Opinion
No. 50937-3-I.
Filed: March 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-08175-2. Judgment or order under review. Date filed: 07/25/2002. Judge signing: Hon. Donald Haley.
Counsel for Appellant(s), John Henry Browne, Attorney at Law, Penthouse Ste, 821 2nd Ave, Seattle, WA 98104-1578.
Kathryn Ann Miller, Attorney at Law, 3703 S Edmunds St. Unit 32, Seattle, WA 98118-1728.
Counsel for Respondent(s), Dennis John McCurdy Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Keith Huffman broke into his ex-wife's home, forced her to leave and later attempted to murder her and kill himself. Huffman pleaded not guilty by reason of insanity to attempted murder in the first degree, kidnapping in the first degree, burglary in the first degree, and felony violation of a protection order. The jury rejected the insanity defense and convicted him on all four counts.
On appeal, Huffman argues the trial court erred when it denied his motion to suppress statements protected by the clergy-penitent privilege, admitted evidence of prior bad acts, excluded extrinsic evidence of a witness's prior statement and allowed police officers to testify about their opinions. He contends exclusion of the extrinsic evidence violated his constitutional right to confrontation and prosecutorial misconduct and cumulative error deprived him of a fair trial. Huffman also claims the trial court erred in calculating his offender score because the convictions for attempted murder and kidnapping and burglary and felony violation of a protection order were the same criminal conduct. We affirm.
FACTS
Keith and Karen Huffman had a volatile on-again, off-again relationship that started when they were teenagers in Wyoming. Karen was 16 years old when she was pregnant with their first daughter, Tatiana. In 1994, after a few years of repeatedly breaking up and getting back together, Karen decided to move to Washington with Tatiana. Huffman followed Karen to Seattle, got a job and joined her church, the West Redmond Congregation of Jehovah's Witnesses. Huffman and Karen married in 1995 and in 1996 had a second daughter, Paris.
Huffman was diagnosed with lupus, an autoimmune disorder, in 1996. He underwent chemotherapy and took steroids and pain medication to treat and suppress the lupus. During the course of treatment, Huffman became addicted to the pain medication and unsuccessfully sought treatment for his addiction. He was also physically and verbally abusive toward Karen and, in the fall of 2000, she gave him an ultimatum: either successfully complete a drug treatment program or get a divorce. Huffman enrolled in an in-patient drug treatment program. Karen obtained a temporary restraining order to prevent him from having contact with her until he completed the drug treatment program. Huffman completed the drug treatment program and returned home.
Karen did not, therefore, obtain a permanent restraining order.
During this time, Karen became romantically involved with another man. She disclosed this relationship to church elders and, at their urging, told Huffman about it in February 2001. Though he took it well at first, he later had violent outbursts and, as a result, Karen obtained another temporary restraining order prohibiting him from having contact with her. Despite encouragement from her family and the church elders to keep the family together, Karen filed a petition for dissolution in May 2001. Karen's proposed parenting plan provided for joint custody between the parents for Tatiana and Paris and did not indicate any restrictions.
Under RCW 26.09.191, certain conduct, such as a history of domestic violence, requires restrictions for the parenting plan.
The family continued to live together until July 2001. In July, Huffman and Karen had another argument about her relationship with the other man. Karen took the girls and went to church. Huffman followed them to church and loudly taunted Karen. When she tried to escape to the women's restroom, he grabbed her and forced her outside. A church member interceded and Karen and the two girls got in the car and tried to leave. Huffman blocked the car. Eventually the church elders convinced him to move aside. Karen and the children left and went to stay with friends.
A week after this incident, Huffman took an overdose of his prescription antidepressant medication, amitriptyline, and was hospitalized. After Huffman's suicide attempt, Karen obtained a permanent protection order prohibiting him from contacting her or the girls, and changed the terms of the proposed parenting plan to prevent Huffman from having any contact with them.
The dissolution and parenting plan orders were entered at the end of August.
After he was released from the hospital, Huffman lived with Karen's sister and brother-in-law, Marilyn and Brad Stevenson. Marilyn and Brad were also members of the West Redmond Congregation of Jehovah's Witnesses and Brad was a church elder.
On September 6 or 7, Huffman told John Baumann, another church elder, that he wanted to `go over to Karen's house to beat her up and then leave town.' Baumann called Karen to tell her Huffman was very unstable and going through a hard time.
Report of Proceedings (RP) 5/29/02 at 112.
On Saturday, September 8, Huffman told Marilyn and Brad that he wanted to hurt Karen. Brad asked him whether he would physically harm Karen. Although Huffman's response was, `no,' Brad remained concerned and called Baumann about Huffman's threat. Brad and Baumann decided to call Huffman. During their conversation, Huffman explained he wanted to hurt Karen emotionally like she hurt him.
