Channary Hor, Appellant/cross-resp. v. City Of Seattle & Adam Thorp, Respondents/cross-app. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHANNARY HOR, individually, ) No. 80835-4-I
)
Appellant/Cross- ) DIVISION ONE
Respondent, )
) PUBLISHED OPINION
v. )
)
CITY OF SEATTLE, a Washington )
Municipal Corporation, and OMAR )
TAMMAM, )
)
Respondent/Cross- )
Appellant. )
)
)
HAZELRIGG, J. — Channary Hor was seriously injured in a vehicle accident
involving officers from the Seattle Police Department. Hor filed suit against the
driver of the vehicle she was riding in, the City of Seattle, and the individual officers
present at the time of the incident. After trial, the jury found the driver solely liable
and only awarded damages as to him. One of the key issues at trial was whether
the officers were in pursuit of the vehicle, which both officers denied.
Following trial, one of the officers committed suicide and a local news article
attributed it to the officer’s feelings of remorse over the accuracy of his trial
testimony. Based on statements from individuals the officer had spoken with about
his testimony, Hor brought a motion for relief from judgment under CR 60(b)(4).
The defendants objected and argued the statements Hor sought to admit were
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inadmissible hearsay. The trial court agreed, denying the admission of the
evidence and the CR 60(b)(4) motion. Hor appeals arguing the evidence was
admissible under ER 801(d)(2)(i) or ER 804(b)(3), and that the trial court erred in
denying her CR 60(b)(4) motion. We agree that the evidence is admissible, and
reverse and remand on that basis, without reaching the CR 60(b)(4) motion.
FACTS
Channary Hor was rendered quadriplegic as the result of a motor vehicle
crash after an encounter with Seattle police. Hor filed suit against Omar Tammam,
the driver of the vehicle she was in. She also included as defendants the individual
Seattle Police Department (SPD) officers involved in the incident and the City of
Seattle (the City). Prior to trial, the City and officers filed an unopposed motion to
remove the officers from the caption of the case based on the City’s vicarious
liability, which completely indemnified the officers for any fault that might be
attributed to them. Hor did not oppose the motion based on the mutual
understanding that the officers remained parties to the case.
One of the fundamental disputes at trial was whether the officers had
engaged in a pursuit of the vehicle Hor was riding in, which the City and Officers
strenuously denied. Officer Arron Grant was the second officer to respond to the
initial contact with Tammam, but the first to depart the scene after Tammam’s
vehicle. At trial, Grant provided testimony that he was not engaged in a technical
pursuit, but Hor attacked his credibility on this matter. There was also expert
evidence from both sides on the issue of how the crash occurred. The jury
awarded Hor $17.4 million against Tammam and found the City not liable; the
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superior court entered a judgment in the City’s favor. Hor appealed on multiple
grounds and a panel of this court affirmed the judgment in an unpublished opinion.1
Grant committed suicide in April 2017. In May of 2017, an article was
published by the Tacoma News Tribune entitled “Suicidal Lakewood police officer
brooded over his testimony in lawsuit, colleagues say.” Hor learned of Grant’s
allegedly inconsistent testimony from the news article. Through counsel, Hor
contacted officers to whom Grant had spoken about his trial testimony and
obtained their declarations. The statements in question are as follows:
1. Declaration of Anders Estes (former Lakewood Police Sergeant):
I recall Officer Grant shared with me the following: He basically told
me that he had responded to help another officer. At some point
during that call, a car ended up leaving the scene. He went in pursuit
of that car. He definitely used the word “pursuit” in the technical
sense of the word. He chased the car. The car ended up wrecking.
