Appeal from Superior Court of King County. Docket No: 95-1-05212-2. Date filed: 02/26/96.
Petition for Review Denied October 7, 1997,
Authored by H. Joseph Coleman. Concurring: Ann L. Ellington, Susan R. Agid.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- After Christopher Lee unsuccessfully argued that he was merely a passenger in a pickup truck that crashed into a woman's van, a jury convicted him for vehicular assault. Lee appeals on two grounds. First, he argues that the trial court erred by refusing to allow impeachment of the pickup's other occupant with prior juvenile adjudications. Second, Lee claims that the prosecutor's closing arguments during rebuttal constituted prejudicial misconduct. Because Lee failed to show any special reason beyond general impeachment to admit the juvenile adjudications, we hold that the trial court acted within its discretion. We also hold that the prosecutor's rebuttal statements were fair responses to defense counsel's closing argument. Moreover, because the challenged remarks were not prejudicial when viewed in context, we affirm Lee's conviction.
In the early morning on July 10, 1995, as Patricia Bauder was waiting to exit a 7-Eleven parking lot in her van, a large Ford pickup came speeding down the road in excess of 80 mph. The pickup's driver lost control of the vehicle and struck a light pole. Skidding sideways, the pickup violently collided with Bauder's van, crushing both vehicles' left sides. Bauder was pried from her van and airlifted to the hospital, where she remained in a life-threatening coma for over a week. After three months of hospitalization and rehabilitation therapy, Bauder returned home to her husband and children. A former substitute school teacher, Bauder now has an IQ of 60 and the reading ability of a third grader as a result of the collision.
On the evening before the accident, Lee and his friends had been drinking beer in Kent. At about 4 a.m., Lee and Jesse Aldrich decided to drive to Auburn. Aldrich drove his roommate's Ford pickup until it ran out of gas. After Aldrich pushed it to the nearest gas station, the two continued on their way, but Aldrich and Lee dispute who drove from that point. Several witnesses saw the pickup pass them at excessive speeds along the Kent-Kangley road. Curtis Kast noticed that the driver wore a cowboy hat.
Eloy Ysasi was the first driver to come to the accident scene. As he stopped, he saw Aldrich exit the pickup's passenger side and go into the 7-Eleven. Carl Sasaoka also stopped at the scene and walked up to the pickup, where he found Lee lying across the front seat. He heard Lee moan, "I screwed up," and "I think I hit something." When Kent Knight of the Kent Fire Department arrived, he heard Lee say, "Why did I do this," "I really screwed up," and "I'll never do this again." Similarly, a Kent police officer heard Lee say, "I'm never going to do this again" and "I'm drunk." Lee's blood, drawn over two hours after the collision, contained a .10 blood alcohol concentration.
Like the damage to the pickup, Lee's injuries were concentrated on the left side of his body. He broke his first and ninth left ribs and fractured his left collarbone. The State's medical expert opined that these injuries were caused by a diffuse impact with a large flat surface. Lee also sustained a laceration on his left leg that was consistent with a forceful contact with exposed metal parts on the inside of the pickup's driver-side door. Lee required extensive medical treatment. By contrast, Aldrich suffered only minor bumps and bruises.
Lee was tried before a jury for vehicular assault. He argued that Aldrich had been driving at the time of the accident. Before trial, the State moved to preclude any mention of Aldrich's juvenile adjudications for shoplifting and taking a motor vehicle without permission. Because Aldrich was the only witness who purported to see Lee driving at the time of the accident, Lee argued that his priors should be allowed for impeachment purposes under ER 609. The trial court refused to admit the juvenile adjudications, ruling that Lee had failed to show "special circumstances" that called for their admission to impeach Aldrich.
In closing argument, the prosecutor stressed the comparative nature of Lee's and Aldrich's injuries. After appealing to the jurors' common sense that crashing a pickup on the driver's side would injure the driver more severely than the passenger, the prosecutor stated that all other evidence was superfluous. He conceded that Aldrich's testimony was insufficient by itself to establish Lee's guilt beyond a reasonable doubt. He noted that Lee owned a black cowboy hat like one found in the pickup. Reiterating that Kast saw the driver wearing a similarly shaped cowboy hat, the prosecutor argued that only Lee could have been the driver. Finally, the prosecutor pointed to Lee's remorseful statements immediately after the accident.
Defense counsel argued in closing that the police had not done a thorough investigation, focusing solely on Lee and ignoring evidence that Aldrich could have been the driver. Counsel stated that the investigators "looked for evidence that Christopher Lee was the driver, found some, . . . and stopped there." He claimed that the State's experts and police had been being biased and unobjective in building the case against Lee. Counsel concluded by stating that there was "[a] lot of emotion in this case. Everybody in this courtroom, myself included, would like to see the person who did this convicted. We're convicting the wrong person." The defense also characterized the State's evidence as "garbage" and "BS."
During rebuttal argument, the prosecutor replied:
[Defense counsel] ended up his argument by saying you ought to be very concerned about what happened to Patricia Bauder. And -- but you shouldn't let . . . that spill over and let you convict this defendant because of it. That's exactly right. But let me take it a little bit step--step a little bit further, and suggest to you that you ought to be out and out outraged at what happened to Patricia Bauder. All of us ought to be outraged about what happened to her. Why? Because we have to share the road with men like the defendant.
That's outrageous. Absolutely outrageous. You also ought to be outraged at the fact that now this woman with three children has been reduced approximately to the level of her children. Absolutely outrageous. It outrages me. It outrages [defense counsel]. Defense counsel objected that the prosecutor was appealing to the ...