RP 5/29/02 at 96.
In the early evening of Tuesday, September 11, Brad and Marilyn asked Huffman if he wanted to go to church with them. He said he couldn't because he had an errand to do. After they left, Huffman went to the pharmacy and filled his antidepressant amitriptyline prescription. He then drove to Karen's condominium in Redmond and parked his car several blocks away.
Later that night, Huffman broke into Karen's condominium through a first floor window and went upstairs. Tatiana was asleep in Karen's room. Karen heard noise coming from the girls' room and went to investigate. Tatiana woke up when she heard her parents arguing and got out of bed. Tatiana went into the hallway and saw Huffman choking her mother. Huffman told Karen that she was coming with him. He showed her the prescription bottle and said `we're going to die tonight.' Huffman tried to drag Karen down the stairs. When she resisted, he strangled her until she was unconscious.
RP 5/30/02 at 57-58.
When she came to, Huffman forced her into her Jeep and drove off. After Huffman left with Karen, Tatiana and Paris went to a neighbor's and called 911 to describe what had happened. Tatiana and Paris also called Baumann. When Baumann later arrived at Karen's condominium he told the police what Huffman said to him about wanting to hurt Karen.
Huffman drove around occasionally stopping, and vacillating between saying he was sorry and wouldn't hurt her and saying Karen was going to die. Eventually, Huffman stopped the car and tried to force Karen to take a handful of the amitriptyline pills. When she resisted, he calmly looked at her and said she could either take the pills or he would `beat the shit' out of her. Karen took the amitriptyline pills and passed out. Huffman continued driving around and ended up on a gravel road in a wooded ravine in Newcastle. After he parked the car he took the remainder of the antidepressant medication. He then smashed two of the car windows with his fists and cut his wrist with the broken glass. Sometime later, Karen woke up, got out of the car, and tried to run away but collapsed not far from the Jeep.
RP 5/30/02 at 64.
Just after noon the following day, a jogger discovered Huffman inside the Jeep and called 911. When the police arrived, although Huffman was covered in blood he was conscious and able to respond to their questions. When the police found Karen, they rushed her to the hospital. Karen was diagnosed with a `potentially fatal' overdose of amitriptyline.
RP 5/28/02 at 22. Huffman was also taken to the hospital and his wrist was bandaged.
Huffman was charged with attempted murder in the first degree, kidnapping in the first degree, burglary in the first degree, and felony violation of a protection order (FVPO). He pleaded not guilty by reason of insanity. Whether Huffman was able to perceive the nature and quality of his acts and tell right from wrong on September 11, 2001, was the focus of the testimony and evidence at trial. Huffman's psychiatric expert, Dr. Jon Berner, testified that Huffman's lupus caused a psychotic episode and Huffman did not know what was doing was wrong. The State's expert, Dr. Ronald Hart, testified that while Huffman was under extreme stress and was emotionally impaired, he did not have a mental defect and was able to understand the nature and quality of his acts and to tell right from wrong. After a two-week trial, the jury convicted Huffman on all four counts. The trial court scored the four convictions separately and imposed a standard range sentence for the attempted murder, burglary, and FVPO to be served concurrently, and a consecutive sentence for kidnapping. On appeal, Huffman seeks reversal of his convictions or remand for resentencing.
DISCUSSION The clergy-penitent privilege
Huffman contends the trial court erred when it denied his motion to suppress the testimony of church elders about statements he made that are protected by the clergy-penitent privilege.
The State subpoenaed church elders Jason Baker, Brad Stevenson and John Baumann to testify at trial. All three elders talked to the police about what Huffman had told them, and provided written statements concerning their conversations with him. A month before trial, the West Redmond Congregation of Jehovah's Witnesses moved to quash the subpoenas because all their communications with Huffman were protected by the clergy-penitent privilege. Huffman asserted the privilege and also moved to suppress his statements. Peter Williams, the Presiding Overseer of the West Redmond Congregation of Jehovah's Witnesses, and Baker, Stevenson, and Baumann submitted affidavits in support of the motion to suppress.
Presiding Overseer Williams' affidavit states that Baker, Stevenson and Baumann are ordained Jehovah's Witnesses ministers and appointed elders in the West Redmond Congregation of Jehovah's Witnesses, and that according to the official publication of the Jehovah's Witnesses, The Watchtower, communications with ministers are confidential.
All four affidavits also cite the Bible as authority that elders provide spiritual counseling and that those communications are confidential.
