State of Washington v. Gary Lee Brown, Jr. aka Gary Lee Taylor

FILED
AUGUST 1, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34980-2-111
Respondent, )
)
V. )
)
GARY LEE BROWN, JR., ) UNPUBLISHED OPINION
AIK.IA GARY LEE TAYLOR, )
)
Appellant. )
KORSMO, J. - Gary Brown 1 raises numerous challenges to his conviction for first
degree arson, including claims that the trial court erred in admitting a "Smith affidavit"
prepared by a witness and by assisting the prosecutor in entering that evidence. Although
the trial court's actions raise appearance of fairness concerns, we conclude that the court
did not abuse its discretion in admitting the affidavit and affirm.
FACTS
This case arises from an arson fire that destroyed a mobile home, which was one
of several structures, including another mobile home and a camper trailer, on the same
multiple-acre parcel in Humptulips. The destroyed home was rented by J .J. Raskey and
1
Mr. Brown was known as "Gary Taylor" to some of the witnesses and
occasionally was referred to by that name in trial testimony.
No. 34980-2-III
State v. Brown
Sally Emery. The other mobile home was the residence of Jose Orellana-Arita and
Brandi Haley, while the camper trailer was the home of Michael Anderson.
The arson fire occurred on April 22, 2014; neither occupant was home at the time.
Neighbors observed a green van belonging to Edna Ferry at the scene shortly before the
fire broke out. Ms. Ferry told officers that she and her boyfriend, defendant Gary Brown,
had been on the property to visit Orellana-Arita and Haley, but the pair had not left the
van.
Sometime after the fire, Anthony Snodgrass gave Mr. Brown a ride in his car.
Brown told Snodgrass that he had set the fire, at the request of Orellana-Arita, in
exchange for a truck. Snodgrass subsequently spoke with Detective Darrin Wallace of
the Grays Harbor County Sheriffs Office. Wallace wrote the statement out for
Snodgrass on a two page form entitled "Victim/Witness Statement" that included a
certification form stating the statement was true and correct under penalty of perjury
under the laws of the State of Washington. Both pages were signed and dated by both
Mr. Snodgrass and Detective Wallace.
The case against Mr. Brown eventually proceeded to jury trial. Mr. Orellana-Arita
had been convicted of multiple charges, including solicitation to commit arson, and did
not testify at Mr. Brown's trial. Fire investigators testified for the State, and so did
several of the residents of the area. A fire investigator testified that the fire was not
caused by electrical wiring, but that the bum pattern on the floor "screams" that an
2
No. 34980-2-III
State v. Brown
ignitable liquid had been used. Report of Proceedings (RP) at 268. Mr. Anderson
testified that Brown had approached his camper and took Anderson's gas can and filled a
milk jug and a motor oil jug with gas. He also took one of Anderson's towels, ripped it
in half, and walked off towards the Emery/Haskey residence. Anderson also told jurors
about ongoing tension between Emery/Haskey on one side and Orellana-Arita/Haley on
the other.
Ms. Ferry, no longer in a relationship with Mr. Brown, told jurors about
conversations Brown had with Orellana-Arita and Haley. She said that Brown reported
"everybody" wanted Emery and Haskey out of their home. She had dropped Brown off
on the property on the day of the fire and picked him up on the road a half mile away
about 15 minutes later. She did not speak to him about what he was doing on the
property.
An emotional Sally Emery, glaring at the defendant when she took the stand, also
testified for the State. When asked what happened to her home, Ms. Emery replied "Gary
burned it." The trial court initially allowed the answer to stand, but later in the day struck
the answer and told jurors to disregard it. In response to a question on cross-examination,
Ms. Emery told jurors that Diane Norris "said ,she was going to bum my stuff, her and
Brandi Haley coaxed Gary Taylor into doing it." RP at 173. The court sustained a
defense objection and struck the statement.
