State v. We

158 P.3d 1238

138 Wn. App. 716

STATE of Washington, Respondent, v. Janae White Eagle WE, Appellant.

No. 24047-9-III.

Court of Appeals of Washington, Division 3.

May 22, 2007.

David N. Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Brian Clayton O'Brien, Spokane County Prosecuting Attorney, Spokane, WA, for Respondent.

SWEENEY, C.J.

¶ 1 This is an arson prosecution. The State's expert arson investigator testified that the defendant burned her apartment for insurance fraud. No one objected or asked for a curative instruction at trial. Here on appeal, the defendant contends this was an inadmissible opinion of her guilt and that this is an error of constitutional magnitude. We conclude that the opinion was an appropriate expert opinion. And the circumstantial evidence of the defendant's culpability, even without the opinion, was sufficiently overwhelming to render any error, assuming error, harmless. We therefore affirm the conviction. We also affirm the sentencing court's imposition of restitution.

FACTS

¶ 2 A jury convicted Janae We of first degree arson for burning the duplex she lived in. The State had charged her with causing the fire "with intent to collect insurance proceeds." Clerk's Papers (CP) at 2. Ms. We lived in the duplex. Sidiq Dar owned the duplex. Mr. Dar usually lived in the other side of the duplex. But he was in Florida for the winter. And Ms. We knew it. The fire destroyed the half of the duplex Ms. We lived in. Ms. We intentionally started this fire on March 22, 2003. Her lease was up at the end of March 2003.

¶ 3 Experts on both sides agreed the fire was intentionally started. The essential factual question at trial was who started the fire. The source of ignition was candles. Candles are a delayed ignition device. That is, they allow the arsonist to leave the scene before the fire fully ignites. Investigators discovered two separate major areas where the fire started, one in the garage and one at the bottom of the basement stairs. But other fires had been started in the basement. Candles were located under combustible material in the south, center, and north bedrooms. Ms. We left the duplex shortly before the fire was discovered by a passerby. And she locked the door before she left. The garage had been on fire for 10 to 15 minutes before it was reported at 11:30 P.M.

¶ 4 Ms. We bought renter's insurance and insurance on her 1977 Land Cruiser on October 2 or 3, 2002, about six months before the fire here. A representative from that insurance company met with Ms. We and took a statement from her following the fire. Ms. We's values of a number of items had changed from the time she bought the renter's policy to the time she submitted her claims. One category on the policy was collections. When Ms. We applied for the insurance she set the value of her collections at $2,000. But she claimed a loss of between $7,000 and $8,000 because of a Picasso etching and a Bunka cross-stitching on linen. The policy included a category for fine arts. Ms. We originally listed the total at $20,000 but now claimed $25,000. Computer and computer equipment that she originally valued at $5,000 was now claimed as a loss of $10,800. Business property originally valued at $5,000 was now claimed as a loss of close to $30,000. And the Land Cruiser Ms. We paid $5,000 for was valued at $9,167.51. She claimed a total of $101,184.46 for damage to personal property as a result of the fire.

¶ 5 The State showed that the primary source of Ms. We's money, a modest trust, would last another six months at the rate at which she was depleting it. And Ms. We's spending exceeded her income.

¶ 6 Captain Michael Zambryski investigated the fire. He is a fire investigator for the Spokane Fire Department. He testified at trial that Ms. We had the motive, the opportunity, and the means to start the fire. He testified that her motive was insurance fraud.

DISCUSSION

¶ 7 On appeal Ms. We predicates her primary assignments of error on Captain Zambryski's testimony that the motive for setting the fire was insurance fraud. She did not, however, object to that testimony at trial. Nor did she ask for a curative instruction following his testimony. She asserts instead that the error is manifest constitutional error that we can and should address in the first instance here on appeal. Alternatively, she asserts that her lawyer did not effectively represent her because he failed to object to Captain Zambryski's testimony at trial. Again the claim is that this error— ineffective assistance of counsel—is an error of constitutional magnitude. And so Ms. We urges us to address the question despite the failure to do anything about it in the trial court.

