       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,
                                           )      No. 69416-2-1                  ^ ^O
                     Respondent,                                                 ~q 0-sl.„,
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                                           )      DIVISION ONE                     CD   r-^-i ,
              v.
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CURTIS LADON WALKER,                       )      UNPUBLISHED OPINION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
No. 69416-2-1/4


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
No. 69416-2-1/5


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
No. 69416-2-1/6


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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