3
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The State called Snodgrass as its penultimate witness. He claimed a lack of
memory concerning events and hinted that heart surgery and subsequent treatment had
damaged his memory. Review of his written statement failed to refresh his memory and
the prosecutor spent a significant amount of time questioning Snodgrass to elicit
testimony of substance. The trial court interrupted the examination, excused the jury, and
the following colloquy occurred:
THE COURT: Mr. Walker, you are flopping around like a fish on a
riverbank.
MR. WALKER: Yes, Your Honor.
THE COURT: You have passed up refreshing his recollection about
15 minutes ago. I granted you permission to treat him as a hostile witness.
Take the statement from him, and read it to him, and ask him if that's what
he told Detective Wallace. Do something besides continuing to just run in
circles here, and have him be evasive. We are not getting anywhere. There
is a way for you to impeach him with that statement, and I want you to do
so.
MR. WALKER: Very well, Your Honor.
THE COURT: All right. Have the jury brought back in.
RP at 318. Defense counsel made no comment. The State then attempted to impeach by
confronting Mr. Snodgrass with the contents of his statement in the form of leading
questions. Mr. Snodgrass replied either "yeah" or "I guess" in response to the remainder
of the State's leading questions. He stated that he recognized the form and his signature
on it, but did not know if it contained any inaccuracies. On cross-examination he stated
that he did not recall reading the statement after the detective wrote it out on his behalf.
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No. 34980-2-111
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Detective Wallace was the final witness for the State. He told jurors that Snodgrass
had read the statement to ensure its accuracy before signing it. The prosecutor asked the
court to excuse the jury and, after that had occurred, moved to admit the affidavit as
substantive evidence under State v. Smith.2 The defense objected, but the court overruled
the objection and admitted the statement. Ex. 54. Before going to the jury, the affidavit
was redacted to remove a statement unrelated to the arson charge. Ex. 57.
The jury found Mr. Brown guilty of first degree arson. On the basis of his high
offender score, the trial court declared an exceptional sentence and ordered the arson
sentence to run consecutively to the sentences in two other superior court files. Mr.
Brown timely appealed. A panel of this court considered the matter without argument.
ANALYSIS
Mr. Brown raises several arguments concerning the proceedings at trial. We begin
with his challenge to the admission of the Snodgrass affidavit and the trial judge's rulings
relating to Snodgrass's memory failure. We then turn to the challenges to the testimony
of Ms. Emery, whether trial counsel rendered ineffective assistance during the testimony
of Snodgrass and Emery, whether the court erred in permitting some of Ms. Ferry's
testimony, and whether a firefighter improperly expressed an opinion. 3
2
97 Wn.2d 856,651 P.2d 207 (1982).
3
In light of our conclusion that there were not multiple errors, we do not address
Mr. Brown's claim of cumulative error.
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Admission of the Snodgrass Statement
The primary issue here is whether it was error to admit Mr. Snodgrass's witness
statement into evidence both to impeach him and as substantive evidence. Since the trial
court had tenable reasons for admitting the document, there was no abuse of discretion.
Trial judges have great discretion in the admission of evidence; thus, decisions to
admit or exclude evidence will be overturned only for manifest abuse of discretion. State
v. Luvene, 127 Wash. 2d 690, 706-707, 903 P.2d 960 (1995); State v. Makela, 66 Wash. App.
164, 168, 831 P.2d 1109 (1992) (ER 80l(d)(l)(ii)). Discretion is abused where it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79
Wash. 2d 12, 26,482 P.2d 775 (1971). A court also abuses its discretion when it applies the
wrong legal standard. State v. Rafay, 167 Wash. 2d 644, 655, 222 P.3d 86 (2009).
"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. ER
801 (c). Prior statements of testifying 4 witnesses are considered hearsay unless they fall
under an exclusion or exception to the hearsay rule. Hearsay exclusions include the
nonhearsay categories of ER 801 (d)( 1), one of which is a prior inconsistent statement
under oath. Similarly, one of the many hearsay exceptions is for past recollections
4
As Mr. Snodgrass was present at trial and subject to cross-examination, the
confrontation issues implicated by use of Smith affidavits are not discussed in this
opinion. But see Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004 ).
