IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 83589-1-I
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
EDWARD LEROY CARTE, JR.,
Appellant.
MANN, J. — Edward Carte Jr. appeals his conviction for two counts of second
degree assault and felony harassment. Carte’s primary argument is that the prosecutor
improperly presented a “generic tailoring” argument—inviting the jury to draw an
adverse inference based on Carte’s constitutional right to appear and defend himself at
trial. We agree that the prosecutor committed error by making a tailoring argument
untethered to Carte’s prior statements or testimony. But because Carte failed to object,
and fails to demonstrate that the error was flagrant, ill intentioned, and uncurable, this
argument is waived.
Carte also argues that the trial court erred in excluding several statements as
hearsay, improperly admitted the victim’s hearsay statement as an excited utterance,
and that cumulative error deprived him of a fair trial. We disagree and affirm.
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I.
Morgan Cooper-McWade is a single mother of two young children, M.C. and
C.W. Cooper-McWade worked several jobs and struggled financially. Cooper-McWade
met Carte through Facebook after he sent her a friend request. They eventually met in
person and began seeing each other daily. At the time, Carte was living in a group
home for recovering addicts.
Carte was at first “really supportive” of Cooper-McWade, assuring her that “[h]e
could make the money problems go away . . . [and] help with the kids.” Carte moved
into Cooper-McWade’s home soon after. Although Cooper-McWade had reservations
about the relationship, she also “needed the help . . . badly.”
Carte helped with childcare, but his promises of financial support were
exaggerated. The relationship quickly deteriorated and they were soon having “a lot of
really explosive fights.” Carte was jealous and accused Cooper-McWade of having
“something going on with somebody somewhere.”
1. October 8, 2020.
On October 8, 2020, Cooper-McWade was scheduled to work until 9 p.m. while
Carte watched her children. The pair fought throughout the day and the argument
continued by text message while Cooper-McWade was at work. Cooper-McWade left
work early when Carte sent her a text message that implied he was suicidal and had
overdosed on prescription drugs.
When Cooper-McWade returned home she found Carte intoxicated and her
children asleep in their room. When Cooper-McWade texted a friend about the
situation, Carte demanded to know who she was texting and wrestled the phone away
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from her. When Cooper-McWade refused to unlock her phone, Carte commanded her
to “[p]ack [his] shit,” and then “pulled [her] up by [her] neck and pushed [her] towards
the [bed]room to start packing his belongings.”
Carte then began throwing his belongings at Cooper-McWade and repeatedly
kicked and shoved her. Carte told Cooper-McWade that she made him angry and
grabbed her by the neck. Carte laughed as Cooper-McWade, unable to breathe, tried
to pry his hand off. Carte eventually released Cooper-McWade’s neck and she went
back to packing his things. Carte continued to verbally abuse Cooper-McWade
throughout the evening, and a cycle of verbal abuse and choking continued around 5 to
10 times over the course of several hours. Each time Carte would strangle CooperMcWade until she became “really frantic,” and then he would release her before she lost
consciousness. Carte told Cooper-McWade that he would kill her if she called the
police. Cooper-McWade believed that Carte would kill her.
When Carte fell asleep, Cooper-McWade discreetly retrieved her phone and
went to sleep in her children’s room. She did not call the police because she stated she
was afraid of what Carte might do. The next morning, Carte acted like nothing
happened and told Cooper-McWade to just “forget about last night.” Cooper-McWade
left with her children and texted Carte to move out. She returned later with a male
friend for protection.
The State charged Carte with second degree assault (count 1) and felony
harassment (count 2) based on these events.
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2. November 17, 2020.
Carte did not move back in with Cooper-McWade, but he would often spend time
at her house to “try to fix things and hang out to make things better.” At the time,
Cooper-McWade had a close friend named Luciana Argueta. Carte was extremely
jealous of Argueta, and because she was a lesbian, believed Cooper-McWade was
cheating on him with her.
