State Of Washington v. Timothy O'haver

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71669-7-1
Respondent,
DIVISION ONE r §§
cr rri
v.
UNPUBLISHED OPINION ' ^J>
TIMOTHY GREG O'HAVER, >>~Qrr.
Appellant. FILED: July 7, 2014 Vr o co
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Trickey, J. — The exclusion of irrelevant evidence does not bar an accused
from the constitutional right to present a defense. Here, the trial court instructed
the jury on self-defense and permitted the defendant to present evidence of the
circumstances surrounding the incident to support his theory of self-defense. The
trial court did not err in its evidentiary rulings or in its refusal to grant a new trial.
Accordingly, we affirm.
FACTS
Timothy O'Haver came home from work. He and his wife consumed several
drinks of vodka and juice. After a couple of hours, they began arguing.1 During
the argument, O'Haver grabbed his wife and sprayed her with the hose from the
kitchen sink. She slipped on the water and fell to the floor.2 The wife ran out of
the house.
The neighbor next door, and his friends John Hoover and John Humen,
witnessed O'Haver chasing his wife outside. The wife either fell or O'Haver pushed
her down.3 O'Haver then struck his wife, although the accounts varied whether he
14 Report of Proceedings (RP) at 197, 224.
2 4 RP at 231.
3 4 RP at 247, 272; 5 RP at 345.
No. 71669-7-1/2
did so with an open hand or a fist.4 O'Haver grabbed his wife and went back into
their home, closing the door.5
The three continued to hear screaming coming from the O'Haver house.
The neighbor entered the house through a back door.6 The neighbor testified that
he distracted O'Haver by insulting him in an attempt to get O'Haver to focus on
him so that the wife could escape.7 The wife leftand O'Haver pushed the neighbor.
When O'Haver grabbed a gun, the neighbor fled to his house with O'Haver running
behind him.8
The neighbor called for his wife to get the "old lady," a term used by the
neighbors for their gun in the event of an emergency.9 The neighbor's wife
retrieved the gun and gave it to her husband.10 O'Haver testified that he was aware
of the neighbors' code for their gun and that he feared for his wife's safety. The
wife told O'Haver that she was in the house on her own free will and told him to go
home and sleep it off.11
O'Haver banged on the neighbor's front door with a baseball bat trying to
get inside. In the process, he broke the door. O'Haver also attempted to enter
through windows around the house while shouting for his wife.12 O'Haver testified
that he ran back to his house to retrieve his guns13 when the neighbor threatened
4 4 RP at 272; 5 RP 349.
55 RP at 347.
65 RP at 349.
75 RP at 352.
85 RP at 355-56.
9 5 RP at 302, 355.
10 5 RP at 356.
11 5 RP at 304.
12 5 RP at 307.
13 O'Haver owned two handguns and a shotgun. 4 RP at 197.
No. 71669-7-1/3
to shoot him through the door. O'Haver reached through the broken front door
hitting the neighbor with his gun.14
The police arrived at the scene. Both parties dropped their weapons. The
police arrested O'Haver. The State introduced evidence of the neighbor's broken
door and the broken baseball bat.
The State charged O'Haver with four counts of assault, but a jury found him
guilty of only two: second degree assault of the neighbor and a lesser included
count of fourth degree assault of the wife. O'Haver appeals alleging multiple
evidentiary errors.
ANALYSIS
Exclusion of Evidence
O'Haver contends that the trial court violated his constitutional right to
present a defense when it excluded evidence that both his neighbor and his wife
had committed prior acts of violence. He argues that this evidence corroborated
his account that he feared both of them and was therefore acting in self-defense.
Both the Sixth Amendment of the federal constitution and article I, section
22 of the Washington Constitution guarantee an accused the right to present a
defense. State v. Jones, 168 Wash. 2d 713, 230 P.3d 576 (2010). However, this
right is not absolute; a defendant does not have the right to introduce evidence
that is irrelevant or otherwise inadmissible. State v. Stacy, Wn. App. , 326
P.3d 136, 143 (2014) (citing State v. Rehak, 67 Wash. App. 157, 162, 834 P.2d 651
(1992)). "Evidence is relevant if it has any tendency to make any fact that is of
14
5 RP at 359.
No. 71669-7-1/4
consequence to the case more or less likely than without the evidence." State v.
