State Of Washington, Resp v. Robert G. Isabel, App ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ^
STATE OF WASHINGTON,
DIVISION ONE 77
Respondent, •'pr.
No. 70462-1-1 ~z
v. CD
UNPUBLISHED OPINION ^
ROBERT G. ISABEL,
Appellant. FILED: September 15, 2014
Dwyer, J. - Robert Isabel seeks a new trial on charges of drive-by
shooting and unlawful possession of a firearm, arguing the trial court erred in
denying his motion for a mistrial and refusing to give a missing witness
instruction. We affirm.
I
In the early morning hours of January 3, 2012, Marion Tucker and his
cousin Willie Watson called 911 to report a drive-by shooting. Seattle Police
Officer Michael Connors responded to the call, interviewed Tucker, and located a
bullet hole on the passenger side of Tucker's car. Detective Benjamin Hughey
interviewed Tucker on January 6, after reviewing a report prepared by Officer
Connors. According to Tucker, he was alone in his car driving to Watson's house
when he heard a popping noise. Tucker identified the shooter as Robert Isabel,
the current boyfriend of Tucker's former girl friend.
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The State charged Isabel with drive-by shooting and first degree unlawful
possession of a firearm. During pretrial proceedings, Isabel claimed the State
had failed to meet its obligation to disclose exculpatory evidence. In particular,
he argued that a January 3 radio transmission, in which Officer Connors reported
to police dispatch that he heard "conflicting stories" from Tucker, demonstrated
that Officer Connors would provide potentially exculpatory testimony. Isabel
asked the court to order the prosecutor to locate Officer Connors, who was no
longer employed by the Seattle Police Department. Noting that the State
properly disclosed the transmission but had no "obligation to hunt down potential
Defense witnesses," the trial court directed the prosecutor to contact the Seattle
Police Department and request Connors' last known address.
At trial, near the end of the day on a Thursday, one defense attorney
cross-examined Tucker while his co-counsel sat at counsel table. After
confirming that Tucker continued to Watson's house after the shooting, the
following exchange occurred:
Q. How far is Mr. Watson's house?
A. Well, I can't tell you that, actually tell you where he lives at. Mr.
Isabel's family has been threatening my friends and my family and
my kids. So I can't tell you that.
[Co-counsel]: Objection, Your Honor.
THE COURT: What's your objection?
[Co-counsel]: Nonresponsive.
THE COURT: Ask another question.
Q. Does Mr. Watson live in the general area of 23rd and Jefferson?
A. He lives in the Central District. Yes, he does.
Q. Does he live within one block of 23rd and Jefferson?
A. I don't want to put this guy in danger.
[Co-counsel]: Objection, Your Honor.
THE COURT: You don't have to give the address.
A. He lives - it's pretty much - I mean, you give the distance, I
mean you can pretty much pinpoint where he lives.
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[Defense counsel]: Your Honor, I don't believe that Mr. Watson is
going to be in any danger.
[Co-counsel]: Objection, Your Honor. Can we have a sidebar,
please? Can I have a moment, Your Honor?
(OFF THE RECORD DISCUSSION)
BY [Defense counsel]:
Q. Can you give us an approximate distance from the intersection
of 23rd and Jefferson to Mr. Watson's house?
THE COURT: There's 360 degrees from that point. Are you trying
to figure out how long it takes?
[Defense counsel]: Yes, Your Honor. I'm trying to figure out how
long it takes, the distance.
THE COURT: From the point of the event, and if you were to drive
to Mr. Watson's house, how long is it?
A. 60 seconds.
THE COURT: Go ahead.
A short time later, after the court excused the jury, the defense requested
a mistrial based on Tucker's reference to threats from Isabel's family. When a
dispute arose as to which attorney was questioning Tucker at the time he made
the statement, the trial court advised the parties to obtain the relevant portion of
the transcript by the next trial day.