The three elders' affidavits are identical except for one additional statement in Stevenson's affidavit. Each affidavit states the declarant is a church elder and ordained minister in the West Redmond Congregation of Jehovah's Witnesses, that it is a religious belief and practice of Jehovah's Witnesses that an elder provide spiritual counseling to those who seek it, and that it is a religious belief and practice of Jehovah's Witnesses that communications related to spiritual counseling are confidential. All three affidavits conclude:
Stevenson states that: `While defendant was living in my home I spent hours counseling him in private with the Bible in hand.' CP at 52.
[A]ny and all communications that I had with defendant relating to the crime or crimes that the State has alleged against the defendant herein were made to and received by me in my capacity as an elder. I viewed these communications as confidential in my capacity as an elder and must assume that the defendant viewed them as confidential as well.
CP at 52, 54, 60.
CP at 52, 54, 60.
In opposition, the State argued that the clergy-penitent privilege did not apply because the affidavits did not establish the requirements for the privilege and Huffman waived the privilege by relying on an insanity defense.
The State also argued it was contrary to public policy to prevent the admission of relevant evidence when a criminal defendant asserts an insanity defense.
The court denied the motions to quash the subpoenas and suppress Huffman's statements because there were `insufficient facts to grant this defense motion.' The court concluded the affidavits contained only conclusory statements and did not provide information about the circumstances of the communications. The court explained what additional information was needed:
RP 4/5/02 at 18.
I have to have specific information. On October 1st the defendant consulted me, and you give me the doctrine of the church to tell me what — who constitutes a minister as it relates to that religion. From those facts I conclude that there is a privilege, or not. Then I move to the other issues. Was anyone else around who heard this confession? If it was, then it's waived so my first step is to get some facts from the defendant as to the circumstances surrounding the alleged statements and from those facts I conclude under the law that it's privileged.
RP 4/5/02 at 18-19.
RP 4/5/02 at 18-19.
In response to the court's request Huffman's attorney said, `I can certainly provide evidence.' The court reiterated the type of evidence that was necessary:
RP 4/5/02 at 21.
What were the circumstances [in making the statements]? Was it a party? Was it a baseball game? What is the date of the alleged statement being sought to suppress? Was it before this event? Or was it after? That's the type of factual information the court needs in order to make a ruling.
RP 4/15/02 at 31.
RP 4/15/02 at 31.
The court said it would reconsider its decision if Huffman provided additional information about the circumstances of the communications. Huffman did not provide any additional information or seek reconsideration. The day before trial, the court reiterated that Huffman failed to present sufficient information to show the privilege applied. The court also ruled that Huffman waived the clergy-penitent privilege by raising an insanity defense.
When the trial court considers only documentary evidence to decide whether a privilege applies, we review the evidence de novo. State v. Wood, 45 Wn. App. 299, 311, 725 P.2d 435 (1986).
The State relies on State v. Glenn, 115 Wn. App. 540, 546, rev. denied, 62 P.3d 921, 149 Wn.2d 1007 (2003), to argue the trial court's clergy-penitent privilege ruling should be reviewed for abuse of discretion. We agree that as a general rule, whether a privilege applies is a question of fact reviewed for abuse of discretion. See e.g., Glenn, 115 Wn. App. at 546; Dietz v. Doe, 131 Wn.2d 835, 845, 935 P.2d 611 (1997).
The clergy-penitent privilege is statutory and has no apparent origin in the common law. State v. Glenn, 115 Wn. App. 540, 546, 62 P.3d 921, rev. denied, 149 Wn.2d 1007 (2003). RCW 5.60.060(3) provides that:
A member of the clergy or a priest shall not, without consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.
For the clergy-penitent privilege to attach, statements must be (1) confidential communications, (2) made to a member of the clergy, (3) as a confession. Glenn, 115 Wn. App. at 546. In determining whether the privilege applies, the trial court must decide if the privilege attaches to the statements and if the party claiming the privilege waived it. Glenn, 115 Wn. App. at 546.
`Clergy' is defined in RCW 26.44.020(11) as `any regularly licensed or ordained minister, priest, or rabbi of any church or religious denomination, whether acting in an individual capacity or as an employee or agent of any public or private organization or institution.' State v. Motherwell, 114 Wn.2d 353, 359-60, 788 P.2d 1066 (1990); State v. Buss, 76 Wn. App. 780, 785, 887 P.2d 920 (1995) (overruled on other grounds in State v. Martin, 137 Wn.2d 774, 975 P.2d 1020 (1999)).
The determination of whether a privilege applies is a question of fact. Glenn, 115 Wn. App. at 546-47. The person asserting the privilege must show by a preponderance of the evidence that it applies. Glenn, 115 Wn. App. at 546.
