Opinion
No. 33795-9-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01337-1, Theodore F. Spearman, J., entered September 9, 2005.
Counsel for Appellant(s), Michelle Bacon Adams, Attorney at Law, Port Orchard, WA.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Van Deren, J.
Leroy Dixon appeals his convictions for second degree assault and violation of a no contact order. He argues that the trial court abused its discretion (1) by allowing evidence of a prior assault contrary to ER 404(b), (2) by allowing evidence of letters Dixon wrote from jail after his arrest, and (3) by refusing to allow Dixon to admit testimonial evidence that was relevant to his defense, which also constituted constitutional error. In his Statement of Additional Grounds (SAG) of Review, Dixon also asserts that (4) the State committed a discovery violation, and (5) he received ineffective assistance of counsel. We affirm.
FACTS I. The Incidents A. Assault
Bremerton Police Officer Michael Davis responded to a domestic dispute at 129 Bloomington, and learned from dispatch that the victim had left the scene and had driven to her residence at 1930 9th Street. Davis proceeded to the victim's residence and met Beverly Atkins. She was upset, crying, and "fearful." Davis noticed that Atkins' right eye was swollen shut, her neck was swollen, she had abrasions on both cheeks, scratches, a cut, and swollen lip. After, Officer Martin Garland arrived to assist. Davis's further inspection revealed finger indentations on Atkins' neck and bruising. Garland also observed bruise and strangulation marks on Atkins' neck. Atkins did not appear intoxicated.
Atkins also goes by the nickname "Cookie."
After briefly calming down, Atkins gave the officers her statement about what had happened. She said that (1) she had been at her husband, Leroy Dixon's, apartment; (2) they had gone out; (3) when they returned, they were lying in bed arguing about their living arrangements and relationship; (4) during the argument, Dixon rolled on top of her, began strangling her, and then began punching and head-butting her; and (5) she escaped by telling Dixon what she believed he wanted to hear, waited for him to fall asleep, then left, went to her car, and called 911 from the parking lot.
At Davis's request, Officers John Bogen and Daniel Fatt went to Dixon's apartment to investigate. When Dixon answered the door, the officers asked to speak with him. Dixon stated that he was naked, and the officers asked him to put on clothes. Dixon walked into the back bedroom and the officers followed.
Dixon appeared to have recently awakened; he did not appear to be under the influence of drugs or alcohol. He admitted that he had been involved in an incident with his wife, Atkins, earlier that evening; he claimed that she had been going crazy and that he had "tr[ied] to control her." Dixon admitted having grabbed Atkins by her hands, but not by her neck. During their interview of Dixon, the officers noticed recent blood on the wall and the bedding.
Officers Bogen and Fatt received a radio message from Officer Davis that there was probable cause to arrest Davis, which they did. Bogen and Fatt brought Dixon to Davis at Atkins' 9th Street location. Davis examined Dixon to see if his injuries were consistent with Atkins' statement. Davis noticed a bump in the middle of Dixon's forehead, a slight cut on his forehead, and small cuts on his hands and one elbow. The officers then took Dixon to the Kitsap County Jail.
B. Violation of No-Contact Order — Letters From Jail
On September 1, 2004, the State filed an information against Dixon, Dixon was arraigned, and the court entered a no contact order prohibiting Dixon from contacting Atkins. Subsequently, Atkins received four letters Dixon wrote to her from jail, postmarked September 10, September 23, October 6, and October 19.
II. Procedure
On January 3, 2005, the State filed an amended complaint, adding a charge for violation of the no contact order. At this point, Dixon was facing three charges: (1) first degree assault, Count I; (2) second degree assault, Count II; and (3) violation of a court order, Count III.
A. Pre-Trial
The parties raised several evidentiary issues in pretrial motions. First, the State sought to introduce evidence of a prior May 2004 domestic violence incident involving Dixon and Atkins' son, Antwan. Dixon's counsel objected that the evidence was inadmissible evidence of prior bad acts, and that any probative value was outweighed by the prejudicial effect. The State argued that the prior incident was evidence of Dixon's motive in assaulting Atkins, which helped the State prove he had intent to commit the assaults. The trial court ruled admissible that there was a prior incident involving Dixon, for which Dixon was arrested and spent eight days in jail as a result, after which a no contact order was entered on September 1, 2004, prohibiting Dixon from contacting Antwan.
