Opinion
No. 48152-5-I Consolidated with 51738-4-I.
Filed: September 29, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 89-1-00170-0. Judgment or order under review. Date filed: 02/15/2001.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
James Harrison Krider, Attorney at Law, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Jerry Bartlett Jones, Jr. appeals his conviction of first-degree murder following a second trial in the stabbing death of his wife, Lee Jones. Jones contends that the trial court violated his constitutional right to present a defense when it excluded other suspect evidence of the history of bad acts of Danny Busby after the murder. Jones also argues that a police detective improperly provided opinion testimony as to his guilt. Jones further argues that the trial judge commented on the evidence, contrary to the constitution. Jones also maintains that he was denied his constitutional right to effective assistance of counsel when his trial attorney failed to use certain expert testimony, opened the door to rebuttal testimony concerning the Joneses' relationship at the time of the murder, and informed the jury that Jones testified at his first trial. Jones contends that the cumulative effect of these errors denied his right to a fair trial. Finally, Jones argues that the trial court impermissibly penalized him at sentencing for exercising his right to trial.
In a personal restraint petition consolidated with this appeal, Jones argues the ineffective assistance of counsel claim summarized above.
The trial court did not properly exercise its discretion when it excluded other suspect evidence relevant to motive and necessary to rebut the State's characterization of Busby as an obnoxious, but otherwise harmless, teenager. The admission of such evidence was not outweighed by any compelling State interest. Accordingly, we reverse. We address other selected issues for the guidance of the court and counsel on remand should the State elect to try Jones a third time.
Lee Jones was murdered in December 1988. She was stabbed 63 times with a fish-filleting knife in the hallway bathroom of the family home. Jerry Jones, her husband, was home at the time of the attack. He claimed that he heard his wife scream, ran to the bathroom to assist her, and was knocked over by an unknown assailant fleeing the bathroom. Jones also claimed the assailant cut Jones's hand with a knife as he came to his wife's aid. Thomas, who was then almost five and the couple's youngest child, was also home during the attack. He claimed to have heard growling near the time of the incident, and said that he thought wild animals had gotten his mother. Elizabeth, the couples' daughter, was not at home at the time of the murder.
Police arrived at the scene shortly after Jones's 911 call. They arrested him that night after their investigation. Shortly thereafter, Jones told his family and the police that he thought a neighborhood teenager, Danny Busby, might have committed the murder. It appears that the police did not consider acting on this information a priority.
In July 1989, a jury found Jones guilty of first-degree murder. This court affirmed the judgment and sentence on appeal, and our supreme court denied a petition for review. Jones sought habeas corpus relief in the federal court based on a claim of ineffective assistance of counsel. In 2000, the Ninth Circuit Court of Appeals ultimately granted relief on that claim.
The basis of that court's decision was the failure of counsel to investigate Busby as a suspect and the prejudicial effect of that failure due to the admissibility of other suspect evidence under Washington law.
Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) ('Jones II').
The State elected to try Jones a second time for first-degree murder.
The trial court ruled that Jones was only allowed to introduce evidence concerning Busby and his relationship to the Jones family for a period up to one year after the murder. But the trial court excluded proffered evidence of Busby's history of domestic violence against V.C., J.P., C.S., and C.T., women with whom he had relationships after the murder. The excluded evidence also included Busby's acts toward others associated with the women.
In 2001, a jury found Jones guilty as charged. The court sentenced him to the high end of a standard range sentence — 300 months.
Jones appeals and the State cross-appeals.
ER 404(b)
Jones argues that the court violated his constitutional right to present a defense when it excluded from trial evidence of Busby's bad acts subsequent to the murder. We agree.
The Sixth Amendment to the U.S. Constitution and Const. art. 1, sec. 22 grant criminal defendants two separate rights; (1) the right to present evidence in one's defense and (2) the right to confront witnesses. There is no right to have irrelevant evidence admitted. The right to put on relevant evidence is counterbalanced by the State's interest in seeing the evidence is not so prejudicial as to disrupt the fairness of the fact — finding process. If the evidence is minimally relevant, it may be excluded if there is a compelling State interest to do so; that interest is to prevent the introduction of unduly prejudicial evidence at trial. Relevant evidence is evidence tending to make the existence of any significant fact more or less probable than it would be without the evidence. '{I}f the prosecution's case against the defendant is largely circumstantial, then the defendant may neutralize or overcome such evidence by presenting sufficient evidence of the same character tending to identify some other person as the perpetrator of the crime.' ER 404(b), which provides as follows, is at issue here:
State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).