Confidentiality is a fundamental requirement necessary to establish that the clergy-penitent privilege applies. As the Court stated in State v. Martin, 137 Wn.2d 774, 789-90, 975 P.2d 1020 (1999):
The privilege may be vitiated by the presence of a third person during communication between a penitent and a clergy member intended to be a confession unless the third person is necessary for the communication or the third person is another member of the clergy. Vitiation by presence of a third person is a matter of fact which must be determined in each case as the issue arises.
Whether statements made in the presence of a third person are privileged depends on whether the person's presence is necessary for the communication or the person is a member of the clergy.
Huffman concedes that because Marilyn was not a member of the clergy, the privilege does not apply to the statement he made to Brad and Marilyn that he wanted to hurt Karen. And Baumann testified that a third party was present during at least one conversation he had with Huffman when he spoke to Huffman and Huffman's mother about Huffman's mental health. The privilege also only applies if a clergy member receives the communication in his or her professional capacity. RCW 5.60.060(3). Brad Stevenson testified that in addition to talking to Huffman as an elder, `From other people's perspective it also would have been as a brother-in-law. But the conversations I would have had with [Huffman], anything of a sensitive nature, I would not have repeated.' To assert the privilege for conversations with Stevenson, Huffman had to provide evidence that Stevenson was acting as a clergy member and not as a family member or friend.
There is also no testimony or argument that Marilyn was a necessary third party for the communication.
There is no dispute Huffman's mother was not a member of the clergy or that she was necessary to the communication.
RP 5/29/02 at 102-03.
Huffman argues that because, under Martin, the religious entity defines what constitutes a `confession,' the affidavits of Baker, Baumann and Stevenson conclusively establish the clergy-penitent privilege applies to his statements. Martin held that the religious entity, not the courts, must `?decide what types of communications constitute confessions within the meaning of a particular religion." Martin, 137 Wn.2d at 786-87. Martin does not suggest, however, that conclusory statements that communications were a `confession' can establish that the privilege applies.
We agree with the trial court that the affidavits do not provide sufficient information about the facts and circumstances surrounding Huffman's communications with the elders to show the clergy-penitent privilege applies. The affidavits do not contain any information about whether the conversations were confidential or whether third parties were present, whether the elders were acting as clergy members or as friends or family members, or whether the communications took place in social situations or in the context of `confession.' As with other privileges, the clergy-penitent privilege attaches only to those communications that meet the specific requirements of the privilege. The mere fact that a communication is made to a clergy member does not in and of itself make the communication privileged.
Because Huffman did not provide a sufficient evidentiary basis to determine whether the privilege applies, the court did not err when it denied the motion to quash the subpoenas and the motion to suppress. Because we resolve the applicability of the clergy-penitent privilege on this ground, we do not address the issue of whether, by raising an insanity defense, Huffman waived the clergy-penitent privilege.
In addition, if Huffman had provided the requested additional information about the circumstances of his communications with the elders, the trial court said it would reconsider its ruling. See State v. Jamison, 105 Wn. App. 572, 586-877, 20 P.3d 1010 (2001) (where a trial court makes a tentative ruling and invites a party to submit additional materials in support of a motion and the party fails to do so, the issue is not preserved for appeal); Sturgeon v. Celotex Corp., 52 Wn. App. 609, 622-23, 762 P.2d 1156 (1988) (parties may rely on a definite ruling to preserve an issue for review, but it is desirable to give the trial court an opportunity to avoid error by allowing it to consider its ruling in light of all available information).
State v. Pawlyk, 115 Wn.2d 457, 800 P.2d 338 (1990), does not appear to support the State's categorical proposition that all privileges are waived when an insanity defense is raised. In Pawlyk, while the attorney-client privilege did not extend to a psychiatrist's report or testimony when the defendant raised an insanity defense, communications between defense counsel and the psychiatrist were excluded from the discovery order that was upheld.
ER 404(b) Prior Bad Acts
Huffman argues the trial court abused its discretion when it admitted evidence under ER 404(b) of two incidents: one that occurred in 2002, when Huffman yelled at Karen at church and tried to prevent her from leaving, and another that occurred in 1991 in Fort Collins, Colorado.
The trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997). Discretion is abused if it is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State v. Elmore, 139 Wn.2d 250, 285, 985 P.2d 289 (1999).
Under ER 404(b), evidence of prior bad acts and misconduct is inadmissible to prove the defendant's character and to show his general propensity for misconduct. Evidence of prior bad acts `may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.' ER 404(b). The list of other purposes for which evidence of prior bad acts may be introduced is not exclusive. State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996). Whether evidence is admissible under ER 404(b) is determined by a two step analysis: `First, the evidence must be shown to be logically relevant to a material issue before the jury . . . Second, if the evidence is relevant, its probative value must be shown to outweigh its potential for prejudice.' State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). The admission of evidence will be upheld if it is admissible for any proper purpose, even if the basis relied upon by the trial court was improper. State v. Mutchler, 53 Wn. App. 898, 903, 771 P.2d 1168 (1989).