We use Antwan Atkins' first name for the sake of clarity. No disrespect is intended.
At trial, the State elicited testimony from Atkins that Dixon had been involved in a prior incident with her son resulting in eight days jail time and a no-contact order. However, the State also disclosed in closing argument that the prior incident involved an assault.
Second, the State sought admission of the four letters Dixon had written Atkins from jail after August 28, 2004. The State argued that these letters were admissible to show violation of the September 1, 2004 no-contact order prohibiting Dixon from contacting Atkins, to show Dixon's "consciousness of guilt" and to rebut his self-defense argument. Defense counsel argued that (1) for purposes of the violation of the no-contact order charge, they had stipulated that Dixon wrote the letters and, therefore, they were irrelevant; and (2) even if relevant to the assault charges, their prejudicial effect outweighed their probative value. The trial court ruled pre-trial that only one sentence from the letters was admissible to show Dixon's consciousness of guilt.
B. Trial
At trial, the State and Dixon offered different accounts of what had happened, and both Dixon's and Atkins' testimonies differed from their initial statements to police.
1. Atkins' testimony
Atkins testified that (1) she had gotten off work at a local Safeway and went to Dixon's apartment; (2) she saw that Dixon had been drinking; (3) they decided to go to a local lounge/restaurant in west Bremerton, where they stayed for several hours, drinking and shooting darts; (4) they left the lounge around midnight; (5) upon returning to Dixon's apartment, she fell asleep in the bedroom, but Dixon did not go to bed; (6) about four hours later, she was awakened by lights and voices in the living room; (7) when she went into the living room, she found two unknown females and what she described as "white balls" on the table; (8) she identified herself as Dixon's wife and became upset; (9) one of the women apologized, said, "I'm not going to disrespect you from one sister to another sister," Report of Proceedings (RP) at 147-48, and left with the other woman; (10) as Dixon followed them out, Atkins heard one of the women say, "[G]et your sh#t from somewhere else because I'm not disrespecting your wife," RP at 151; (11) Dixon returned to the apartment, struck Atkins with a closed fist at least five times; (12) Atkins backed into the bedroom and fell on the bed; (13) Dixon got on top of her, held her wrists, began head-butting her, saying, "I'm going to kill you, bitch," RP at 159, and then began to strangle her; (14) Dixon accused her of setting him up to go to jail, referring to an incident in May 2004; (15) she nearly lost consciousness; (16) Dixon let go when she called, "Jesus," and she got up and went to the bathroom while Dixon lay on the bed; (17) when she returned from the bathroom, she picked up a lamp and raised it over her head while standing over Dixon, then elected to do nothing and set it back down, not damaging the lamp in any way; (18) she then tried to leave, but Dixon responded, "You are not going anywhere because I'm not going to jail," RP at 166; and (19) she pacified Dixon until he fell asleep, at which point she left, went to her car, and drove to the back of the building, where Dixon could not see her, and called 911.
In May 2004, Dixon was arrested for assaulting Atkins' son, Antwan Atkins, at Atkins' home, where he was living at the time. The incident resulted in a no-contact order prohibiting Dixon from contacting Antwan. Dixon served eight days in jail. Dixon and Atkins lived apart because of the May 2004 no-contact order.
2. Dixon's testimony
Dixon testified that: (1) although he did not give Atkins a key, about five times between the end of July and the end of August, she was in his apartment without being admitted by him; (2) they often argued about money; (3) Atkins wanted him to continue partially supporting her even though he no longer lived in her home; (4) on August 27, 2004, he got off work around 5:00 p.m., stopped to buy groceries, and visited Atkins at her work at Safeway; (5) they agreed she would meet him at his apartment when she got off work around 7:00; (6) while waiting for Atkins at home, Dixon had several drinks of liquor at his apartment; (7) when Atkins arrived around 8:00, they went to Dixon's bank, where Dixon withdrew $360 to help Atkins with a loan repayment; (8) then they returned to Dixon's apartment, where Atkins began drinking liquor and Dixon began drinking beer; (9) shortly thereafter, they left to shoot darts at a nearby lounge; (10) after several drinks, dart games, and karaoke, they returned to Dixon's apartment, where they continued drinking; (11) around 1:00 a.m., Atkins fell asleep in the bedroom and Dixon fell asleep in the living room; (12) a knock at the door awakened Dixon; (13) at the door was a female Dixon had met approximately a week ago, celebrating her August 27 birthday, with a friend Dixon did not know; (14) the birthday woman had stopped by for a drink Dixon had promised her earlier in the week; (15) the women did not appear to have any drugs with them; (16) Atkins emerged from the bedroom, angry, and told the women to leave; (17) the women left, Dixon followed them to their car, returned to his apartment, and told Atkins to dress and to leave, which she did.
