       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                         ^

STATE OF WASHINGTON,
                                                  DIVISION ONE                    77
                        Respondent,                                                    •'pr.
                                                  No. 70462-1-1                   ~z
                   v.                                                             CD

                                                  UNPUBLISHED OPINION             ^
ROBERT G. ISABEL,

                        Appellant.                FILED: September 15, 2014


       Dwyer, J. - Robert Isabel seeks a new trial on charges of drive-by

shooting and unlawful possession of a firearm, arguing the trial court erred in

denying his motion for a mistrial and refusing to give a missing witness

instruction.   We affirm.

                                          I


       In the early morning hours of January 3, 2012, Marion Tucker and his

cousin Willie Watson called 911 to report a drive-by shooting. Seattle Police

Officer Michael Connors responded to the call, interviewed Tucker, and located a

bullet hole on the passenger side of Tucker's car. Detective Benjamin Hughey

interviewed Tucker on January 6, after reviewing a report prepared by Officer

Connors. According to Tucker, he was alone in his car driving to Watson's house

when he heard a popping noise. Tucker identified the shooter as Robert Isabel,

the current boyfriend of Tucker's former girl friend.
No. 70462-1-1/2



       The State charged Isabel with drive-by shooting and first degree unlawful

possession of a firearm. During pretrial proceedings, Isabel claimed the State

had failed to meet its obligation to disclose exculpatory evidence. In particular,

he argued that a January 3 radio transmission, in which Officer Connors reported

to police dispatch that he heard "conflicting stories" from Tucker, demonstrated

that Officer Connors would provide potentially exculpatory testimony. Isabel

asked the court to order the prosecutor to locate Officer Connors, who was no

longer employed by the Seattle Police Department. Noting that the State

properly disclosed the transmission but had no "obligation to hunt down potential

Defense witnesses," the trial court directed the prosecutor to contact the Seattle

Police Department and request Connors' last known address.

       At trial, near the end of the day on a Thursday, one defense attorney

cross-examined Tucker while his co-counsel sat at counsel table. After

confirming that Tucker continued to Watson's house after the shooting, the

following exchange occurred:

       Q. How far is Mr. Watson's house?
       A. Well, I can't tell you that, actually tell you where he lives at. Mr.
       Isabel's family has been threatening my friends and my family and
       my kids. So I can't tell you that.
       [Co-counsel]: Objection, Your Honor.
       THE COURT: What's your objection?
       [Co-counsel]: Nonresponsive.
       THE COURT: Ask another question.
       Q. Does Mr. Watson live in the general area of 23rd and Jefferson?
       A. He lives in the Central District. Yes, he does.
       Q. Does he live within one block of 23rd and Jefferson?
       A. I don't want to put this guy in danger.
       [Co-counsel]: Objection, Your Honor.
       THE COURT: You don't have to give the address.
       A. He lives - it's pretty much - I mean, you give the distance, I
       mean you can pretty much pinpoint where he lives.
No. 70462-1-1/3



       [Defense counsel]: Your Honor, I don't believe that Mr. Watson is
       going to be in any danger.
       [Co-counsel]: Objection, Your Honor. Can we have a sidebar,
       please? Can I have a moment, Your Honor?
       (OFF THE RECORD DISCUSSION)
       BY [Defense counsel]:
       Q. Can you give us an approximate distance from the intersection
       of 23rd and Jefferson to Mr. Watson's house?
       THE COURT: There's 360 degrees from that point. Are you trying
       to figure out how long it takes?
       [Defense counsel]: Yes, Your Honor. I'm trying to figure out how
       long it takes, the distance.
       THE COURT: From the point of the event, and if you were to drive
       to Mr. Watson's house, how long is it?
       A. 60 seconds.
       THE COURT: Go ahead.

       A short time later, after the court excused the jury, the defense requested

a mistrial based on Tucker's reference to threats from Isabel's family. When a

dispute arose as to which attorney was questioning Tucker at the time he made

the statement, the trial court advised the parties to obtain the relevant portion of

the transcript by the next trial day.