Because of that wreck, there was a large civil suit against the City of
Seattle. He said that when he got subpoenaed, he had to go talk to
two attorneys who worked for the City of Seattle. Those attorneys
asked him a lot of questions about the pursuit. One question he had
trouble with was when he turned his lights on. He told me how long
ago it was and that he did not remember. He said the attorneys really
pressed him about when he turned his lights on. He could not tell
them. They kept giving him different reference points. They finally
said: “Let’s go out there.” They loaded him in a car and took him out
to the scene. Once they were at the scene, they pointed at different
places and said: Did you turn your lights on here or here? He said he
did not remember. He could not remember. Finally, they gave him a
reference point and instructed him you need to say you turned your
lights on here. He told me he was uncomfortable with that. He came
back to the department and spoke to people about it in the
department. He said there were a number of people who said they
had faced the same situation with prosecutors or attorneys. He said
these people he talked to told him to just tell the truth, if he didn’t
remember he didn’t remember. But, he said he really felt like he was
under pressure. So when it finally came time to testify, he went up
and testified to what the attorneys told him to testify to, which he
1Hor v. City of Seattle, No. 70761-2-I (Wash. Ct. App. Aug. 3, 2015) (unpublished),
http://www.courts.wa.gov/opinions/pdf/707612.pdf.
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knew was not the truth. Once he had done that, he said that he felt
bad. He said he felt he had betrayed the badge or something like
that. So he went to the then Chief Farrar and Assistant Chief Zaro
and told them what he had done. He said they told him “Don’t worry
about it.”
2. The Declaration of Michael Wulff (Lakewood Police Officer):
In discussing the event that took place while he was an SPD officer,
Officer Grant told me that he was a secondary car involved in an
injury incident. Officer Grant told me that he and another officer had
contacted a vehicle in a park. He told me that the vehicle had fled
and was followed by another officer. Officer Grant stated that the
attorneys for the City of Seattle told him to testify that he and the
other officer involved were not pursuing any vehicle and were not in
pursuit; that no Seattle officers were in pursuit of the fleeing vehicle
when it crashed; and that Officer Grant did not have his emergency
lights activated.
He stated the event happened a long time ago and that he couldn’t
remember many details. He did not remember details about where
or when his lights were activated. He could remember certain details
about the initial car stop, the car fleeing, going after the fleeing car
and following it, and seeing it wrecked around a corner. Officer Grant
also stated that he felt pressured by the attorneys for the City to
testify to observations or details that would assist the City’s case, but
that he couldn’t because he didn’t remember or was not even present
for some [sic] them. It was apparent from his actions and tone during
this conversation that he was nervous and not looking forward to his
testimony.
3. Testimony from a deposition of Michael Zaro (Lakewood Police
Chief) taken for Shadow v. Lakewood:2
[examination by defense counsel]
Q[:] Did Arron Grant come to you and say that he had given false
testimony in a case where he was asked to testify?
A[:] That he believed so, yes.
Q[:] Okay. And he believed he was dishonest because he told—or
strike that. What did Arron Grant believe he was—his testimony was
dishonest?
A[:] About?
Q[:] Yeah. Yeah, why did he think he had been dishonest?
[Plaintiff’s Counsel]: Object to the form of the question, but you can
answer it if you know.
2 Pierce County Superior Court No. 16-2-08405-8.
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[Zaro]: The way he portrayed it to me was that he was in a deposition
or a discussion with attorneys representing Seattle, and one of the
points—one of the questions was where he turned his lights off in a
pursuit, related to a civil suit that was going on. And he said it was in
one location. They said, [c]ould it have been here? And they went
back and forth and he finally agreed that it could have been here and
testified to that but still believed it could have been—or still believed
it was here, but he said it could have been in this other location.
[Defense Counsel]:
Q[:] So how did you guide him with regard to his concerns about
dishonesty in that instance?
A[:] I told him that—well, Chief Farrar and I both told him that was—
that, you know, he got browbeat by a civil attorney into agreeing that,
you know, something, could have happened here, that’s not
uncommon, and that it wasn’t for him to worry about to the extent that
he was worrying.
Hor retained new counsel after gathering this information. Counsel sought
permission from the appellate court before seeking relief from judgment in the
superior court. In superior court, Hor filed a motion for an order to show cause
why relief from judgment should not be granted based on misconduct of a party
under CR 60(b)(4) and (11). The court granted Hor’s motion and set a show cause
hearing. The trial court also granted a stipulated order to substitute Grant’s estate
as party to the case.