According to Dixon, after Atkins left his apartment, (1) Dixon called her on her cell phone from his home phone, Atkins answered, and they continued to argue about money; (2) after the conversation, Dixon showered and fell asleep in the bedroom; (3) the next thing he remembered was being hit on the back by a "bright light," at which point he began defending himself, "swinging" at the person in his bedroom; (4) the ensuing tousle caused the "bright light" to break and caused Dixon and the other person to hit heads; (5) Dixon strangled his alleged assailant but stopped when he recognized Atkins' voice; (6) Dixon attempted to call 911, but Atkins had pulled the phone cord from the wall; (7) shortly thereafter, Atkins left, and Dixon fell asleep.
Dixon claimed he was hit with a bedside lamp.
Defense counsel attempted to offer evidence in support of the argument that Atkins had a desire for Dixon's money and that she had access to his apartment even though she did not have a key. Defense counsel wanted to admit testimony from Dixon's apartment manager, Ethel Cook, that she saw an African American woman and two other men carrying items out of Dixon's apartment only a few days after his arrest. The trial court did not allow this evidence because it was irrelevant and collateral to the case.
The trial court also reconsidered its pretrial ruling and admitted into evidence all but a few redacted sentences from Dixon's jail letters to Atkins, to rebut his argument that he had assaulted what turned out to be Atkins in self-defense.
The jury found Dixon guilty of second degree assault and violation of the no-contact order. Dixon appeals.
ANALYSIS I. Evidentiary Rulings A. Standard of Review
Admission of evidence is within the sound discretion of the trial court, which we will not disturb on review absent a showing of abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). Abuse occurs when the trial court's discretion is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wn.2d 538 (1983).
B. May 2004 Assault
Dixon argues that the trial court committed reversible error when it admitted evidence of his prior domestic violence assault on Atkins' son in violation of ER 404(b). We disagree.
Under ER 404(b), evidence of other crimes, wrongs, or acts is presumptively inadmissible to prove character and to show action in conformity therewith. ER 404(b); see, e.g., Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994). But such evidence may be admissible for other purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b); see also State v. Goebel, 36 Wn.2d 367, 369, 218 P.2d 300 (1950). If admitted for other purposes, a trial court must identify that purpose and determine whether the evidence is relevant and necessary to prove an essential ingredient of the crime charged. State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982); State v. Robtoy, 98 Wn.2d 30, 42, 653 P.2d 284 (1982); State v. Tharp, 96 Wn.2d 591, 596, 637 P.2d 961 (1981).
Evidence is relevant and necessary if the purpose of admitting the evidence is of consequence to the action and makes the existence of the identified fact more probable than not. See, e.g., Saltarelli, 98 Wn.2d at 362-63. In deciding whether a proper basis exists on which to admit prior misconduct evidence, we consider bases the trial court mentioned as well as other proper bases on which we might sustain the trial court's admission of evidence. See State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992); Pannell v. Thompson, 91 Wn.2d 591, 603, 589 P.2d 1235 (1979).
The State offered Dixon's May 2004 assault of Atkins' son to show that Dixon had a motive to assault Atkins. Several Washington cases have addressed the admissibility of prior assaults to prove motive for a charged assault, holding that they are admissible to show motive or malice. State v. Powell, 126 Wn.2d 244, 260-61, 893 P.2d 615 (1995); see also State v. Hoyer, 105 Wash. 160, 163, 177 P. 683 (1919), State v. Gates, 28 Wash. 689, 697, 69 P. 385 (1902). Here, Atkins offered testimony that Dixon was angry about their living situation, which was affected by the May 2004 incident no-contact order. We cannot say that the trial court abused its discretion in admitting this evidence.
Alternatively, misconduct evidence may be admissible to rebut material assertions by the defendant, such as self-defense. State v. Thompson, 47 Wn. App. 1, 12, 733 P.2d 584, review denied, 108 Wn.2d 1014 (1987). But such evidence must be relevant, and the trial court must balance its prejudicial effect with its probative value. Id. Dixon claimed that he assaulted Atkins in self-defense. Evidence of his prior domestic assault was relevant to this assertion and rebutted his self-defense theory.