On November 17, 2020, Carte became irate after discovering Cooper-McWade
texting with Argueta. Carte grabbed Cooper-McWade’s phone and spat in her face
several times. Carte also verbally abused Cooper-McWade calling her various names
before leaving. Cooper-McWade called 911 and responding police arrived shortly after.
Cooper-McWade was crying and appeared very frightened.
The State charged Carte with fourth degree assault (count 4) based on this
event.
3. November 30, 2020.
Cooper-McWade and Argueta began a short romantic relationship in midNovember. The pair ceased seeing each other on November 24 after Argueta allegedly
robbed and assaulted Cooper-McWade. Cooper-McWade reached out to confide in
Carte. He moved back in shortly after. Despite the alleged assault, Cooper-McWade
began speaking to Argueta again as well.
On November 30, Carte became “extremely upset” after finding Cooper-McWade
on the phone with Argueta. Cooper-McWade hung up quickly, yet Carte grabbed the
phone from her and demanded to know who she was talking to. Cooper-McWade
refused to unlock her phone and Carte “dragged” her into the bedroom by her neck.
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Carte began strangling Cooper-McWade with both hands. Cooper-McWade
could not breathe and began “seeing stars.” As he had done previously, Carte
strangled her for a few seconds at a time, just “enough for [her] to panic.” CooperMcWade called out for her child, C.W., to help her during the incident. C.W. was woken
by Cooper-McWade shouting his name and he recalled hearing “loud noises” and
Cooper-McWade “saying stop.”
Carte briefly calmed down and returned Cooper-McWade’s phone. She left the
bedroom and gave her phone to C.W., instructing him to hide and call for help. Carte
reengaged with Cooper-McWade shortly after. C.W. hid in the laundry room and called
911.
C.W. told the 911 dispatcher that he needed help because “my mom’s boyfriend
is hitting my mom.” Cooper-McWade and Carte could be heard arguing in the
background, and Cooper-McWade could be heard crying in pain at one point. C.W.
then told the dispatcher that he “can’t talk” and hung up. Carte left the house after
discovering that C.W. called 911. Several police officers responded to C.W.’s 911 call,
forcing the front door open when nobody answered. Cooper-McWade and C.W.
emerged from hiding in a back closet.
The police officers immediately saw that Cooper-McWade “had a very large black
eye . . . and . . . various different red marks around her neck and on the side of her
face.” There were “little red marks” on Cooper-McWade’s chest and what looked like a
thumbprint on her chin. She identified several injuries inflicted by Carte and explained
that many facial marks were caused by Argueta’s earlier assault.
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The State charged Carte with second degree assault (count 3) based on this
event.
A jury convicted Carte of second degree assault and felony harassment based
on the October 8 incident, and second degree assault based on the November 30
incident. Carte was acquitted of fourth degree assault based on the November 17
incident.
Carte appeals.
II.
Under both the United States and Washington Constitutions, a defendant has the
right to “appear and defend in person,” to testify on their own behalf, and to confront
witnesses against them. U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22. 1 Carte
argues that the prosecution violated his constitutional rights during closing argument by
inviting the jury to draw an adverse inference from his appearance at trial—specifically
that Carte tailored his testimony based solely on his presence throughout the trial.
We agree that the prosecution committed error by making a tailoring argument
untethered to Carte’s prior statements or testimony. But because Carte failed to object,
and fails to demonstrate that the error was flagrant, ill intentioned, and uncurable, this
argument is waived.
1 The Sixth Amendment of the United States Constitution provides in pertinent part: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The confrontation clause includes the right to be present at trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). Article I, section 22 of the Washington Constitution provides in pertinent part: “In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face.”
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A.
To establish prosecutorial misconduct during closing argument, a defendant
bears the burden of proving that the prosecutor’s statements were both improper and
prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). We consider the
prosecutor’s conduct in the context of the record and the circumstances at trial. State v.
Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011).
We determine whether the defendant was prejudiced under one of two standards
of review. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant
made a timely objection at trial, he must demonstrate that any improper conduct
“resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.”
