Opinion
40929-1-II
01-31-2012
STATE OF WASHINGTON, Respondent, v. ADRIAN TROY ABRAM, Appellant.
UNPUBLISHED OPINION
Hunt, J.
Adrian Troy Abram appeals his jury trial conviction for intimidating a witness (domestic violence). He argues that his trial counsel provided ineffective assistance in failing to request a limiting instruction after the trial court admitted evidence of prior domestic violence acts under ER 404(b). We affirm.
In his opening brief, Abram also argued that the trial court erred in failing provide a limiting instruction to sua sponte. But in his subsequent reply brief, he recognizes that our Supreme Court recently held in State v. Russell that a "trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such limiting instruction." 171 Wn.2d 118, 124, 249 P.3d 604 (2011). Consequently, Abram has withdrawn this argument from our consideration on appeal.
FACTS
I. Background
On August 6, 2009, Tacoma Police Officers Eric Barry and Dean Waubanascum responded to a third-party report of domestic disturbance at Sharonea Larkins' home. When they arrived, Waubanascum spoke to a "reluctant" and "nervous" Larkins in the living room, and Barry talked to Adrian Troy Abram in the kitchen. 1 Verbatim Transcript of Proceedings (VTP) at 78, 80. Shaking and appearing to be afraid, Larkins told Waubanascum that (1) she and Abram had a one-year-old baby, (2) Abram had been living at her house for a year and a half, and (3) she was tired of "fighting" with him and "wanted him gone." 1 VTP at 188. Waubanascum believed that Larkins was trying to keep Abram from seeing her talking to Waubanascum.
Meanwhile, after advisement of his Miranda rights, Abram talked with Barry in the kitchen while repeatedly attempting to move into a position from which he could see Larkins; Barry, however, kept Abram from maintaining that position. Abram told Barry that he had lived in Larkins' home for about a year and that he and Larkins had been arguing before the officers arrived. Abram's identification card confirmed that he lived at this address. But a records check revealed that Abram was a registered sex offender who had registered as a transient. Because Abram had told Barry that he had been living in Larkins' home, Barry arrested Abram for failure to register as a sex offender. Abram then insisted that he was registered and that he was in fact a transient.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
As Barry was escorting Abram past Larkins, Abram gave Larkins a "mean look." 1 VTP at 73. As Barry was putting Abram in the back of the patrol car, Barry and Waubanascum heard Abram say "very loudly, " "'You better not tell them nothing. I'll be out soon.'" 1 VTP at 73. Barry believed this comment was directed to Larkins and it appeared that she heard it; but he could not be sure that she had heard it. Waubanascum, who was standing near Larkins on the porch at the time, also believed that Larkins heard Abram's comment because she looked upset.
After transporting Abram to jail, the officers returned to talk to Larkins, who then seemed more willing to talk with the officers. Larkins told them that she and Abram had argued, that he had pushed her, and that he had assaulted her during arguments in the past. But she refused to provide a written statement because she was "afraid"; she explained, the last time she had given a written statement, "'He gave [her] the worst beating of [her] life'" and "a finger was broken." 1 VTP at 199, 204. She also told the officers that she had called Abram's grandmother that evening instead of the police because she did not want Abram to know she was calling the police.
II. Procedure
The State charged Abram with failure to register as a sex offender, intimidating a witness (domestic violence), and tampering with a witness (domestic violence).
A. Motion in Limine To Admit ER 404(b) Evidence
Anticipating that Larkins would deny that Abram had told her not to say anything and would recant her statements to the officers, the State moved in limine to admit under ER 404(b) evidence of prior domestic violence incidents between Abram and Larkins. The State argued that this prior domestic violence history would also be admissible in relation to the witness tampering and intimidation charges because it was relevant to Larkins' state of mind and to Abram's intent in making the statements he had made to Larkins while Barry was putting him in the patrol car. Defense counsel agreed that prior domestic violence incident evidence would be admissible for limited purposes.
Following a CrR 3.5 hearing, the trial court ruled admissible Abrams' admonishments to Larkins not to talk with the police. Abram does not challenge that ruling.
The trial court ruled that evidence of the prior domestic violence incidents would be admissible as "relevant to the fear and to the context of the alleged threat and the context of the alleged intimidation." 1 VTP at 20. The trial court noted, however, that with regard to the previous domestic violence incidents, the exact parameters of what was admissible and what limiting instructions might be required were issues that would need to be addressed as the trial progressed. But during trial, neither party raised any additional ER 404(b) issues or asked the trial court to give any limiting instruction concerning the prior domestic violence incidents.
B. Trial
1. Larkins' testimony
At trial, Larkins testified that she had known Abram for five years, she was aware he was a sex offender who was required to register with the sheriff's department, he "lived with [her] on and off" and kept "clothes and stuff" at her house, and he also stayed with "his other baby's mom and his other girlfriends." 1 VTP at 87. On August 6, 2009, she and Abram had been "arguing" at her house for more than a day; when he refused to leave, she called his grandmother and told her that "she better come get him" or she (Larkins) would call the police. 1 VTP at 106. Larkins denied having told the officers that Abram had been living with her, that Abram had pushed her, that Abram had once broken her finger, that she did not want to give a written statement because Abram had beaten her when she had given statements in the past, or that she did not call 911 herself because she was afraid Abram would physically assault her. She also denied having heard Abram threaten her or instruct her not to say anything as the officers were putting him into the patrol car. She instead testified that Abram had yelled at her to tell the officers "'what happened'" and to "'[l]et them know what's going on.'" 1 VTP at 112.
Larkins acknowledged that there had been several other incidents involving Abram in which she had called the police and that he had once broken her finger by "accident" when he was trying to take his phone from her hand. 1 VTP at 119. Although unsure whether she had provided any written statements about those earlier incidents, she identified a statement she had written relating to an incident in which Abram had "pushed [her] and [taken her] phone, pushed [her] face." 1 VTP at 123. She also acknowledged another incident in which Abram had damaged her door and her nose was somehow "scratched" while they were "tussling"; she could not remember if he had had a gun during that incident, and she denied having told the responding officer that Abram had said, "'Bodies are going to be dropping.'" 1 VTP at 126-27. Larkins did admit, however, that Abram's cousin had told the police about a gun that night.
When the State asked if she had previously declined to pursue charges against Abram because she was "afraid" of him, Larkins denied being "afraid"; but she responded, "[S]ometimes the law don't handle stuff the way they should, and then when people handle it on their own, it ends up the wrong way." 1 VTP at 146. She confirmed that, although the police had previously responded to several incidents involving her and Abram, this was the first time she had ever testified.
2. Officer Shipp's testimony
The State called Tacoma Police Officer Christopher Thomas Shipp to rebut Larkins' testimony. Shipp testified that he had responded to a domestic violence call at Larkins' residence on May 24, 2009. When he arrived, Larkins was standing at the front door, which had been "kicked in"; she had a fresh scratch on her nose. 2 VTP at 228. She told Shipp that Abram had arrived at her home and had pounded on the door; when she refused to let him in, he had kicked in the door and entered her home. Inside, they argued; Abram scratched her nose when he slapped her, pulled out a gun, and started waving it around while commenting that "bodies were going to drop, and blood was going to be shed." 2 VTP at 229. Larkins told Shipp that Abram "fled the residence" a "short time" later and that she waited about an hour and forty minutes to call the police because "[s]he was worried about repercussions from Mr. Abram, basically, towards her and her family members." 2 VTP at 229-30.
3. Abram's testimony
Abram testified that when Barry arrested him, he (Abram) was angry and yelling at the officers because he believed he was being falsely arrested. He claimed that he yelled at Larkins to ask her to explain the situation to the officers, to tell them he did not live there, and to make her stop standing there and "say something." 3 VTP at 436.
C. Closing Arguments and Verdict
In closing argument, the State noted that Larkins had "denied everything that might really hurt the defendant at trial": She denied having told officers that Abram had pushed her on August 6, 2009; that she was afraid of Abram; that the last time she had filled out a written statement, Abram had "gave her the worst beating she had ever had and broke her finger"; and that Abram had previously slapped her and threatened her with a gun. 4 VTP at 562.
4 VTP at 561.
The State also emphasized that the intimidating-a-witness charge required the jury to consider Abram's comments to Larkins "in the context where a reasonable person in [Abram's] position . . . would know that the threat was going to be taken as such, that it was going to be taken as though it were a threat." 4 VTP at 566-67. The State stressed that the question of what Abram had said to Larkins came "down to credibility" and that, taken in the "context" of their relationship and Larkins' prior experiences with Abram, these statements were a clear threat intended to keep Larkins from cooperating with the police. 4 VTP at 567.
Defense counsel argued that (1) it would not make sense for Abram to tell Larkins not to tell the police anything when she could verify that he did not live with her; (2) Larkins had testified that she was not "intimidated" or "threatened" by Abram's statements; (3) Abram and Larkins had "a history"; and (4) their relationship was not "ideal." 4 VTP at 583. In rebuttal, the State again emphasized that the prior incidents between Abram and Larkins were relevant to credibility issues and to Abram's intent when he was yelling at Larkins.
4 VTP at 579.
4 VTP at 583.
The jury found Abram not guilty of failure to register as a sex offender and guilty of witness tampering and intimidating a witness. The jury also found that Abram and Larkins were members of the same family or household. The trial court dismissed the witness tampering conviction on double jeopardy grounds. Abram appeals his remaining conviction for intimidating a witness.
ANALYSIS
Abram argues that defense counsel provided ineffective assistance in failing to request a limiting instruction on the evidence related to the prior acts of domestic violence. This argument fails.
I. Standard of Review
To establish ineffective assistance of counsel, Abram must show that counsel's performance was deficient and that this deficient performance was prejudicial. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Abram must overcome "a strong presumption that counsel's performance was reasonable." State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009); see also State v. Breitung, No. 84580–8, 2011 WL 6824965, at *3 (Wash. Dec. 29, 2011) (Strickland standard is highly deferential and courts presume that counsel's performance was adequate). "To rebut this presumption, the defendant bears the burden of establishing the absence of any 'conceivable legitimate tactic explaining counsel's performance.'" State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)); see also Brietung, 2011 WL 6824965 at *2.
Failure to request a limiting instruction can be a legitimate tactic to avoid reemphasizing damaging evidence. State v. Yarbrough, 151 Wn.App. 66, 90, 210 P.3d 1029 (2009) (citing State v. Price, 126 Wn.App. 617, 649, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005)). Thus, Abram must rebut this strong presumption of reasonable performance by demonstrating that counsel's tactical choice would have been unreasonable given the circumstances here. See Breitung, 2011 WL 6824965 at *3; Grier, 171 Wn.2d at 34 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)); State v. Dow, 162 Wn.App. 324, 335-36, 253 P.3d 476 (2011). This he fails to do.
II. Failure To Show Ineffective Assistance of Counsel
Abram asserts that defense counsel's failure to request a limiting instruction was not a reasonable tactical decision because (1) the prior domestic violence evidence was highly prejudicial; (2) the jury could have misused it as propensity evidence; and (3) during the pretrial hearing, counsel had argued that there should be a limitation on this. We disagree.
In a footnote, Abrams cites 11 Washington Pattern Jury Instructions: Criminal 5.30, at 180 (3d ed. 2008), and asserts that defense counsel should have requested a limiting instruction similar to the one our Supreme Court approved in State v. Magers:
"Evidence has been introduced in this case on the subject of the defendant's prior bad acts for the limited purpose of the victim's state of mind and her credibility. You must not consider this evidence for any other purpose."164 Wn.2d 174, 186-87, 189 P.3d 126 (2008) (internal citation omitted). Magers, however, addressed the impact of prior domestic violence on the victim's credibility and "state of mind regarding her fear of" the defendant, which were relevant to an assault charge against him.
See Br. of Appellant at 18 n.5.
Magers, 164 Wn.2d at 177-78, 187 (emphasis added).
Magers did not address the situation here-the relevance of prior domestic violence to defendant Abram's intent or the context of his statements, which were relevant to the intimidating-a-witness charge against him. RCW 9A.72.110(1) provides that a person intimidates a witness if he, "by use of a threat, " attempts to influence the witness's testimony, induce that person to elude legal process, or induce the person to absent his or herself from the proceedings. Here, the trial court instructed that determining whether a statement is a "threat" for purposes of this crime requires the jury to examine the defendant's intent and the context of the statement:
Threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person or to do any other act that is intended to harm substantially the person threatened or another with respect to that person's health, safety, business, financial condition, or personal relationships.
To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk.
As used in these instructions, threat also means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.CP at 66 (Instruction 15) (emphasis added). Thus, Magers is not instructive here.
As our Supreme Court recently noted in Grier and Breitung, the threshold for establishing deficient performance is high, and we give great deference to defense counsel's decisions, strategic and otherwise, during the course of representation. Breitung, 2011 WL 6824965 at *2-3; Grier, 171 Wn.2d at 33-34. Abram fails to overcome the strong presumption that defense counsel's performance was adequate, and he fails to show that his trial counsel rendered ineffective assistance.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: Armstrong, P.J. Johanson, J.