Therefore, we cannot say that the trial court abused its discretion in admitting this evidence.
C. Dixon's Letters to Atkins
Dixon next argues that the trial court erred in admitting the letters he sent Atkins from jail because he stipulated to their existence. He acknowledges that they were essential to proving that he violated the September 1, 2004 no-contact order. Nevertheless, he asserts that the letters were irrelevant and that their prejudicial effect outweighed their probative value. Again, we disagree.
"'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." ER 401. Under this rule, evidence is not considered relevant unless it has a tendency to prove or to disprove a fact that is one of some consequence in the context of the other facts and the applicable substantive law. State v. Sargent, 40 Wn. App. 340, 349, 698 P.2d 598 (1985).
Even relevant evidence, however, may be excludable at the trial court's discretion if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. The burden is on the party seeking to exclude the evidence to show that its probative value is substantially outweighed by undesirable characteristics. Carson, 123 Wn.2d at 221.
A trial court's evaluation of relevance under ER 401 and its balancing of probative value against prejudicial effect under ER 403 will be overturned only for manifest abuse of discretion. Discretion is abused only when no reasonable person would have decided the issue as the trial court did.
State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994) (citations omitted), cert. denied, 514 U.S. 1129 (1995).
Initially, the trial court ruled that only the following short excerpt from Dixon's letters would be admissible, to prove his consciousness of guilt: "Still is. I wish what happened wouldn't had happened. Too much to drink and too much on the mind. Figuring you was against me." RP at 77. But at trial, the court reconsidered its earlier ruling, determined that the substance of the letters was admissible to rebut Dixon's assertion that he acted in self-defense, and admitted most of the letters' contents because Dixon had "opened the door."
A reasonable person could infer from the letters' content that Dixon had a consciousness of guilt, and that the content rebutted his argument of self-defense. The letters contain phrases of guilt, such as, "What a fool I've been to miss treat (sic) such a beautiful and caring woman," "I'm sorry about what happened I'm really I'm (sic) hope you believe me," "I wish what happened wouldn't had (sic) happened. To (sic) much to drink and to (sic) much on the mind figuring you was (sic) against me," and "How you have endured my madness you are truly blameless." Exhibits 24 and 30. He argues primarily that the letters are irrelevant. Neither at trial nor in his appellate brief did Dixon sufficiently explain how the content of the letters prejudiced his case. Instead, he argues only that a jury could interpret the letters as an attempt at witness tampering.
We hold, therefore, that Dixon has failed to show that the trial court acted unreasonably and manifestly abused its discretion in admitting the contents of his letters to Atkins
D. Apartment Manager's Account
Dixon next argues that the trial court erred by denying admission of testimony that Dixon's apartment manager, Ms. Cook, saw a woman enter his apartment days after his arrest. According to Dixon, this evidence was intended to show that Atkins could freely enter Dixon's apartment, supporting his theory of self-defense. The State responds that the trial court properly denied the evidence as irrelevant and speculative. We agree with the State.
Although a defendant has a constitutional right to obtain witnesses and present a defense, a defendant has no right to the admission of irrelevant evidence. There is no constitutional error if the trial court properly finds that the evidence is irrelevant. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). As we stated above, ER 401 governs whether evidence is relevant, and we will reverse a trial court's evaluation of relevance under ER 401 and its balancing of probative value against prejudicial effect under ER 403 only for manifest abuse of discretion. Russell, 125 Wn.2d at 78.
Dixon sought to call Ms. Cook to testify that she saw a woman accompanied by two men enter Dixon's apartment shortly after his arrest. Because Ms. Cook was unable to identify the woman she saw, the trial court determined that her proffered testimony was irrelevant, speculative, and raised a collateral issue that was highly prejudicial with little probative value. The trial court disallowed the testimony.
During defense counsel's offer of proof, Dixon's apartment manager, Ms. Cook, testified that (1) she did not get a good look at the woman, (2) she did not observe any injuries on the woman, (3) when she asked one of the men who they were, one responded that they were accompanying Dixon's wife to remove his belongings because Dixon had gone to jail. Because relevance is a low threshold, it is likely that this evidence is relevant to Dixon's self-defense theory by tending to show that Atkins had access to his apartment without his permission. However, the trial court determined that the evidence would confuse the jury by raising issues collateral to the case. We cannot say that no reasonable person would reach the same conclusion as the trial court here. Therefore, we find no abuse of trial court discretion.