Allen, 182 Wn.2d at 375. When a defendant fails to object at trial, however, “the
defendant is deemed to have waived any error, unless the prosecutor’s misconduct was
so flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice.” Emery, 174 Wn.2d at 760-61. To prevail under this heightened standard,
the defendant must show that (1) no curative instruction could have eliminated the
prejudicial effect and (2) there was a substantial likelihood the misconduct resulted in
prejudice that affected the jury verdict. Emery, 174 Wn.2d at 761.
B.
A claim of “tailoring” alleges that the defendant conformed their testimony to the
evidence they observed while attending trial. State v. Hilton, 164 Wn. App. 81, 93, 261
P.3d 683 (2011). Tailoring arguments are considered “specific” if derived from the
defendant’s actual testimony, including both direct testimony and cross-examination.
State v. Berube, 171 Wn. App. 103, 115-17, 286 P.3d 402 (2012). Tailoring arguments
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are considered “generic,” however, if based solely on the defendant’s presence at the
proceeding and not based on the defendant’s direct examination or cross-examination.
Berube, 171 Wn. App. at 115.
In Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47
(2000), a majority of the U.S. Supreme Court held that tailoring arguments did not
violate a defendant’s Sixth Amendment right to be present at trial. Justice Ginsburg
dissented, arguing that any tailoring allegations should be explored during crossexamination rather than raised on the first time during closing argument. Portuondo,
529 U.S. at 78 (Ginsburg, J., dissenting).
In State v. Martin, 171 Wn.2d 521, 534, 252 P.3d 872 (2011), our Supreme Court
declined to apply Portuondo to article I, section 22. After a Gunwall 2 analysis, the court
held that our state constitution provides more protection from prosecutorial comments
on the right to be present and to confrontation than the Sixth Amendment. Martin, 171
Wn.2d at 533. Instead of following the majority in Portuondo, the court adopted Justice
Ginsburg’s dissent, that “suggestions of tailoring are appropriate during crossexamination, is compatible with the protections provided by article I, section 22.” Martin,
171 Wn.2d at 535-36. While the Martin court did not specifically address generic
tailoring arguments, the court noted with approval Justice Ginsburg’s view that “a
comment in closing argument that is ‘tied only to the defendant’s presence in the
courtroom and not to his actual testimony’” violates the right to be present at the trial
and confront witnesses. 171 Wn.2d at 535 (quoting Portuondo, 529 U.S. at 77
(Ginsburg, J., dissenting)).
2 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
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In Berube, this court addressed whether a tailoring argument is always prohibited
if the prosecutor makes the argument without first cross-examining on the subject—
even when the tailoring argument derives from the defendant’s testimony on direct
examination. 171 Wn. App. at 116. We concluded that it was not, explaining “[w]hen
tailoring is alleged based on the defendant’s testimony on direct examination, the
argument is a logical attack on the defendant’s credibility and does not burden the right
to attend or testify.” Berube, 171 Wn. App. at 117. In doing so, we reasoned that
Martin prohibited “a closing argument that burdens the exercise of constitutional rights
without an evidentiary basis and in a fashion preventing the defendant from meaningful
response.” Berube, 171 Wn. App. at 116-17. While this statement might be dicta, we
take this opportunity to clarify and hold that a generic tailoring argument raised only in
the prosecution’s closing argument, and untethered to the defendant’s direct testimony
or cross-examination, violates article I, section 22 of the Washington Constitution.
C.
During closing statements, the prosecution suggested that Carte’s testimony was
tailored:
[the defense] spent a lot of time trying to suggest that the victim had been
violent with Mr. Carte, that she punched him, that she kicked him . . . but
even if all of that information were to be true, defense does not claim any
self-defense here, so none of those allegations actually matter in this
case.
[The defense gave] you the defendant’s side of the story, the side of the
story that he gave to you after he had the benefit of having heard all of the
evidence in this case and hearing how everyone else testified in
conforming his testimony to fit for certain facts, but not others.
