Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB 16, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29241-0-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
JOSEPH CHRISTOPHER MILLER, JR.,                 )         UNPUBLISHED OPINION
                                                )
                      Respondent.               )
                                                )

       Brown, J.  --  Joseph C. Miller, Jr. appeals his convictions for driving under the 

influence of intoxicants (DUI), two counts of third degree assault, and driving without an 

ignition interlock device.  He contends (1) the trial court abused its discretion by 

allowing the State to question Mr. Miller regarding his prior convictions, and (2) the 

prosecutor committed misconduct by provoking Mr. Miller to comment on officer

credibility to elicit testimony that they were lying.  Because Mr. Miller opened the door 

to questions about his prior convictions, and because he failed to object to the alleged 

misconduct and fails to show any resulting prejudice, we affirm.   

                                            FACTS 

No. 29241-0-III  
State v. Miller

       As background, in the early morning on June 27, 2009, Yakima County Sheriff's

Deputy Ernie Lowry stopped Mr. Miller for speeding.  Deputy Eric Wolfe was called to 

assist.  The ensuing events resulted in Mr. Miller being charged with DUI, two counts of 

third degree assault of a police officer, and driving without an ignition interlock device.  

Mr. Miller's first trial resulted in a hung jury.  In his second trial reviewed here, the State 

produced sufficient evidence, not appealed here, supporting each charge that is 

unnecessary to detail for our review.  But relevant here, Mr. Miller generally defended 

at trial by vehemently denying the State's evidence and offering sympathetically 

innocent explanations, admitting previous DUIs, and portraying the State's evidence as

fabricated to cover up officer misconduct.  The relevant appeal facts are next.

       After Deputy Lowry stopped Mr. Miller and saw his intoxicated behavior, he 

learned Mr. Miller's license was suspended and warrants existed for his arrest.  When 

Deputy Wolfe attempted to place Mr. Miller under arrest, he refused.  The ensuing

struggle resulted in the assault charges to the officers and their use of batons and a 

taser to subdue and handcuff Mr. Miller.  Deputy Wolfe notified dispatch that a subject 

had been tased and requested medical aid.  Deputy Wolfe asked Mr. Miller if he 

needed to be concerned about Mr. Miller having spit in his face, and Mr. Miller replied

he had AIDS.  Deputy Wolfe later related Mr. Miller told him he had said he had AIDS 

because he wanted to scare Deputy Wolfe. After emergency medical technician (EMT)

Randy Garcia checked Mr. Miller for injuries, a deputy drove Mr. Miller to the hospital.  

                                               2 

No. 29241-0-III  
State v. Miller

Mr. Miller told Theresa Schuknecht, an internal affairs investigator, that he had spit on 

the deputy.  EMT Randy Garcia testified he noticed one of the officers had saliva on his 

face at the scene and that Mr. Miller was noncompliant and highly intoxicated.    

       During direct examination, defense counsel asked Mr. Miller: "In your past life, 

have you ever been arrested for driving while intoxicated?" to which Mr. Miller 

answered: "Yes."  Report of Proceedings (RP) (July 1, 2010) at 531.  The trial court 

ruled this question "opened the door" for the prosecutor to inquire further about the 

arrests, specifically how many DUI arrests Mr. Miller had and how many resulted in 

convictions.  Id. at 568-73. On cross-examination, the prosecutor asked Mr. Miller: 

"Okay. Mr. Miller, earlier you had said that you had been arrested for DUIs.  Our 

records indicate that from 1986 to December 11th 2008, you've been arrested for DUI 

11 times, would you agree with that?" to which Mr. Miller answered, "Yes."  RP (July 2, 

2010) at 661.  The prosecutor continued: "Some of those arrests have turned into 

convictions, would you agree with that?" to which Mr. Miller also answered, "Yes."  Id.   

       Additionally, the defense called Ms. Schuknecht regarding her investigation, 

including her interview with Mr. Miller. The deputy prosecutor for the State cross-

examined Mr. Miller about the interview:  

       Q: Mr. Miller, you are alleging some very serious conduct, misconduct 
       against Deputy Wolfe, Deputy Miller [sic], and another deputy on the 
       scene --   
              [Defense]: Object.  
       Q: - - aren't you?  
              THE COURT: Sustained.  Rephrase.  
              [State]: Okay.  