Mee Hui Kim, 134 Wash. App. 27, 41, 139 P.2d 354 (2006) (citing State v. Thomas,
150 Wash. 2d 821, 857, 83 P.3d 970 (2004); ER 401).
In general, evidence of a person's character is inadmissible to prove
"conformity therewith on a particular occasion." ER 404(a). However, an
exception to this rule provides that "[ejvidence of a pertinent trait of character of
the victim of the crime offered by an accused" is admissible. ER 404(a)(2). Thus,
where a defendant asserts self-defense, evidence of the victim's violent disposition
is a pertinent character trait because it is relevant to the question of whether the
victim acted in conformity with his or her character by provoking the incident as the
first aggressor. State v. Alexander, 52 Wash. App. 897, 900, 765 P.2d 321 (1988);
United States v. Keiser, 57 F.3d 847, 853-54 (9th Cir. 1995). Evidence offered for
this purpose is subject to the restrictions set forth in ER 404 and 405. Only the
victim's reputation for violence is admissible; specific acts ofviolence are not. ER
405(a), (b); Alexander, 52 Wn. App at 901. O'Haver did not seek a first aggressor
instruction and none was given.
Evidence regarding the victim's violent character may also be relevant to
show the defendant's state of mind; in other words, the reasonableness of his or
her beliefthat the use of force was necessary in self-defense. State v. Dyson, 90
Wash. App. 433, 438-39, 952 P.2d 1097 (1997) ("To establish self-defense, a
defendant must produce evidence showing that he or she had a good faith belief
in the necessity offorce and that that belief was objectively reasonable."). Under
those circumstances, because the character evidence is used to show state of
No. 71669-7-1/5
mind rather than to show the victim acted in "conformity therewith," the restrictions
of ER 404 and 405 do not apply. Keiser, 57 F.3d at 853. Evidence of specific acts
is admissible provided the defendant was aware of the acts at the time. State v.
Walker, 13 Wash. App. 545, 549-50, 536 P.2d 657 (1975).
At trial, the State objected to O'Haver's testimony that his wife had struck
him during a prior incident in 2007.15 O'Haver submitted an offer of proof that the
incident with his wife occurred during a stressful time while the parties were in the
midst of a foreclosure. Alcohol also played a part in that incident. O'Haver woke
up the next morning with a red eye.16 Because the 2007 incident was supported
only by O'Haver's testimony, with no independent witnesses, no history of
restraining orders or domestic violence orders entered against either party and
occurred over five years ago, with no charges filed, the court found the evidence
remote, unreliable, and insufficient to establish a claim of self-defense for this
particular incident.17
O'Haver then argues that the trial court erred in preventing him from
testifying about his wife being fired from her crossing-guard job because she
allegedly smashed a window of a car whose driver failed to follow her directions.18
He argues that the evidence was admissible under ER 404(b) to show her
quarrelsomeness19 and thus her propensity for violence.20 Because O'Haver was
15 6 RP at 455.
16 6 RP at 464.
17 6 RP at 460-61, 480.
18 6 RP at 465-66.
19 6 RP at 464-65.
20 6 RP at 466.
No. 71669-7-1/6
not the object of that incident, the court found the evidence irrelevant and
prejudicial.21 The court did not err in finding the evidence inadmissible.
O'Haver also related, in his offer of proof, testimonial evidence of various
scenarios demonstrating the neighbor's propensity to become violent. O'Haver
related two instances in which the neighbor illegally discharged a gun in the
neighborhood.22 O'Haver did not witness either incident.23 The neighbor also told
O'Haver that he had killed a man but did not supply any specific details; however,
O'Haver admitted that he did not fully believe itto be true.24 O'Haver next asserted
that his neighbor described himself as having an inability to control himself when
aroused by the sight of blood.25 This "blood lust" allegedly caused the neighbor to
viciously beat another person.
