Opinion
No. 57304-7-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08151-8, Douglass A. North, J., entered November 15, 2005.
Affirmed by unpublished per curiam opinion.
Samuel Dugan was convicted by a jury of burglary in the first degree-domestic violence, assault in the third degree-domestic violence and felony harassment-domestic violence after he entered the residence of a former girlfriend, Desiree Mack, and fought with her. Dugan appeals, arguing that the trial court violated his constitutional right to confrontation under Crawford v. Washington by allowing witnesses to testify about certain out-of-court statements Mack made to them. But Mack testified at the trial and was subject to cross-examination. And while Mack claimed to remember very little about the events in question or the substance of her hearsay statements to the other witnesses, we conclude that Mack's apparent inability to remember does not implicate Crawford nor foreclose admission of her pretrial statements. We also reject the remaining contentions raised by Dugan, pro se, and his appellate attorney. Accordingly, we affirm.
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
FACTS
In the late hours of April 14, 2005, Desiree Mack was with her daughter when she heard someone walking around the upstairs portion of her home. Deciding to investigate, Mack walked upstairs where she confronted Dugan, an ex-boyfriend and the father of her five-year-old daughter. A heated argument ensued over the care and support of their daughter. At some point, the dispute escalated into a fistfight, with Dugan being hit at least one time in the mouth and Mack multiple times on the face and torso. When the physical altercation finally ended, Dugan phoned several family members. Dugan eventually left with his brother, who had arrived after Dugan made his telephone calls.
The following morning, Mack called her sister, Latrice Mitchell, and explained what had happened the night before. Mitchell immediately drove to where Mack was residing and, upon seeing Mack's physical condition, called 911.
Deputy Mark Rockwood was dispatched to the scene to investigate the reported incident of domestic violence. Upon arriving at the scene, the deputy met with Mack, who was visibly upset and had a badly bruised face. One of her eyes was almost swollen shut. Deputy Rockwood took a statement from Mack and photographed her injuries. She said that Dugan had refused to leave her residence despite being ordered to do so. Mack also stated that Dugan had punched and kicked her multiple times. After signing the statement, Mack went to Group Health Medical Center for medical care and treatment. While at the hospital, Mack met with Dr. Allan Kaplan and a medical social worker named Susan Eclipse. In the meantime, Deputy Rockwood attempted, without success, to locate Dugan. Detective Enos Lyons took a tape-recorded statement from Mack on April 27, 2005. Dugan was arrested and charged with first degree burglary-domestic violence, third degree assault-domestic violence, and felony harassment-domestic violence.
At the jury trial, Deputy Rockwood described what he heard and saw on April 15. When called to testify, Mack was able to describe her relationship with Dugan in some detail but denied having any knowledge of the alleged incident or her statements to police and others. Mack testified that she did not recall telling Deputy Rockwood about the encounter with Dugan, including that Dugan had told her he would get seven years for assaulting her and only ten years for killing her and that she was afraid he was going to kill her that night. When asked if her inability to remember certain things was due to lack of memory or a desire not to talk about the subject matter, Mack replied, "Lack of memory."
At the close of Mack's testimony, Dugan moved to strike her testimony, arguing that Mack had not been responsive and had thus prevented a meaningful cross-examination. The court denied the motion, ruling that it was a credibility call properly made by the jury "as to what degree [Mack] genuinely could not recall and unwillingness on her part to delve into those things." Mack's statement to Deputy Rockwood was admitted into evidence as a past recorded recollection under ER 803(a)(5). Photographs of Mack's injuries were also admitted into evidence.
The physician who treated Mack at Group Health, Dr. Kaplan, described the nature of Mack's injuries and, over defense objection, the way Mack said she received them. The social worker also testified.
Dugan admitted that he and Mack had a sometimes contentious relationship and that he was not living with her at the time of the incident. Dugan further admitted fighting with Mack but claimed he was only acting in self-defense. He denied Mack ever asked him to leave her residence or that he made any threatening remarks during the encounter. The jury found Dugan guilty as charged. The trial court thereafter denied Dugan's motion for arrest of judgment and for a new trial. This appeal followed.