6
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recorded. ER 803(a)(5). Prior statements that directly contradict the witness' testimony
qualify as inconsistent statements, as do statements that differ in a significant way from
the witness' testimony. ER 613; State v. Johnson, 40 Wash. App. 371, 377, 699 P.2d 221
( 1985). Less clear are borderline situations when the witness claims to have forgotten
certain facts at issue, or simply refuses to give any substantive testimony.
When a witness whose credibility is a fact of consequence to the action testifies at
trial about an event, but claims to have no knowledge of a material detail, or no
recollection of it, most courts permit a prior statement indicating knowledge of the detail
to be used for impeachment. State v. Newbern, 95 Wash. App. 277, 292, 975 P.2d 1041
(1999). To be admissible for impeachment purposes, a witness' in-court testimony need
not directly contradict the witness' prior statement; "' inconsistency is to be determined,
not by individual words or phrases alone, but the whole impression or effect of what has
been said or done."' Id. at 294 (quoting Sterling v. Radoford, 126 Wash. 372,375,218
P. 205 ( 1923)). If a person's credibility is a fact of consequence to the action, the jury
needs to assess it, and impeaching evidence may be helpful. State v. Allen S., 98 Wn.
App. 452, 459-460, 989 P.2d 1222 (1999).
A prior inconsistent statement admitted solely for purposes of impeaching the
credibility of a witness under ER 613, does not constitute substantive evidence, and the
court should give a limiting instruction to that effect. Under ER 801 ( d)( 1)(i), however, if
the prior statement was "given under oath subject to the penalty of perjury at a trial,
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No. 34980-2-III
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hearing, or other proceeding, or in a deposition," it would be admissible substantively.
Written affidavits given to police officers may meet the definition of "under oath" and
"other proceedings" for purposes of ER 80l(d)(l). State v. Smith, 97 Wash. 2d at 860-862.
As the phrase "other proceeding" in ER 801 (d) is intentionally open-ended, the Smith
court emphasized that the purposes of the ruie, the reliability of each statement, and the
facts of each case must be specifically analyzed. State v. Otton, 185 Wash. 2d 673, 682, 374
P .3d 1108 (2016).
Smith established a four-factor test for determining whether a police interview
qualifies as an "other proceeding" and whether an affidavit produced during that meeting
is "under oath." State v. Nelson, 74 Wash. App. 380, 386-387, 874 P.2d 170 (1994). Those
factors are whether: (1) the witness voluntarily made the statement, (2) there were
minimal guaranties of truthfulness, (3) the statement was taken as standard procedure in
one of the four legally permissible methods for determining the existence of probable
cause, 5 and (4) the witness was subject to cross-examination when giving the subsequent
inconsistent statement. Smith, 97 Wash. 2d at 861-863. Otton reaffirmed this approach.
Otton, 185 Wash. 2d at 680. The Smith factors overlap, and specify, the definition of a non-
hearsay prior statement under ER 80l(d)(l)(i). That rule requires a showing that the
5 The four methods are ( 1) filing of an information by the prosecutor in superior
court, (2) grand jury indictment, (3) inquest proceedings, and (4) filing of a criminal
complaint before a magistrate. Smith, 97 Wash. 2d at 862 (citations omitted).
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No. 34980-2-III
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witness "' testifies at the trial or hearing and is subject to cross examination concerning
the statement, and the statement is (i) inconsistent with the declarant's testimony, and
was given under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding."' Id. at 679 (quoting ER 801(d)(l)).
Mr. Brown argues both that it was error to impeach Snodgrass with the statement
and to admit the statement as substantive evidence. Admitted evidence may be used for
all proper purposes. Micro Enhance v. Coopers & Lybrand, 110 Wn. App. 412,430, 40
P.3d 1206 (2002). 6 Since we conclude that the statement was properly admitted as
substantive evidence under Smith, we need not separately consider whether it was
properly admitted for impeachment purposes and do not further address that argument.