The court found the statements unreliable and not supportive of a claim of
self-defense. O'Haveralso related an incident in which the neighbor had a reaction
with the medication he was taking that caused him to become violent with his
spouse one night.26 No expert testimony was presented or offered to substantiate
the claim that the neighbor's medication caused him to be violent. Finding that
O'Haver had not established a foundation, the court ruled the evidence
inadmissible. The court specifically stated that its ruling did not limit O'Haver from
21 6 RP at 480.
22 6 RP at 467.
23 6 RP at 469, 476.
24 6 RP at 472.
25 6 RP at 472-73.
26 6 RP at 476.
No. 71669-7-1/7
testifying regarding any apprehension or fear that he experienced at the time of
the incident to support his self-defense argument.27
Defense counsel filed a motion for reconsideration regarding the court's denial.
After hearing oral argument, the court reiterated its ruling with regard to the acts of
the wife, that the 2007 incident was remote, and that the allegation that she broke
a car windshield did not establish a reputation for violence in the community.28
With regard to the allegations of the neighbor's violent persona, the court
found no indicia of reliability that could create a subjective intent on the part of
O'Haver to create apprehension and fear. This was particularly true, here, where
O'Haver testified that he returned to his home to retrieve his pistol and shotgun.
Additionally, O'Haver's alleged fear for his wife is contradicted by the testimony
that the wife said she was there on her own free will and that she clung to the
neighbor's spouse. Under these facts, the trial court properly found no
corroborating circumstances existed to show that these past instances would
support O'Haver's theory that his wife was abducted.
O'Haver's reliance on State v. Wanrow, 88 Wash. 2d 221, 224, 559 P.2d 548
(1977) for support that the evidence should have been admitted here is misplaced.
The court in Wanrow involved instructional error where the jury was misadvised as
to the particular circumstances it could consider in reaching a decision. As stated
in Statev.Martin, 169 Wash. App. 620, 628-29, 281 P.3d 315 (2012), review denied,
176 Wash. 2d 1005, 297 P.3d 68 (2013):
Thus, where a defendant claims self-defense, courts have admitted
evidence ofa victim's prior acts ofviolence to establish a defendant's
27 6 RP at 484.
28 7 RP at 572.
No. 71669-7-1/8
reason for apprehension and the basis for acting in self-defense.
fState v. Cloud, 7 Wash. App. 211, 218, 498 P.2d 907 (1972).] But in
self-defense cases, "[sjpecific act character evidence relating to the
victim's alleged propensity for violence is not an essential element of
self-defense." fState v. Hutchinson, 135 Wash. 2d 863, 887, 959 P.2d
1061 (1998).pi
Here, the court permitted general references to the volatile spousal
relationship. O'Haver testified that he sprayed his wife with water to calm her down
after she had attacked him. O'Haver additionally testified that his neighbor entered
his home uninvited and taunted him to support his objective belief that he needed
to defend himself. The court was correct in ruling that any evidence of misconduct
the night of the incident was admissible. The court instructed the jury on self-
defense and no duty to retreat.30
O'Haver had an opportunity to fully present his theory of the case that he
acted out of fear for himself and fear for his wife. The excluded evidence did not
violate O'Haver's right to present a defense. The State argues that O'Haver was
not entitled to a self-defense instruction, but fails to cross-appeal the court's giving
that instruction. Accordingly, we will not address the State's argument.
Mistrial
O'Haver moved for a mistrial contending that the trial court alerted the jury
to O'Haver's custodial status. This court reviews a trial court's denial of a motion
for a mistrial under an abuse of discretion standard and will only grant a new trial
when a "defendant has been so prejudiced that nothing short of a new trial can
insure that the defendant will be tried fairly." State v. Lewis, 130 Wash. 2d 700, 707,
29 (Alteration in original.)
30 Clerk's Papers (CP) at 152.
8
No. 71669-7-1/9
927 P.2d 235 (1996). This court reviews alleged violation ofthe right to an impartial
jury and the presumption of innocence de novo. State v. Johnson, 125 Wash. App.
