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State v. Brown

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1030 (Wash. Ct. App. 2011)

Opinion

No. 64721-1-I.

Filed: March 14, 2011.

Appeal from a judgment of the Superior Court for King County, No. 09-1-05590-1, Andrea A. Darvas, J., entered January 5, 2010.


Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, C.J., and Ellington, J.


Frederick Brown seeks reversal of his conviction of felony violation of a court protective order. He claims counsel was ineffective for not objecting when the State presented testimony that he had been violent toward the protected party in the past. Counsel explicitly agreed before trial the testimony would be admissible because he planned to open the door to it. Because the failure to object was strategic, we reject the claim of ineffective assistance.

Brown and Denise Apodaca dated from 2004 to the end of 2006. In 2007, the City of Kent prosecuted Brown for assaulting Apodaca. He was convicted. Kent Municipal Court entered a domestic violence protective order preventing Brown from having any direct, indirect, or third party contact with Apodaca.

On May 15, 2009, Brown was convicted of five counts of violating the Kent order. King County Superior Court entered another protective order prohibiting Brown from contacting Apodaca for five years.

On July 27 and July 29, 2009, Brown made telephone calls to Apodaca's friend, Melissa Olsen. Both times, he asked Olsen to tell Apodaca that he wanted to speak with her. On the second call, he said he wanted to tell Apodaca that he was "okay with what she did" but he "needed to warn her." Olsen called Apodaca after each call and described the calls to her. Apodaca called the police both times. Brown was arrested and charged with two counts of felony violation of a court order.

The State moved in limine to exclude a statement Olsen made in a previous interview about how she did not "like black men." The prosecutor argued that if the statement was admitted, the State should be allowed to show that Olsen did not like Brown because she had seen him be physically violent with Apodaca.

Defense counsel said he wanted to put Olsen's statement about race before the jury to show her motive and bias against Brown. He said, "Mr. Brown and I have discussed this in no uncertain terms, we are not concerned with opening the door. We recognize the State's ability to rehabilitate on this issue or potential ability for rebuttal on the issue." "We understand that risk and we embrace it in this case." Defense counsel argued only that Olsen's testimony should be limited to violence she had witnessed personally.

On direct examination, the prosecutor asked Olsen to describe Apodaca's relationship with Brown and elicited testimony that Brown had been violent toward Apodaca:

Q. So how would you describe — from what you personally observed, how would you describe Denise's relationship with the defendant back in 2006?

A. Back in 2006 I would describe it as he was a very loving gentleman at the beginning of me knowing him and meeting him and being around them like when they would come over and he would come from work he was grateful what Denise had done and Denise was happy with him, there was no altercations at that point.

Q. Was there a point when that changed?

A. Yes, later on I want to say it was the beginning of 2007 I have actually witnessed him be physical with her.

Q. You witnessed him be physically violent with Denise?

A. Yes.

Q. Was that more than once?

A. Yes.

On cross-examination, defense counsel pursued the theory that Olsen made up her testimony to punish Brown because he was African-American. Counsel established that Olsen did not like Brown. He then asked her if she had a "problem with black men." Olsen said, "no." He asked her if she had said that she did not "like black men" in an interview before trial. Olsen admitted that she had and that she had also described herself as "semi-racist." On redirect, Olsen explained that when she said she did not "like black men" and was "semi-racist," it was in the context that she was not physically attracted to African-American men. Olsen also said Brown was a nice man and she had no hard feelings against him.

In closing, the prosecutor argued that the essential issue was whether Brown knowingly violated the protection order and that the case boiled down to whether Olsen or Brown was more credible. The prosecutor explained how the other witnesses corroborated Olsen's account and emphasized the direct and open nature of Olsen's testimony. The prosecutor concluded by emphasizing how serious domestic violence no-contact orders are and why Brown's alleged breach was significant. "Ladies and gentlemen, domestic violence no-contact orders are put in place for a reason. This is a man who repeatedly was physically violent with Denise Apodaca." In closing argument, the defense claimed that Olsen's testimony was motivated by her dislike of "black men." Counsel repeatedly emphasized Olsen's description of herself as "semi-racist."

The jury convicted Brown on one of the two counts. He appeals.

Brown claims counsel was ineffective in failing to object to Olsen's testimony that she witnessed Brown being physically violent with Apodaca.

To demonstrate ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defendant. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). Specifically, an appellant claiming ineffective assistance based on counsel's failure to object to the admission of evidence must show: (1) an absence of legitimate tactical reasons for the failure to object, (2) that an objection to the evidence would likely have been sustained, and (3) a reasonable probability that the result of the trial would have been different had the evidence not been admitted. Saunders, 91 Wn. App. at 578. Brown fails to make this showing.

The record reflects that defense counsel made a deliberate tactical decision, after consulting Brown, to open the door by impugning Olsen's credibility with her statement about not liking African-American men. Brown gambled that the jury would believe Olsen had a race-based motive for testifying against him and consequently would not believe her testimony about the telephone calls. This was a legitimate tactical reason for the failure to object. Because Brown explained this strategy to the court before the trial began, it is not likely that any objection would have been sustained. Finally, Brown fails to show a probability that the outcome of the trial would have been different if the jury had not heard Olsen's brief statement about having witnessed Brown use violence against Apodaca. The jury could infer as much from the fact that the court had issued the orders of protection.

Affirmed.


Summaries of

State v. Brown

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1030 (Wash. Ct. App. 2011)
Case details for

State v. Brown

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. FREDERICK CHARLES BROWN, aka FREDRICK…

Court:The Court of Appeals of Washington, Division One

Date published: Mar 14, 2011

Citations

160 Wn. App. 1030 (Wash. Ct. App. 2011)
160 Wash. App. 1030