Here, the trial court reviewed ER 80l(d)(l) and concluded it was proper to admit
the statement under that rule. RP at 335-336. Mr. Snodgrass voluntarily spoke to
Detective Wallace, who wrote down what Mr. Snodgrass said. Mr. Snodgrass also
signed and dated the statement, which also identified the location where it was taken and
indicated it was made under penalty of perjury. Ex. 54. The statement thus satisfied the
certification requirements ofRCW 9A.72.085(1). The record also reflects that it satisfied
the specific requirements of Smith: it was voluntarily made in the course of a police
investigation used to establish probable cause for charging the offense of arson. The
6
Cf ER 105 (requiring jury instruction when evidence is admitted for limited
purpose).
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No. 34980-2-III
State v. Brown
detective's testimony concerning the creation of the statement establishes the "minimal
guaranties of truthfulness": Mr. Snodgrass gave the statement, the officer wrote it out,
Mr. Snodgrass read the statement and signed it under penalty of perjury after having the
opportunity to amend it. RP at 332-334. Indeed, the only objection defense counsel
raised was that the statement was cumulative evidence and therefore did not need to be
admitted. RP at 335, 336.
The statement was in the form used and approved in Smith. The detective
provided testimony concerning the circumstances of the making of the statement. The
trial court therefore had tenable grounds for admitting the exhibit as substantive evidence.
The court did not err. 7
Intervention of Trial Judge
Appellant next challenges the trial court's directive to the prosecutor to impeach
Mr. Snodgrass despite not objecting to the process during trial. Mr: Brown contends this
was a violation of the separation of powers doctrine. He has no standing to raise such a
claim, which more properly sounds in due process or the appearance of fairness doctrine.
Although we are concerned about how the court used its trial management authority, and
7
This conclusion also resolves Mr. Brown's argument that the prosecutor
committed misconduct in calling Snodgrass for the sole purpose of impeaching him.
That was not the case. Mr. Snodgrass had relevant evidence to offer and was required to
provide that information at trial. State v. Ruiz, 176 Wash. App. 623, 634-635, 309 P.3d 700
(2013), review denied, 179 Wash. 2d 1015, cert. denied. 190 L. Ed. 2d 63 (2014). The
prosecutor did not err in calling him to the stand. Id. at 634-640.
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No. 34980-2-III
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we caution against similar behavior in the future, the admission of the testimony under
Smith rendered any error harmless.
The separation of powers doctrine does not involve any rights of the individual:·
Unlike many other constitutional violations, which directly damage
rights retained by the people, the damage caused by a separation of powers
violation accrues directly to the branch invaded. The maintenance of a
separation of powers protects institutional, rather than individual, interests.
Carrick v. Locke, 125 Wash. 2d 129, 136, 882 P.2d 173 (1994). Accordingly, Mr. Brown
lacks standing to claim that the separation of powers doctrine was violated. See State v.
Gutierrez, 50 Wash. App. 583, 591-592, 749 P.2d 213 (1988) (no standing to assert
violation of rights of another).
Mr. Brown might have been able to fashion this claim as a violation of the
appearance of fairness of doctrine but for the fact that he did not challenge the judge's
action at trial. The appearance of fairness doctrine is not constitutional in nature and,
hence, cannot be raised initially on appeal. RAP 2.5(a); State v. Blizzard, 195 Wn. App.
717,725,381 P.3d 1241 (2016), review denied, 187 Wash. 2d 1012 (2017).
Accordingly, it appears that this argument is better considered as a due process
right to a fair trial claim. E.g., State v. Moreno, 147 Wash. 2d 500, 506-512, 58 P.3d 265
(2002) (statute permitting judges to call and question witnesses in traffic infraction
proceedings). Mr. Brown also argues this challenge from this perspective.