¶ 8 Each of Ms. We's assignments of error (manifest constitutional error or ineffective assistance of counsel) requires a showing of two traits common to each. First, Ms. We must show error. State v. Barr, 123 Wash. App. 373, 380, 98 P.3d 518 (2004); State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995). Here, that means she must show that Captain Zambryski's testimony was, first of all, inadmissible opinion testimony. And, second, she must show that the outcome of this trial would have been different had his opinions been excluded. State v. Warren, 134 Wash.App. 44, 57, 138 P.3d 1081 (2006) (manifest constitutional error); State v. Hakimi, 124 Wash.App. 15, 22, 98 P.3d 809 (2004) (ineffective assistance of counsel).

MOTIVE

¶ 9 We cannot help but take notice that the trial judge presiding over this almost two-week jury trial was not given the chance to make the discretionary decision whether to admit this opinion evidence. State v. Stenson, 132 Wash.2d 668, 701-02, 940 P.2d 1239 (1997). Nor could he, of course, consider the necessary factors preliminary to admitting or excluding the evidence.¹

¶ 10 This highlights for us the problem inherent in appellate second guessing of questions on the admissibility of evidence when the trial judge has not been given the opportunity to pass on these questions in the first instance.² Whether or not to admit evidence is a very contextually driven decision. It depends on the case. And that is precisely why it is a decision vested in the discretion of the trial judge. State v. Thomas, 150 Wash.2d 821, 856, 83 P.3d 970 (2004). This is not to say that we should refuse to review assignments of obvious error with palpable consequences. Of course we should. But we are a court of review. That means we are in the business of reviewing decisions made by some trial judge. We are not in the business of making these decisions in the first instance.

RELEVANCY

¶ 11 Again, the admissibility of evidence is within the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. Barr, 123 Wash.App. at 380, 98 P.3d 518. Abuse occurs only where discretion is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 12 "To be relevant, evidence must meet two requirements: (1) the evidence must have a tendency to prove or disprove a fact (probative value) and (2) that fact must be of consequence in the context of the other facts and the applicable substantive law (materiality)." State v. Baldwin, 111 Wash. App. 631, 638-39, 45 P.3d 1093 (2002), aff'd, 150 Wash.2d 448, 78 P.3d 1005 (2003). And certainly in an arson case, opportunity and motive tend to show that the acts of the defendant were willful and criminal. State v. Picard, 90 Wash.App. 890, 901, 954 P.2d 336 (1998). And therefore evidence tending to show opportunity and motive are relevant.

¶ 13 The significant factual issue in this case was what motive Ms. We would have for burning her apartment. She presented evidence and argued that she had enough money to support herself. The State showed that her resources were limited and that her money would soon run out.

EXPERT OPINION TESTIMONY

¶ 14 Here, the State alleged in its information that Ms. We started this fire "with intent to collect insurance proceeds." CP at 2. Certainly an issue for a fire investigator is why. That is, what is the motive for wanting to destroy one's own property?

¶ 15 An expert can testify in the form of an opinion. ER 702. The decision whether to admit expert testimony is within the trial court's discretion. State v. Swan, 114 Wash.2d 613, 655, 790 P.2d 610 (1990). Evidence is admissible under ER 702 if the witness qualifies as an expert and the expert testimony would be helpful to the jury. State v. Baird, 83 Wash.App. 477, 484-85, 922 P.2d 157 (1996).

¶ 16 Neither a lay nor an expert witness can, however, testify that a defendant is guilty. State v. Olmedo, 112 Wash. App. 525, 530, 49 P.3d 960 (2002). But an opinion is not improper because it involves ultimate factual issues. And "[t]estimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." ER 704; Olmedo, 112 Wash.App. at 531, 49 P.3d 960. The expert's opinion must be based on the evidence and the expert's experience and not the defendant's credibility. Baird, 83 Wash.App. at 485, 922 P.2d 157. And that is what we have here.

¶ 17 Ms. We testified she had enough money. And implicit in that was that she had no motive to defraud the insurance company. She testified about a confrontation with an unknown person interested in buying her car. And implicit in that testimony was that this other person had a motive to torch her apartment.

¶ 18 The State qualified Captain Zambryski as an expert fire investigator. And Ms. We did not challenge his qualifications at trial nor does she do so here on appeal. He then expressed opinions based on the evidence that Ms. We's motive was "[i]nsurance fraud." Report of Proceedings at 502. He investigates fires. His job is then to assemble and analyze facts on three questions: opportunity, means, and motive. Those are the...