The City and Adam Thorp, the other SPD officer involved, objected to the
proffered evidence of Grant’s post-trial statements, arguing that relief from
judgment should not be granted. The administrator of Grant’s estate joined the
response from the City and Thorp. Hor responded by arguing that Grant’s
statements were non-hearsay as statements by a party opponent under ER
801(d)(2)(i). Hor argued in the alternative that the statements were an exception
to hearsay exclusion under ER 804(b)(3) as statements against both Grant’s
pecuniary and penal interests. Following oral argument at the show cause hearing,
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the trial court ruled the statements were inadmissible under either of Hor’s
proffered theories. This evidentiary issue was dispositive and the court denied the
motion for relief from judgment. The court also denied Hor’s request for further
discovery. Hor now appeals to this court, after denial of her petition for direct
review by the Supreme Court.
ANALYSIS
I. Admissibility of Grant’s Post-Trial Statements
Hor first argues that the court erred in excluding statements Grant
purportedly made to others prior to his death about his alleged perjury in the trial.
At the trial court, Hor asserted that the statements were admissible as non-hearsay
under ER 801(d)(2)(i) as a statement of party opponent, or in the alternative as an
exception to hearsay under ER 804(b)(3), statement against interest.
This court reviews interpretation of an evidence rule de novo. Diaz v. State,
175 Wn.2d 457, 462, 285 P.3d 873 (2012). Once a reviewing court has determined
that the trial court properly interpreted an evidence rule, the standard of review
shifts for the question of how the rule was applied. “Admissibility of evidence is
within the broad discretion of the trial court and will not be reversed on appeal
absent a showing of manifest abuse of discretion.” In re Parentage of J.H., 112
Wn. App. 486, 495, 49 P.3d 154 (2002). “Discretion is abused if it is based on
untenable grounds or for untenable reasons.” Id. ER 102 states:
These rules shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of
growth and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly determined.
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While ER 102 does not directly address the hearsay questions before us, this rule
serves as a guiding principle for our review of evidentiary rulings. See State v.
Butler, 53 Wn. App. 214, 223, 766 P.2d 505 (1989); See also Bengtsson v.
Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 106 n.8, 469 P.3d 339 (2020).
A. Statement by Party Opponent
ER 801(d)(2)(i) states in relevant parts: “(d) Statements Which Are Not
Hearsay. A statement is not hearsay if . . . . (2) Admission by Party-Opponent.
The statement is offered against a party and is (i) the party’s own statement, in
either an individual or a representative capacity.” Washington case law on ER
801(d)(2)(i) under the particular posture presented here is not extensively
developed.
The issue before us is whether, since his death, Grant’s statements still
constitute those of a party-opponent for purposes of ER 801(d). Hor first argues
that the statement is admissible based on numerous cases decided prior to
Washington’s adoption of the Federal Rules of Evidence in 1979. See Plath v.
Mullins, 87 Wn. 403, 151 P. 811 (1915); Loundry v. Lillie, 149 Wn. 316, 270 P.
1029 (1928). These cases do not guide our inquiry as they focus on common law
evidentiary rules which no longer represent our starting point since the adoption of
formal evidentiary rules. Further, federal courts are split on this issue and neither
party offers compelling argument as to why we should follow one side of that split
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over the other.3 We are, however, properly guided in our analysis by state
precedent.
There are two Washington cases identified by the parties as helping to
illuminate the issue. Erickson v. Robert F. Keer, M.D., P.S., Inc. involved a medical
malpractice action brought by the son, husband, and estate of a patient who had
committed suicide. 125 Wn.2d 183, 185, 883 P.2d 313 (1994). The defendant
doctors sought to introduce statements by the deceased to a friend that her
husband was abusive, tight with money, and should be the prime suspect if
anything happened to her. Id. at 192. The trial court originally admitted the
statements, this court reversed, and the Supreme Court affirmed the Court of
Appeals. Id. The Supreme Court stated, “Mrs. Erickson’s statements were not an
admission of a party-opponent as to the wrongful death action brought by Andrew
and Craig Erickson in their individual capacities.”4 Id. However, the court then
“decline[d] to rule on the estate’s cause of action because no objection was made
or preserved on its behalf.” Id. at 192.