DECISION
Dugan contends his federal and state rights to confrontation were violated when the trial court admitted into evidence the pretrial statements Mack made to police and medical care providers. Relying on Crawford, Dugan argues the admission of those out-of-court statements violated the Confrontation Clause and denied him a fair trial. We disagree.
The Confrontation Clause guarantees that a person accused of a crime "shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford, the United States Supreme Court held that, under the Confrontation Clause of the Sixth Amendment, courts may not admit testimonial statements of an absent witness unless the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine the adverse witness. Crawford, 541 U.S. at 59. But "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements. . . . [and] does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 60 n. 9. We review whether a defendant was unconstitutionally deprived of the right to confront his accuser de novo. State v. Medina, 112 Wn. App. 40, 48, 48 P.2d 1005, review denied, 147 Wn.2d 1025 (2002).
Dugan argues that Mack's inability to answer questions about the incident did not allow for meaningful cross-examination on the relevant facts. Given Mack's "selective" lapse of memory, which Dugan now suggests "was contrived to avoid testifying," he argues her testimony provided virtually no information on which she could be effectively cross-examined. Thus, Dugan argues, the admission of Mack's pretrial statements to Deputy Rockwood, Detective Lyons, and medical personnel from Group Health violated Crawford. This claim fails.
The issue is clearly controlled by the Washington Supreme Court's recent decision in State v. Price, 158 Wn.2d 630, 146 P.3d 1183 (2006). In Price, the Court noted that there are three recognized purposes of the Confrontation Clause: (1) to ensure that the witness's statements are given under oath, (2) to require the witness to submit to cross-examination, and (3) to permit the jury to observe the witness's demeanor. 158 Wn.2d at 640. The court went on to hold:
[A]ll of the purposes of the confrontation clause are satisfied even when a witness answers that he or she is unable to recall. Thus, we hold that when a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause. We conclude that a witness's inability to remember does not implicate Crawford nor foreclose admission of pretrial statements. . . .
Here, as in Price, Mack took the witness stand and testified under oath. The State did not attempt to impermissibly shield Mack from answering difficult questions about the allegations. The State and defense both asked Mack numerous questions about the events in dispute and the contents of her pretrial statements. The trial judge, parties, and jury were thus provided a fair and equal opportunity to evaluate for themselves whether Mack was being truthful about her lack of memory. "[W]hen the witness takes the stand and is asked about the events and hearsay statements, the fact finder can determine whether the witness is telling the truth about her lapse of memory or evading." Price, 158 Wn.2d at 649 (citing Fowler v. State, 829 N.E.2d 459, 466 (Ind. 2005)). Under the circumstances, Dugan has not established that he was unconstitutionally deprived of his right to confront witnesses against him.
Dugan next contends the trial court erroneously admitted Mack's statement to Deputy Rockwood under the past recollection recorded exception to the hearsay rule, ER 803(a)(5). The admission of statements under ER 803(a)(5) is reviewed for abuse of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
As a general rule, hearsay statements are not admissible at trial. ER 802. ER 803, however, carves out certain exceptions, including ER 803(a)(5), which provides:
Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the mater was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Admission is proper under this rule when the following factors are met: (1) the record pertains to a matter about which the witness once had knowledge; (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony; (3) the record was made or adopted by the witness when the matter was fresh in the witness's memory; and (4) the record reflects the witness's prior knowledge accurately. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831, review denied, 135 Wn.2d 1014 (1998). Only the second factor is at issue here.
Dugan contends that ER 803(a)(5)'s admission requirements were not met because the trial court failed to ensure that Mack lacked a sufficient "recollection of the charged incident to provide truthful and accurate trial testimony." He argues that the second foundational requirement cannot be met without the trial court first determining "the assertion of memory loss is credible (as opposed to merely masking a refusal to testify)." Dugan cites no relevant authority in support of his argument that such a finding is required for admission of a recorded recollection under ER 803(a)(5). It clearly isn't. A recorded recollection qualifies as an exception to the hearsay rule whether the witness's professed lack of present recollection is genuine or feigned. United States v. Williams, 571 F.2d 344, 349 (6th Cir.), cert. denied, 439 U.S. 841 (1978); 5 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 32:31 at 78 (7th ed. 2003) ("The situation occurs most often when a prosecutor calls a witness who is reluctant to testify against the defendant. If it appears that the declarant/witness is deliberately trying to avoid testifying, a judge may give the prosecutor the benefit of the doubt in deciding whether the requirements of the rule have been satisfied."). There is no showing that Mack's recorded statements to police did not satisfy the requirements of ER 803(a)(5). The trial court did not abuse its discretion in admitting the evidence.