       On the following Monday, the defense again requested a mistrial, arguing

that Tucker's unsolicited remark was so prejudicial as to deprive Isabel of a fair

trial. After reviewing the relevant portions of the transcript, the trial court first

noted the irregular procedure of one defense attorney questioning a witness

while a second defense attorney interposed objections while seated at counsel

table. Recognizing that Tucker's comment was nonresponsive, as identified by

co-counsel as the basis for her objection, the trial court then reasoned:

               But there was no concurrent request to strike the answer or
       for me to perhaps tell the jury to disregard the statement, nothing.
       So at this point if someone had requested that, I could have
       corrected it at the time it occurred. But there wasn't any motion to
       do that.
No. 70462-1-1/4



               Further, the statement is not attributed necessarily to Mr.
       Isabel. It's attributed to Mr. Isabel's family. And presumably Mr.
       Isabel doesn't have 100 percent control of his family members.
               There was no motion in limine made to instruct the witness
       not to mention that, so there's been no motion in limine violated. I
      do not find it to be inherently prejudicial such that it requires a new
      trial.
              And at this point, I don't think it would be in the Defendant's
       interest to admonish the jury about it and bring it up again. So at
       this point I'm denying the motion for a mistrial, and I think we just
       need to move on.

       On the next trial day, outside the presence of the jury, defense counsel

advised the court that the State had not provided a forwarding address for Officer

Connors. The prosecutor reported that he requested Connors' address from the

Seattle Police Department as directed by the trial court, but had received no reply.
The trial court offered to sign an order for the defense investigator to take to the

precinct.

       Officer Connors did not appear at trial. The trial court denied Isabel's

request for a missing witness instruction.

       The jury found Isabel guilty as charged. The trial court imposed a standard
range sentence.

       Isabel appeals.

                                           II


        Isabel first contends that the trial court erred by denying his motion for a

mistrial. Describing Tucker's reference to threats as serious, inflammatory, and
prejudicial, Isabel claims that the trial court "preemptively" and "inexplicably
refused" "to either offer to admonish the jury or give a curative instruction,"
No. 70462-1-1/5



thereby "rendering any objection or request. .. futile at best," and denying his

right to a fair trial.

        Because the trial judge is in the best position to determine the impact of a

potentially prejudicial remark, we review the trial court's decision to grant or deny

a motion for a mistrial for an abuse of discretion. State v. Escalona, 49 Wn. App.

251, 254-55, 742 P.2d 190 (1987).

               In determining whether a trial court abused its discretion in
        denying a motion for mistrial, this court will find abuse "only 'when
        no reasonable judge would have reached the same conclusion.'"
        "The trial court should grant a mistrial only when the defendant has
        been so prejudiced that nothing short of a new trial can insure that
        the defendant will be tried fairly. Only errors affecting the outcome
        of the trial will be deemed prejudicial." In determining the effect of
        an irregular occurrence during trial, we examine "(1) its
        seriousness; (2) whether it involved cumulative evidence; and (3)
        whether the trial court properly instructed the jury to disregard it."

State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994) (footnotes omitted)

(quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)).
         Isabel fails to address the trial court's assessment of the first factor

articulated in Johnson, that of the seriousness of Tucker's remarks. As the trial

court observed, Tucker did not attribute any threats to Isabel personally and
there was no allegation that Isabel was responsible for the actions of unnamed
family members. Thus, this situation differs from that presented in Escalona,
wherein we held that a mistrial should have been declared after a witness

 improperly testified that the defendant had committed a crime in the past similar
to the one with which he was charged. Here, Tucker's comments did not invite
 the jury to improperly infer that Isabel had acted in conformity with a criminal
 character as demonstrated by past conduct or that he was seeking to intimidate
No. 70462-1-1/6



witnesses. Cf. Escalona. 49 Wn. App. at 256 (citing State v. Saltarelli, 98 Wn.2d

358, 362, 655 P.2d 697 (1982)). Analysis of the first Johnson factor clearly

supports the trial court's denial of Isabel's motion for a mistrial.

       Furthermore, we disagree with Isabel's characterization of the trial court's

analysis of the third Johnson factor. The trial court found that any potential

prejudice resulting from Tucker's remarks could have been cured with an

instruction had defense counsel requested one while Tucker was on the stand.

Ignoring this finding, and without citation to relevant authority, Isabel claims that

the trial court erred by denying him "the option" of seeking a curative instruction.

But rather than refusing to consider a defense request for such an instruction

following the motion hearing or entering a ruling as to Isabel's best interests, the

judge herein merely offered her opinion as to the wisdom of revisiting the matter

before the jury. To the extent that the defense attorneys disagreed with the

judge's assessment of Isabel's best interests, it was their responsibility to request

whatever curative instruction they thought necessary and obtain a ruling on the

request. On this record, Isabel fails to demonstrate any abuse of discretion in the

trial court's denial of his motion for a mistrial.

                                            Ill


        Isabel also argues that the trial court denied his right to present a defense

by refusing to give a missing witness instruction regarding Officer Connors.

       When its decision is based on a factual dispute, we review the trial court's

refusal to issue a requested instruction for an abuse of discretion. State v.

Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).
No. 70462-1-1/7



       A missing witness instruction informs the jury that it may infer from a

witness's absence at trial that his or her testimony would have been unfavorable

to the party who would logically have called that witness. State v. Flora. 160 Wn.

App. 549, 556, 249 P.3d 188 (2011). Such an instruction is proper where the

witness is peculiarly available to one of the parties, Flora. 160 Wn. App. at 556,

and the circumstances at trial establish that, as a matter of reasonable probability,

the party would not have knowingly failed to call the witness "unless the witness's

testimony would be damaging." State v. Davis. 73 Wn.2d 271, 280, 438 P.2d

185 (1968). overruled on other grounds by State v. Abdulle, 174 Wn.2d 411, 275

P.3d 1113 (2012). However, no inference is permitted where the witness is

unimportant or the testimony would be cumulative. State v. Blair. 117 Wn.2d 479,

489, 816 P.2d 718 (1991). Nor is a party entitled to a missing witness instruction

where the absence of the witness can be satisfactorily explained. Blair. 117

Wn.2d at 489 (citing State v. Lopez. 29 Wn. App. 836, 841, 631 P.2d 420 (1981)).

       Here, the trial court did not abuse its discretion by refusing to give a

missing witness instruction. Although Officer Connors formerly served as a

member of the Seattle Police Department, nothing in the record indicates that he

had a continuing "community of interest" with the police and the prosecutor at the

time of Isabel's trial. Cf. Davis, 73 Wn.2d at 278. In fact, contrary to Isabel's

speculation, nothing in the record indicates that the former officer was still
appearing in courtto testify in cases in which he had participated. Instead, the
prosecutor repeatedly stated on the record that his office could not locate
No. 70462-1-1/8



Connors and that the Department had not answered the prosecutor's requests

for information.

       Moreover, Connors' testimony would have been cumulative. Detective

Hughey testified that he noticed inconsistencies between Officer Connors' report

of Tucker's initial statement and his own interview with Tucker. Detective

Hughey also described Tucker's responses when confronted with the differing

statements. Defense counsel also cross-examined Tucker about how his various

statements to police and defense counsel conflicted with his testimony at trial.

We reject Isabel's bald claim in his reply brief that Connors' testimony was critical

to the defense case because of the "impeachment value of the jury hearing

evidence presented by the witness who obtained it." As the trial court observed,

Isabel failed to demonstrate that if Connors had appeared at trial, he "would

testify to anything that would be helpful to the Defense."

       Because the State explained Connors' absence and his testimony would

have been cumulative, Isabel was not entitled to a missing witness instruction.

       Affirmed.




We concur:




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