Hudlow, 99 Wn.2d at 15.
Hudlow, 99 Wn.2d at 15.
State v. Darden, 145 Wn.2d 612, 615, 41 P.3d 1189 (2002) (citing Hudlow, 99 Wn.2d at 16).
ER 401.
State v. Clark, 78 Wn. App. 471, 478-79, 898 P.2d 854, review denied, 128 Wn.2d 1004 (1995).
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show (that he acted) in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(Italics ours.)
The plain language of ER 404(b) states that it applies to a 'person,' not just a party to the case. Moreover, the list of exceptions is representative, not exclusive. Accordingly, we apply ER 404(b) analysis to Busby's alleged actions to determine whether such evidence is potentially admissible here.
State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Before a trial court may admit evidence of other crimes or misconduct, it must: (1) find by a preponderance of the evidence that the misconduct occurred; (2) determine whether the evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice.
State v. Trickler, 106 Wn. App. 727, 732, 25 P.3d 445 (2001) (citing State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)).
For the first of the above steps, we assume for purposes of our analysis that evidence of the alleged misconduct could be proved by a preponderance of the evidence. The information on which the offer of proof was based was largely summarized and provided to the defense by the office of the Snohomish County Prosecutor. Presumably, the State does not take the position that the information it supplied was false. In any event, on remand, any information concerning Busby's bad acts shall be subject to the first of the series of steps outlined above.
Relevancy is the second stage of the inquiry. Jones argues that the evidence of Busby's conduct toward C.S., J.P., C.T., V.C., and their friends and family was relevant to Busby's motive for murdering Lee Jones and necessary to show a common scheme or plan. Jones also argues that presentation of that evidence was necessary to rebut the State's characterization of Busby as obnoxious, but harmless. We agree, in part.
1. Motive
Jones moved in limine to permit the introduction into evidence of certain acts by Busby toward four women with whom he had relationships, and those associated with the women. Jones argues that evidence of Busby's other bad acts is relevant to show Busby's alleged motive for killing Lee Jones, who prevented him from seeing his romantic interest, her daughter Beth. We agree.
We are persuaded by Jones's argument that evidence concerning Busby's history of domestic violence against C.S., J.P., C.T., and V.C. and his encounters with their family and friends was relevant to explain Busby's alleged motive for killing Lee Jones. This evidence indicates a pattern of romantic interest, rejection, and threats of death and serious violent acts.
When J.P. told Busby she was going to leave him, he threatened to kill her with a pair of scissors. And when J.P.'s father tried to help J.P., Busby threw beer cans at him and challenged him to a fight. Busby also threatened to kill J.P. and her family if they testified against him. Busby's repeated acts of domestic violence show a violent, uncontrollable temper, often expressed in physical violence or threats directed at those connected with his romantic interest, when he becomes angry.
When C.S.'s parents forbade Busby from seeing her at their home, Busby threatened to kill C.S.'s mother. C.S. heard Busby tell her mother that she was 'dead' and that he planned to 'get her.' C.S.'s mother ultimately obtained a restraining order against Busby. Busby also assaulted C.S.'s friend K.S. Busby phoned C.S.'s work repeatedly and when a co-worker answered, Busby threatened him and challenged him to a fight. Busby also assaulted A.M., the roommate of V.C., another women he was dating. Busby forced his way into V.C.'s apartment and when A.M. told him to leave and that she was calling the police he assaulted her and said, 'you're dead.' Without hearing this evidence and matters associated with it, the jury was left to speculate about what possible motive Busby would have had for murdering Lee Jones. Thus, the evidence is relevant. Moving to the next stage of our inquiry, we conclude there is no compelling State interest in excluding this evidence, even if it is viewed as only minimally relevant.
Under Hudlow, we are required to balance the defendant's right to present relevant evidence with a compelling State interest to exclude that evidence. Thus, identification of a compelling State interest is necessary to prevent the admission of even minimally relevant evidence. The State here has not identified a compelling interest to outweigh Jones's presentation of relevant evidence regarding Busby's alleged motive for murdering Lee Jones. Furthermore, under Clark, Jones was entitled to present circumstantial evidence tending to identify another suspect if the case against him was largely circumstantial. This was a circumstantial case in which Jones's defense was mistaken identity. The ability to establish the motive of the other suspect is significant.
Hudlow, 99 Wn.2d at 15-16.
See Hudlow, 99 Wn.2d at 16 ('We believe the 'compelling state interest' requirement is the proper method of balancing the defendant's right to produce relevant evidence versus the state's interest in limiting the prejudicial effects of that evidence.').
Clark, 78 Wn. App. at 478-79.
See Clark, 78 Wn. App. at 478-79.
2. Rebuttal
The trial court also failed to properly exercise its discretion when it excluded evidence that could have helped Jones rebut the State's characterization of Busby as an obnoxious, but harmless, teenager.
'Prior misconduct may be admissible for the purpose of rebutting any material assertion by a party, regardless of whether the evidence fits within one of the traditional categories such as motive, intent, or identity.' The question of whether evidence on rebuttal is admissible is within the trial court's discretion. During trial, the State relied heavily on its ability to portray Busby as an obnoxious, but otherwise harmless teenager. Due to the trial court's ruling on the motion in limine, Jones was unable to rebut this characterization. During trial, the prosecutor had Busby's mother talk at length about how Busby was 'a normal teenage boy' who was only a 'smarty pants.' The prosecutor even elicited testimony from Beth that Busby was 'all mouth.' A childhood friend of Busby, David Fisher, testified that all of the teens they hung out with disliked parents and that Busby would make 'disrespectful remarks to elders' and 'rude comments.' Busby described himself as 'immature' and someone who would engage in 'verbal stuff' to people in authority, such as parents and teachers.
5D Karl B. Tegland, Washington Practice: Evidence sec. 404.31 (1999).
State v. Swan, 114 Wn.2d 613, 653, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S.Ct. 752, 112 L.Ed.2d 772 (1991).
The State reiterated its characterization of Busby at the beginning of its closing argument. Danny Busby is a smart ass. Danny Busby is, in many ways, irritating, vulgar, and foolish. But you know that Danny Busby did not kill Lee Jones. You know that by the testimony you heard in this case. You know that by listening to Danny Busby testify that what you have here is a fool and not a killer.
Jones was unable to reveal to the jury the true Busby. This was particularly damaging because his defense was one of mistaken identity — that Busby and not Jones was the killer. Without the ability to rebut the State's characterization of Busby, Jones was left with a significantly weakened defense, especially in light of the State's circumstantial case against him.
Furthermore, the State's case was based in large part on the theory that no one else could have committed the crime. Jones was entitled to rebut this theory 'by presenting sufficient evidence of the same character {circumstantial} tending to identify some other person as the perpetrator.' Again, the State has failed to show a compelling interest in excluding the evidence regarding Busby's domestic violence toward the four women and their friends and family. This evidence was relevant to rebut the State's characterization of Busby as obnoxious, but harmless.
See Jones II, 207 F.3d at 562-63 (citing Clark, 78 Wn. App. at 478-79).
We conclude that evidence of Busby's bad acts goes to motive and to Jones's ability to rebut the State's characterization of Busby. Jones should have been allowed to introduce that evidence at trial.
We reject as unconvincing the common scheme or plan alternative argued by Jones. Jones fails to show that Busby committed 'markedly similar acts of misconduct against similar victims under similar circumstances.' Accordingly, we will not address Jones's contentions to the contrary, concluding, as we have, that motive and rebuttal require reversal.
State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).
The State argues that Jones's offer of proof was not sufficient. If the substance of the excluded evidence is apparent, the offer is sufficient. The substance of the offer is apparent in this case.
State v. Ray, 116 Wn.2d 531, 539, 806 P.2d 1220 (1991).
The State's citation to State v. Huynh is not persuasive. Huynh stands for the proposition that an offer of proof for the admission of documentary evidence that includes both admissible and inadmissible evidence can be properly excluded. The State fails to explain how this discussion is applicable here, or what documentary evidence it contends falls under this rule.
107 Wn. App. 68, 26 P.3d 290 (2001).
Huynh, 107 Wn. App. at 74.
The trial court did not properly exercise its discretion by excluding evidence of Busby's bad acts subsequent to the murder. Accordingly, we reverse.
We reach other selected issues for the guidance of the court and counsel on remand should the State decide to pursue a third trial.
OPINION TESTIMONY AS TO GUILT
Jones argues that Detective Joseph Ward impermissibly testified to his guilt when he stated that he did not believe Jones's version of events and that is why he considered Jones a suspect. We agree.
Generally, a witness may not offer opinion testimony regarding the guilt or veracity of a defendant. Such testimony is unfairly prejudicial 'because it invad{es} the exclusive province of the finder of fact.' 'Improper opinions on guilt usually involve an assertion pertaining directly to the defendant.' An opinion on the defendant's guilt is particularly prejudicial when it is expressed by a government official, such as a police officer. We review the trial court's decision to admit or refuse opinion testimony for an abuse of discretion.
City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994); State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) ('No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.').
Heatley, 70 Wn. App. at 577 (quoting Black, 109 Wn.2d at 348).
Heatley, 70 Wn. App. at 577 (citations omitted).
State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977, review denied, 136 Wn.2d 1002 (1998) (citation omitted).
State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992); Heatley, 70 Wn. App. at 585.
Detective Ward testified:
Mr. Jones was arrested because he told at least two stories to officers that night about what had occurred. He told me an unbelievable series of circumstances that he himself did, such as attempting to get his wife out of the bathtub and being too slippery to do it so going and showering, not calling 911 at that time, returning to the bathroom after having showered, attempting to assist his wife, and then being interrupted by Thomas, who I was aware said that his mother told him to call 911, instead of calling 911, he takes Thomas back down to Thomas's bedroom and tells him to go to sleep, returns upstairs to his wife, doesn't call 911, takes Thomas, who comes back upstairs crying, back down to Beth's room, which is near Thomas's room in the basement, tries to get him to lay down, and then eventually takes Thomas over to the Smiths' house. I knew all of that, plus I had seen the injuries to his hand. And those things were convincing to me that he was the person that had caused the death of his wife.
Detective Ward improperly characterized Jones's version of events as 'unbelievable,' a signal to the jury to disregard Jones's story. And Detective Ward concluded that he was convinced that Jones had killed his wife. This was opinion testimony on guilt.
The State argues, however, that defense counsel opened the door to this testimony with comments made during his opening arguments. A party may 'open the door' to the introduction of otherwise inadmissible evidence. The trial court found that Jones had opened the door with his opening statements. But the door is opened only by the introduction of evidence, not by counsel's opening statements to the jury. The State's contention that this case is similar to State v. Carter is inaccurate. In that case, the door was open by testimony of a police officer concerning the defendant's guilt, not in opening arguments, but during the introduction of evidence. We conclude that opening arguments by defense counsel did not open the door to Detective Ward's opinion testimony as to Jones's guilt.
5D Karl B. Tegland, Washington Practice: Evidence sec. 103 (2003).
5D Karl B. Tegland, Washington Practice: Evidence sec. 103 (2003); State v. Whelchel, 115 Wn.2d 708, 801 P.2d 948 (1990) (defense did not open the door to otherwise inadmissible evidence by referencing two taped statements that the trial court had determined, in limine, would be admitted but that the supreme court subsequently concluded were inadmissible); but cf., State v. Rivers, 129 Wn.2d 697, 921 P.2d 495 (1996) (where in opening argument defendant's counsel had claimed that defendant did not commit the robbery and defendant testified that he did commit the robbery, the prosecutor was allowed to question defendant about the inconsistency to clarify for the jury what the defense was to the charged crime).
23 Wn. App. 297, 596 P.2d 1354, review denied, 92 Wn.2d 1035 (1979).
Carter, 23 Wn. App. at 300.
The State argues that even if opening arguments did not open the door to Detective Ward's testimony, then specific portions of the defense case did, despite the fact that they occurred later in time than Detective Ward's testimony. The State argues that Detective Ward's testimony could have been offered in rebuttal to a number of witnesses and thus any premature admission was not reversible error. But the State fails to explain how any defense questioning of witnesses about a police delay in investigating Busby opened the door to specific testimony about how Detective Ward did not believe Jones's story. We conclude that this argument is not persuasive.
