IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 74314-7-1
Respondent,
V. UNPUBLISHED OPINION
PETER JARED MCDUFFIE,
Appellant. FILED: April 24, 2017
SCHINDLER, J. — A jury convicted Peter Jared McDuffie of possession of a stolen
vehicle and obstruction of a law enforcement officer. We affirm.
On July 4, 2013, Kathleen Stewart drove her "[v]ibrant pink" 1994 Mercury Tracer
to pick up Joseph Barlesh and go to a family Fourth of July party. When Stewart
arrived, Barlesh's friend Peter Jared McDuffie asked if he could go with them to the
party.
Stewart, Barlesh, and McDuffie arrived at the party around 2:00 p.m. At
approximately 10:45 p.m., McDuffie told Stewart he planned to walk home. But Stewart
said he needed to get his backpack from her car and asked for the car keys. Stewart
handed McDuffie the keys and told him to "bring my keys back." McDuffie and Barlesh
walked to the car. A few minutes later, McDuffie and Barlesh drove away in the car.
The next day, Stewart called the police to report her car had been stolen.
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At approximately 2:00 a.m. on July 24, Kirkland Police Officer Daniel Gaud saw a
pink car swerving across the center line. Officer Guad activated the emergency lights
on his patrol car to pull the car over. The driver made an "abrupt right" turn and came to
a stop. When the car stopped, the driver's side door opened and a man got out. The
man "took off' running. Officer Gaud shouted multiple times,"'Stop. Stop right there.
Police,'"but the man did not stop.
Because there were three passengers in the car, Officer Guad did not pursue the
fleeing man. The three passengers were identified as lliana McElrone, Brittney
Vasquez, and Jonathan Burkett. Officer Gaud found a driver's license in the pocket of
the driver's door. The name on the driver's license was "McDuffie, Peter Jar[e]d."
Officer Guad also found a number of credit cards belonging to "Peter J. McDuffie" in the
car.
On May 22, 2014, the State charged McDuffie with possession of a stolen vehicle
and obstruction of a law enforcement officer. McDuffie pleaded not guilty. The State
identified Stewart, Officer Gaud, and McElrone as witnesses for trial.
The defense filed a motion to impeach McElrone's credibility under ER 608 with
evidence that on August 18, 2015, McElrone was charged with theft of a motor vehicle.
The defense provided a copy of the information and the certification for determination of
probable cause.
The information alleged that between June 5 and June 6, 2015, McElrone stole a
U-Haul truck "by color and aid of deception." The certificate of probable cause states
that on June 9, 2015, the police responded to a report of a stolen U-Haul truck at Burien
U-Haul. At approximately 5:30 p.m. that same day, the police found the U-Haul truck at
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1031 SW 128th Street in Burien. A man identified as Robert J. Perry was "asleep in the
passenger seat of the vehicle." Perry told the police that McElrone was inside a nearby
store. Police officers arrested McElrone inside the store. McElrone had a key to the U-
Haul truck. The certificate of probable cause states the police seized "multiple bank
cards, a driver's license, a social security card, a[n] EBT[1]card and, bank checks."
The court held a pretrial hearing. McDuffie argued the court had discretion to
allow him to cross-examine McElrone under ER 608 because the theft of a motor
vehicle charge went "directly to her truthfulness." The court reserved ruling until
McElrone could appear with an attorney.
At a later hearing, McElrone's attorney told the court that McElrone "[a]bsolutely"
would invoke her Fifth Amendment2 right against self-incrimination and refuse to answer
questions about the theft of a motor vehicle charge. McDuffie argued that McElrone
must assert her Fifth Amendment right on a "question by question" basis rather than
making a "blanket assertion of the Fifth Amendment right." The court agreed and ruled
McElrone must invoke her Fifth Amendment right against self-incrimination on a
"question by question" basis.
Defense counsel argued he was entitled to cross-examine McElrone about the
charge of theft of a motor vehicle by color and aid of deception. McElrone's attorney
argued questions about McElrone's pending charge were not relevant to impeach her
testimony about what occurred on July 24, 2013. The court concluded the probative
value of the testimony outweighed any prejudice and McDuffie could ask McElrone if
she "did. . . steal a car" in June 2015 because "[t]hat's the conduct we're talking about."
1 Electronic benefits transfer.
2 U.S. CONST. amend. V.
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No. 74314-7-1/4
"The question you can ask is did she steal a car on whatever day it was. That's the
conduct we're talking about."
Defense counsel then argued the "details of how that occurred," including
documents found in the cab of the U-Haul, "are also fair game."
[DEFENSE COUNSEL]: I also think that there is — well, you're
correct. I think there is actually — expanding that a little bit further, Your
Honor. In terms of the details of how that occurred and then other things
that were found at the time of arrest in terms of other identifications, other
financial documents, keys were found in the cab of the U-Haul that she
was driving. I think those are also fair game as well.
Those are also specific instances of conduct of — indicative of
truthfulness because they do go to the issue of theft or deception or fraud.
THE COURT: What's found in the car ties back to her, is that
what you're telling me?
[DEFENSE COUNSEL]: That's correct.
McElrone's attorney argued those questions were "far afield from the charge." The
court agreed and ruled the questions McDuffie sought to ask about the items the police
found in the cab of the U-Haul were "extraneous" and not relevant to McElrone's
truthfulness under ER 608.
THE COURT: I think it's more extraneous. The question that
bears upon her credibility and her truthfulness is whether or not she stole
a motor vehicle.. ..
. . . I think that's the only question I'm going to permit.
During the trial, Stewart testified that when she handed McDuffie the keys to her
car, she did not "give him permission to do anything other than get his backpack."
Stewart said she did not give McDuffie permission to "drive or take [her] vehicle or
possess [her] vehicle in any way."