Huffman conceded below that the church incident was admissible because it was an element of the crime of felony violation of a protection order. Huffman cannot challenge its admission on appeal. See In re Call, 144 Wn.2d 315, 328, 28 P.3d 709 (2001).
RP 5/22/02 at 9. Even if he did not waive his right to appeal the admission of evidence of the church incident, however, the analysis for that incident is the same as for the Fort Collins incident.
The 1991 Fort Collins incident happened when Karen was six months pregnant with Tatiana. Huffman showed up at her home in Cheyenne, Wyoming, pulled her outside, forced her into his car, and drove to Fort Collins, Colorado. When he stopped at a motel, Huffman took off Karen's shirt to prevent her from running away and went into the motel office to register. Karen got out of the car and tried to run away. Huffman caught her and they struggled in the parking lot. The motel clerk called the police. In a statement Karen gave to the police she said she had been taken against her will from her home in Cheyenne, and that Huffman hit her in the face and grabbed her by the neck, arms and hair.
In a lengthy oral decision the trial court concluded that the Fort Collins incident was admissible under ER 404(b) to show motive, intent, preparation, plan, accident or mistake, and res gestae and that while the evidence was prejudicial, its relevance outweighed its prejudice.
Huffman concedes that based on State v. Powell, 126 Wn.2d 244, 893 P.2d 615 (1995), evidence of prior assaults, quarrels and threats is admissible to establish motive for murder where there is only circumstantial evidence, but he argues that such evidence is not admissible for attempted murder when the victim testifies. Powell is not so limited. Under Powell, prior quarrels, threats or arguments are admissible to show motive. Id. at 260. Evidence of previous quarrels or disputes between the defendant and the victim shows the relationship of the parties and their ill feelings toward one another. State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997), habeas corpus denied, 150 Wn.2d 207 (2003). The trial court did not abuse its discretion when it admitted evidence about the Fort Collins incident.
The history of prior assaults and quarrels between Huffman and Karen was also admissible to negate his insanity defense. ER 404(b) evidence can be admitted to rebut a defense theory. See, e.g., United States v. Johnson, 14 F.3d 766, 772 (2nd Cir. 1994) (admitting evidence of prior bad acts to rebut insanity defense). See also State v. Odell, 38 Wn.2d 4, 20, 227 P.2d 710 (1951) (stating the general rule that where a person pleads insanity, any and all conduct of the person is admissible in evidence because any given act may indicate either insanity or sanity).
Admissibility of prior statement
Huffman argues the trial court abused its discretion and violated his constitutional rights when it refused to admit Karen's sworn statement about the Fort Collins incident as an exhibit.
On cross examination, Huffman's lawyer asked Karen whether Huffman had ever hit her. She replied `no.' He then asked, `In your entire relationship he has never hit you?' and she replied, `No, not with his fists. He has hit me with cordless phones and things like that.' Karen was provided with a copy of the signed statement she gave to the police after the Fort Collins incident. It states in part: `He hit me in my face once and grabbed me by my neck, arms and hair a lot of times.' Huffman's lawyer asked whether the statement refreshed her memory and she said no. The court denied Huffman's request to admit the statement as an exhibit. Huffman's lawyer then asked Karen: `After reading that statement does that refresh your memory as to your allegation of being struck in the face by Mr. Huffman?' She replied, `I didn't say what he hit me in the face with, I didn't say that he hit me with his fist or his elbow. I said I was hit in the face and that my hair was pulled and arms were grabbed many times.' The next day, Huffman renewed his motion to admit the statement as an exhibit. The court ruled the statement was not admissible because it was not relevant. Huffman then argued the statement should be admitted to contradict Karen's testimony. The court again denied his motion.
Appendix A to Resp. Br.
RP 5/30/02 140-141, 143.
Defense counsel also argued it was admissible under ER 901 because it was authentic. But ER 901 is not a rule governing admissibility. See ER 901.
Under ER 613(b), extrinsic evidence is admissible if the statement is both material and inconsistent. State v. Dickenson, 48 Wn. App. 457, 466, 740 P.2d 312 (1987). Inconsistency is determined `not by individual words or phrases alone, but by the whole impression or effect of what has been said or done.' Id., quoting 5 K. Tegland, Wash. Prac. sec. 256 (2d ed. 1982). The trial court's decision to admit or exclude evidence is reviewed for abuse of discretion.