This court’s opinion in the first phase of the appeal process provided similar
language, “Mrs. Erickson’s statements to Delaurenti are not admissions against
the interest of the claim for damages recoverable by her estate, and thus are not
admissible under ER 801(d)(2).” Erickson v. Robert F. Kerr, M.D., P.S., Inc., 69
Wn. App. 891, 902, 851 P.2d 703 (1993), reversed on other grounds, 125 Wn.2d
183. In Erickson, the testimony was being offered to prove damages, which
3See Huff v. White Motor Corp., 609 F.2d 286 (7th Cir. 1979); Estate of Shafer v. C.I.R.,
749 F.2d 1216 (6th Cir. 1984); In re Cornfield, 365 F. Supp.2d 271 (E.D. N.Y. 2004).
4 The decedent’s husband and son, respectively.
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distinguishes it from the facts of the case before us. Erickson’s statements would
have been used by the defense for mitigation as to an award for damages in favor
of the husband by attempting to prove the marriage was less than ideal and could
have thereby justified a smaller award. In Erickson, the court acknowledged the
decedent’s testimony was not going to have bearing against the estate, since it
went to the calculation of damages for the husband as to quality of the marriage.
Id. at 903.
The parties also separately address In re Estate of Miller, 134 Wn. App.
885, 143 P.3d 315 (2006). Miller involved an estate dispute as to whether
payments made to the deceased were loans or a gift. Id. at 888-89. Division
Three’s analysis of the statements made by the deceased includes a direct quote
from the Washington Practice series on evidence which states: “‘The death of a
party-opponent does not affect the admissibility of that party’s admissions under
Rule 801, but under some circumstances the admissions may be barred by the
dead man statute.’” Id. at 895 (quoting 5B KARL B. TEGLAND, W ASHINGTON
PRACTICE: EVIDENCE § 801.34, at 336 (4th ed. 1999)). The court then held that
“[t]he deceased is a party to this lawsuit and his admissions are not inadmissible
hearsay pursuant to ER 801(d)(2).” Id.
In the case before us, the trial court was disinclined to rely on Miller
because, as the City pointed out in its argument, that opinion primarily quotes the
4th edition of the Washington Practice Series on Evidence from 1999. Subsequent
updates abandon the analysis adopted in Miller, instead stating:
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Prior to the adoption of the Federal Rules of Evidence and their state
counterparts, a statement by a person in privity with a party was
considered an admission by party-opponent, and such statements
were often admissible on that theory. The drafters of the current
rules, however, deliberately chose to change the law in this regard,
and statements by persons in privity with a party are no longer
admissible as admissions by a party-opponent.
§ 801.51, Admissions by persons in privity with party, 5B W ASH. PRAC., EVIDENCE
LAW AND PRACTICE § 801.51 (6th ed. 2018). While much of the parties’ briefing on
appeal centers on this shift between versions of the practice series, this argument
misses the mark. Miller is a published opinion and as such it is elevated above
secondary sources in the established hierarchy of legal authority. Miller has not
been overruled, thus, for purposes of ER 801(d)(2), the death of a party-opponent
does not bar the admissibility of their statements as non-hearsay under the
evidentiary rule.
Miller is binding case law in our state. “[T]rial courts are bound by published
decisions of the Court of Appeals.” In re Marriage of Snider and Stroud, 6 Wn.
App. 2d 310, 315, 430 P.3d 726 (2018); RCW 2.06.040. Here, though the trial
court was presented with two alternatives, each discussed above, it is clear that
Miller controls. Based on this misapplication of the law, the trial court abused its
discretion by ruling that the declarations provided by Hor were inadmissible as
statements of a party opponent.
