Opinion
No. 64397-5-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-03896-8, Christopher A. Washington, J., entered October 2, 2009.
Reversed by unpublished opinion per Dwyer, C.J., concurred in by Appelwick and Lau, JJ.
A defendant's Sixth Amendment right to present a defense is violated where the trial court excludes highly probative evidence without which the defendant is effectively barred from presenting a defense. Larry Johnson, who was charged with assault in the second degree, contended at trial that he had acted in self-defense. Because the trial court excluded testimony regarding alleged prior acts of violence by the victim against Johnson, Johnson was effectively precluded from demonstrating the basis for his claimed reasonable fear of the victim as required to prove his claim of self-defense. This ruling was made in error. Accordingly, we reverse.
I
Larry Johnson was charged with one count of assault in the second degree based on an incident that occurred between Johnson and Susan McNeal in April 2009. Johnson and McNeal had known each other and been friends for approximately six years before this incident. On the date of the incident, Johnson had gone to McNeal's home to help her move.
The parties' testimony at trial regarding the incident differed substantially. McNeal testified that Johnson was verbally abusive toward her, slapped and choked her, and punched her three times in the face, severely damaging her teeth. Johnson testified that McNeal had been drinking and was verbally abusive toward him. He further testified that when he attempted to leave, McNeal pushed him onto the couch, pinned down his arms, and physically attacked him. Johnson testified that he did not intentionally punch McNeal, but may have hit her while "trying to break [her] grip."
During trial, defense counsel sought to admit evidence that McNeal had been violent toward Johnson on two previous occasions. By offer of proof, defense counsel asserted that McNeal had held a knife to Johnson's throat on the day before the alleged assault. Defense counsel further asserted that, one month earlier, McNeal had broken an ashtray on Johnson's leg. This evidence was offered in support of Johnson's self-defense claim.
The trial court accepted defense counsel's offer of proof but ruled that the evidence was inadmissible. Although the evidence was excluded, the jury was instructed on Johnson's claim of self-defense.
Johnson was convicted of assault in the second degree. He appeals.
II
Johnson contends that the trial court erred by excluding his testimony regarding McNeal's alleged prior acts of violence against him. We agree.
The right to present testimony in one's defense is guaranteed by both the United States and the Washington Constitutions. State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983). This right is not absolute, as "a criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense." Hudlow, 99 Wn.2d at 15. However, given that the threshold to admit relevant evidence is very low, even minimally relevant evidence is admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor." Similarly, article I, section 22 of the Washington Constitution guarantees that "[i]n criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face, [and] to have compulsory process to compel the attendance of witnesses in his own behalf."
A defendant's right to present relevant evidence may be limited by "the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the trial." Darden, 145 Wn.2d at 621. "[T]he State's interest to exclude prejudicial evidence must be balanced against the defendant's need for the information sought, and only if the State's interest outweighs the defendant's need can otherwise relevant information be withheld." Darden, 145 Wn.2d at 622. Our Supreme Court has noted that for evidence of high probative value, "it appears [that] no state interest can be compelling enough to preclude its introduction consistent with the Sixth Amendment and Const. art. 1, § 22." Hudlow, 99 Wn.2d at 16. Moreover, the considerations of Evidence Rule 403, which requires balancing the probative value of evidence against the danger of prejudice, cannot be used to exclude "crucial evidence relevant to the central contention of a valid defense." State v. Young, 48 Wn. App. 406, 413, 739 P.2d 1170 (1987).
Here, Johnson sought to introduce evidence of two prior acts of violence by McNeal against him in order to support his claim of self-defense. Evidence of a victim's prior acts of violence, which are known by the defendant, is relevant to a claim of self-defense "`because such testimony tends to show the state of mind of the defendant . . . and to indicate whether he, at that time, had reason to fear bodily harm.'" State v. Cloud, 7 Wn. App. 211, 218, 498 P.2d 907 (1972) (quotingState v. Adamo, 120 Wash. 268, 269, 207 P. 7 (1922)). Thus, such evidence is admissible to show the defendant's reason for apprehension and the basis for acting in self-defense. See State v. Woodard, 26 Wn. App. 735, 737, 617 P.2d 1039 (1980); State v. Walker, 13 Wn. App. 545, 549-50, 536 P.2d 657 (1975); Cloud, 7 Wn. App. at 217.