State v. Pattison, 135 Wn. 392, 237 P. 1000, 241 P. 966 (1925) ('Where offered evidence is not competent at the time admitted, but becomes competent by the development of the trial, the fact that it was admitted irregularly does not constitute reversible error.").
We need not address the harmless error argument offered by the State.
JUDICIAL COMMENT ON THE EVIDENCE
Jones contends that the trial judge commented on the evidence in violation of Article 4, Section 16 of the Washington Constitution. We conclude that the judge's statement was not a comment on the evidence. Article 4, Section 16 of the Washington Constitution states: 'Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.' As our supreme court stated in Lane:
A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement. (citation omitted). The touchstone of error in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury. (citation omitted).
Lane, 125 Wn.2d at 838.
Jones contends that the trial judge commented on the evidence in the following way. During defense counsel's closing, he stated that it was a tough decision for him whether to put on a single defense witness because the State had failed to prove its case. After the defense closing, and the entire rebuttal closing by the State, the judge said, '{w}hoever the alternate is, and if your services are not needed, I thank you in advance for serving as a juror on, I'm sure, a difficult case.'
Jones argues that the judge conveyed his personal opinion about the evidence submitted. A review of the two comments in context does not support this conclusion. First, Jones mischaracterizes the sequence of events by stating that the judge's comment was 'shortly thereafter.' The conclusion of the defense's closing argument, the State's rebuttal argument, and two pages of the trial judge's discussion of how he would dismiss the alternate juror occurred between the two comments. Second, the most reasonable interpretation of the remark is that the judge was commenting on the emotional difficulty of listening to explicit testimony and viewing explicit photos in a murder case in which a woman was stabbed 63 times. To argue that the judge's comment was somehow meant to undermine the defense's characterization of the case as 'easy' is not reasonable. We conclude that the judge did not comment on the evidence.
SENTENCING
Jones contends that the trial court improperly considered his decision to stand trial when it sentenced him. This attempt to appeal a standard range sentence fails.
Jones takes issue with the following comment by the judge:
The bottom line question I ask myself is when I consider the lowest sentence possible, and it's a rhetorical question, Mr. Zuckerman, that's if I follow your recommendation, and the recommendation clearly of every letter in Mr. Jones's behalf submitted by the defense, the rhetorical question is, What sentence do I impose to those who admit guilt and assume responsibility for their actions? Those who show remorse and speed up the healing and closure process for their victims? What sentence do I give them, if I give the lowest range sentence to Mr. Jones? What message am I sending to them? What message am I sending to the public?
Under the Sixteenth Amendment and Article 1, sec. 21, penalizing a defendant for exercising his right to trial violates due process. But Jones was not subject to a greater penalty by going to trial as opposed to pleading guilty. In either situation, the standard sentencing range was 240 to 320 months. It was within the judge's discretion to sentence Jones anywhere within that range. He did so. The statement does not entitle Jones to appeal from a standard range sentence.
State v. Richardson, 105 Wn. App. 19, 22-23, 19 P.3d 431 (2001) (citing State v. Sandefer, 79 Wn. App. 178, 181, 900 P.2d 1132 (1995)).
RCW 9.94A.585(1); State v. Friederich-Tibbets, 123 Wn.2d 250, 252, 866 P.2d 1257 (1994).
PERSONAL RESTRAINT PETITION
Jones filed a personal restraint petition, arguing that his counsel was ineffective. The claims parallel those made in his direct appeal. Generally, to prevail on a personal restraint petition, a petitioner must establish either (1) actual and substantial prejudice arising from constitutional error, or (2) nonconstitutional error that inherently results in a complete miscarriage of justice. Because we reverse the judgment based on the erroneous exclusion of certain evidence, Jones is not entitled to relief because his claim is now moot.
In re Hews, 99 Wn.2d 80, 88, 660 P.2d 263 (1983); In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990); In re Personal Restraint Petition of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, Rice v. Washington, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).
RAP 16.4(d).
We reverse the judgment and sentence and dismiss the personal restraint petition.
KENNEDY and BAKER, JJ., concur.