Appeal from Superior Court of Skagit County. Docket No: 93-1-00418-3. Date filed: 01/20/95. Judge signing: Hon. George E. McIntosh.
Petition for Review Denied July 8, 1997,
PER CURIAM. Edward Bazinet's first trial on charges of killing his friend, Gary Schemstad, ended when the court declared a mistrial. In the second trial a jury convicted Bazinet of second degree manslaughter, and he was sentenced to 12 months. Bazinet contends that after the mistrial, double jeopardy should have prevented the second trial; and that in the second trial, the trial court erred in allowing evidence of a prior bad act. We affirm.
The deceased, Gary Schemstad, died in Bazinet's house. The two had been friends for some time. They shared a common interest in hunting and fishing.
On the night in question, they were in the kitchen with Bazinet's wife. They had spent the entire day together in various activities, including a lot of drinking. Schemstad was planning to go on a hunting trip. They began to argue about the fact that Schemstad would not invite Bazinet to accompany him on the trip. The reason Schemstad said he would not invite Bazinet was because of an incident that had occurred some months earlier. Bazinet had shot 40-50 bullet holes into the walls of his own house, had been charged with reckless endangerment, and would soon be deprived of some of his guns. Schemstad angered Bazinet when he told him he would not take him hunting and that the authorities might take his guns away. Schemstad further declared he wouldn't stay overnight at Bazinet's house because he didn't want to "wake up full of holes." Bazinet several times told Schemstad to shut up and then slapped him across the face, causing him to fall to the floor with a bloody nose. The arguing later rekindled. As Schemstad attempted to leave the house, saying "I'm going to kill you", Bazinet hit him with his fist, and once again Schemstad fell to the floor, nose bleeding. This time Schemstad did not get up; he groaned and lay still. Bazinet and his wife put a blanket on Schemstad and left him on the floor to sleep off the alcohol.
In the morning, Schemstad was dead. Bazinet drove to the police station and told an officer, "Gary Schemstad is up at my house and he's colder than a wedge." An autopsy revealed that he died of internal bleeding caused by a blunt blow to the stomach.
The State charged Bazinet with first degree manslaughter. At trial, Bazinet admitted arguing heatedly with Schemstad and hitting him in the face, but denied that he ever hit him in the stomach. He and his wife both testified that earlier that night Schemstad had fallen over the back of a chair and landed on the floor.
Before trial the defense moved to exclude evidence of Bazinet shooting up his house. The court recognized that the substance of the argument between Bazinet and Schemstad was relevant to let the jury know why the defendant had become inflamed, but the court also did not want the jury informed about the charge pending against Bazinet. Near the end of the hearing, the court clarified the ruling:
I think it is appropriate that [decedent's statement] come in. He said, "I'm not going to stay here because I'll wake up full of holes."
That is fine, part of the transaction. Part of the transaction also is that he made the statement that, "You're not going to go hunting with us because you are going to lose your guns -- they are going to take away your guns," I'm going to go that far.
To exclude evidence of the pending charges, the court continued: "We were not going into that prior charge, what happened to the prior charge. I want to make it as clearcut as I can, so there it is." This ruling was not put in writing.
The next day, early in the testimony of the State's second witness, Mrs. Bazinet, the prosecutor elicited testimony about the fact that Schemstad used to stay at the Bazinets' house occasionally, but had stopped doing so. The prosecutor then said. "There was an event involving your husband and a shooting that occurred." At that point the defense objected and the jury was removed. The defendant moved for a mistrial.
The court acknowledged that the question violated the previous day's order in limine. "The whole idea was to get around showing this jury that Mr. Bazinet was involved in a prior shooting incident." The prosecutor claimed he misunderstood the ruling and had erred innocently. He recommended that the court deny the mistrial motion and merely instruct the jury to disregard the question. The court nevertheless declared a mistrial.
I understand it's perfectly possible to misunderstand. That's why maybe we need written orders on this even though it was just heard yesterday. . . . This is the first time I have ever had to grant a mistrial but it's not the end of the world, I guess. . . . I'm not saying [the prosecutor] attempted to do something. He may have misunderstood. That's fine. He says he did. I have no reason to believe he didn't. At the defendant's later motion to dismiss for being once in jeopardy, the court ...