Dugan next contends the trial court erred by admitting Mack's statements to Dr. Kaplan and the social worker. The medical treatment exception to the hearsay rule, ER 803(a)(4), applies to statements reasonably pertinent to diagnosis or treatment. State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001). Admission of evidence under ER 803(a)(4) is reviewed for abuse of discretion. Woods, 143 Wn.2d at 602.
" Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
Dugan's argument appears to be based in no small measure on the fact that Mack spoke to the police and signed a medical release prior to seeking medical treatment at Group Health. Typically, however, "the purpose of giving a statement to a provider of medical diagnosis or treatment is to obtain appropriate care." Saunders, 132 Wn. App. at 603. Dugan goes on to argue that Kaplan and the social worker should not have been allowed to testify that Mack identified Dugan as the person who caused her injuries. Even if he were correct, any error was clearly harmless. It is undisputed that Dugan and Mack fought with one another on April 14, 2005. Nor is it disputed that Dugan caused Mack's injuries. In closing, defense counsel remarked to the jury, "the fact that Sam Dugan was involved. That's not disputed." We find no reversible error.
Dugan next contends that the prosecutor elicited improper opinion testimony from Dr. Kaplan. Dugan argues Dr. Kaplan was improperly allowed to express an opinion as to Mack's credibility and Dugan's guilt. Thus, Dugan argues his convictions must be reversed. We again disagree.
Generally, a prosecutor commits misconduct when his or her examination seeks to compel a witness to give an opinion on whether another witness is telling the truth. A witness may not give an opinion "regarding the guilt or veracity of the defendant." State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Such testimony invades the fact-finding province of the jury and thus violates a defendant's right to a jury trial. State v. Thach, 126 Wn. App. 297, 312, 106 P.3d 782, review denied, 155 Wn.2d 1005 (2005). Where the untainted evidence of guilt is overwhelming, any error is harmless and will not warrant reversal. Thach, 126 Wn. App. at 313.
At one point during the questioning of Dr. Kaplan, the following took place:
Q. Based on everything that you saw that day, Ms. Mack's demeanor, her appearance, mood, physical symptoms and characteristics, in the world or realm of possibilities, based upon your career and training as a physician, and the patients, at least a thousand patients you have seen since you have been out of medical school, what is your belief from what you saw as to the cause of Ms. Mack's injuries?
[DEFENSE COUNSEL]: Your honor, I object if the opinion requested or offered goes beyond a medical description and offers any conclusion as to a legal question.
. . . .
[DEFENSE COUNSEL]: It goes to the ultimate fact for the jury to decide.
THE COURT: I think that he can offer an opinion as to the manner in which the injuries were received, based upon the information that he received.
A. I determined that she was a victim of domestic violence or assault. While we agree with Dugan that Dr. Kaplan's characterization of Mack as a "victim" of domestic violence or abuse is problematic, there is no reversible error. Dr. Kaplan admitted that he did not weigh the evidence and instead based his opinion solely on what Mack told him. In addition, the jury was instructed that it was the sole judge of the credibility of the witnesses. We presume the jury followed the instruction. State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).
Pursuant to RAP 10.10, Dugan provides a Statement of Additional Grounds for Review. His contentions are not adequately supported by the record.
Dugan contends he was denied a fair trial based on prosecutorial misconduct. This claim fails.
A prosecutor engages in misconduct if he makes improper comments and there is a substantial likelihood that the improper comments affected the verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). To establish prosecutorial misconduct, the defendant bears the burden of showing an impropriety as well as its prejudicial effect. State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995). Reversal is required only if "'there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.'" State v. Gerdts, 136 Wn. App. 720, 730, 150 P.3d 627 (2007) (internal quotation marks omitted) (quoting Bryant, 89 Wn. App. at 874). If the defendant objects at trial on grounds of prosecutorial misconduct, then we review the trial court's ruling for abuse of discretion because the trial court is in the best position to determine if the conduct abrogated a defendant's right to fair trial. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997), cert. denied sub nom. Stenson v. Washington, 523 U.S. 1008 (1998).