State v. Brown, 132 Wn.2d at 571-72.
The exhibit did not satisfy the requirements of ER 613(b) because the prior statement was not inconsistent with the impression or effect of Karen's testimony as a whole. In the context of Karen's testimony, it is clear that she meant he never hit her with his fists, not that he never hit her. The exclusion of the exhibit was not an abuse of discretion.
Both the U.S. and Washington constitutions guarantee the right to confrontation, which includes the right to cross examine witnesses. Though a defendant has a constitutional right to impeach a prosecution witness with a prior inconsistent statement, the defendant must still satisfy the requirements under ER 613(b). See State v. Dickenson, 48 Wn. App. at 466. Huffman did not satisfy the requirements of ER 613(b) and extensively examined Karen about the statement. The exclusion of the exhibit did not violate Huffman's constitutional rights.
U.S. Const. Amend. VI; Wash. Const. Art. I, sec. 22; see Davis v. Alaska, 415 U.S. 308, 315-318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).
Admissibility of Police Officer Opinion Testimony Huffman argues the trial court improperly admitted the police officers' opinions about Huffman's mental state as expert testimony. Officers Robert Bunn and Seth Grant were asked to testify about their observations of Huffman. Officer Bunn testified as follows:
The State argues that Huffman waived this issue by failing to adequately object at trial. Because Huffman objected to the questions asked of Officer Bunn, this issue is preserved for appeal at least as to his testimony. The questions posed to Officer Grant were essentially identical and they are challenged on the same basis as Officer Bunn's testimony. We address both officers' testimony without deciding whether the issue was waived as to Officer Grant's testimony.
Q: Was there anything about Mr. Huffman at all that made you think he was mentally not competent at that point?
A: There's nothing.
Q: Have you dealt with, in your line of work, probably a few times people that suffer from mental problems?
Defense Counsel: Objection, Your Honor.
The Court: Overruled. He may answer.
Q: You may answer.
A: Yes, I have.
Q: Is that actually somewhat common, not overly common, I hope?
A: More common when I was a patrol officer, yes.
Q: Again, was there anything about Mr. Huffman that made you think he was suffering from mental health problems?
Defense Counsel: I object to that, Your Honor.
The Court: This is within his area of expertise as a police officer. He may opine.
RP 5/28/02 at 148-49.
On cross examination, Officer Bunn testified that he had no medical or psychiatric training.
Officer Grant was asked about his observations of Huffman during both direct examination and on cross examination. On redirect, he was asked: `Did he appear to have any mental problems whatsoever in your opinion?' Officer Grant responded, `[n]o.' On recross, defense counsel asked Officer Grant whether he had any medical or psychiatric training. The officer responded that he had training in basic first response, including how to deal with people who are mentally incompetent, but he had no specific training in psychology or psychiatry. Defense counsel then asked `You couldn't say with certainty what Mr. Huffman's mental condition was at the time?' Officer Grant responded, `I wouldn't be able to diagnose him with a condition, no.'
RP 5/28/02 at 187. Huffman did not object to this question.
RP 5/28/02 at 187.
RP 5/28/02 at 187-88.
RP 5/28/02 at 187-88.
Huffman claims the officers' testimony was inadmissible expert testimony. But Officers Bunn and Grant were not offered as expert witnesses and no effort was made to qualify them as experts. The only indication that they were testifying as experts was the court's reference to a police officer's expertise when it overruled Huffman's objection to Officer Bunn testifying about his observations.
An appellate court may affirm a trial court's ruling on any grounds supported by the record. State v. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996). The trial court's decision to admit evidence is reviewed for abuse of discretion.
State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997).
ER 701 provides that a lay witness can testify in the form of opinion or inference when it is rationally based on the witness's perception and aids an understanding of testimony or the determination of a fact in issue. State v. Halstein, 122 Wn.2d 109, 128, 857 P.2d 270 (1992); State v. Ferguson, 100 Wn.2d 131, 667 P.2d 68 (1983).
In Halstein and Ferguson, a police officer and a defendant's wife were allowed to testify under ER 701 that, based on their experience, a substance they observed appeared to be semen. Halstein, 122 Wn.2d at 128, Ferguson, 100 Wn.2d at 141. Here, the testimony of Officers Bunn and Grant was limited to observations of Huffman and opinions based on those observations. This testimony is analogous to the testimony allowed in Halstein and Ferguson. The trial court did not abuse its discretion in admitting the police officer opinion testimony.
Prosecutorial Misconduct
Huffman contends that because the prosecutor repeatedly referred to Huffman's expert witness, Dr. Berner, as a `hired gun,' who was paid for his testimony and argued that Dr. Berner was not credible, the prosecutor committed misconduct that deprived him of a fair trial.