The prosecution did not point to any specific portion of Carte’s testimony that he
conformed “to fit for certain facts.” Nor did the prosecution suggest Carte’s testimony
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differed in any way from statements he made before trial. Instead, the prosecution
asserted Carte “conform[ed] his testimony” to the other evidence based only on the
benefit of his right to attend his trial and confront the witnesses against him. The
prosecution’s tailoring argument violated article I, section 22 and was improper.
D.
The State argues that Carte waived his right to appeal the improper statement
because he failed to object at trial and the statement was not flagrant, ill intentioned,
and incurable. Carte argues that, because the misconduct infringes on a constitutional
right, we should employ the constitutional harmless error standard. We agree with the
State.
After error has been established, the defendant must show prejudice. Because
Carte did not object at trial, we employ the heightened standard requiring Carte to show
(1) no curative instruction could have eliminated the prejudicial effect and (2) there was
a substantial likelihood the misconduct led to prejudice that affected the jury verdict.
Emery, 174 Wn.2d at 761. “Reviewing courts should focus less on whether the
prosecutor’s misconduct was flagrant or ill intentioned and more on whether the
resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762. Prejudice is
incurable when the jury’s impartiality has been so undermined that a fair trial is no
longer possible. Emery, 174 Wn.2d at 762. We review improper remarks “in the
context of the entire argument, the issues in the case, the evidence addressed in the
argument, and the instructions to the jury.” State v. Pierce, 169 Wn. App. 533, 280 P.3d
1158 (2012).
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If Carte objected at trial, the trial judge could have stricken the remark and
instructed the jury not to draw any adverse inferences from his testimony. Jurors are
presumed to follow the court’s instructions. State v. Dye, 178 Wn.2d 541, 556, 309
P.3d 1192 (2013). His failure to object deprived the court of an opportunity to remedy
the error. State v. Sakellis, 164 Wn. App. 170, 185, 269 P.3d 1029 (2011).
While Carte correctly suggests prejudice was more likely because the challenged
remark was made in the prosecution’s rebuttal argument, this alone is insufficient to
create incurable prejudice. We look also to the pervasiveness of the misconduct. A
single fleeting improper comment is likely curable, while prejudice may be unavoidable
when an improper argument is repetitive and thematic. See State v. Brown, 21 Wn.
App. 2d 541, 571, 506 P.3d 1258 (2022) (“Any error was fleeting as opposed to
pervasive and prejudicial.”). The prosecutor’s argument here was lengthy, lasting over
an hour and about 59 pages of transcript. The improper statement was a single
sentence and was never repeated.
We conclude that a timely curative instruction would have abated the potential
prejudice, thus Carte cannot show that the error was flagrant, ill intentioned, and
incurable.
E.
Carte argues that we should apply the manifest constitutional error standard of
RAP 2.5(a)(3), that the error was harmless beyond a reasonable doubt, because the
error was a direct comment on Carte’s constitutional right rather than a comment that
merely “touch[ed] upon [his] constitutional rights.” Emery, 174 Wn.2d at 763.
Washington courts have long held that prosecutors’ improper comments on a
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defendant’s exercise of constitutional rights are evaluated under the constitutional
harmless error standard. Emery, 174 Wn.2d at 757. But as Division Two of this court
recognized in State v. Teas, 10 Wn. App. 2d 111, 122, 447 P.3d 606 (2019), we do not
apply the harmless error standard until we conclude that the defendant preserved the
error for appeal.
In Teas, during closing arguments, the prosecutor highlighted that DNA evidence
placed Teas in the victim’s bedroom and suggested that Teas took the stand to testify to
address the overwhelming evidence against him. 10 Wn. App. 2d at 119. The
prosecutor told the jury “‘And so that’s why he got on the stand yesterday and came—
came up with a story to try and explain away what happened.’” Teas, 10 Wn. App. 2d at
119. Teas did not object to these statements. Division Two of this court agreed with
Teas that “it is improper for [a prosecutor] to speculate as to why a defendant testified to
infer guilt.” Teas, 10 Wn. App. 2d at 123. The State’s comment implied that Teas knew
he was guilty and only testified to explain the evidence against him. Teas, 10 Wn. App.