Officer Gaud testified that when he pulled over the pink car, he pointed the patrol
car spotlight and headlights on the car. Officer Gaud said he was approximately 10 feet
from the driver when the driver started running away from the car. Officer Gaud said he
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saw a "side profile" of the man as he ran away. Officer Gaud testified the driver was a
"[w]hite male" with "Neddish blonde" hair, between five feet four inches and five feet five
inches tall, and weighed between 140 and 150 pounds. Officer Guad identified
McDuffie in court as the man that ran away from the car. The court admitted McDuffie's
driver's license and the credit cards found in the car as exhibits. Officer Gaud testified
he was "[o]ne hundred percent" certain the photograph on McDuffie's driver's license
matched the man he saw run away from the car.
McElrone testified that on July 24, 2013, she and her roommate Brittney Vasquez
met McDuffie and his friend "Johnny" at a beach. McElrone said she and Vasquez left
with McDuffie and Johnny in a pink car. McElrone testified McDuffie had the key to the
car and drove the car. After the police pulled the car over, McElrone said McDuffie "ran
out of the car." McElrone identified McDuffie in court as the driver of the car.
On cross-examination, defense counsel asked McElrone, "In 2015, did you rent a
U-Haul using someone else's identification?" McElrone invoked her Fifth Amendment
right against self-incrimination and refused to answer the question. The defense then
asked McElrone to "diagram" where the individuals in the car were sitting. McElrone
testified McDuffie was in the driver's seat, Johnny was in the front passenger seat,
Vasquez was in the back seat behind Johnny, and she was in the back seat behind
McDuffie. But McElrone said she did not remember "[c]ertain details" about the night of
July 24, 2013.
The jury found McDuffie guilty as charged of possession of a stolen vehicle and
obstruction of a law enforcement officer. McDuffie seeks reversal.
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McDuffie contends the trial court violated his constitutional right to present a
defense by limiting cross-examination of McElrone under ER 608.
A criminal defendant has a constitutional right to present a defense and confront
an adverse witness. U.S. CONST. amend VI; WASH. CONST. art. I, § 22; State v. Jones,
168 Wn.2d 713, 720, 230 P.3d 576(2010); State v. O'Connor, 155 Wn.2d 335, 348, 119
P.3d 806(2005). However, neither the right to present a defense nor the right to cross-
examination is absolute. Jones, 168 Wn.2d at 720; O'Connor, 155 Wn.2d at 348; State
v. Maupin, 128 Wn.2d 918, 924-25, 913 P.2d 808 (1996). A criminal defendant has no
constitutional right to present irrelevant or otherwise inadmissible evidence. Jones, 168
Wn.2d at 720; O'Connor, 155 Wn.2d at 349. "The scope of cross-examination is within
the discretion of the trial court." State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266
(2014); ER 611(b). We review the decision to exclude testimony under ER 608 "only for
an abuse of discretion." State v. Clark, 143 Wn.2d 731, 766, 24 P.3d 1006 (2001). A
court abuses its discretion "when a decision is manifestly unreasonable or based upon
untenable grounds." O'Connor, 155 Wn.2d at 351. We will reverse the trial court "only
if no reasonable person would have decided the matter as the trial court did."
O'Connor, 155 Wn.2d at 351.
Under ER 608(b), a party may,"in the discretion of the court" and if the conduct
is "probative of. . . untruthfulness," cross-examine a witness about "[s]pecific instances
of. . . conduct" to attack the witness's credibility. ER 608(b) states:
Specific Instances of Conduct. Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness' credibility,
other than conviction of crime as provided in rule 609, may not be proved
by extrinsic evidence. They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired into on cross
examination of the witness (1) concerning the witness' character for
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truthfulness or untruthfulness, or(2)concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.
In exercising its discretion under ER 608(b), the trial court considers "whether the
instance of misconduct is relevant to the witness's veracity on the stand and whether it
is germane or relevant to the issues presented at trial." O'Connor, 155 Wn.2d at 349.
"[Mot every instance of a witness's (even a key witness's) misconduct is probative of a
witness's truthfulness or untruthfulness under ER 608(b)." O'Connor, 155 Wn.2d at
350.
Here, the court ruled McDuffie could attack McElrone's credibility on cross-
examination by asking about the pending charge for theft of a U-Haul truck by color and
aid of deception. Specifically, whether McElrone stole the U-Haul truck. Defense
counsel also argued he should be allowed to also cross-examine McElrone about the
identification and financial documents "found in the cab of the U-Haul." The court ruled
questions about the items found in the cab of the truck were extraneous and not
relevant to the truthfulness of McElrone's testimony about the events of July 24, 2013.
The court did not abuse its discretion by limiting cross-examination of McElrone under
ER 608. The certificate of probable cause states that when the police found the U-Haul
truck, a man identified as Robert Perry was asleep in the cab of the truck and the police
arrested McElrone while she was inside a nearby store.
McDuffie also argues the court abused its discretion in limiting cross-examination
because McElrone was the only witness who identified him as the driver of the pink car.
McDuffie relies on Clark, 143 Wn.2d at 731. In Clark, the court states that "[flailing to
allow cross-examination of a state's witness under ER 608(b) is an abuse of discretion if
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the witness is crucial and the alleged misconduct constitutes the only available
impeachment." Clark, 143 Wn.2d at 766. But here, McElrone was not the only witness
who identified McDuffie as the driver of the pink car. Officer Gaud testified he saw a
"side profile" of the man who fled the car. Officer Gaud identified McDuffie in court and
testified he was "[o]ne hundred percent" certain McDuffie was the man he saw getting
out of the door of the car on the driver's side and running away.
We affirm the jury verdict.
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WE CONCUR:
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