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No. 34980-2-111
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Trial judges have broad discretion to manage their courtrooms and conduct trials
fairly, expeditiously, and impartially; they must exercise reasonable control over the
mode and order of interrogating witnesses and presenting evidence so as avoid needless
consumption of time. ER 61 l(a)(2). A trial court is responsible to ensure the evidence is
fully developed for the jury and to resolve, as far as possible, any ambiguities or conflicts
in the evidence. Moreno, 147 Wash. 2d at 509. This court, therefore, reviews a trial judge's
courtroom management decisions for abuse of discretion. Peluso v. Barton Auto
Dealerships, Inc., 138 Wash. App. 65, 69, 155 P.3d 978 (2007).
Due process requires, among many other things, that a tribunal be fair. Moreno,
147 Wash. 2d at 506-507. That fairness obligation can be violated when a judge dons
"executive and judicial hats at the same time." Id. at 507. Also, colloquies between the
court and counsel hold the potential to present a fair trial challenge. State v. Ingle, 64
Wn.2d 491,499, 392 P.2d 442 (1964). On these facts, only that last concern is
implicated. The trial court did not undertake the prosecution function; the court did not
question Snodgrass, nor did it give the directive in the presence of the jury. Instead, the
problem arose from the apparent command given the prosecutor in the colloquy outside
the jury's presence.
The court was free in its exercise of its courtroom management authority to tell the
prosecutor to move on, and perhaps even to give an "either/or" directive (such as
"impeach him if that is what you are trying to do or else move on to another subject")
12
No. 34980-2-III
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since a significant amount of time had passed without the testimony substantively
progressing in any manner. However, the language used appeared to tell the prosecutor
how to try his case as if the prosecutor was a functionary of the judge. That would create
a fair tribunal issue if that was what the judge truly intended. For a couple of reasons, we
think, however, that this was actually a diction problem.
First, the defense did not object to the court's language or proposal. In this
context, we think that defense counsel simply did not see the directive as serious error,
but merely viewed the statement as nothing other than the judge telling the prosecutor to
move on from his flailing around. Cf State v. Swan, 114 Wash. 2d 613, 661, 790 P.2d 610
(1990) (Noting that the absence of an objection or motion for mistrial "strongly suggests
to a court that the argument or event in question did not appear critically prejudicial to an
appellant in the context of the trial."). Second, the evidence ultimately was admitted for
substantive purposes on the motion of the prosecutor. As discussed previously, this made
the impeachment proper. The evidence was before the jury for all purposes, rendering
the judge's statement nothing more than inartful phrasing. It did not lead to the
admission of improper evidence.
Accordingly, although we wish the judge had stated his comment differently, it
was not such a significant matter that it demonstrated that the tribunal was biased against
Mr. Brown. Most certainly the use of properly admitted evidence did not deprive Mr.
Brown of a fair trial.
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No. 34980-2-111
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The comment did not amount to reversible error.
Testimony of Ms. Emery
Mr. Brown next argues that the trial court erred in its handling of the two
statements by Ms. Emery that the trial court ultimately struck from the record. Since the
defense never asked the trial court for any additional relief, there is nothing more to be
done on appeal.
As noted earlier, Ms. Emery on separate occasions stated "Gary burned it," and
that others wanted the trailer burned and "coaxed Gary Taylor into doing it." The
improper admission of evidence at trial is considered a "trial irregularity." State v.
Weber, 99 Wash. 2d 158, 163, 659 P.2d 1102 (1983); accord State v. Emery, 174 Wash. 2d
741, 750, 278 P.3d 653 (2012) (one defendant interrupted the other's testimony to accuse
him of perjury). When inadmissible testimony is put before the jury, the trial court
should declare a mistrial if the irregularity, in light of all of the evidence in the trial, so
tainted the proceedings that the defendant was deprived of a fair trial. Weber, 99 Wn.2d.
at 164. In deciding that question, a court will consider whether a curative instruction
would have been useful. Id. at 165. The decision whether or not to grant a new trial due
to a trial irregularity is a matter left to the discretion of the trial court since the trial judge
is in the best position to assess the harm, if any, caused by the irregularity. Id. at 166.
"The question is not whether this court would have decided otherwise in the first
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No. 34980-2-III
State v. Brown
instance, but whether the trial judge was justified in reaching his conclusion." State v.