Dugan claims that the prosecutor improperly positioned herself in front of him and blocked his view of Mack as she was testifying. But the trial court refused to grant a new trial based on essentially the same grounds, finding the prosecutor's actions to be neither flagrant nor ill-intentioned. We find no abuse of discretion.
Dugan also appears to challenge the sufficiency of the evidence to support his burglary, assault, and felony harassment convictions. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)).
Dugan claims that Mack's trial testimony was not credible. He also appears to dispute the weight to be attached to the hearsay statements attributed to Mack. But we are not in a position to reweigh the evidence. "This court must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence." State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). Applying the proper standard of review, we find the evidence sufficient to convict.
Dugan also contends he was denied his right to effective assistance of counsel. "The purpose of the requirement of effective assistance of counsel is to ensure a fair and impartial trial." State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citing State v. Osborne, 102 Wn.2d 87, 99, 684 P.2d 683 (1984); State v. Ermert, 94 Wn.2d 839, 849, 621 P.2d 121 (1980)). To prevail on a claim of ineffective assistance, the defendant must establish both that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If either prong of the test is not met, the inquiry need not go further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). We presume that counsel's performance was effective, and this presumption is only overcome by a clear showing of incompetence. State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).
Dugan complains that counsel did not meet with him until a few days before trial. But he has not established either prong of the test for ineffective assistance. Defense counsel was clearly a zealous advocate on behalf of Dugan. Trial counsel raised numerous motions and timely objections, many of which were granted or sustained. Defense counsel also conducted probing and vigorous cross-examination of the State's witnesses. In addition, the trial court eventually agreed with counsel that the jury should be instructed to disregard any evidence relating to Dugan's gang affiliation or membership. The court in fact gave such a limiting instruction. As the trial judge aptly concluded, "defense counsel did an excellent job of representing [Dugan] at trial."
The court orally instructed the jury as follows:
THE COURT: Okay. You may step down. Ladies and gentleman, last week we had some testimony regarding gang activity. I want to instruct the jury that you are to disregard any testimony regarding gang activity or color. It has no bearing on this case.
Dugan also claims that the State failed to comply with court-ordered discovery. This argument is frivolous. The trial court specifically found that the State had fully complied with its discovery order.
Dugan also argues that the trial court improperly denied his request to call two previously undisclosed witnesses. But this request was not made until after the State had rested its case. The trial court ruled the request was too late. We find no error. See State v. Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061 (1998) (defense witness testimony may be excluded as sanction for discovery violations), cert. denied sub nom. Hutchinson v. Washington, 525 U.S. 1157 (1999).
Dugan also complains that Mack was "prematurely" excused as a witness. That claim finds absolutely no support in the record. And, while Dugan did complain at trial that the court had impermissibly interrupted his cross-examination of Mack's sister, Mitchell, that complaint did not arise until after Mitchell had been excused as a witness. Moreover, the trial court gave Dugan an opportunity to recall Mitchell.
The following colloquy took place:
[PROSECUTOR]: Detective Lyons.
[DEFENSE COUNSEL]: Did we finish with her, the last witness?
[THE COURT]: Yes.
[PROSECUTOR]: I thought the Court excused her. You were the last one that questioned her.
[DEFENSE COUNSEL]: I sort of blanked out. I thought we just took a recess. I was still questioning her. I hadn't finished. I would have to check the record. I saw so many people in the last ten minutes, I was confused.
THE COURT: I was under the impression that you were done, Mr. Peale. That's why I said to the witness "Thank you, ma'am." I said "Let's take our recess." My understanding is that you were done.
[DEFENSE COUNSEL]: All right. I noted some questions that I was going to ask her. Maybe I can get the last remarks on it to refresh my memory.
(The Court reporter read back the last remarks.)
[DEFENSE COUNSEL]: You said "Thank you, ma'am." I can sit down while I am questioning. There is no indication on the record that she is excused. We took a recess.
THE COURT: I'm sorry. I thought you were done. You gave every indication to me that you were done. You turned around and went back to the counsel table. So, my understanding is that you were done. Now, if you want to call her back, fine.
For whatever reason, that never happened. Dugan has not established a basis for reversing his convictions.
Affirmed.