On the following Monday, the defense again requested a mistrial, arguing
that Tucker's unsolicited remark was so prejudicial as to deprive Isabel of a fair
trial. After reviewing the relevant portions of the transcript, the trial court first
noted the irregular procedure of one defense attorney questioning a witness
while a second defense attorney interposed objections while seated at counsel
table. Recognizing that Tucker's comment was nonresponsive, as identified by
co-counsel as the basis for her objection, the trial court then reasoned:
But there was no concurrent request to strike the answer or
for me to perhaps tell the jury to disregard the statement, nothing.
So at this point if someone had requested that, I could have
corrected it at the time it occurred. But there wasn't any motion to
do that.
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Further, the statement is not attributed necessarily to Mr.
Isabel. It's attributed to Mr. Isabel's family. And presumably Mr.
Isabel doesn't have 100 percent control of his family members.
There was no motion in limine made to instruct the witness
not to mention that, so there's been no motion in limine violated. I
do not find it to be inherently prejudicial such that it requires a new
trial.
And at this point, I don't think it would be in the Defendant's
interest to admonish the jury about it and bring it up again. So at
this point I'm denying the motion for a mistrial, and I think we just
need to move on.
On the next trial day, outside the presence of the jury, defense counsel
advised the court that the State had not provided a forwarding address for Officer
Connors. The prosecutor reported that he requested Connors' address from the
Seattle Police Department as directed by the trial court, but had received no reply.
The trial court offered to sign an order for the defense investigator to take to the
precinct.
Officer Connors did not appear at trial. The trial court denied Isabel's
request for a missing witness instruction.
The jury found Isabel guilty as charged. The trial court imposed a standard
range sentence.
Isabel appeals.
II
Isabel first contends that the trial court erred by denying his motion for a
mistrial. Describing Tucker's reference to threats as serious, inflammatory, and
prejudicial, Isabel claims that the trial court "preemptively" and "inexplicably
refused" "to either offer to admonish the jury or give a curative instruction,"
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thereby "rendering any objection or request. .. futile at best," and denying his
right to a fair trial.
Because the trial judge is in the best position to determine the impact of a
potentially prejudicial remark, we review the trial court's decision to grant or deny
a motion for a mistrial for an abuse of discretion. State v. Escalona, 49 Wash. App.
251, 254-55, 742 P.2d 190 (1987).
In determining whether a trial court abused its discretion in
denying a motion for mistrial, this court will find abuse "only 'when
no reasonable judge would have reached the same conclusion.'"
"The 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. Only errors affecting the outcome
of the trial will be deemed prejudicial." In determining the effect of
an irregular occurrence during trial, we examine "(1) its
seriousness; (2) whether it involved cumulative evidence; and (3)
whether the trial court properly instructed the jury to disregard it."
State v. Johnson, 124 Wash. 2d 57, 76, 873 P.2d 514 (1994) (footnotes omitted)
(quoting State v. Hopson, 113 Wash. 2d 273, 284, 778 P.2d 1014 (1989)).
Isabel fails to address the trial court's assessment of the first factor
articulated in Johnson, that of the seriousness of Tucker's remarks. As the trial
court observed, Tucker did not attribute any threats to Isabel personally and
there was no allegation that Isabel was responsible for the actions of unnamed
family members. Thus, this situation differs from that presented in Escalona,
wherein we held that a mistrial should have been declared after a witness
improperly testified that the defendant had committed a crime in the past similar
to the one with which he was charged. Here, Tucker's comments did not invite
the jury to improperly infer that Isabel had acted in conformity with a criminal
character as demonstrated by past conduct or that he was seeking to intimidate
No. 70462-1-1/6
witnesses. Cf. Escalona. 49 Wash. App. at 256 (citing State v. Saltarelli, 98 Wash. 2d
358, 362, 655 P.2d 697 (1982)). Analysis of the first Johnson factor clearly
supports the trial court's denial of Isabel's motion for a mistrial.