                                               3 

No. 29241-0-III  
State v. Miller

       Q: Well, you said you were never speeding that afternoon, [sic], is that 
       correct?  
       A: I was speeding earlier that day.  
       Q: Okay.  But when you got pulled over by Deputy Lowry, you weren't 
       speeding, is that your- -  
       A: No, I was not.  
       Q: Okay.  The officer said you were speeding, is that correct?  
       A: They said I was, yes.  
       Q: Okay. So he would be being dishonest about that, is that correct?  
              [Defense]: I'm going to - - What?  I didn't, I didn't hear the question.  
              THE COURT: Wait a minute.  What?  I didn't hear the question.  
       What was your - -  
              [State]: I said, "So you're saying he's being dishonest about that, is 
       that correct?"  
              THE COURT: Who's being dishonest?  
       A: That's your opinion.  
              THE COURT: Just a second.  
              [State]: Correct.  
              THE COURT: Who was being dishonest?  
              [State]: Deputy Lowry.  
              THE COURT: Sustained.  The jury will disregard that question.  
              [State]: Okay.  
       Q: But you are, you are saying that the deputies made up a reason to 
       search your car, is that correct?  
       A: Yes.  
       Q: Okay.  You are saying the deputies essentially made up the entire 
       assault on you, is that correct?  
       A: Yes.  
       Q: And you're saying the officers hit you with a night stick and tased you without 
       any reason, is that correct?  
       A: They tased me after I reached for the telephone.  
       Q: Okay.  Without any good reason, then, is that correct?  
       A: Yes.  
       Q: Okay.  But you never told Theresa Schuknecht anything about these events 
       on that day, did you?  
       A: No, she asked about the beating.  
       Q: Okay, You never said anything to her about any of these other incidents, 
       though?  
       A: No.  

                                               4 

No. 29241-0-III  
State v. Miller

RP (July 1, 2010) at 590-92.  

       The jury found Mr. Miller guilty as charged.  Mr. Miller appealed.  

                                          ANALYSIS

                      A.  Cross-Examination about Prior Convictions

       The issue is whether the trial court erred in allowing the State to question Mr. 

Miller regarding his prior DUI arrests.  Mr. Miller contends the trial court abused its 

discretion by allowing cross-examination about his prior DUI arrests.  

       Under ER 404(b), evidence of a defendant's prior crimes is not admissible to 

prove the defendant's character predisposed him or her to commit the charged crime.  

Additionally, under ER 609(a), evidence of a defendant's prior convictions is usually not 

admissible to attack the defendant's credibility.  But a defendant can waive objection to 

inadmissible evidence if the defendant was the first to raise the subject matter at trial; 

this is known as the "open door" rule.  See 5 Karl B. Tegland, Washington Practice: 

Evidence Law and Practice § 103.14-.15 (5th ed. 2007).  

       Under the "open door" rule, if one party raises a material issue, the opposing 

party is generally permitted to "explain, clarify, or contradict the evidence."  State v. 

                                               5 

No. 29241-0-III  
State v. Miller

Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008) (citing State v. Price, 126 Wn. App. 

617, 109 P.3d 27 (2005)).  "This is the long-recognized rule that when a party opens up 

a subject of inquiry, that party 'contemplates that the rules will permit cross-examination 

or redirect examination . . . within the scope of the examination in which the subject 

matter was first introduced.' Otherwise, [t]o close the door after receiving only a part of 

the evidence not only leaves the matter suspended in air at a point markedly 

advantageous to the party who opened the door, but might well limit the proof to half-

truths.'"  Berg, 147 Wn. App. at 939 (quoting State v. Gefeller, 76 Wn.2d 449, 455, 458 

P.2d 17 (1969)).  Therefore, a defendant's testimony on direct examination regarding a 

prior arrest can open the door for the State to cross-examine the defendant about the 

arrest.  See State v. Ortega, 134 Wn. App. 617, 626, 142 P.3d 175 (2006).  

       We review a trial court's decision to allow cross-examination under the "open

door" rule for abuse of discretion.  State v. Wilson, 20 Wn. App. 592, 594, 581 P.2d 592 

(1978); Ortega, 134 Wn. App. at 626.  A trial court abuses its discretion when its 

decision is manifestly unreasonable, or is exercised on untenable grounds for 

untenable reasons.  State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).  

       Mr. Miller testified during direct examination that he had previously been 

arrested for DUI.  The trial court ruled this opened the door to cross-examination about 

his prior DUI arrests.  Mr. Miller does not actually dispute he opened the door.  Rather, 

he argues the number of his convictions was beyond the scope of his direct 

                                               6 

No. 29241-0-III  
State v. Miller

examination because it "did not explain, clarify or contradict Mr. Miller's simple 

admission."  Br. of Appellant at 9.    

