State v. Hager

171 Wash. 2d 151
CourtWashington Supreme Court
DecidedMarch 10, 2011
DocketNo. 83717-1
StatusPublished
Cited by16 cases

This text of 171 Wash. 2d 151 (State v. Hager) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hager, 171 Wash. 2d 151 (Wash. 2011).

Opinions

Alexander, J.

¶1 We granted the State’s petition to review a decision of the Court of Appeals in which that court reversed Timothy Hager’s conviction on a charge of first degree rape of a child. In reaching its decision, the Court of Appeals concluded that a detective’s statement that Hager was evasive during questioning incurably prejudiced Hager. It held, therefore, that the trial court erred by denying Hager’s motion for a mistrial. We reverse the Court of Appeals.

I

¶2 In November 2006, when P.B. was in the ninth grade, she wrote a letter to her ex-boyfriend stating that her [154]*154stepfather, Timothy Hager, had raped her when she was in the third grade. The boyfriend’s stepmother discovered the letter and showed it to the principal and a counselor at P.B.’s school in Onalaska. The counselor notified Child Protective Services (CPS) and the Lewis County Sheriff’s Office. A CPS investigator, Roni Jensen, and Detective Tom Callas then met with P.B. to discuss the allegation in her letter. P.B. told them that Hager had digitally raped her in 2001, shortly after Hager moved into her mother’s apartment in Sumner.

¶3 After that meeting, Detective Callas informed a detective of the Sumner Police Department, Detective Dennis Dorr, about what he had learned from P.B. Callas and Dorr then contacted Hager in a van he shared with P.B.’s mother. Hager initially told the detectives, both of whom were in plain clothes, that he was not Timothy Hager; however, after one of the detectives showed Hager his official badge, Hager acknowledged his true identity. During questioning, Hager denied having digitally raped his stepdaughter and suggested that P.B.’s biological father might have done so. Hager also said that in 2001 he had lived with his brother, not in the apartment P.B. mentioned. He went on to say that, if he had ever lived in the apartment, it was in 1999, not 2001.1

f 4 Hager was charged in Pierce County Superior Court with first degree rape of a child. Prior to trial, the trial court granted a motion in limine prohibiting Detective Callas and Detective Dorr from testifying that Hager was evasive during questioning. The jury was unable to reach a verdict and, consequently, the trial court granted a motion for a mistrial.

¶5 The State elected to retry the case. Before the second trial, Hager again moved to prohibit the detectives from testifying that he had been evasive during questioning. Hager’s attorney argued that, while it would be permissible [155]*155for the detectives to testify that Hager avoided eye contact and appeared to be under the influence of methamphetamine, it would be improper for them to opine that Hager was evasive. The attorney said, ‘You can state the demeanor. You can’t say because of that I think he was deceptive or evasive. The jury is to make that conclusion.” Verbatim Report of Proceedings (VRP) at 155. The trial court granted Hager’s motion in limine, stating that it was adopting the reasoning of the judge in the first trial.

¶6 In response to questioning at trial, Detective Dorr indicated that Hager was jittery, avoided eye contact, spoke loudly and rapidly, and appeared to be under the influence of methamphetamine. Later in the trial, when the deputy prosecutor asked Detective Callas, “What was Mr. Hager’s demeanor like during the time that you had contact with him that day,” the detective answered, “He appeared to be angry. He was evasive.” Id. at 432. Hager’s attorney immediately moved for a mistrial. Outside the presence of the jury, the deputy prosecutor apologized to the court and said that he forgot to remind the detective to avoid using the word “evasive.” He acknowledged that the detective should not have used that word but argued that a mistrial was not warranted as long as the jury was instructed to disregard the remark. The trial court denied Hager’s mistrial motion, concluding that Detective Callas had not acted in bad faith and that the error could be cured with a jury instruction. After the jury was brought back into the courtroom, the trial judge instructed it to disregard Callas’s remark about Hager appearing evasive.

¶7 Hager was found guilty of first degree rape of a child. He appealed to the Court of Appeals, which held that the trial court had abused its discretion by denying Hager’s motion for a mistrial. State v. Hager, 152 Wn. App. 134,145, 216 P.3d 438 (2009). It concluded that Detective Callas’s comment violated Hager’s privilege against self-incrimination and that it “fail[ed] to see how an instruction could have cured the prejudice.” Id. We subsequently granted the State’s petition for review. State v. Hager, 168 Wn.2d 1017, 227 P.3d 853 (2010).

[156]*156II

¶8 “In a criminal proceeding, a new trial is necessary only when the defendant ‘has been so prejudiced that nothing short of a new trial can insure that the defendant will be treated fairly.’ ” State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997) (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). “The granting or denial of a new trial is a matter primarily within the discretion of the trial court, and the decision will not be disturbed” unless there is a clear abuse of discretion. Id. “An abuse of discretion occurs only ‘when no reasonable judge would have reached the same conclusion.’ ” Id. (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711, 780 P.2d 260 (1989)).

III

¶9 Hager argues that the trial court abused its discretion in denying his motion for a mistrial. His primary contention is that Detective Callas’s description of him as “evasive” violated his privilege against self-incrimination under the Fifth Amendment to the United States Constitution2 and article I, section 9 of the Washington Constitution.3 Suppl. Br. of Resp’t at 11-12. He relies largely on this court’s decision in State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996). In that case, a police officer described the defendant in a vehicular assault case as a “ ‘smart drunk’ ” and said that by his use of the term “ ‘smart drunk,’ ” he meant that the defendant was “ ‘evasive.’ ” Id. at 233. We reversed the defendant’s conviction, concluding that the [157]*157officer’s description of the defendant as “evasive” violated the defendant’s Fifth Amendment right to remain silent and that the error in admitting the officer’s comment was not harmless. Id. at 242-43.

¶10 Our decision in Easter is not, however, entirely on point. There, the officer used the word “evasive” to refer to the defendant’s silence, explaining that the defendant “ ‘was evasive, wouldn’t talk to me, wouldn’t look at me, wouldn’t get close enough for me to get good observations of his breath and eyes, I felt that he was trying to hide or cloak.’ ” Id. at 233. The officer testified further that the defendant “ ‘totally ignored’ ” him when he asked if he had been drinking and that, when he continued asking questions, the defendant looked down, “ ‘once again ignoring me, ignoring my questions.’ ” Id.

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Bluebook (online)
171 Wash. 2d 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hager-wash-2011.