2d at 124. But Teas did not object at trial and the court concluded the comments were
“not so flagrant and ill intentioned that the resulting prejudice could not be cured with a
jury instruction.” Teas, 10 Wn. App. 2d at 123.
As Teas recognized, when a defendant fails to object, Washington courts must
decide whether the issue has been preserved for appeal before analyzing whether the
error was harmless beyond a reasonable doubt. See State v. Espey, 184 Wn. App.
360, 369-70, 336 P.3d 1178 (2014) (applying the “flagrant and ill intentioned” standard
before evaluating whether the error was harmless beyond a reasonable doubt). We see
no compelling reason to deviate from this precedent.
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Because Carte did not object at trial, he waived the issue on appeal unless he
can establish that the prosecutor’s comment was flagrant, ill intentioned, and incurable.
Because he failed to do so, we conclude that Carte has waived this issue for appeal.
III.
Carte next argues that the trial court denied his constitutional right to present a
defense when it excluded several out of court statements made by Cooper-McWade as
inadmissible hearsay. We disagree.
A.
The Sixth Amendment to the United States Constitution and Washington
Constitution article I, section 22 grants criminal defendants the right to present
testimony in one’s defense. State v. Hudlow, 99 Wn.2d 1, 15-16, 659 P.2d 514 (1983).
On appeal, the court reviews a violation of the right to present a defense de novo, but it
reviews specific evidentiary rulings for abuse of discretion. State v. Clark, 187 Wn.2d
641, 648-56, 389 P.3d 462 (2017); State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576
(2010). We engage in a two-step review process to review the trial court’s individual
evidentiary rulings for an abuse of discretion and then consider de novo the
constitutional question of whether these rulings deprived the defendant of their Sixth
Amendment right to present a defense. State v. Arndt, 194 Wn.2d 784, 797-98, 453
P.3d 696 (2019).
The trial court must provide the accused with “a fair opportunity” to defend
against the government’s accusations. Jones, 168 Wn.2d at 719. This right is satisfied
through meaningful cross-examination. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d
1189 (2002). But these rights are not absolute. “The accused does not have an
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unfettered right to offer evidence that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” State v. Lizarraga, 191 Wn. App. 530,
533, 364 P.3d 810 (2015). The right to present a defense is limited by the general rules
of evidence. Darden, 145 Wn.2d at 621.
B.
First, we examine the trial court’s actions excluding portions of CooperMcWade’s testimony as hearsay. “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” ER 801(c). Hearsay is generally inadmissible, even if
otherwise relevant, unless it falls within one of several recognized exceptions. ER 802;
State v. Garcia, 179 Wn.2d 828, 845, 318 P.3d 266 (2014). Whether an exception to
the hearsay rule applies is reviewed for an abuse of discretion. State v. Blake, 172 Wn.
App. 515, 535, 298 P.3d 769 (2012). That said, the more fundamental question
applicable here—whether a statement is hearsay at all—is reviewed de novo. State v.
Heutink, 12 Wn. App. 2d 336, 356, 458 P.3d 796 (2020).
Carte challenges three statements excluded by the trial court. We address each
in turn.
1.
First, Carte testified that on November 30, he heard Cooper-McWade tell her
child C.W. to “call the police and tell them [Carte] is hitting me.” The trial court
sustained the prosecution’s hearsay objection and instructed the jury to disregard the
statement. Carte argues that the statement is not hearsay, but a command that casts
doubt on C.W.’s statement in the 911 recording that Carte was hitting Cooper-McWade.
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Carte also contends that the statement did not contain a “factual assertion” and
therefore could not have been offered for the truth of such an assertion. We disagree.
A request or command is not hearsay “because the questioner is not asserting a
fact or belief.” State v. Kelly, 19 Wn. App. 2d 434, 448, 496 P.3d 1222 (2021).