443, 457, 105 P.3d 85 (2005). Curative instructions can sufficiently overcome any
prejudice that might have otherwise arisen from inadvertent observations of a
defendant in shackles. State v. Rodriguez. 146 Wash. 2d 260, 270, 45 P.3d 541
(2002). When an error can be cured by a curative instruction, a defendant waives
the error by failing to request such an instruction. Rodriguez. 146 Wash. 2d at 271.
Here, the court simply asked the officer, who had been attending court every day,
whether he would be there at 9:00 a.m. This is not sufficient to conjure up the
image of custody. The court denied the motion for mistrial; but in an abundance
of caution, offered to give a curative instruction which O'Haver rejected.31
O'Haver's reliance on State v. Gonzalez, 129 Wash. App. 895, 120 P.3d 645
(2005) is misplaced. There, the trial court informed the jury that the defendant was
in jail because he could not post bail, was being transported in restraints, and
would be under guard in the courtroom. Gonzalez, 129 Wash. App. at 899. The
facts here are simply not that egregious. Any prejudice that may have resulted
from the jury's knowledge of O'Haver's custodial status is unlikely to have impacted
the outcome of his trial. The trial court did not abuse its discretion.
ER 404(b)
Prior to trial, O'Haver moved to exclude evidence of other crimes that had
been prosecuted. The State responded that it was not seeking to admit any prior
bad acts under ER 404(b). At trial, John Hoover, one of the witnesses who testified
31
8 RP at 649.
No. 71669-7-1/10
that he saw O'Haver strike his wife, stated that the neighbor said, "I can take care
of this. This is my neighbors, and they've done this before."32 The next day the
prosecutor brought Hoover's testimony to the attention of the court because it
violated the motions in limine.33 Because a curative instruction would call the jury's
attention to it, defense counsel told the court it would not request one.34
The erroneous admission of ER 404(b) evidence is harmless absent a
reasonable probability that the error materially affected the outcome of the trial.
State v. Halstien, 122 Wn.2d 109,127, 857 P.2d 270 (1993). "Improper admission
of evidence constitutes harmless error if the evidence is of minor significance in
reference to the evidence as a whole." State v. Neal, 144 Wn.2d 600,611, 30 P.3d
1255 (2001). Unlike the cases cited by O'Haver, where the admission of prior bad
acts may have led jurors to convict based on propensity given the lack of other
credible evidence, here, it is unlikely that this single vague reference to O'Haver's
previous combative conduct would affect the verdict, particularly given the
additional ample evidence of guilt, i.e., the wife's bruising, the broken bat, the
broken door, and the use of the guns. See State v. Escalona. 49 Wash. App. 251,
254-55, 742 P.2d 190(1987).
O'Haver fails to establish that the testimony amounts to a serious trial
irregularity requiring a mistrial. "An irregularity in trial proceedings is grounds for
reversal when it is so prejudicial that it deprives the defendant ofa fair trial." State
v. Condon. 72 Wash. App. 638, 647, 865 P.2d 521 (1993). To determine whether a
32 4 RP at 273.
33 5 RP at 292-93.
34 5 RP at 293.
10
No. 71669-7-1/11
trial irregularity deprived a defendant of a fair trial, a reviewing court considers the
following factors: "(1) the seriousness of the irregularity, (2) whether the statement
in question was cumulative of other evidence properly admitted, and (3) whether
the irregularity could be cured by an instruction to disregard the remark, an
instruction which a jury is presumed to follow." Escalona. 49 Wash. App. at 254
(citing State v. Weber. 99 Wash. 2d 158, 165-66, 659 P.2d 1102 (1983)). A reviewing
court views claims of prejudice "against the backdrop of all the evidence."
Escalona, 49 Wash. App. at 254.
