IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,
) No. 69416-2-1 ^ ^O
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CURTIS LADON WALKER, ) UNPUBLISHED OPINION
Appellant. ) FILED: April 28, 2014
Becker, J. — When a police officer testified that she used a booking photo
to identify the defendant, the defendant moved for a mistrial. We conclude the
trial court did not abuse its discretion when it denied the motion. The jury had
already heard references to the defendant's criminal history in properly admitted
evidence, and the trial court gave a timely limiting instruction.
According to testimony at trial, appellant Curtis Walker and his girl friend
Rayna Chesterfield lived together from September to December 2011 despite the
existence of a no-contact order. In December 2011, they got into a physical
altercation that ended with Walker pushing Chesterfield to the ground.
Chesterfield reported the incident, and Seattle Police Officer Shelley San Miguel
was dispatched to arrest Walker. Walker was charged with felony violation of a
court order, assault in the fourth degree, tampering with a witness, and five
counts of misdemeanor violation of a court order.
No. 69416-2-1/2
While in jail, Walker had a number of telephone conversations with
Chesterfield that were recorded. The State used excerpts from these recordings
at trial to prove the charge of witness tampering. Included in the excerpts were
the following comments by Walker which suggested he had previously been in
jail:
[Yjou're probably gonna tell them more shit to fuck me over even
more. You keep saying you care for me, you're helping me, but
you, you fuck me every time, baby.
... I can't believe I am going through this shit again, baby.
. . . [Y]ou keep saying stuff to them. It just don't make no sense
and then you come and tell me you want to get me out. But you
keep saying shit to keep me in this motherfucker longer, every time.
. . . [T]he only time I'm booked in here for longer is you. . ..
A jury trial was held in July 2012. During Officer San Miguel's testimony,
the prosecutor asked her about how she identified Walker, and she responded
that he appeared in a computer program that compiles booking photos from
previous contacts:
Q. ... [W]as there any other resource that you had to be able to
look up this individual?
A. Part of our computer system, we have what's called an RMS
system, which has booking photos from previous contacts, so I
was able to put his name into the --
Defense counsel objected and moved for a mistrial on the ground that the
reference to booking photos constituted propensity evidence, inadmissible under
ER 404(b). The trial court sustained the objection and instructed the jury to
disregard the partial answer. The court denied the motion for a mistrial,
No. 69416-2-1/3
reasoning that the reference was ambiguous and the limiting instruction was
sufficient to eliminate any prejudice. The jury convicted Walker as charged.
Walker appeals. He contends that his convictions must be overturned
because the reference to booking photos violated ER 404(b) by inviting the jury
to draw the inference that he had a propensity for criminal activity, particularly
when combined with the telephone conversations in which he alluded to his prior
arrests and time in custody.
Denial of a motion for a mistrial is reviewed under an abuse of discretion
standard. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). A mistrial
is required only when a defendant has been so prejudiced by a trial irregularity
that only a new trial can ensure that the defendant will be tried fairly. Johnson,
124 Wn.2d at 76. On appeal, appellate courts determine whether a mistrial
should have been granted by considering (1) the seriousness of the trial
irregularity, (2) whether the trial irregularity involved cumulative evidence, and (3)
whether a proper instruction to disregard cured the prejudice against the
defendant. Johnson, 124 Wn.2d at 76.
ER 404(b) is intended to prevent application by jurors of the common
assumption "that 'since he did it once, he did it again.'" State v. Bacotqarcia, 59
Wn. App. 815, 822, 801 P.2d 993 (1990), review denied. 116Wn.2d 1020
(1991). But the testimony in question must be examined against the backdrop of
all the evidence and in light of the record as a whole. State v. Escalona, 49 Wn.
App. 251, 254, 742 P.2d 190 (1987). Ajury is presumed to follow the trial court's
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instructions unless there is evidence on the record to the contrary. State v.
Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).
An illustrative case is Escalona. In Escalona, this court decided that the
trial court abused its discretion when it denied the defendant's motion for a
mistrial following a single remark by a witness about the defendant's criminal
history. Escalona, 49 Wn. App. 251. Escalona had been charged with second
degree assault, and the witness testified that Escalona had stabbed someone
previously. Escalona, 49 Wn. App. at 252-53. This court ruled that the motion
for mistrial should have been granted because the seriousness of the irregularity,
combined with the weakness of the State's case and the relevance of the
statement, made the trial court's instruction ineffective at curing the prejudice.
Escalona, 49 Wn. App. at 256.
In Escalona, but for the remark by the witness, the jury would not have
learned that the defendant had previously committed the same type of act for
which he was on trial. Officer San Miguel's statement was not as prejudicial
because it was duplicative of evidence already properly before the jury and
because it referred to prior criminal activity only in a generalized manner. Finally,
the evidence supporting Walker's conviction was more substantial than in
Escalona.
Officer San Miguel's reference to booking photos was an unfortunate trial
irregularity that the prosecutor should have taken steps to prevent. The question
is whether the irregularity was serious enough that a new trial is the only way to
cure the prejudice. By the time the officer testified, the jury was already aware of
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the no-contact order against Walker that he was accused of violating. The jury
had also heard the recorded phone calls in which Walker complained to
Chesterfield about past incidents in which she was responsible for having him
booked into jail. Because the jury was already aware of these details indicating
Walker's past encounter with police, Officer San Miguel's statement added little if
anything to the information already before the jury.
Walker contends that the prejudice caused by the reference to booking
photos was exacerbated by allowing the jury to hear the telephone calls between
him and Chesterfield. But he does not assign error to the admission of the
telephone calls, nor could he, because the calls were relevant to the tampering
charges against him. In response to Walker's concerns, however, the trial court
redacted as much of the calls as possible without destroying their evidentiary
value. Because the calls were relevant to the charges Walker faced and they did
not disclose specific information about Walker's criminal history, they do not add
weight to the motion for a mistrial.
Walker relies on State v. Henderson, 100 Wn. App. 794, 998 P.2d 907
(2000), in which a conviction was reversed following a trial in which there was an
indirect reference to a booking photo. There, the prosecutor asked whether a
photo montage that included the defendant was composed of photos that were
already "on hand." Henderson, 100 Wn. App. at 803. The defendant did not
object, so no limiting instruction was given by the trial court. Henderson, 100
Wn. App. at 803. But the actual basis for the reversal was prosecutorial
misconduct, not testimony by a witness. In closing argument, the prosecutor
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specifically reinforced that the photo was "on hand," and the prosecutor
committed three additional improprieties that prejudiced the defendant.
Henderson, 100 Wn. App. at 805.
Unlike in Henderson, the reference to booking photos in Walker's case
was not reinforced in closing. The trial court also issued a prompt instruction to
disregard the statement, something that was not done in Henderson. Finally,
Henderson involved additional prosecutorial misdeeds that are absent from
Walker's case.
We conclude any prejudice arising from Officer San Miguel's testimony
was not so serious as to justify a new trial. The trial court did not abuse its
discretion in denying defendant's motion for mistrial.
Affirmed.
WE CONCUR:
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