Taylor, 60 Wash. 2d 32, 42, 371 P.2d 617 (1962) (trial court order granting new trial).
However, this approach fails Mr. Brown because he never sought a mistrial or a
new trial over the Emery testimony. It is presumed thatjurors "followed the judge's
instructions to disregard the remark." Weber, 99 Wash. 2d at 166. Mr. Brown does not
suggest that there is any indication that jurors disregarded the trial court's instructions.
Thus, we have no reason for concluding that the trial court abused discretion it was never
asked to exercise.
Instead, Mr. Brown is left to argue that Ms. Emery's remarks constituted an
improper invasion of the jury's province to determine guilt or innocence by expressing a
personal opinion on his guilt. State v. Montgomery, 163 Wash. 2d 577, 591, 183 PJd 267
(2008). Opinion testimony that is "' based on one's belief or idea rather than on direct
knowledge of the facts at issue'" is generally inadmissible to indicate the guilt or
innocence of a defendant. State v. Demery, 144 Wash. 2d 753, 760, 30 PJd 1278 (2001)
(quoting BLACK'S LA w DICTIONARY, 1486 (7th ed. 1999). Whether testimony
constitutes an impermissible opinion on guilt or a permissible opinion embracing an
"ultimate issue" will generally depend on the specific circumstances of each case,
including the type of witness involved, the specific nature of the testimony, the nature of
the charges, the type of defense, and the other evidence before the trier of fact. Id. at 759.
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No. 34980-2-III
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Unlike Montgomery and many similar cases, here the opinion testimony of the
victim was stricken from the record. Unlike Weber and its progeny, the trial court was
not asked to give additional relief. Accordingly, Mr. Brown can only obtain relief in this
circumstance if the stricken remarks were so egregious that no remedy other than a new
trial would suffice. Weber, 99 Wash. 2d at 164. For several reasons, we think that is not the
case here. First, as noted previously, the failure to seek further relief in this circumstance
strongly suggests that no additional relief was needed. Swan, 114 Wash. 2d at 661. Second,
it is unlikely that the jury was unduly swayed by the emotional victim's testimony given
her obvious bias against the defendant. That the victim of an arson fire would blame the
accused is not something beyond the common understanding of the jury, which would
discount her baseless opinion accordingly. Finally, the prosecution did not rely on the
stricken statements to tie the defendant to the crime. His own statement, as well as the
eyewitness testimony putting him at the scene when the fire started, were much stronger
evidence linking him to the crime. The stricken evidence pales in significance.
Accordingly, there is no reason to believe that any relief other than that sought and
obtained at trial was necessary in this instance. The stricken remarks, which also were
the subject of cautionary instructions, were not of such significance to require further
relief.
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No. 34980-2-III
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Effective Assistance of Counsel
Mr. Brown next argues that his counsel performed ineffectively in not objecting to
the Snodgrass impeachment and by failing to seek a mistrial over Ms. Emery's stricken
remarks. This derivative argument is unnecessary and unavailing.
Ineffective assistance claims require proof that a defense attorney failed to
perform to the standards of the profession; that failure will require a new trial when it
results in prejudice to the client. State v. McFarland, 127 Wash. 2d 322, 334-335, 899 P.2d
1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to
counsel's decisions. A strategic or tactical decision is not a basis fo~ finding error.
Stricklandv. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's
performance failed to meet a standard of reasonableness and (2) actual prejudice resulted
from counsel's failures. Id. at 688-692. When a claim can be resolved on one ground, a
reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140
Wash. App. 266, 273, 166 P.3d 726, review denied, 162 Wash. 2d 1007 (2007).
The ineffective assistance argument is unavailing here for the reasons previously
stated. The Snodgrass statement was properly admitted as substantive evidence, so it was
also properly used for impeachment. Counsel did-not err in failing to raise further
challenges. The stricken Emery statements have not been shown to have been so
prejudicial that the trial court's actions were ineffectual. Even if counsel should have
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No. 34980-2-111
State v. Brown
sought a mistrial, a question we do not reach, appellant has not established that he was
prejudiced by the failure.