The State contends on appeal that evidence of McNeal's alleged acts of violence against Johnson is irrelevant — and, thus, inadmissible — because Johnson testified that he never intentionally struck McNeal. However, "[t]he defenses of accident and self-defense are not mutually exclusive as long as there is evidence of both." State v. Werner, ___ Wn.2d ___, 241 P.3d 410, 411 (2010). "Moreover, it is generally permissible for defendants to argue inconsistent defenses so long as they are supported by the evidence." State v. Frost, 160 Wn.2d 765, 772, 161 P.3d 361 (2007). Here, Johnson testified that he acted in self-defense and the jury was given an instruction on self-defense. The evidence sought to be presented by Johnson was relevant.
The State suggests on appeal that the character evidence rule set forth in ER 405 precludes introduction of evidence regarding McNeal's alleged prior acts of violence against Johnson. The State is correct that this evidence could not be introduced to show that McNeal acted in conformity with a character trait. If offered for that purpose, the evidence would be subject to the constraints of ER 404 and ER 405, and, therefore, evidence of specific acts of violence would be inadmissible. See State v. Alexander, 52 Wn. App. 897, 900-02, 765 P.2d 321 (1988).
However, the evidence of McNeal's prior acts of violence against Johnson is admissible if offered to demonstrate that Johnson was reasonable in his belief that the use of force was necessary in selfdefense. If admitted solely for this purpose, the evidence could not be considered to establish action in conformity with a character trait and, thus, would not be subject to the constraints of ER 404 and ER 405. It is Johnson's, not McNeal's, state of mind that is at issue where reasonable apprehension is sought to be demonstrated. A limiting instruction instructing the jury to consider the evidence only for this proper purpose would be appropriately given.
Our Supreme Court has held that the Sixth Amendment is violated where a defendant is effectively barred from presenting a defense due to the exclusion of evidence. State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010). InJones, the court reversed a rape conviction because the defendant was precluded from testifying as to his version of the incident. 168 Wn.2d at 720-21. The court held that evidence that constitutes a defendant's entire defense is so highly probative that no State interest is compelling enough to preclude its introduction. Jones, 168 Wn.2d at 721.
Similarly, here, Johnson was effectively barred from presenting his self-defense claim where the trial court excluded evidence of McNeal's alleged prior acts of violence against Johnson. Where self-defense is at issue, "the defendant's actions are to be judged against [his] own subjective impressions and not those which a detached jury might determine to be objectively reasonable." State v. Wanrow, 88 Wn.2d 221, 240, 559 P.2d 548 (1977). The jury must take into account " all the facts and circumstances known to the defendant, including those known substantially before the [incident]."Wanrow, 88 Wn.2d at 234; see also State v. Kelly, 102 Wn.2d 188, 196-97, 685 P.2d 564 (1984);State v. Allery, 101 Wn.2d 591, 594-95, 682 P.2d 312 (1984). Because the "`vital question is the reasonableness of the defendant's apprehension of danger,'" the jury must stand "`as nearly as practicable in the shoes of [the] defendant, and from this point of view determine the character of the act.'"Wanrow, 88 Wn.2d at 235 (quoting State v. Ellis, 30 Wash. 369, 373, 70 P. 963 (1902)).
Because Johnson was not permitted to testify regarding McNeal's alleged prior acts of violence against him, the jury was unable to consider all of the facts and circumstances known to Johnson when it was evaluating his claim of self-defense. Johnson was precluded from presenting highly probative evidence relevant to whether he reasonably feared McNeal and, thus, relevant to whether he was justified in using force against her.
Testimony regarding McNeal's alleged prior acts of violence against Johnson is relevant to show that Johnson reasonably feared McNeal. Because Johnson was prevented from presenting evidence essential to proving his claim of self-defense, his Sixth Amendment right to present testimony in his defense was violated.
Because we reverse on other grounds, we do not reach the issues presented by Johnson in his statement of additional grounds.
Reversed.
We concur: