Opinion
No. 58337-9-I.
September 24, 2007.
Appeal from a judgment of the Superior Court for King County, No. 06-1-01312-0, Julie Spector, J., entered May 23, 2006.
Affirmed by unpublished per curiam opinion.
Appellant Gonzalo Bartolo-Hernandez was convicted of second degree assault with a deadly weapon. He claims that the trial court erred when it did not allow him to cross-examine his wife about the source of the injury on her neck, which he believed to be a "hickey" from an extramarital affair. She claims the injury was a result of the assault. Bartolo-Hernandez argues that he was deprived of his federal Sixth Amendment right to confront and cross-examine an adverse witness, the ability to impeach the witness and the opportunity to present relevant and probative evidence to the jury. Concluding that any error committed by the trial court was harmless in light of the other evidence admitted, we affirm.
FACTS
Appellant Gonzalo Bartolo-Hernandez and Evelia Villegas are married. On the evening of January 28, 2006, Villegas returned home late from work. Bartolo-Hernandez suspected that her late-night returns indicated she was having an extramarital affair.
The next morning, they awoke around 8 am and went together to sign tax papers. They arrived back home about 11 am. Bartolo-Hernandez then left to take their children to a movie, returning home in the early afternoon. He testified that he then saw a mark on her neck that he thought was a "hickey." He testified that because he had seen her kissing another man a year ago, he suspected that she was still cheating on him. He stated that he suspected her late returns home were because she was going out with another man after work. He testified that she had admitted as much "[o]ne year before and maybe four months before, before the incident." He identified the photo of the injury on her neck as a hickey. He testified that she acted "scared and she got kind of nervous when [he] ask[ed] her about that." He stated that he was upset at the thought of Villegas cheating on him, so he followed her into their bedroom with a knife, but never pointed it towards her. Instead, he testified that he only used it to threaten to kill himself. When asked why he chose to make such a threat in front of her, he replied "[s]o she will see me taking my life away if she didn't need me at all . . . I didn't want to be in her way . . . if she wanted to have another relation out there, that was fine." Villegas testified that she thought Bartolo-Hernandez was upset because she came home late from work the previous evening. Her testimony indicates that while she was in their bedroom folding clothes, he entered, pushed her onto their bed and began to strangle her. She pushed him away, and he left the bedroom. Then, he returned with a knife. She stated that he pushed her back on the bed and held the knife over her. She testified that he threatened to kill both of them because "[h]e couldn't stand anymore her cheating on [him]." Villegas testified that she told him to think of their children, but Bartolo-Hernandez replied "it doesn't make any difference because you're going to die; are you ready to die?" Villegas also testified that he told her that "I'm going to kill you first and then I'm going to kill myself, and then when the children come back [from a movie], both of us are going to be dead." When she was shown a photograph of the mark on her neck, she testified that it was from her husband's assault. When defense counsel asked her whether she had had the mark before January 29, she replied "[h]ow could I possibly have it before January 29th? That's — I got it when he squeezed my neck."
Villegas testified that she escaped and called the police. They arrived within four to five minutes to find her hysterical and "crying so hard she would gasp for air, so her sentences were very broken." The officer who spoke with Villegas testified that she observed red marks on her neck. The officers took Bartolo-Hernandez into custody. He was charged with one count of felony harassment and second degree assault while armed with a deadly weapon. RCW 9A.46.020; RCW 9A.36.021(1)(c); RCW 9.94A.602, 9.94A.510.
Villegas visited a clinic on February 1, two days after the reported assault. The doctor testified that when she palpated Villegas' neck and shoulder region, Villegas indicated that it was tender. The doctor also testified that Villegas told her that Villegas was feeling anxious and having trouble sleeping. Villegas' doctor was shown a photo of the red marks on Villegas' neck, taken on the day of the reported assault. The State asked whether it was "consistent with . . . a pressure abrasion?" The doctor answered. "Well, I think these markings appear to be the result of some sort of direct pressure or contact to this region . . . yes." The State also asked whether it was "inconsistent or consistent with someone pushing their thumb into someone's throat." The doctor answered "[w]ell, certainly it may be consistent with that, maybe a potential possibility." Defense counsel pointed out that while the doctor's report showed that Villegas had told that doctor that she was shaken by her husband, it did not show that she had been choked. Villegas' doctor agreed. She also agreed when defense counsel confirmed that she did not see any marks on Villegas' neck on the day of her examination.
A jury convicted Bartolo-Hernandez of the assault charge, but could not agree on the felony harassment. Bartolo-Henandez timely appeals his conviction, assigning error to the trial court's refusal to allow him to cross-examine Villegas. He also files a statement of additional grounds.
ANALYSIS
Bartolo-Hernandez maintains that he should have been allowed to question Villegas about the source of the injury to her neck. His theory is that Villegas fabricated the assault to justify a divorce and formalize her extramarital relationship. Because the trial court disallowed such questioning, Bartolo-Hernandez argues he was deprived of his constitutional right to confront an adverse witness, the opportunity to present highly relevant and probative evidence to the jury, and the ability to impeach Villegas' testimony. We review the trial court's decision for abuse of discretion. See State v. Jones, 67 Wn.2d 506, 513, 408 P.2d 247 (1965) (review of trial court's denial of cross-examination); State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999) cert. denied, 120 S. Ct. 285 (1999) (review of trial court's decision on the admissibility of evidence). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The Sixth Amendment and article I, section 22 of the Washington Constitution grant criminal defendants two separate rights; (1) the right to present evidence in one's defense and (2) the right to confront witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). First, evidence presented must be relevant evidence. State v. Gallegos, 65 Wn. App. 230, 237, 828 P.2d 37 (1992) (citing Hudlow, 99 Wn.2d at 15.) "Relevant evidence" means evidence having any tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence Rule (ER) 401. Second, "[a] trial court may, in its discretion, reject cross-examination where the circumstances only remotely tend to show bias or prejudice of the witness, where the evidence is vague, or where the evidence is merely argumentative and speculative." State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980). However, while the scope of confronting a witness is within the trial court's discretion,
"[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.? . . . ?[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'"
State v. Gregory, 158 Wn.2d 759, 883, 147 P.3d 1201 (2006) (quoting Olden v. Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988) (citations omitted)). Finally, ER 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Evidence is prejudicial if "it tends to arouse an emotional, irrational, or confused response from the trier of fact." State v. Rice, 48 Wn. App. 7, 737 P.2d 726 (1987).
Here, questioning Villegas about the mark on her neck in order to show that she was engaged in an extramarital affair may have been relevant. It goes to the possibility that she would have been motivated to lie about the assault. Further, while the argument that the mark on Villegas' neck was a hickey was speculative, the possibility that it may reveal an extramarital affair, and as such, her motive to lie, could have been enough to allow Bartolo-Hernandez to pursue his proposed line of cross-examination. And while questioning Villegas about a possible extramarital affair may have created a jury bias against her, whether it was unfairly prejudicial is questionable, especially because Bartolo-Hernandez's testimony indicated that she had admitted an affair to him.
However, even if the above conclusions are true, and the trial court abused its discretion, we conclude that the trial court's decision to disallow Bartolo-Hernandez's proposed line of cross-examination was harmless error. A confrontation clause violation constitutes harmless error if the reviewing court finds the error was harmless beyond a reasonable doubt. Olden, 488 U.S. 227. In making this determination, we analyze a host of factors that include "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case." Id. at 233.
Here, Villegas' testimony was important in the prosecution's case and not necessarily cumulative. It was corroborated by the police reports, the police officer's testimony, and her doctor's report. While Bartolo-Hernandez was not permitted to cross-examine her about a possible affair, he was allowed to present a photograph of the mark on her neck and ask her about the source of that mark. Villegas testified that it was a bruise from her husband's strangulation assault. Bartolo-Hernandez was also permitted extensive and detailed cross-examination about the actual incident itself. This cross-examination was not interrupted by objections from the prosecution. Further, Bartolo-Hernandez himself testified extensively about his belief that the mark was a hickey resulting from an extramarital affair. During his testimony he stated several times that he believed that his wife was cheating on him, that she had admitted as much to him, and that he had seen her kissing another man. By his testimony, he put evidence of the alleged affair before the jury. The jury could draw inferences from this evidence relating to Villegas' reliability. Her explanation that the mark on her neck was a bruise from his assault was an implicit denial of this allegation. Asking her whether it was a result of extramarital sexual contact would not have resulted in a different outcome, particularly in light of the substantial evidence supporting the assault charges and the speculative nature of the defense theory. Any error was harmless beyond a reasonable doubt.
Statement of Additional Grounds
In his statement of additional grounds, Bartolo-Hernandez repeats the argument that Villegas was biased against him and fabricated the assault because she wanted to divorce him. He argues that she knew he would never grant her a divorce because his immigration status depended on his marriage to her. However, he does not provide any documentation of his immigration status, and his other arguments about her motivation have already been addressed. Without any evidence of his immigration status, we decline to review this argument.
Bartolo-Hernandez also contends that Villegas' version that she gave to the police on the day of the incident was inconsistent with what she told the prosecutor and the defense attorney during a pre-trial conference. While the appellate record contains the police statement of probable cause for arrest, which is consistent with Villegas' testimony, it does not contain any documentation of Villegas' conversation with the attorneys. Without reference for purposes of comparison, we cannot review Bartolo-Hernandez's claims of inconsistency.
We affirm.