Appeal from Superior Court of King County. Docket No: 95-1-01566-9. Date filed: 10/02/95. Judge signing: Hon. Richard M. Ishikawa.
Authored by Faye C. Kennedy. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- After threatening to harm his former girlfriend and her family after she refused to allow him to visit her and their children and threatening to harm her if she testified against him in an unrelated proceeding involving his violation of no-contact orders, Jason Bell was convicted of felony harassment, domestic violence misdemeanor violation of a court order, and tampering with a witness. Bell appeals, contending that the trial court impermissibly restricted his cross examination of the victim regarding her belief in an evil spirit; that the court erred in admitting evidence of Bell's prior crimes; that the court erred in not questioning the jury regarding a juror whom Bell claimed was sleeping through several minutes of testimony; and that the prosecutor committed misconduct by appealing to the jury's passion and prejudice and vouching for a witness during his closing argument. Finding no reversible error, we affirm.
Jason Bell and Cathie Fagerlie met in 1991 and became romantically involved. Their relationship was characterized by Bell's repeated physical abuse of Fagerlie. On a February night in 1995, Bell called and asked to see Fagerlie and the couple's two children. When Fagerlie refused, Bell threatened to hurt Fagerlie and her family. He also told her that if she testified against him in a pending case involving his violation of a no-contact order, he would "fuck her up." Report of Proceedings at 67. Fagerlie immediately called the police.
Approximately an hour after police responded to Fagerlie's call for help, one of the officers received a radio call to return to Fagerlie's home. Fagerlie, who appeared to the officer be even more frightened than before, claimed that as soon as the officers left the apartment, Bell had called again and told her that if she stepped out of the house, he would hurt her. Fagerlie told the officer that she believed that Bell was watching her because he had called immediately after a friend had left her home earlier in the evening and then again immediately after the officers left. The officers searched the area but did not find Bell. Fagerlie, who was afraid to stay in her home because she believed that Bell would follow through on his threats, collected her belongings and moved to a friend's home for a week.
Bell turned himself in to the police. At the time he was arrested, outstanding bench warrants existed for Bell's repeated failure to appear in court on charges of violating no-contact orders. Bell was charged with one count of felony harassment, in violation of RCW 9A.46.020, and with one count of domestic violence misdemeanor violation of a court order, in violation of RCW 10.99.050(2). A third count of tampering with a witness, in violation of RCW 9A.72.120, was subsequently added by amended information.
Bell did not testify at trial and called no witnesses. The jury found him guilty as charged. He was sentenced within the standard range.
This timely appeal followed.
Bell contends that the trial court abused its discretion in restricting defense counsel's cross examination of Fagerlie. On direct examination, when asked why she had moved from her last residence, Fagerlie testified that she moved because Bell knew where she lived and because there were "a few things going on in the apartment [that she] didn't like." 2 Report of Proceedings at 37. Fagerlie explained that she believed her home was possessed by an evil spirit, and stated that she had called a priest to come over and bless the house to get rid of the spirit. Fagerlie further testified that she equated the evil spirit with Jason Bell because she had similar experiences in a prior home she had shared with Bell. On cross examination, defense counsel questioned Fagerlie about the evil spirit, asking her what kinds of things the spirit did, whether it made the threatening phone call, and how Fagerlie could distinguish between the spirit and Jason's voice on the phone. When defense counsel asked Fagerlie how she could tell that it was the evil spirit that had slapped her, on one occasion, the prosecutor objected that the cross examination had "gone far enough." Report of Proceedings at 88. The trial court sustained the objection. Bell contends the trial court prevented him from fully cross-examining Fagerlie concerning her ability to distinguish between Jason Bell and the spirit, which he argues was relevant to her credibility and her ability to perceive reality.
"The Sixth Amendment and Const. art. 1, sec. 22 (amend. 10) grant criminal defendants the right to confront and cross-examine adverse witnesses." State v. Russell, 125 Wash. 2d 24, 73, 882 P.2d 747 (1994), cert. denied, 115 S. Ct. 2004 (1995) (citations omitted). The scope of cross examination lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of that discretion. State v. Hoffman, 116 Wash. 2d 51, 96, 804 P.2d 577 (1991), aff'd sub nom., McGinnis v. Blodgett, 67 F.3d 307 (9th Cir. 1995), cert. denied, 116 S. Ct. 1046 (1996) (citations omitted); ER 611(b).
The State contends that Bell did not preserve this issue for appeal because defense counsel failed, when the State's objection was sustained, to make an offer of proof regarding what additional questions and answers he anticipated. ER 103(a) provides that a party may not claim error from a ruling excluding evidence unless: (1) the ruling affected a substantial right of that party; and (2) the substance of the evidence sought to be admitted was made known to the court by offer of proof or was apparent from the context within which the questions were asked. In the instant case, although defense counsel made no offer of proof, his questions leading up to the objection made it clear that he was attempting to elicit information from ...