II. SAG
In his Statement of Additional Grounds for Review (SAG), RAP 10.10, Dixon argues that: (1) the cellular phone records the State supplied to Dixon were incomplete and, therefore, the State violated the rules of discovery; (2) his trial counsel should have offered evidence that the apartment manager, Ms. Cook, wrote down the license plate number of the people she saw entering his apartment shortly after his arrest; (3) and his trial counsel should have sought to obtain the cellular phone records directly from Qwest. These arguments fail.
A. Discovery Violation
The cellular phone records to which Dixon refers are for Atkins' cellular phone. According to Dixon, on the night of the incident, there were several phone calls made from Atkins' phone between 3:00 and 3:05 a.m. Atkins testified that she fell asleep before 3:00 a.m. and that she did not awake until she heard voices in the living room around 4:00 a.m. Defense counsel argued that evidence of calls around 3:00 a.m. raised doubt about Atkins' account of the events and implied that she was not with Dixon at 3:00 a.m., supporting his story that she had left his apartment.
The cellular phone records presented at trial were not obtained directly from Qwest, but rather from a third party who provides this information for Qwest customers. According to the State's stipulation and to the Qwest cellular phone records, the data provided indicated when a person called the voice mail of the cell phone and when an incoming call was received and answered. The data did not indicate the incoming call's phone number or show incoming calls that were not answered or that went to voice mail.
Although Atkins provided the State with a copy of her August 2004 cell phone bill, the statement did not itemize the outgoing and incoming phone calls.
The records admitted at trial showed that Atkins' cell phone (1) called the voice mail at 3:00 and 3:01 a.m., and (2) received two incoming and answered phone calls at 3:02 and 3:05 a.m. There was also an incoming and answered phone call at 5:46 a.m. According to Dixon's assertion in his SAG, he called Atkins at approximately 3:02 and 3:05 a.m. from his home phone, proving that she was not with him. Dixon alleges that the State "doctored" the records to omit the incoming phone number. Nothing in the record before us supports this assertion.
CrR 4.7(a)(3) requires "the prosecuting attorney [to] disclose to defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged." Furthermore, subsection (d) of CrR 4.7 also requires that
[u]pon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant.
The remedies for discovery violations are set forth in CrR 4.7(h)(7)(i), which provides that if, "during the course of proceedings it is brought to the attention of the court," a party fails to comply with an applicable discovery rule, the court may "order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances." Since neither Dixon nor his counsel raised this issue in the trial court, sanctions cannot be imposed under CrR 4.7(h)(7)(i).
The State's failure to disclose material evidence violates a defendant's due process and fair trial rights if the defendant requests disclosure, the evidence is material to the issue of guilt or innocence, and the evidence favors the defendant. State v. Ervin, 22 Wn. App. 898, 903-04, 594 P.2d 934 review denied, 92 Wn.2d 1017 (1979); see also Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But Dixon's arguments are mere speculation. Nothing in the record indicates that the State provided altered or redacted records to defense counsel. Absent some evidence that the State violated CrR 4.7, this argument fails.
B. Ineffective Assistance of Counsel
Dixon argues that his counsel rendered ineffective assistance because (1) counsel failed to offer evidence that the apartment manager, Ms. Cook, wrote down the license plate number of the people she saw entering his apartment shortly after his arrest, and (2) counsel failed to try to obtain the cellular phone records directly from Qwest. Dixon's arguments fail.
To show ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice occurs when, but for the deficient performance, the outcome would have been different. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
There is nothing in the record here (1) to indicate that Ms. Cook wrote down the license plate number as Dixon asserts, or (2) to suggest that defense counsel could have obtained more precise cellular phone records directly from Qwest. Nonetheless, even assuming Dixon could have established that Atkins gained entry to his apartment after his arrest or that he called her cellular phone the night in question, Dixon has failed to establish that this information would have changed the outcome of the trial in his favor. Because he has not shown the requisite prejudice, Dixon's ineffective assistance of counsel argument fails.
Affirmed.
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.
HOUGHTON, C.J. and VAN DEREN, J., concur.