B. Statement Against Interest
Hor next argues in the alternative that the trial court erred in failing to admit
Grant’s statements under the hearsay exception of ER 804(b)(3) which provides:
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(3) Statement Against Interest. A statement which was at the time of
its making so far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have
made the statement unless the person believed it to be true. In a
criminal case, a statement tending to expose the declarant to criminal
liability is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Hor avers, as she did in the trial court, that Grant’s statements to others were such
that they subjected him to criminal and civil liability, and potentially impacted his
pecuniary interest, and are therefore properly admissible as an exception to the
hearsay rule.
The parties and the trial court appeared to focus on criminal or civil liability
at the show cause hearing and, with regard to civil liability, specifically the issue of
Grant’s indemnification by the City. The trial judge applied the rule and determined
that the statements did not rise to a level that would subject Grant to either civil or
penal liability, nor impact a pecuniary interest. The court held that Grant likely
would not have reasonably believed that such a risk existed at the time he made
them, stating,
I don’t think they’re so far against any pecuniary interest, because
Mr. Grant really did not have a pecuniary interest in the outcome of
his case or in the statements that he made. I could not say that a
person in Officer Grant’s position would not have made the
statements unless he believed them to be true.
The City expressly admitted that Grant was operating in his official capacity as a
Seattle Police Officer when the car accident occurred and cited Seattle Municipal
Code Chapter 4.64 as the source and scope of his indemnification. The court
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appears to have found this argument persuasive in its consideration of whether the
statements could be admissible as an exception based on implicating Grant’s civil
liability. This is a reasonable outcome by the trial court as to civil liability from the
suit brought by Hor, based on indemnification by the City. However, this ignores
the clear, and separate, pecuniary interest a law enforcement officer has in not
having their credibility called into question such that impeachment evidence is
available to be used against them in future cases.
If Grant was found by the trial court to have made inconsistent statements
under oath, any cases in which he was involved as an arresting or investigating
officer could be jeopardized and any prosecuting authority utilizing him as a
witness in future cases may be obligated to disclose such information to opposing
counsel. It is perhaps axiomatic that one of the key functions of a law enforcement
officer is to provide testimony in their official capacity. When testifying under oath,
officers, like other witnesses, are subject to impeachment. See ER 608.
Brady v. Maryland makes clear the obligation of a prosecutor to disclose
favorable evidence in their possession to the defense. 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963); See also CrR 4.7. Favorable evidence in this context
includes impeachment evidence, as well as potentially exculpatory evidence.
State v. Davila, 184 Wn.2d 55, 70, 357 P.3d 636 (2015). If an officer is found to
have possible impeachment evidence associated with them, such that notification
must be issued to defense under Brady, this could have tangible consequences as
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to the officer’s pecuniary interests.5 A determination that one is a “Brady” officer
impacts promotions, lateral transfers or change of agencies, and can even result
in termination if the underlying impeachment information is sufficiently serious or
damaging.
At the time Grant made these statements to other officers, they were against
his pecuniary interest in that they could have subjected him to greater scrutiny of
his credibility in future cases, impacting his ability to effectively carry out that
essential function of a police officer to credibly testify. Any such findings by the
trial court, which could be made during the CR 60 motion (or if perjury charges
were later brought), would then obligate the State to provide this information to
defense under Brady in any criminal prosecutions in which he was professionally
involved as a law enforcement officer. Such a determination can be sufficiently
stigmatizing as to have immediate and long lasting professional impact. If Grant’s
purported post-trial statements are to be believed, Estes’ declaration indicating that
Grant had characterized his conduct as having “betrayed the badge or something
like that” would demonstrate his awareness of the specific implications of
inconsistent testimony or perjury for a police officer. We find that the trial court
abused its discretion in failing to recognize this clear pecuniary interest for a
witness employed as a law enforcement officer. Given our conclusion that the
statements were against Grant’s pecuniary interest, we need not also determine
5 Criminal law practitioners often refer to such officers as “Brady” officers or officers “on the
Brady list” based on a known need to disclose potential impeachment information and the
implications that can have on criminal prosecutions.