While a violation of an order in limine is considered a serious trial
irregularity, not all violations oforders in limine have been held to be so serious as
to deprive the defendant of a fair trial. See State v. Thompson. 90 Wash. App. 41,
46-47, 950 P.2d 977 (1998) (remark "was sufficiently serious because it violated a
motion in limine," but "not so egregious as to deny ... a fair trial"); Condon, 72 Wn.
App. at 649-50. In Condon, the State's witness twice testified that the defendant
had been in jail despite an order in limine excluding such evidence, but the court
held that while the remarks had the potential for prejudice, they were not so serious
to warrant a mistrial. Condon, 72 Wash. App. at 648-50. The court noted that the
reference to being in jail was ambiguous and did not necessarily indicate a
propensity to commit the crime charged, nor did it necessarily mean that the
defendant had been convicted of a crime. Condon, 72 Wash. App. at 649. The court
also noted that the curative instruction alleviated any resulting prejudice, and that
unlike in Escalona, it was not a "close case," as the evidence against Condon was
strong. Condon, 72 Wash. App. at 650 n.2.
11
No. 71669-7-1/12
Viewed in context and against the backdrop of all the evidence, Hoover's
remark was likewise not so serious as to deprive O'Haver of a fair trial. While no
curative instruction was given and, in fact, as noted above, was specifically not
requested, the remark was sufficiently vague about what incident was being
described and even if O'Haver was committing a crime. At most, the jury could
infer he was involved in marital discord, but that was obvious from other testimony.
Thus, as in Condon, the improper remark was ambiguous enough that it did not
necessarily suggest a propensity to commit the crime charged. The remark did
not warrant a new trial.
Prosecutorial Misconduct
O'Haver argues that he was unfairly prejudiced by the prosecutor's
statement that he had to check with his "victim advocate" before determining
whether he had any redirect questions for Hoover.35 In response to the court's
question "who," the prosecutor indicated that the advocate in this instance was his
notes, a piece of paper.36 The prosecutor then asserted that he had no further
questions. O'Haver did not object to the statement.
Prosecutorial misconduct requires a showing that the prosecutor's conduct
was both improper and prejudicial in the context of the entire record and
circumstances at trial. State v. Hughes, 118 Wash. App. 713, 727, 77 P.3d 681
(2003) (citing State v. Stenson. 132 Wash. 2d 668, 718, 940 P.2d 1239 (1997)).
Prejudice is established if there is a substantial likelihood the misconduct affected
the jury's verdict. Where no objection is made to the remarks, the reviewability of
35 4 RP at 283.
36 4 RP at 283-84.
12
No. 71669-7-1/13
the alleged misconduct depends on whether the prosecutor's conduct was "'so
flagrant and ill-intentioned"' as to create prejudice that could not be negated by a
curative instruction. State v. Warren, 165 Wash. 2d 17, 43, 195 P.3d 940 (2008)
(quoting State v. Brown, 132 Wash. 2d 529, 561, 940 P.2d 546 (1997)).
O'Haver contends that this comment was in fact a statement about the
victim Hoover's testimony and its credibility. O'Haver's arguments are
unpersuasive. The defendant must make a plausible showing that the error "had
practical and identifiable consequences [at] trial." State v. Lynn. 67 Wash. App. 339,
345, 835 P.2d 251 (1992). The prosecutor's nonsensical comment was not a
comment on Hoover's truthfulness. This is particularlytrue here because the jury
returned a not guilty finding to the assault charge with Hoover as the victim.
Officer Welsh's Testimony
Officer Welsh testified that he was working another sector that evening.37
In response toa query of whether police were permitted to go into different sectors,
Officer Welsh replied affirmatively, "Given the nature ofthe call, often very violent
crimes, we cross boundaries just to help out because oftentimes it takes more than
two or three officersto take care of a serious incident."38 When asked if he recalled
why he was called out, Officer Welsh responded:
Ido. It was supposed to be a domestic violence incident involving a
weapon with someone actively pursuing another party attempting to
possibly harm them.[39]
37 4 RP at 159.
38 4 RP at 159.
39 4 RP at 159-60.