In both opening statement and closing argument, the prosecutor made repeated references to Dr. Berner as a `hired gun' and `paid witness.' The prosecutor also argued in closing that Dr. Berner's testimony was not professional or credible. Huffman did not object.
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect. State v. Brown, 132 Wn.2d at 561. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998), cert. denied, 123 S.Ct. 2286, 156 L.Ed.2d 132 (2003). In determining whether a prosecutor's remarks require a new trial, this court must view them in the context of the total argument, the issues in the case, the evidence addressed in argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). If the defendant does not object, the issue of prosecutorial misconduct is waived unless the misconduct was so `flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' State v. Stenson, 132 Wn.2d at 719 (1997).
On cross examination, Dr. Berner testified that he was paid $300 an hour for his work on the case. Dr. Berner also testified that he would not have been hired to testify if he had not concluded that Huffman was insane. The prosecutor's description of Dr. Berner as a `hired gun' and a `paid' witness was supported by the evidence and the jury could properly consider Dr. Berner's financial interest in testifying as an expert witness. See Alston v. Blythe, 88 Wn. App. 26, 41, 943 P.2d 692 (1997).
RP 6/04/02 at 130.
The court also instructed the jury that in considering the testimony of any witness they may take in to account `any interest, bias, or prejudice the witness may have,' and that `[t]he attorneys' remarks, statements and arguments are intended to help you understand the evidence and apply the law. They are not evidence. Disregard any remark, statement or argument that is not supported by the evidence or the law as stated by the court.' CP at 166. The jury is presumed to have followed the court's instructions. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991).
The prosecutor can argue that the witness is not credible, so long as the argument does not constitute a personal opinion and is based on the evidence. State v. Smith, 104 Wn.2d 497, 510-511, 707 P.2d 1306 (1985). Dr. Berner testified that he administered no tests, had not fully reviewed Huffman's medical history or the discovery in the case, and had only spoken with Huffman for approximately an hour. The prosecutor's arguments that Dr. Berner was not professional or credible were based on the evidence and not improper.
Huffman also argues that the cumulative effect of the prosecutor's misconduct `rises to the level of manifest constitutional error that is not harmless beyond a reasonable doubt.' App. Br. at 31. The case cited in support of this argument, State v. Fleming, involved misstatements about reasonable doubt and the role of the jury, infringement on the right to remain silent, and improper shifting of the burden of proof to the defense. 83 Wn. App. 209, 216, 921 P.2d 1076 (1996). None of those constitutional shortcomings are argued here.
Cumulative Error
Huffman argues that cumulative error denied his right to a fair trial. The cumulative error doctrine applies only when several trial errors occur which, standing alone, may not be sufficient to justify reversal, but when combined, may deny the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because we conclude there are no errors, the cumulative error doctrine does not apply.
Same Criminal Conduct
Huffman contends the trial court erred in calculating his offender score because (1) the attempted murder and kidnapping convictions should have been scored as the same criminal conduct and (2) the burglary and felony violation of a protection order (FVPO) was the same criminal conduct. The State argues that each conviction is separate and distinct criminal conduct and the trial court properly scored the four convictions separately and imposed the kidnapping sentence consecutive to the attempted murder sentence.
Crimes which do not meet the statutory definition of `same criminal conduct' are necessarily separate and distinct. State v. Brown, 100 Wn. App. 104, 114, 995 P.2d 1278 (2000).
RCW 9.94A.589(1)(b) states:
Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection. Both attempted murder in the first degree and first degree kidnapping are serious violent offenses. RCW 9.94A.030(37)(a)(i), (vi). If Huffman's convictions arose from separate and distinct criminal conduct, under RCW 9.94A.589(1)(b) the standard sentence range for attempted murder would be determined by counting burglary and FVNCO as current offenses and the standard range for kidnapping would be calculated using an offender score of zero. The sentences for attempted murder and kidnapping would be served consecutively.
The court sentenced Huffman to 270 months for attempted murder, 54 months for burglary, and 20 months for FVPO, to run concurrently, and 68 months for kidnapping to run consecutively to the attempted murder sentence. At sentencing, the prosecutor told the court that `[t]he kidnapping, by statute, is consecutive, but does not score.' Huffman did not ask the trial court to find his convictions were the same criminal conduct and did not agree that his offender score was properly calculated.
These were all standard range sentences for these crimes: attempted murder in the first degree with offender score of 3 = 203.25-270.75 months (which is 75% of standard range of 271-361 months for first degree murder); first degree burglary with offender score of 5 = 41-54 months; FVPO with offender score of 3 = 15-20 months; and first degree kidnapping with offender score of zero = 51-68 months. CP 237.