Furthermore, we disagree with Isabel's characterization of the trial court's
analysis of the third Johnson factor. The trial court found that any potential
prejudice resulting from Tucker's remarks could have been cured with an
instruction had defense counsel requested one while Tucker was on the stand.
Ignoring this finding, and without citation to relevant authority, Isabel claims that
the trial court erred by denying him "the option" of seeking a curative instruction.
But rather than refusing to consider a defense request for such an instruction
following the motion hearing or entering a ruling as to Isabel's best interests, the
judge herein merely offered her opinion as to the wisdom of revisiting the matter
before the jury. To the extent that the defense attorneys disagreed with the
judge's assessment of Isabel's best interests, it was their responsibility to request
whatever curative instruction they thought necessary and obtain a ruling on the
request. On this record, Isabel fails to demonstrate any abuse of discretion in the
trial court's denial of his motion for a mistrial.
Ill
Isabel also argues that the trial court denied his right to present a defense
by refusing to give a missing witness instruction regarding Officer Connors.
When its decision is based on a factual dispute, we review the trial court's
refusal to issue a requested instruction for an abuse of discretion. State v.
Walker, 136 Wash. 2d 767, 771-72, 966 P.2d 883 (1998).
No. 70462-1-1/7
A missing witness instruction informs the jury that it may infer from a
witness's absence at trial that his or her testimony would have been unfavorable
to the party who would logically have called that witness. State v. Flora. 160 Wn.
App. 549, 556, 249 P.3d 188 (2011). Such an instruction is proper where the
witness is peculiarly available to one of the parties, Flora. 160 Wash. App. at 556,
and the circumstances at trial establish that, as a matter of reasonable probability,
the party would not have knowingly failed to call the witness "unless the witness's
testimony would be damaging." State v. Davis. 73 Wash. 2d 271, 280, 438 P.2d
185 (1968). overruled on other grounds by State v. Abdulle, 174 Wash. 2d 411, 275
P.3d 1113 (2012). However, no inference is permitted where the witness is
unimportant or the testimony would be cumulative. State v. Blair. 117 Wash. 2d 479,
489, 816 P.2d 718 (1991). Nor is a party entitled to a missing witness instruction
where the absence of the witness can be satisfactorily explained. Blair. 117
Wash. 2d at 489 (citing State v. Lopez. 29 Wash. App. 836, 841, 631 P.2d 420 (1981)).
Here, the trial court did not abuse its discretion by refusing to give a
missing witness instruction. Although Officer Connors formerly served as a
member of the Seattle Police Department, nothing in the record indicates that he
had a continuing "community of interest" with the police and the prosecutor at the
time of Isabel's trial. Cf. Davis, 73 Wash. 2d at 278. In fact, contrary to Isabel's
speculation, nothing in the record indicates that the former officer was still
appearing in courtto testify in cases in which he had participated. Instead, the
prosecutor repeatedly stated on the record that his office could not locate
No. 70462-1-1/8
Connors and that the Department had not answered the prosecutor's requests
for information.
Moreover, Connors' testimony would have been cumulative. Detective
Hughey testified that he noticed inconsistencies between Officer Connors' report
of Tucker's initial statement and his own interview with Tucker. Detective
Hughey also described Tucker's responses when confronted with the differing
statements. Defense counsel also cross-examined Tucker about how his various
statements to police and defense counsel conflicted with his testimony at trial.
We reject Isabel's bald claim in his reply brief that Connors' testimony was critical
to the defense case because of the "impeachment value of the jury hearing
evidence presented by the witness who obtained it." As the trial court observed,
Isabel failed to demonstrate that if Connors had appeared at trial, he "would
testify to anything that would be helpful to the Defense."
Because the State explained Connors' absence and his testimony would
have been cumulative, Isabel was not entitled to a missing witness instruction.
Affirmed.
We concur:
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