Similarly, the hearsay rule “does not forbid the introduction of evidence that a request
has been made when the making of the request is significant irrespective of the truth or
falsity of its content.” Kelly, 19 Wn. App. 2d at 449. Cooper-McWade’s statement to
C.W. was only helpful to Carte if interpreted as instructing C.W. to wrongfully tell the
911 operator that Carte was assaulting Cooper-McWade. Thus, the statement was not
being offered merely to show a request was made, or its effect on the listener. Carte
was trying to establish that the accusation of assault was false. Because the relevance
of the statement depended on the truth or falsity of its content, it was hearsay. Kelly, 19
Wn. App. 2d at 449.
2.
Second, Carte testified to an occasion when he was exchanging text messages
with his ex-wife and Cooper-McWade “threw the bedroom door open” and demanded to
know who he “was talking to.” Carte contends the trial court erred in sustaining the
prosecution’s hearsay objection and instructing Carte “not to say what somebody else
who is not here in court said.” Carte argues that Cooper-McWade’s demand was
evidence of her jealousy, did not contain a factual assertion, and was instead a
question. We disagree.
Again, while questions are generally admissible, they are considered hearsay
when making the request is “significant irrespective of the truth or falsity of its content.”
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Kelly, 19 Wn. App. 2d at 449. Carte offered the statement to demonstrate CooperMcWade’s jealousy or to imply she was spying on him. Thus, the relevance of the
statement depended on its truth or falsity—revealing Cooper-McWade’s motive. The
statement was hearsay.
3.
Third, Carte testified that Cooper-McWade asked him “not to call the police” after
she kicked him on October 8. The trial court sustained the prosecution’s objection as
hearsay. Carte argues that the statement was a request and lacks factual content that
could be offered for the truth. We disagree. Intrinsic in the alleged request was a
contested factual assertion that Cooper-McWade had assaulted Carte. Because the
relevance of Cooper-McWade’s request to Carte depended on the truth of the assertion,
it was hearsay. Kelly, 19 Wn. App. 2d at 449.
C.
The second step of our analysis under Arndt requires that we examine whether
the reasoned exclusion of the hearsay testimony resulted in a violation of Carte’s right
to present a defense. It did not.
In Arndt, the trial court limited the testimony of the defendant’s expert witness.
194 Wn.2d at 812. The defendant argued that the exclusion denied their right to
present a defense. Arndt, 194 Wn.2d at 812. The Supreme Court upheld the trial
court’s ruling and noted the trial court has a gatekeeping function under the rules of
evidence. Arndt, 194 Wn.2d at 812. Because the defendant could advance their
defense theory, and the exclusion of evidence did not eliminate the defendant's entire
defense, the exclusion of such evidence did not violate the defendant’s Sixth
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Amendment right to present a defense. Arndt, 194 Wn.2d at 814. “Accordingly, when
the defendant has an opportunity to present his theory of the case, the exclusion of
some aspects of the defendant’s proffered evidence will not amount to a violation of the
defendant’s constitutional rights.” State v. Ritchie, 24 Wn. App. 2d 618, 635, 520 P.3d
1105 (2022).
1.
Carte argues that Cooper-McWade’s request to C.W. to “call the police and tell
them [Carte] is hitting [her]” is direct evidence that her allegations were false. And that
the statement casts doubt on her credibility and recontextualizes the recorded 911 call
the jury heard. But Cooper-McWade’s statement was at best ambiguous. CooperMcWade also testified that she was, in fact, assaulted several times that evening. Thus,
the evidence could just as easily be interpreted as Cooper-McWade asking C.W. to
report what was actually happening. The jury otherwise rejected Carte’s interpretation
of events on November 30, and it is unlikely that excluding this statement would affect
the jury verdict. Carte was able to put on a defense and testify to his version of events.
2.
Carte argues that excluding Cooper-McWade’s demand of who he was talking to
interfered with his ability to argue that she was extremely jealous and controlling. But
even without the excluded statement, Carte was able to amply present his theory.