RP 7/19/02 at 9.
Though the record contains no explicit findings regarding same criminal conduct, the court in its calculation of Huffman's offender score, implicitly determined that his offenses counted separately and did not constitute the same criminal conduct. State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998); State v. Nitsch, 100 Wn. App. 512, 525, 997 P.2d 1000 (2000).
The State argues that under Goodwin and Nitsch, Huffman's failure to raise the issue of `same criminal conduct' at sentencing precludes review. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 50 P.3d 618 (2002); State v. Nitsch, 100 Wn. App. 512. Huffman contends that the trial court's calculation of his offender score is an error of law that can be raised for the first time on appeal. Anderson, 92 Wn. App. at 61, Goodwin, 146 Wn.2d at 874.
We need not decide whether Huffman waived his right to challenge the trial court's offender score calculation because we conclude his convictions are separate offenses that do not constitute the same criminal conduct. A defendant's current offenses must be counted separately in calculating the offender score unless the trial court finds they `encompass the same criminal conduct.' RCW 9.94A.589(1)(a). Offenses encompass the same criminal conduct when they are committed (1) against the same victim, (2) at the same time and place, and (3) involve the same objective criminal intent. RCW 9.94A.589(1)(a). `The absence of any one of the prongs prevents a finding of `same criminal conduct." State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). One of the major purposes of the Sentencing Reform Act is to `ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense.' RCW 9.94A.010(1), see also State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992). Accordingly, this court narrowly construes RCW 9.94A.589(1)(a) to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000).
Attempted Murder and Kidnapping
Huffman relies on State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987), to argue that the attempted murder and kidnapping should have been scored as the same criminal conduct because the jury could have relied on his intent to commit murder to satisfy an element of the kidnapping charge. In Dunaway, the defendant got into a car with two victims at the Alderwood Mall. He displayed a gun and took money from the victims, then told them to drive toward Seattle. When they arrived in Seattle, Dunaway told one of the victims to go into a bank to obtain more money. She went into the bank and did not return. Dunaway pleaded guilty to two counts of first degree kidnapping and two counts of first degree robbery. The sentencing judge found that all four crimes for the two victims encompassed the same criminal conduct. The Supreme Court reversed, concluding that crimes involving multiple victims must be treated separately. The Court determined, however, that the robbery and kidnapping of each victim was the same criminal conduct because the objective intent was the same and the crimes occurred at the same time and place at the Alderwood Mall parking lot.
Here, while the attempted murder and kidnapping offenses were committed by Huffman against the same victim, Karen, they were not committed at the same time and place. Huffman took Karen from her home, drove around, vacillated about what he was going to do, and then took her to a wooded area several miles away and forced her to take antidepressant medicine. The kidnapping was complete when Huffman took Karen from her home, but the attempted murder did not occur until much later when Huffman forced her to take the pills. Because the same time and place prong is not satisfied, the trial court did not err when it concluded that Huffman's convictions for attempted murder and kidnapping should be counted separately.
A person is guilty of kidnapping in the first degree when the defendant intentionally abducts a person with the intent to facilitate first degree murder or to inflict bodily harm on that person. CP 186, see RCW 9A.40.020(1)(b), (c).
Because we conclude same time and place is not satisfied, we do not address the same objective intent prong. State v. Vike, 125 Wn.2d at 410.
Burglary and Felony Violation of Protection Order (FVPO)
Huffman also argues that the trial court erred when it scored his convictions for burglary and FVPO as separate offenses. Under RCW 9A.52.050, the burglary antimerger statute, the trial court can score burglary separately from Huffman's other convictions. RCW 9A.52.050 provides: `Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.' `[T]he antimerger statute gives the sentencing judge discretion to punish for burglary, even where it and an additional crime encompass the same criminal conduct.' State v. Lessley, 118 Wn.2d at 773. Even if the burglary and FVPO encompass the same criminal conduct, under the antimerger statute the trial court was within its discretion to score burglary separately.
Conclusion
We conclude the trial court did not abuse its discretion in denying the motion to suppress the church elders' statements because Huffman failed to present sufficient evidence to establish the clergy-penitent privilege applied. Finally, the trial court did not abuse its discretion when it admitted evidence under ER 404(b), refused to admit Karen's prior statement as an exhibit and allowed police officer opinion testimony based on observations of Huffman. The prosecutor did not commit misconduct and there is no cumulative error. The trial court did not err when it scored Huffman's convictions as separate and distinct criminal offenses and imposed a consecutive sentence for the kidnapping conviction. The jury conviction and the judgment and sentence are affirmed.
GROSSE and COLEMAN, JJ., concur.