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whether the statements subjected him penal or civil liability as any of these bases
may result in admission as a hearsay exception under ER 804(b)(4).
Once a determination is made that a statement is against one’s interest,
then the trial court must determine the reliability of the statement. “Our Supreme
Court long ago established that to determine whether a hearsay statement against
interest satisfies the requirement of trustworthiness, courts should assess a
statement’s reliability using a nine-factor reliability test.” State v. J.K.T., 11 Wn.
App. 2d 544, 566, 455 P.3d 173 (2019). The nine-factors are:
1. Was there an apparent motive for declarant to lie?
2. What was the declarant’s general character?
3. Did more than one witness hear declarant’s statement?
4. Was the statement made spontaneously?
5. Did the timing of the statements and the relationship between
declarant and witness suggest trustworthiness?
6. Does the statement contain an express assertion of past facts?
7. Did the declarant have personal knowledge of the identity and role
of the crime’s other participants?
8. Was the declarant’s statement based upon faulty recollection?
9. Was the statement made under circumstances that provide reason
to believe the declarant misrepresented defendant’s involvement in
the crime?
Id. (citing State v. Roberts, 142 Wn.2d 471, 497-98, 14 P.3d 713 (2000)).
As the court did not find that the statements were such that they subjected
Grant to criminal liability or went against his pecuniary interest, it did not reach the
nine factors. The court noted that Grant had acknowledged his lack of memory
and, thereby, the reliability of his statements. Additionally, the record supports that
he had provided inconsistent statements such that the credibility of his memory as
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to a pursuit were already comprehensively raised at trial. This secondary analysis
is necessary to determine if reliability is sufficient to admit Grant’s statements into
evidence. The trial court is in the best position to weigh such factors in the full
context of all of the evidence presented.
II. Relief from Judgment
“On appeal, a trial court’s disposition of a motion to vacate will not be
disturbed unless it clearly appears that it abused its discretion.” Lindgren v.
Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990). “Abuse of discretion means
that the trial court exercised its discretion on untenable grounds or for untenable
reasons, or that the discretionary act was manifestly unreasonable.” Id. We are
unpersuaded by Hor’s argument on appeal that this court should apply a less
deferential standard of review because the judge who ruled on the CR 60(b)(4)
motion was not the same judge who heard the trial. Neither are we moved by the
assertion of the parties at oral argument that this court could, or should, rule on the
merits of the CR 60(b)(4) motion.
Under CR 60(b)(4), a trial court may vacate a judgment entered which was
procured by fraud, misrepresentation, or misconduct. “The rule is aimed at
judgments unfairly obtained, not factually incorrect judgments.” Sutey v. T26
Corporation, 13 Wn. App. 2d 737, 756, 466 P.3d 1096 (2020). “[T]he fraudulent
conduct or misrepresentation must cause the entry of the judgment such that the
losing party was prevented from fully and fairly presenting its care or defense.”
Lindgren, 58 Wn. App. at 596 (emphasis omitted). The party attacking the
judgment under CR 60(b)(4) “must establish the fraud, misrepresentation, or other
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misconduct by clear and convincing evidence.“ Id. Further, perjury alone does not
necessarily rise to the level of fraud to warrant a vacation of judgment. Doss v.
Schuller, 47 Wn.2d 520, 526, 288 P.2d 475 (1955). Even then, the perjury must
be of “controlling importance” as to the determination of liability. Id.The court here denied the motion for relief from judgment based on the fact
that, absent Grant’s excluded post-trial statements, Hor had no evidence to meet
the standard for a CR 60 motion. In light of our reversal of the trial court’s ruling
on the admissibility of those statements, however, the parties will have an
opportunity to further litigate this issue and the court will consider the CR 60
standards anew. It may, at its discretion, order further discovery to provide a more
comprehensive record upon which to base its ruling. While we have offered
guidance with regard to admissibility of Grant’s purported statements, the trial court
is best situated to consider the impact they might have had on a jury and the final
judgments entered in this case.
We reverse and remand for proceedings consistent with this opinion.
WE CONCUR:
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