13
No. 71669-7-1 /14
Upon arriving at the scene, neighbors told him that "they heard loud verbal
arguing, yelling coming from the north."40 Officer Welsh continued in that direction
and heard someone saying '"come out' and something to the fact of 'I was going
to kill you' or Tm going to kill you.'"41 Officer Welsh saw a suspect, later identified
as O'Haver, with his right leg raised as though he had just kicked the door.42
Officer Welsh also observed a black semiautomatic handgun in O'Haver's right
hand.43 When asked whether he identified himself, Officer Welsh responded:
Idid. At this point itwas -- like I said, this was a very serious incident.
Witnesses have already stated that someone is attempting to take a
life. My views from on scene, very aggressive, holding a firearm,
pointing it in the direction of possible victims. It was a very serious
incident.!44'
At that point, we're not required to identify ourselves before
we take action. At that point I had already drawn down on the
suspect.
Officer Welsh further testified, without objection, that he had drawn his gun
because
it's a very serious incident. We have a person attempting to -
possibly attempting to take another life, witness statements already
indicating that that's what the scenario was before we arrived, and
that those parties were able to be separated.'451
On appeal, O'Haver argues for the first time that Officer Welsh's testimony
was an opinion of O'Haver's guilt. O'Haver's reliance on State v. Kirkman, 159
Wash. 2d 918, 928,155 P.3d 125 (2007) is misplaced. There, the defendants claimed
40 4 RP at 160.
41 4 RP at 164.
42 4 RP at 164.
43 4 RP at 165.
"4 RP at 165-66.
454RPat166.
14
No. 71669-7-1/15
for the first time on appeal that testimony by detectives and a physician constituted
improper opinion evidence regarding victim credibility. The Kirkman court held that
testimony of an investigating officer does not necessarily give rise to a manifest
constitutional error where there has been no objection at trial. 159 Wash. 2d at 938.
As noted by Kirkman. 159 Wash. 2d at 936:
Admission of witness opinion testimony on an ultimate fact, without
objection, is not automatically reviewable as a "manifest"
constitutional error. "Manifest error" requires a nearly explicit
statement by the witness that the witness believed the accusing
victim.
In Kirkman. as here, the jurors received instructions that they were not bound by
witness opinions, but were to form their own opinion as to credibility.46 Kirkman,
159 Wash. 2d at 937. O'Haver likewise fails to establish prejudice.
In determining whether statements are impermissible opinion testimony,
courts consider the circumstances of the case, the type of witness, the nature of
the testimony, the nature of the charges, the type of defense, and other evidence
before the trier of fact. State v. King, 167Wn.2d234, 331-33,119P.3d642(2009).
While it is true that an officer's testimony carries a special aura of reliability, here,
the testimony did not constitute an opinion on O'Haver's guilt. The officer was
merely recounting inferences of fact-based observations. See State v. Blake, 172
Wash. App. 515, 525-26, 298 P.3d 769 (2012) (testimony that includes inferences of
fact-based observations admissible), review denied. 177 Wash. 2d 1010, 302 P.3d
180(2013).
46 CP at 125.
15
No. 71669-7-1/16
In sum, Officer Welsh's testimony did not comment on the guilt or innocence
of O'Haver and thus did not invade the province of the jury.
Recorded Recollection
The wife testified that she was confused and scared and just wanted to be
left alone the night of the incident. She did not remember having a conversation
with Officer Welsh and did not remember giving the police statements about the
events.47
Because the wife testified she could not recall what she had said to the
officer, the court admitted Officer Welsh's police report as a recorded recollection
of what the wife had told him.48 ER 803(a)(5) provides an exception to the hearsay
rule for recorded recollections where such recorded recollection is
[a] memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately, shown to have been
made or adopted by the witness when the matter was fresh in the
witness'[s] memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into evidence but
may not itselfbe received as an exhibit unless offered by an adverse
party.
The court's determination that the statement was admissible was correct.
However, Officer Welsh's testimony varied from the report and O'Haver objected.49
The particular statement that O'Haverobjected to was the description that O'Haver
threw his wife down, rather than held his wife down.50 When the jury returned, the
court sustained O'Haver's objection regarding Officer Welsh's description of the
47 4 RP at 210.