       Regardless of the reason why Mr. Miller presented the evidence, he presented a 

limited part of the evidence?that he had been arrested for DUI in the past.  The trial 

court discussed with counsel "what kind of door" that opened.  RP (July 1, 2010) at 570-

73; 577-79.  The court reasoned "legitimate follow-up questions" included how many 

times Mr. Miller had been arrested for DUI and how many convictions he had gotten.  

Id. at 572-73.  The court confirmed that the State did not plan to ask Mr. Miller about 

the facts of his DUI arrests.   

       During cross-examination, the State asked Mr. Miller two questions regarding his 

DUI arrests.  His answers informed the jury that between 1986 and December 11 2008, 

he had been arrested for DUI 11 times and that some of those arrests resulted in 

convictions.  All of that information clarified and explained his testimony that he had 

been arrested for DUI in his "past life."  In addition, the jury was instructed to consider 

any evidence of Mr. Miller's previous convictions for the limited purpose of deciding 

what weight to give his testimony and for no other purpose.  Jurors are presumed to 

follow court instructions.  State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).  

       Considering all in context, the court did not abuse its discretion by allowing the 

State to elicit testimony regarding the number of Mr. Miller's DUI arrests and confirm 

that some of his arrests resulted in convictions.

                                               7 

No. 29241-0-III  
State v. Miller

                                B.  Prosecutorial Misconduct

       The issue is whether the State committed prosecutorial misconduct.  Mr. Miller 

contends the prosecutor provoked him to comment on the deputies' credibility which

affected the verdict and warrants a new trial.  

       A defendant claiming prosecutorial misconduct "must first establish the 

prosecutor's improper conduct and second, its prejudicial effect."  State v. Dhaliwal, 

150 Wn.2d 559, 578, 79 P.3d 432 (2003) (citing State v. Pirtle, 127 Wn.2d 628, 672, 

904 P.2d 245 (1995); State v. Furman, 122 Wn.2d 440, 455, 858 P.2d 1092 (1993)).  

Cross-examination "designed to compel a witness to express an opinion as to whether 

other witnesses were lying" constitutes improper conduct.  State v. Padilla, 69 Wn. App. 

295, 299, 846 P.2d 564 (1993).  Prejudice is established solely if a substantial 

likelihood exists that the misconduct affected the jury's verdict.  Dhaliwal, 150 Wn.2d at 

578.  

       Mr. Miller does not argue the questioning was improper, except for a glancing 

analogical reference to Padilla.  Nonetheless, he argues the questioning, despite the 

sustained objection, was misconduct.  The State responds that the prosecutor's 

question about whether the deputy was lying about Mr. Miller speeding was stricken.  

Further, the remaining questions did not amount to improper conduct because their

purpose was to clarify Mr. Miller's direct testimony contradicting the State's evidence, 

not to compel Mr. Miller to comment on the veracity of the deputies.    

                                               8 

No. 29241-0-III  
State v. Miller

       On cross-examination, the State questioned Mr. Miller about his interview with 

Ms. Schuknecht.  Immediately following that line of questioning, the State asked the 

challenged questions:  "Q: But you are, you are saying that the deputies made up a 

reason to search your car, is that correct?  A: Yes.  Q: Okay.  You are saying the 

deputies essentially made up the entire assault on you, is that correct?  A: Yes." RP 

(July 1, 2010) at 591.  And immediately following the challenged questions it asked: 

"But you never told Theresa Schuknecht anything about these events on that day, did 

you?"  RP (July 1, 2010) at 590-92.  This is proper clarification cross-examination.  

Generally, the proper scope of cross-examination is inquiry into what was elicited on 

direct examination.  Gefeller, 76 Wn.2d at 455; see ER 611.  We cannot say the 

examination was flagrant or designed to elicit an opinion on the deputies' veracity, such 

that "no curative instructions could have obviated the prejudice engendered by the 

misconduct."  Padilla, 69 Wn. App. at 300.  

       Moreover, Mr. Miller would still need to show prejudice; he fails to do so.  The 

testimony that the prosecutor elicited from Mr. Miller reiterated his exculpatory 

testimony on direct.  Accordingly, it is not likely that the testimony affected the verdict.    

       Given all, we conclude the prosecutor's questions did not constitute 

prosecutorial misconduct.  

       Affirmed.  

       A majority of the panel has determined this opinion will not be printed in the 

                                               9 

No. 29241-0-III  
State v. Miller

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                    ________________________________
                                                    Brown, J.

WE CONCUR:

________________________________                    ________________________________
Korsmo, A.C.J.                                      Siddoway, J.

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