Carte testified without objection that he was speaking with his ex-wife when
Cooper-McWade entered the room. Defense counsel then asked a question that
allowed Carte to explain that Cooper-McWade was spying on him and “reading my
conversations.” Moreover, accusations that Cooper-McWade was jealous, erratic,
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suspicious, and intrusive pervaded Carte’s testimony. Portraying Cooper-McWade as
violently jealous was a key aspect of Carte’s defense theory, which his trial counsel had
no difficulty presenting to the jury. It is implausible that the single excluded statement
affected the verdict.
3.
Carte argues that excluding Cooper-McWade’s statement that he not call the
police interfered with his ability to argue that Cooper-McWade was herself abusive. But
just after the trial court sustained the objection, Carte testified that Cooper-McWade was
“very concerned” about the potential consequences of assaulting him. More
importantly, Carte described the alleged assault himself during direct examination and
got a chance to cross-examine Cooper-McWade on the subject as well. Again, it is
implausible that admitting the excluded statement could have changed the verdict.
The exclusion of the three challenged statements did not deprive Carte of his
ability to present a defense.
IV.
Carte next argues that the trial court erred in admitting Cooper-McWade’s
statement to responding police officers on November 30 as an excited utterance. We
disagree.
A.
In a pretrial motion the State moved to admit Cooper-McWade’s statement to
Deputy Damerow on November 30. The prosecutor stated that police officers arrived at
Cooper-McWade’s house about 12 minutes after C.W.’s 911 call. After kicking in the
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front door, they found Cooper-McWade and C.W. hiding in a closet. Cooper-McWade
then made several statements to Damerow describing Carte’s assault.
Cooper-McWade told Damerow that Carte had become enraged after finding her
on the phone with Argueta. When she refused to unlock her phone for him, Carte
strangled her, dragged her around the apartment, and threatened to kill her. Carte then
left and Cooper-McWade hid in a closet with C.W. until police arrived. Cooper-McWade
believed that Carte was capable of killing her but “hoped that he wouldn’t because she’s
a single mom.” Damerow observed that Cooper-McWade was “afraid and crying”
during the conversation.
Carte objected, arguing the record was unclear as to whether Cooper-McWade
was sufficiently agitated for her statements to qualify as excited utterances. The trial
court overruled Carte’s objection, concluding that the statements were spontaneous:
The key . . . is spontaneity . . . there was a very short time period between
the time of the [911] call and the time that the officers had the
conversation with the complaining witness.
This means that the witness would not have had time to fabricate or
make up some kind of report. . . .
[I]f the issue was one of assault, strangulation, whatever she is
claiming happened, those would be startling events. The statements
made to the officer would be made while the declarant was under the
stress or excitement caused by . . . those events, and it would therefore
not be objectionable as hearsay.
At trial, Damerow testified that Cooper-McWade appeared “mostly calm” when
police first arrived but started crying when officers began speaking with her. Damerow
observed that Cooper-McWade was “shaking” while talking to him, and that she was
“stutter[ing].” Damerow recalled it being “very obvious . . . that [Cooper-McWade] was
scared . . . and very upset.”
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Carte renewed his objection, arguing that Cooper-McWade’s statements did not
qualify as excited utterances. The trial court declined to revisit its pretrial ruling.
B.
While typically inadmissible, hearsay can be offered at trial when authorized by a
court rule or statute. ER 802. One recognized exception is found in ER 803(a)(2),
which allows courts to admit “statement[s] relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.” Courts reason that statements made while under the stress of an exciting
event “could not be the result of fabrication, intervening actions, or the exercise of
choice or judgment.” State v. Rodriquez, 187 Wn. App. 922, 939, 352 P.3d 200 (2015).
In a sense, excited utterances are “an event speaking through the person, as
distinguished from a person merely narrating the details of an event.” State v. Pugh,
167 Wn.2d 825, 837, 225 P.3d 892 (2009).
The party seeking to admit a statement as an excited utterance must show that
(1) a startling event or condition occurred, (2) the declarant made the statement while
under the stress of excitement of the startling event or condition, and (3) the statement
related to the startling event or condition. State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d
1273 (2007).
The court may consider circumstantial evidence when assessing the statements,
including “the declarant’s behavior, appearance, and condition; appraisals of the
declarant by others; and the circumstances under which the statement is made.”
Rodriquez, 187 Wn. App. at 938. A statement is more likely to qualify as an excited
utterance if the declarant is agitated, emotional, frantic, or “visibly upset.” State v.
-20-No. 83589-1-I/21
Davis, 116 Wn. App. 81, 86, 64 P.3d 661 (2003). Yet a “state of nervousness or
anxiety” by itself is insufficient. Burmeister v. State Farm Ins. Co., 92 Wn. App. 359,
370, 966 P.2d 921 (1998). We review the court’s decision to admit a statement as an
excited utterance for an abuse of discretion. DeVogel v. Padilla, 22 Wn. App. 2d 39, 58,
509 P.3d 832 (2022).
C.
The first and third Ohlson factors are easily satisfied. The State’s pretrial offer of
proof revealed that C.W. called 911 to report that Cooper-McWade was being actively
assaulted, evidence of which could be heard in the background of the recordings. This
is a startling event or condition. Being beaten and strangled by another person is
certainly a stressful event. It cannot be seriously disputed that Cooper-McWade’s
statement concerned the startling event.
The second Ohlson factor is also met. Officers arrived at Cooper-McWade’s
house 12 minutes after C.W.’s called 911. Even after forcing entry, Cooper-McWade
was contacted within about 20 minutes of the event. A 20-minute delay is well within
the time frame recognized for admission of excited utterances where there is continuing
stress. See, e.g., State v. Thomas, 150 Wn.2d 821, 855, 83 P.3d 970 (2004) (1.5 hours
after murder); State v. Strauss, 119 Wn.2d 401, 416-17, 832 P.2d 78 (1992) (3.5 hours
after rape of child). Thus, the trial court reasonably concluded that Cooper-McWade
could still have been under the stress of the assault after the “very short time period.”
Cooper-McWade was also still hiding in the closet when the police arrived, which
weighs in favor of admission. See State v. Guizzotti, 60 Wn. App. 289, 295-96, 803
P.2d 808 (1991) (statement admissible as excited utterance despite 7-hour delay
-21-No. 83589-1-I/22
because the victim had been hiding and “thought the defendant was looking for her”).
Deputy Damerow’s observation that Cooper-McWade was “afraid,” “crying,” “shaking,”
and “stutter[ing]” also suggested she was still affected by the assault.
Carte relies on Damerow’s testimony that Cooper-McWade at first seemed calm
on contact. While this fact weighs against admission, alone, it does not establish an
abuse of discretion. “The crucial question with regard to excited utterances is whether
the statement was made while the declarant was still under the influence of the event to
the extent that his statement could not be the result of fabrication, intervening actions,
or the exercise of choice or judgment.” State v. Sellers, 39 Wn. App. 799, 804, 695
P.2d 1014 (1985). Because Cooper-McWade’s statement was made to the police
shortly after they broke down her door to find her still hiding, and they arrived only 12
minutes after C.W. called 911, the court reasonably concluded that Cooper-McWade
was still under the stress of the altercation with Carte. The trial court did not abuse its
discretion.
V.
Finally, Carte argues that the cumulative effect of the prosecutor’s and trial
court’s errors deprived him of a fair trial. We disagree.
The cumulative error doctrine requires reversal when a defendant establishes
that multiple accrued errors rendered a trial “fundamentally unfair,” even if these errors
were individually harmless. Emery, 174 Wn.2d at 766. The doctrine applies in
“instances when there have been several trial errors that standing alone may not be
sufficient to justify reversal but when combined may deny a defendant a fair trial.” State
v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
-22-No. 83589-1-I/23
Here, Carte waived his objection to the prosecutorial misconduct claim thus it is
not error. He also failed to show that the court improperly included Cooper-McWade’s
statement as an excited utterance. And finally, the trial court did not error in excluding
the challenged hearsay.
Affirmed.
WE CONCUR:
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