48 5 RP at 318-19.
49 5 RP at 330.
50 5 RP at 331-32.
16
No. 71669-7-1/17
alleged victim being thrown against the cabinets.51 The court struck the testimony
and directed the jury to disregard the comment as it was not an accurate rendition
of what was said.52 Officer Welsh testified thereafter by reading directly from his
written report.
Decisions regarding evidentiary issues lie within the sound discretion of the
trial court and will not be disturbed absent a showing of an abuse of discretion.
State v. Castellanos, 132 Wash. 2d 94, 97, 935 P.2d 1353 (1997). Thus, under ER
803(a)(5), an audio recording has been held admissible where the proponent
demonstrates:
(1) the record pertainsto a matter about which the witness once had
knowledge, (2) the witness has an insufficient recollection of the
matter to provide truthful and accurate trial testimony, (3) the record
was made or adopted by the witness when the matter was fresh in
the witness's memory, and (4) the record reflects the witness's prior
knowledge accurately.
State v. White. 152 Wash. App. 173, 183, 215 P.3d 251 (2009). The fourth
requirement can be satisfied with the "witnesses] direct averment of accuracy at
trial." State v. Alvarado, 89 Wash. App. 543, 551, 949 P.2d 831 (1998). A witness
need not swear or sign under penalty of perjury the accuracy of the statement.
See State v. Nava, 177Wn. App. 272, 274, 311 P.3d 83 (upholding the admission
of a witness's unsworn tape-recorded statement as a recorded recollection, even
in the face of the witness's disavowal), review denied, 179 Wash. 2d 1019, 318 P.3d
279(2013).
51 5 RP at 335.
52 5 RP at 335-36.
17
No. 71669-7-1/18
The trial court did not err in admitting the recollection. On the stand, the
wife repeatedly denied making statements to the officer, responding "[n]o" to the
following questions:
Q. Do you remember giving them statements about what happened?
A. No.
Q. Do you ever remember asking them not to arrest your husband?
A. No.
Q. Do you remember talking to [Opcer Jimmy Welsh that night
about what happened?
A. N0J53]
The trial court did not abuse its discretion infinding that the foundation for admitting
the evidence was satisfied.
O'Haver's argument that Officer Welsh's embellishment of the report in his
initial testimony is not persuasive because the court struck Officer Welsh's
inaccurate response to the question and the court properly instructed the jury to
disregard that testimony. Ajury is presumed to follow the directions of the court,
so no harm was present. State v. Gamble, 168 Wash. 2d 161, 178, 225 P.3d 973
(2010).
Cumulative Error
O'Haver argues that cumulative error denied him a fair trial. We disagree.
While some errors "standing alone, might not be of sufficient gravity to constitute
grounds for a new trial, the combined effect of the accumulation of errors" may
require a new trial. State v. Coe. 101 Wash. 2d 772, 789, 684 P.2d 668 (1984).
Because no prejudicial error occurred, the cumulative error doctrine is not
applicable to this case. State v. Greiff. 141 Wash. 2d 910, 929, 10 P.3d 390 (2000).
53 4 RP at 210.
18
No. 71669-7-1/19
Statement of Additional Grounds
O'Haver filed a statement of additional grounds asserting that there were
multiple abuses of discretion by the trial court regarding prosecutorial misconduct.
These allegations are encompassed in his direct appeal and will not be addressed
again here.
O'Haver also contends that the trial court violated his right to a speedy trial
for a variety of reasons. O'Haver's claims are insufficient to "inform the court of
the nature and occurrence of [the] alleged errors." RAP 10.10(c); State v.
Alvarado. 164 Wash. 2d 556, 569, 192 P.3d 345 (2008). Moreover, these allegations
involve matters outside of the record and therefore cannot be considered on
appeal. See State v. McFarland. 127 Wash. 2d 322, 337-38, 899 P.2d 1251 (1995).
) / iok.Q y X]
WE CONCUR:
v*-
6
19