.2d 193(1990). Furthermore,
credibility determinations are matters for the trier of fact and will not be reviewed
on appeal. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). As a
result, we decline to reach the merits of this claim.
Affirmed.
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WE CONCUR:
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