The ineffective assistance argument is without merit.
Ms. Ferry's Testimony
Mr. Brown also challenges Ms. Ferry's testimony concerning his statements to her
about a telephone conversation he was having with Orellana-Arita and Haley. He argues
that this was double hearsay and a violation of his confrontation right. The latter
argument can be rejected summarily. A conversation between acquaintances does not
constitute testimonial hearsay that raises confrontation clause questions. State v.
Wilcoxon, 185 Wn.2d 324,373 P.3d 224, cert. denied, 137 S. Ct. 580 (2016) (statement
by one defendant to other acquaintance not testimonial hearsay under confrontation
clause).
We have previously noted that we review a trial court's evidentiary rulings for
manifest abuse of discretion. Luvene, 127 Wash. 2d at 707. The testimony at issue was
reflected in Ms. Ferry's testimony that "everybody" wanted the victims out of the trailer.
RP at 92. Her testimony also noted that she had previously been warned not to repeat
what Brown claimed others had said. As the trial court correctly noted, the prosecutor's
question did not elicit a hearsay response because it asked for Ms. Ferry to report what
Mr. Brown had said, not what he reported others as having said. His statement was not
hearsay since it was offered against him. ER 801(d)(2). At the conclusion of the passage
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No. 34980-2-III
State v. Brown
in question, her answer reflected her summation of the conversation-"everybody"
wanted them out-but did not repeat anyone's specific statement to that effect. Ferry did
not report any quotation Brown may have supplied to her.
This statement was not hearsay. Moreover, the defense never challenged that
statement after it was uttered, presumably because it did not violate the court's order not
to relate hearsay. Ms. Ferry did not report anything that someone else stated. The trial
court did not manifestly abuse its discretion in admitting the testimony.
Firefighter 's Testimony
Lastly, Mr. Brown contends that firefighter Danny Mohr, a twelve-year volunteer
firefighter, was erroneously allowed to voice expert opinions concerning the fire. We
discern no abuse of discretion.
After Mohr, the first responder, described the characteristics of the fire when he
arrived, he indicated that the burning was "unusual for mobile home fire." The court
sustained defense counsel's objection that Mohr was not qualified to issue an expert
opinion. The prosecutor then laid a foundation with Mohr describing his experience with
mobile home fires. The court permitted Mohr to tell jurors how this fire burned
differently from other mobile home fires he had fought. RP at 53. He then testified that
most trailer fires he had seen spread out from the point of ignition instead of burning
solely in that area. RP at 56-57. Mohr also told jurors he was not an investigator and did
not express an opinion concerning the cause of the fire. RP at 57.
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No. 34980-2-III
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Mr. Brown contends on appeal that Mohr was improperly permitted to express an
expert opinion. We disagree. Although an expert can express an opinion that is based on
either training or experience, ER 702, Mohr did not do so here. Rather, he explained his
previous experience with trailer fires and indicated how this fire differed from those fires.
To the extent this was "opinion" testimony at all, it was based on his experiences rather
than on technical scientific information and, therefore, was admissible as lay opinion
testimony. See ER 701. However, the trial court expressly prohibited Mohr from
expressing an opinion, and he did not do so. Instead, he told the jurors about the burning
he observed in this trailer and the burning he usually observed in trailer fires. RP at 56-
57. These.were factual observations. It was the fire investigator, a witness whose
testimony is unchallenged on appeal, who stated this fire was set with a flammable liquid.
Mohr did not state any improper opinions.
The trial court properly circumscribed Mr. Mohr's testimony. There was no error,
let alone abuse of discretion.
Finally, Mr. Brown requests that we waive appellate costs in the event the State
substantially prevails on appeal. We decline to address the request. In the event that the
State files a cost bill, our commissioner will entertain a timely objection in accordance
with the provisions of RAP 14.2.
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No. 34980-2-111
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The conviction is 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:
j
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Siddoway,
21